take Bail but the Sheriff himself must do it and therefore an Action on the Case must lye against the Bayliff for not carrying the Party before the Sheriff in order to put in Bail but an Action of false Imprisonment will not lye 2. The action is laid quare vi armis c. in ipsum the Plaintiff insultum fecit ipsum imprisonavit ut Prisonat à tali loco ad talem locum adducebat detinuit contra consuetudinem Angliae sine cause rationabili per spacium trium dierum The Defendant pleaded quoad venire vi armis necnon totam transgressionem praeter the taking and deteining him three days non Culp and as to that he pleaded the Latitat Warrant and Arrest ut supra but the Verdict being only against the Defendant upon the second Issue and nothing appearing to be done upon this and entire Damages given 't is for that reason ill North Chief Iustice If the Writ and Warrant were good then the refusing Bail is an Offence within the Statute of 23 H. 6. And as 't is an Oppression so 't is an Offence also at the Common Law but an Action on the Case and not of false Imprisonment lyeth against the Officer for it would be very unreasonable by the refusal of Bail to make the Arrest tortious ab initio A special Action on the Case had therefore been the proper remedy against the Sheriff but not against the Officer for an Escape will not lye against him but it must be brought against the Sheriff Kren versus Kirby Surrender by a Disseisor not good IN Ejectment the Lessor of the Plaintiff claimed under a Surrender made to him by William Kirby who had an Estate in the Land after the decrease of his Father but entred during his Life and thereby became a Disseisor and his Estate being now turned into a Right he made the Surrender to the Lessor of the Plaintiff all which was found by special Verdict at the Tryal and it was adjudged that the Surrender was void It was pretended at the Trial that the Father who was Tenant for Life had suffered a Common Recovery in the Lords Court and so his Estate was forfeited for which the Son might enter and then his Surrender is good But the Court answered that without a particular Custom for the purpose the suffering a Recovery would work no Forfeiture of the Estate but if it did 't is the Lord and none else who can enter And so Iudgment was given for the Defendant Duck versus Vincent DEBT upon Bond conditioned to perform Covenants Plea to debt upon bond not good one of which was for payment of so much Mony upon making such Assurances The Defendant pleaded he paid the Mony such a day but doth not mention when the Assurance was made that it might appear to the Court the Mony was immediately paid pursuant to the Condition and for that reason the Court were all of Opinion that the Plea was not good And Iudgement was given for the Plaintiff upon Demurrer Smith versus Shelberry IN Assumpsit the Plaintiff declared that he was possessed of a Term of 80 years Assumpsit upon a mutual promise and it was agreed between him and the Defendant that he should assign all his interest therein to the Defendant who proinde should pay 250 l. and that he promised that in consideration that the Plaintiff at his request had likewise promised to perform all on his part that he would also perform all on his part and then sets forth that the Defendant had paid a Guinea in part of the said 250 l. and that he viz. the Plaintiff obtulit se to assign the Premisses by Indenture to the Defendant which was written and sealed and woud have delivered it to him but he refused and assigns the breach in Non-payment of the Mony to which the Defendant demurred And it was said for him by Baldwin Serjeant Ex parte Def. that this was not a good Declaration because the Assignment ought to precede the Payment and that it was not a mutual promise neither was the obtulit se well set forth but this was a Condition precedent on the Plaintiffs side without the performance whereof no Action would lie against the Defendant Vide 7 Co. Ughtreds Case fol. 10. b. because it was apparent by the Plaintiffs own shewing that the Mony was not to be paid till the Assignment made for the Plaintiff is to assign and the Defendant proinde which is as much as to say pro assignatione is to pay the Mony Like the Case in Dyer 76. a. Assumpsit against the Defendant that he promised pro 20 Marks to deliver 400 Weight of Wax to the Plaintiff the Pronoun Pro makes the Contract conditional Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Declaration good and that it was a mutual promise and that the Plaintiff need not averr the performance Hill Thorn Postea for in such Cases each has remedy against the other and 't is as reasonable that the Plaintiff should have his Mony before he make the Assignment as that the Defendant should have the Term assigned before he paid the Mony And of that Opinion was the Court only Iustice Atkins doubted Ellis Iustice cited a Case adjudged in the King's Bench which was as he thought Stiles Rep. 186 Postea very hard viz. An Assignment was made between A. and B. that A. should raise Souldiers and that B. should transport them beyond Sea and reciprocal promises were made for the performance as in this Case that A. who never raised any Souldiers may yet bring his Action upon this promise against B. for not transporting them which is a far stronger Case than this at Barr. It was agréed here that the Tender and Refusal had it beén well pleaded would have amounted to and have been equivalent with a full performance but the Plaintiff hath not done as much as he might for he should have delivered the Indenture to the Defendants use and then have tendered it But Iudgment was given for the Plaintiff Hays versus Bickerstaffe Covenant not conditional by the words paying and performing IN Covenant brought by the Lessee who declared that the Lessor covenanted with him that he paying the Rent and performing the Covenants on his part to be performed shall quietly enjoy The breach assigned was a disturbance by the Lessor who pleads that till such a time the Plaintiff did quietly enjoy the thing demised without disturbance but then he cut down Wood which was contrary to his Covenant and then and not before he entred and so by the Plaintiffs not performing his Covenant the Defendants Covenant ceases to oblige him whereunto the Plaintiff demurred The Question was Whether the Defendants Covenant was conditional or not For if it amount to a Condition then his Entry is lawful but if it be a Covenant 't is otherwise for then he
Barr. COnspiracy Rozal declares That a Replevin was brought against him and others and that the Defendant Lampen appeared for him without any Warrant and avowed in his Name and suffered Iudgment to pass against him and that 22 l. 10 s. Damages were recovered against him at such a place Lampen pleads a Recovery in a former Action brought by the now Plaintiff the Record of which being recited in the Plea appears to be the same with this but only here the place is mentioned where the Damages were recovered which was omitted in the former Action to which Lampen had pleaded a Reteiner by one of the then Defendants in Replevin and upon a Demurrer had Iudgment But the truth of the Case was That Iudgment was not then given for him that his Plea was good for the Court were all of Opinion that it was naught but because the Declaration was not good for want of mentioning the place where the Damages were recovered which the Plaintiff had amended now The Plaintiff demurred again because of this Variance between the two Actions upon the Defendants own shewing Ex parte Quer. Post Rose and Standen Putt and Roster Sir Robert Shaftoe for the Plaintiff insisted That a Recovery in an Action is no barr where there is a substantial variance as here there is and that so it has been adjudged in the Case of Leach and Thompson 1 Roll. Abr. 353. lit B. pl. 1. where the Plaintiff declared That he at the Defendants request having promised to Marry the Defendant's Daughter he promised to pay him 1000 l. Vpon Non Assumpsit pleaded Iudgment was given for the Defendant And the Plaintiff brought another Action for the same Sum and then laid the promise to pay 1000 l. cum inde requisitus esset and it was adjudged that the former Iudgment was no bar to the last Action because there was a Material difference between the two Promises one being laid without Request and so the Money was to be paid in a convenient time and in the last the Request is made part of the Promise and must be specially alledged with the time and place where it was made So in this Case The Plaintiff had not declared right in his first Action which he had amended now and therefore the former Iudgment shall be no barr to him In Robinson's Case there was a Mistake in the Writ viz. A Formedon in Remainder for that in Reverter and held no barr so by a parity of reason there shall be no barr here because the first Declaration was mistaken Stat. 3 H. 7. c. 1. Syd 316. and it was vitium Clerici Vide 2 Cro. 284. Level versus Hall Barton Serjeant contra This is no new Action Ex parte Def. for the ground of it is not where the Damages was done or recovered but the appearing without a Warrant and so having pleaded a Reteiner and had Iudgment and now pleading that Iudgment to this Action and averring 't was for one and the same thing 't is a good barr which the Plaintiff by his Demurrer hath confessed Adjornatur Milward versus Ingram INdebitatus Assumpsit for 50 l. and quantum meruit One promise pleaded in discharge of another good before the breach Mod. Rep. 205. the Defendant confesses both but pleads That after the promise made and before the Action brought they came to an Accompt concerning divers Sums of Money and that he was found in arrear to the Plaintiff 30 s. whereupon in consideration the Defendant promised to pay him the said 30 s. the Plaintiff likewise promised to release and acquit the Defendant of all Demands The Plaintiff demurred Seys Serjeant argued for the Plaintiff Ex parte Quer. that though one promise may be discharged by another yet a duty certain cannot as in this Case where a demand was of a Sum certain by the Indebitatus besides this Plea is in nature of an Accord which cannot be good without an averment of satisfaction given Broke Accompt 46 48. Neither is it said that the Plaintiff promised in consideration that the Defendant ad instantiam of the Plaintiff had promised Ex parte Def. But it was answered by Serjeant Hopkins and admitted to be true That where a Matter is pleaded by way of accord it must be averred to be executed in all Points but that was not the present Case ◠Cro. 100. The Defendant hath pleaded that he and the Plaintiff had accounted together and so the Contract is gone by the Accompt 2. That he was discharged of the Contract by parol both which the Plaintiff had now admitted by his Demurrer And it will not be denied that a Parol discharge of an Assumpsit is good as if A. promises to perform such a Voiage within a time limited and the breach assigned was that he did not go the Voiage The Defendant pleads that the Plaintiff exoneravit eum and upon Demurrer it was held good 22 Ed. 4. 40. 3 H. 6. 37. Object If it be objected that 't is no Consideration to pay a just Debt for if 30 s. were due of right it ought to be paid and that can be no reason upon which to ground a Promise Answ 'T is a good Consideration to pay Mony on the day which the party is bound to upon Bond because it is paid without Suit or Trouble which might be otherwise a loss to the Plaintiff But in this Case here is an express Agréement and before there was only a Contract in Law Cro. Car. 8. Flight versus Crasden Curia North Chief Iustice It has béen always taken that if there be an Assumpsit to do a thing and there is no breach of the promise that it may be discharged by Parol but if it be once broken then it cannot be discharged without Release in a writing In this Case there are two Demands in the Declaration to which the Defendant pleads an Accompt stated so that the Plaintiff can never after have recourse to the first Contract which is thereby merged in the Accompt If A. sells his Horse to B. for 10 l. and there being divers other dealings between them if they come to an accompt upon the whole and B. is found in arrear 5 l. A. must bring his insimul computasset for he can never recover upon an Indebitatus Assumpsit and of the same Opinion were the other three Iustices and though it was not said ad instantiam of the Plaintiff that he promised yet it was adtunc ibidem and so should be intended that the Defendant made the Promise at the instance of the Plaintiff and so Iudgment was given for the Defendant Daws versus Sir Paul Pindar COvenant to pay a Sum of Mony within a year after one Nokes shall be admitted to the Office of Secretary to the Governour of Barbadoes Barbadoes whether governed by the Laws of England so that the Statute of buying Offices extends to it The Defendant pleads that that the
but if he will justifie by vertue of any particular Estate he must shew the Commencement of that Estate and then such pleading as here will not be good But when the Matter is * Yelv. 75. Cro. Car. 138. collateral to the Title of the Land and for any thing which appears in the Declaration the Title may not come in question such a Iustification as this will be good In this Case no Man can tell what the Plaintiff will reply 't is like the Cases of Inducements to Actions which do not require such certainty as is necessary in other Cases So where an Action is brought for a Nusance and he intitles himself generally by saying he is possessionat ' pro termino annorum 't is well enough and he need not to set forth particularly the Commencement because he doth not make the Title his Case for which reason Iudgment was given for the Defendant Crosier versus Tomlinson Executor IN an Action on the Case Statute of Limitations of personal Actions extends to Indebitatus Assumpsit The Plaintiff declared that the Defendants Testator being in his Life time viz. such a day indebted to the Plaintiff in the Sum of 20 l. for so much Mony before that time to his use had and received did assume and promise to pay the same when he should be thereunto required and that the Testator did not in his Life time nor the Defendant since his death pay the Mony though he was thereunto required The Defendant pleads that the Testator did not at any time within six years make such promise The Plaintiff replies that he was an Infant at the time of the promise made and that he came not to full Age till the year 1672. and that within six years after he attained the Age of one and twenty years he brought this Action and so takes advantage of the promise in the Statute of * 21 Jac. c. 16. Limitations that the Plaintiff shall have six years after the disability by Infancy Coverture c. is removed And the Defendant demurred by Serjeant Rigby Ex parte Def. and the reason of his Demurrer was because in the said Proviso Actions on the Case on Assumpsit are omitted This Act was made for quieting of Estates and avoiding of Suits as appears by the Preamble and therefore shall be taken strictly there is an enumeration of several Actions in the Proviso and this is Casus omissus and so no benefit can be taken of the Proviso In a Writ of Error upon a Iudgment brought 4 Car. 1. in the Court of Windsor the Iudges held that an Action on the Case for * Cro. Car. 163 513 535. Debt upon Escape is out of the Statute 1 Sand 37. But an Action for Escape is not Sid. 305. So is Debt for not setting out of Tithes for these are not grounded upon any Contract Cro. Car. 513. Hut 109. slandering of a Mans Title is out of this Act because such an Action was rare and not brought without special damages But Hide Chief Iustice doubted 1 Cro. 141. The Law-makers could not omit this Case unadvisedly because 't is within those sorts of Actions enumerated by this Act. This Promise was made to the Plaintiff when he was but a day old and it would be very hard now after so many years to charge the Executor Ex parte Quer. But Turner Serjeant argued that though an Indebitat̄ assumpsit is not within the express words of the Proviso yet 't is within the intent and meaning thereof and so the Rule is taken in 10 Co. 101. in Bewfages Case quando verba statuti sunt specialia ratio autem generalis statutum intelligendum est generaliter And this is a Statute which gives a general remedy and the mischief to the Infant is as great in such Actions of Indebitatus assumpsit as other Actions and therefore 't is but reasonable to intend that the Parliament which hath saved their Rights in Debts Trovers c. intended likewise that they should not be barred in an Indebitatus Assumpsit In 2 Anders 55. Smith versus Colshil Debt was brought upon a Bond the Defendant there pleaded the Statute of the 5 E. 6. of selling of Offices the words of which are viz. That every Bond to be given for money or profit for any Office or Deputation of any Office mentioned in the Statute shall be void against the Maker In that case the Bond was given to procure a Grant of the Office and also to exercise the same now though this was not within the express words of the Statute yet the Bond was held void and if it should be otherwise the mischiefs which the Statute intended to remedy would still continue and therefore the intent of the Law-makers in such cases is to be regarded for which reason if Actions of Indebitatus Assumpsit are within the same mischief with other Actions therein mentioned 2 Anders 123 150. Cor. Car. 533. 19 H. 8. 11. such also ought to be construed to be within the same remedy But he took the Case of * Cro Car. 245. Swain versus Stephens to rule this Case at Bar in which Case this very Statute was pleaded to an Action of Trover and the Plaintiff replied that he was beyond Sea and upon a Demurrer to the Replication the Court held Trover to be within the Statute it being named in the Paragraph of Limitation of personal Actions which directs it to be brought within the time therein limited that is to say all Actions on the Case within six years and then enumerates several other Actions amongst which Trover is omitted yet the Court were then of Opinion that Trover is implied in those general words Curia And of that Opinion was the Chief Iustice and Wyndham and Atkyns Iustices That upon the whole frame of the Act it was strong against the Defendant for it would be very strange that the Plaintiff in this Case might bring an Action of Debt and not an Indebitatus Assumpsit When the Scope of an Act appears to be in a general sense the Law looks to the meaning and is to be extended to particular Cases within the same reason and therefore they were of Opinion That Actions of Trespass mentioned in the Statute are comprehensive of this Action because 't is a Trespass upon the Case and the words of the Proviso save the Infants Right in Actions of Trespass And therefore though there are not particular words in the enacting Clause which relate to this Action yet this Proviso restrains the severity of that Clause and restores the Common Law and so is to be taken favourably and this Action being within the same reason with other Actions therein mentioned ought also to be within the same remedy But Iustice Ellis doubted whether Actions of Trespass could comprehend Actions on the Case and that when the Parliament had enumerated Actions of Trespass Trover Case for Words c. If they had intended
annum to the Plaintiffs in Trust for Mary and this was to be in discharge of the said Iointure Habendum to them their Heirs Executors Administrators and Assigns in Trust for the said Mary for Life with a Clause of Distress and a Covenant to pay the 200 l. per annum to the said Trustees for the use of the said Mary the Breach assigned was that the Defendant had not paid the Rent to them for the Use of Mary The Defendant demurred specially for that it appears by the Plaintiffs own shewing that here is a Grant of a Rent-Charge for life which is executed by the Statute of Vses and therefore there ought to have been a Distress for Non-payment which is the proper remedy given by the Statute and this Action will not lie in the personalty 2. 'T is said the Defendant did not pay it to the Plaintiffs for the use of Mary which is a Negative pregnant and implies that it was paid to them 3. 'T is not averred that the Mony was not paid to Mary and if 't is paid to her then the Breach is not well assigned Ex parte Quer. But Serjeant Baldwin for the Plaintiff replyed that it was not a Question in this Case whether this Rent Charge was executed by the Statute or not for quacunque via data an Action of Covenant will lie and that the Breach was assigned according to the Words of the Covenant and so prima facie 't is well enough for if the Defendant did pay the Mony to the Plaintiffs he may plead it and so he may likewise if he paid it to Mary Curia The Court were all of Opinion that this Rent-Charge was executed by the Statute of Vses by the express Words thereof which executes such Rents granted for Life upon Trust as this Case is and transfers all Rights and Remedies incident thereunto together with the possession to Cestuy que use so that though the power of distraining be limited to the Trustées by this Deéd yet by the Statute which transfers that power to Mary she may distrain also but this Covenant being collateral cannot be transferred The Clause of Distress by the express Words of the Act is given to the Cestuy que use but here is a double Remedy by Distress or Action for if the Lessée assign his Interest and the Rent is accepted of the Assignee yet a Covenant lies against the Lessée for Non-payment upon the express Covenant to * Hayes and Bickerstaff Hollis and Carr Antea pay so if a Rent be granted to S. and a Covenant to pay it to N. for his use 't is a good Covenant And it was agreed that the assignment of a Breach according to the Words of the Covenant is good enough and that if any thing be done which amounts to a performance the other side must plead it as in this Case the Defendant might have pleaded that the Mony was paid to Mary which is a performance in substance but it shall not be intended without pleading of it Whereupon Iudgment was given for the Plaintiff Read versus Dawson DEBT upon Bond against the Defendant as Executor Repleader after an immaterial Issue Issue was joyned whether the Defendant had Assets or not on the thirtieth day of November which was the day on which he had the first notice of the Plaintiffs original Writ and it was found for the Defendant that then he had not Assets It was moved for a Repleader because it was said this was an immaterial Issue for though he had not Assets then yet if he had any afterwards he is liable to the Plaintiffs Action But Barrel Serjeant moved for Iudgment upon this Verdict by reason of the Statute of 32 H. 8. which helps in Cases of Mispleading or insufficient Pleading 'T is true there are many Cases which after Verdict are not aided by this Statute as if there are two Affirmatives which cannot make an Issue or when after a Traverse Issue is joyned with an hoc petit quod inquiratur per patriam this is no Issue 2 Anders 6 7. Yelv. 210. Hob. 126. So if there be no Plea at all as if an Action is brought against Baron and Feme and she pleads only 2 Cro. 288. So if the Party puts himself super patriam where it should be tried by Record or if the Plea be nothing to the purpose or lie not in the Mouth of the Parties such immaterial Issues as these cannot be good The difference in Moor 867. is if the Plea on which the Issue is joyned hath no colourable pretence in it to barr the Plaintiff or if it be against an express Rule in the Law there the Issue is immaterial and so as if there was no Issue and therefore 't is not aided by the Statute but if it hath the countenance of a legal Plea though it want necessary matter to make it sufficient there shall be no Repleader because 't is helped after Verdict Here the Parties only doubt whether there were Assets at the time of the notice and 't is found there were none and so Iudgment was to be given accordingly and of that Opinion was the whole Court But Iustice Atkins was clear of Opinion that if the Parties join in an immaterial Issue there shall be no Repleader because 't is helped after Verdict by these Words in the Statute viz. any Issue 'T is not said an Issue joined upon a material Point and the intent of the Statute was to prevent Repleaders and that if any other Construction should be made of that Act he was of Opinion that the Iudges sate there not to expound but to make a Law for by such an Interpretation much of the benefit intended by the Act to the Party who had a Verdict would be restrained Curia The other Iustices were all of Opinion that since the making of this Statute it had been always allowed and taken as a difference that when the Issue was perfectly material there should be no Repleader but that it was otherwise where the Issue was not material And Iustice Scroggs asked merrily If Debt be brought upon a Bond and the Defendant pleads Robin Hood dwelt in a Wood and the Plaintiff joyns Issue that he did not this is an immaterial Issue and shall there not be a Repleader in such Case after Verdict Ad quod non fuit responsum Beaumont versus ........ Wager of Law THE Plaintiff brings an Action of Debt upon a Iudgment obtained against the Defendant in a Court Baron having declared there in an Action on the Case upon an Assumpsit and recovered The Defendant came to wage his Law and was ready to swear that he owed the Plaintiff nothing Sid. 366. but the Court held that he was not well advised for by the Recovery in the inferior Court it became now a Debt and was owing and being asked whether he had paid the Mony he answered that he owed nothing Whereupon the Court
of the Officers drive the Sheep to Marwood's Grounds where they left them The Plaintiff demands the Sheep of Solebay and upon his refusal to deliver them brings this Action against the Servant and whether it would lye or not was the Question It was urged at the Barr that the Action would not lie against the Defendant because he had not the possession of the Goods at the time of the Action brought for he presently put them into his Masters Ground And it was said if A. find Goods and S. takes them away before the Action brought Trover will not lie against A. but 't is otherwise if he sell them In this Case it would have been a Breach of Trust in the Servant to have delivered the Goods belonging to his Master to another 'T is true if there be a Conversion though the possession be removed before the Action brought yet the Action will lie but that is because of the Conversion Many Cases were put where the Servant is not lyable to an Action for a thing done by the Command of his Master and where a Bayliff who is but a Servant to the Sheriff shall not be charged in a false Return made by his Master Cro. Eliz. 181. 1 Roll. Abr. 94 95. So if a Smiths Man prick an Horse the Action lies against the Master and not against the Servant The Court before they delivered any Iudgment in this Case premised these two things viz. 1. That 't is necessary in Trover to prove a Property in the Plaintiff and a Trover and Conversion in the Defendant And it was said by Iustice Atkins but denied by the Chief Iustice that though Goods are sold in a Market yet the property is not changed till the delivery for which he cited Keilway 59 77. But the Court held clearly in this Case that the first Sale to Alston was defeated by the Agreement of the Parties afterwards for when a Bargain is made and all the Parties consent to dissolve it and other Conditions are proposed the new Agreement destroys the former Bargain And the Chief Iustice said that if an Horse was bought in a Market for which the Vendeé is to pay 10 l. if the ready Mony be not paid the property is not altered but the Party may sell him to another 2. This new Agréement to have the Sheep if Alston would pay such a Sum of Mony at a future day will not amount to a Sale and the new property is changed and consequently the Sale by H. to the Plaintiff before the day is good and so the property of the Sheep is in him But by the Opinion of the whole Court the Action would not lie against the Defendant 1. The Defendant could be guilty of no Conversion unless the driving the Cattle by vertue of the Replevin would make him guilty but at that time the Sheep were in custodia Legis and the Law did then preserve them so that no property can be changed and if so then there could be no Conversion 2. The Action will not lie against the Servant for it being in Obedience to his Master's Command though he had no Title yet he shall be excused And this Rule Iustice Scroggs said would extend to all Cases where the Master's Command was not to do an apparent Wrong for if the Master's Case depended upon a Title be it true or not 't is enough to excuse the Servant for otherwise it would be a mischievous thing if the Servant upon all occasions must be satisfied with his Master's Title and Right before he obey his Commands and 't is very requisite that he should be satisfied if an Action should lie against him for what he doth in Obedience to his Master But it was said the * Wyne and Rider antea Servant cannot plead the Command of his Master in Barr of a Trespass and it was likewise said that in this Case the driving of the Cattle by the Servant to the Grounds of his Master or a Strangers helping to drive them without being requested is justifiable 3. Because what was done by the Defendant was done in Execution of the Process of the Law and he might as well justifie as the Officer for if he forbid the Defendant to have assisted him yet his assisting him afterwards would not have made him guilty because done in Execution of the Law 4. Because 't is not found that the Servant did convert the Sheep to his own use for the special Verdict only finds the Demand and the Refusal which is no Conversion and though 't is an Evidence of it to a Iury yet 't is not Matter upon which the Court can give Iudgment of a Conversion 10 Co. 57. And therefore the Iury should have found the Conversion as well as the Demand and Refusal 2 Bulstr 313. 1 Roll. Abr. 5. like the Case in 2 Roll. Abr. 693. In an Assise of Rent seek upon Nul tort pleaded the Iury found a Demand and Refusal sic disseisivit it was held to be no good Verdict for the Demand ought to have been found on the Land and shall not be so intended unless found The Plaintiff here hath set forth in his Declaration a Request to deliver then a Refusal and Conversion too which shews that they ought to be found because distinct things and the finding of the Demand and Refusal was only a presumptive not a conclusive proof of the conversion and if the Iury themselves know that there was no conversion yet the Plaintiff hath failed in his Action as if a Trover be brought for cutting Trees and carrying of them away and the Iury know that though the Defendant cut them down yet they still lay in the Plaintiffs Close this is no conversion And though it hath been strongly insisted at the Bar that the Court shall intend a conversion unless the contrary appeared and are to direct a Iury to find the demand and refusal to be a conversion and the Opinion of Dodridge and Croke in 1 Roll. Rep. 60. was much relied on where Adams recovered against Lewis 40 l. in the Court of Exon and three Butts of Sack were taken in Execution and the Plaintiff deposited 22 l in the Hands of the Defendent to prevent the Sale of the Sack which was to be a pledge to return it upon request if the Defendant was not paid before the next Court day the Iury found the Debt was not paid and that no request was made to return the Sack but that the Plaintiff requested the Defendant to return the Mony Yet it was held by those two Iustices That the Law would supply the proof of a * Bulstr 308. Cro. Eliz. 495. Golds 152. Moor 460. Stiles 361. conversion though it was not found for it shall be presumed that the Mony was denied to the Plaintiff and that the Defendant might use it himself and because no other proof could be made that very denial shall be a conversion in Law so a denial of a Rent
here for want of * 2 H. 4. 12. Bro Accompt 24 65 89. privity and because there is no contract 't is only a tort a disseisin and the Plaintiff might have brought an Assise for this Office which lies at the Common Law and so it hath been adjudged in Jehu Webb's Case 1 Inst 212. 8 Co. 4. Which is also given by the Statute of Westm 2. cap. 25. for a profit apprender in alieno solo The Plaintiff might have brought an Action on the Case against the Defendant for disturbing of him in his Office and that had been good because it had been grounded on the wrong In this Case the Defendant takes the Profits against the will of the Plaintiff and so there is no Contract but if he had received them by the consent of the Plaintiff 6 H. 6.9 1 Roll. Abr. 597 pl. 5. yet this Action would not lie for want of privity 'T is true in the Case of the King where his Rents are wrongfully received the party may be charged to give an accompt as Bayliff so also may the Executors of his Accomptant because the Law createth a privity but 't is otherwise in the Case of a common person 10 Co. 114. b. 11 Co. 90. b. Because in all Actions of Debt there must be a Contract or quasi ex contractu and therefore where Iudgment was had and thereupon an Elegit and the Sheriff returned that he had apprised the Goods and extended such Lands which he delivered to the Plaintiff ubi revera he did not per quod actio accrevit which was an Action of Debt but it was adjudged that it would not lie because the Sheriff had not returned that he medled with the Goods or with the value of them and therefore for want of certainty how much to charge him with this Action would not lie but an Action on the Case for a false Return but if he had returned the Goods sold for so much Mony certain Godb. 276. 2 Sand. 344. 2 Cro. 566. which he had delivered then an Action of Debt would lie for though 't is not a Contract 't is quasi ex contractu Hob. 206. 3. Point The Iury find that the Defendant received the Profits for seven years and that the Plaintiff had his Patent but two years and do not shew what was received by the Defendant within those two years and then the Court cannot apply it But on the other side it was said by Sawyer Ex parte Quer. That this Non obstante was good for where an Act of Parliament comes to restrain the Kings power and prerogative it was always held so to be and he relied upon the Iudgment of 2 H. 7. f. 6. that the King might dispense with the Statute of 23 H. 6. Pl. Com. 502. b. Dyer 303. which he affirmed to be the constant Vsage ever since and that therefore the Law is so taken to be at this day As to the second Point both he and the Sollicitor General Winnington said That an indebitatus assumpsit would lie here for where one receives my Rent I may charge him as Bayliff or Receiver or if any one receive my Mony without my order though 't is a tort yet an indebitatus will lie because by the Receipt of the Mony the Law creates a promise and the Action is not grounded on the tort but on the receipt of the Profits in this Case As to the Objection about the finding they held that to be nugatory and idle for it cannot be intended that the Damages given were for the time the Defendant received the Profits before the Plaintiff had his Patent neither is there any thing found in the Verdict to that purpose In Michaelmas-Term following Judgment the Court gave Iudgment for the Plaintiffs 1. They held that the King might dispense with this Statute for the Subject had no interest nor was in any wise concerned in the Prohibition it was made only for the ease of the King Hob. 146. and by the like reason he might dispense with the Statute of 4 H. 4. 24. That a Man shall hold the Office of Dyer 203. Aulnager without a Bill from the Treasurer and with the Statute of 31 H. 6. 5. That no Customer or Comptroller shall have any Estate certain in his Office because these and such like Statutes were made for the ease of the Sovereign and not to abridge his Prerogative and that the general Clause of Non obstante aliquo alio Statuto was sufficient 2. 4 H. 7. 6. b. Moor 458 An Indebitatus Assumpsit will lye for Rent received by one who pretends a Title for in such case an Accompt will lye wherever the Plaintiff may have an Accompt an Indebitatus will lye As to the finding 't is well enough for the Iury assess Damages occasione praemissorum in narratione mentionat which must be for the time the Plaintiff had the Office and that a Patent would make a Man an Officer before admittance Steward Executor of Steward versus Allen. Demand must be made where an Interest is to be determined DEBT for a Rent reserved upon a Lease for years in which there was a Proviso That if the Rent be behind and unpaid by the space of a Month next after any or either of the Daies of payment then the Lease to be void The Plea was That the Rent was behind a Month after a day on which it was reserved to be paid and so the Lease is void to which Plea the Plaintiff demurred because the Defendant did not say that the Plaintiff demanded the Rent for though the Rent be due without demand yet the Interest shall not be determined without it which must be expressly laid in the Pleading and of that Opinion was the Court except Iustice Atkyns who doubted Searl versus Long. Quare Impedit real mainpernors must be returned upon the Summons Pone and Grand Cape 2 Inst 124. Mod. Rep. 248. IVdgment final was given in a Quare Impedit according to the Statute of Marlebridge cap. 12. Which Serjeant Pemberton moved to set aside He said that at the Common Law the Process in a Quare Impedit was Summons Pone and Distress infinite which being found mischievous in respect of a Lapse it was therefore provided by this Statute that if the disturbers do not appear upon the Summons then they shall be Attached to appear at another day c. Now here upon the Attachment the Sheriff hath returned Attachiatus fuit by John Doe and Richard Roe who are feigned persons and not mainpernors for the Defendant hath made Oath That he did not know any such persons neither was he ever Attached so that 't is not only a matter of Form for he ought to have that notice which the Law requires it being so penal upon him 'T is probable this Mistake might arise from Mr. Dalton who in his Book of the Office of Sheriffs in the Returns of Writs
there hath put down these feigned Attachers for Examples sake from whence the Sheriff in this Case might inferr that they need not be real persons as in truth they ought both upon the Summons Pone and Distress and he cited a Case lately adjudged where the like Return was made upon the Grand Cape and the Iudgment set aside and of this Opinion was the whole Court and said Where the Process is so fatal the Party ought to be duly served and that the Sheriff ought to have gone to the Church and to have seised the Profits and if there be nothing to return a Nihil and though the Iudgment was given before the Term or long since yet when 't is Irregular 't is to be set aside and so it was now and being moved again the Court continued of their former Opinion The like Case was moved in Michaelmas-Term following between Fleming and Lee where the Patron Defendant was thus summoned and never appeared and the Incumbent did cast an Essoign and a Case was cited betwéen Vivian and the Bishop of London Mich. 23 Car. 2. in C. B. where the like Iudgment was set aside But on the other side it was objected that leaving due notice upon the Summons was as much as was required for the other Writs are only to give the Defendant time to plead and therefore 't is not necessary that notice should be given upon every one of the Writs for if once served 't is enough 11 H. 6. 3 4. 36 H. 6. 23. 8 H. 6. 8. Long 5 to E. 4. 26. 29 E. 3. 42 43. Doctor and Stud. 125 126. 21 H. 6. 56. But the Court were of Opinion that the Defendant having not appeared nor cast an Essoign and Iudgment final being given Curia it was reason that all the Process should be served really of which there had been no occasion if he had either appeared or essoined and therefore the Process not being duly served Iudgment was set aside Rast Ent. 217. And they held that the Essoign of the other Defendant was no wise binding to the Patron Defendant because they may sever in Pleading and so that Iudgment was likewise set aside DE Term. Sancti Mich. Anno 29 Car. II. in Communi Banco Sir John Otway versus Holdips Executor c. Bond to pay 40 l. when an Accompt shall be stated 't is a Covenant and not a Solvendum DEBT upon Bond brought by the Plaintiff against the Defendant as Executor wherein the Testator did acknowledge himself to be indebted to the Plaintiff in 40 l. which he thereby did covenant to pay when such a Bill of Costs should be stated by two Attornies indifferently to be chosen between them and sets forth in his Declaration that he named one Attorny and desired the now Defendant to name another which he refused and so intitles himself to this Action The Defendant pleads Non detinet to which the Plaintiff demurred But the Plea was not offered to be maintained because the Executor cannot plead Non detinet but where the Testator himself might plead Nil debet which in this Case he could not do But it was insisted that the Declaration is not good because the Mony was to be paid upon an accompt stated which not being done by the Plaintiffs own shewing 't is not yet due and this ought to be taken as penned viz. Solvendum and not an express Covenant But on the contrary it was held not to be a Solvendum but a Covenant to pay the Mony the Debt and the Duty being in the first place ascertained but if it be a Solvendum and repugnant to the Obligatory Clause 't is void 21 Ed. 4.36 As the Defendant would have it expounded it would be in his power totally to defeat the Bond either way for if he would never chuse an Attorny there could be never any thing due The whole Court were of Opinion that it was not a Solvendum but a Covenant which did not take away the Duty ascertained by the Obligation and if it should not be a Covenant but an entire Bond then it would be in the Power of the Obligor whether ever it shall be payable but be it either the one or the other the Plaintiff having named an Attorny ought to recover and Iudgment was accordingly given for him Dunning versus Lascomb DEBT on a Bond the Condition was to pay Mony when a Ship should go from A. to C. and from thence to Bristol and should arrive there or at any other Port of discharge in England the Ship going from A. to C. took in Provisions at Bristol but not to be discharged there but proceeded in her Voiage to Cales and was cast away And by the Opinion of the Court the Mony was not payable but if he had never intended to perform the Voyage it might have been otherwise 1 Roll. Abr. 142. 39 H. 6.10 Iudgment for the Defendant nisi Atkins versus Bayles AN Information was exhibited against the Defendant Outlary pleaded to an Information good being a Iustice of the Peace for refusing to grant his Warrant to suppress a Conventicle The Defendant pleads an Outlary in disability and the Plantiff demurred 1. 3 Inst 194. This Plea is not good because the King is interested qui tam c. and therefore where the Informer dies the Attorny General may proceed 2. The Statute gives power to any person to inform c. by which general Words the Disability of this person is removed But the Court held that there was no colour in either of these Objections 3. 'T is not pleaded sub pede sigilli sed non allocatur for it need not be so pleaded being in the same Court 4. 'T is not averred that the Plaintiff was the same person who was outlawed but it was answered that the praedictus makes that certain and that though the King be interessed yet the Informer only is Plaintiff and intituled to the benefit and that though he was disabled yet he might sue for the King Moor 541. Dyer 227. b. Cro. Eliz. 583. but not for himself and therefore Iudgment was given that the Plea was good Harwood Bincks versus Hilliard c. Notice where 't is agreed to be in writing must be so pleaded BY an Agreement between the Plaintiffs and the Testator of the Defendant a parcel of Lands was to be sold for 400 l. but if it did not arise to so much then they covenanted with each other to repay proportionable to the Abatement and the Defendant's Testator covenanted for himself and his Executors to pay his proportion to the Plaintiffs so as the Plaintiffs gave him notice in writing of the said Sale by the space of ten days but doth not say that such notice was to be given to his Executors or Administrators And now the Plaintiffs averred that they gave notice accordingly to the Defendant who was Executor and the breach assigned was that he hath not paid c. The
taken in Execution 1 Cro. 239. Hob. 180. Rol. Rep. 233. 2. The Promise here was not to pay the Mony absolutely but sub modo so that the Evidence did not maintain the Action and the Plaintiff was Nonsuited Nichols versus Ramsel Release of all Demands usque 26 Apr. a Bond dated that day is not released TRespass done 24 Martii 26 Car. 2. usque 26 Augusti 28 Car. 2. diversis diebus vicibus c. The Defendant pleaded that on the 24th day of April in the 26th year of King Charles the Second he paid the Plaintiff 6 d. which he received in full satisfaction of all Trespasses usque ad the said 24th day of April absque hoc that he was guilty ad aliquod aliud tempus praeter praedictum 24 Aprilis anno 26 Car. 2. aut aliquo tempore postea but leaveth out the 24th day of April and for that Reason the Plaintiff demurred because the Defendant had not answered that day for the Word usque excludes it So where Debt was brought upon a Bond dated 9 Julii the Defendant pleaded a Release of all Actions Owen ' 50. 2 Rol. Abr. 521. c. the same day usque diem dati ejusdem scripti the Bond was not discharged because the Release excludes the 9th day on which it was made But Serjeant Weston contra Though generally in pleading the Word usque is exclusive yet in the Case of Contracts because of the intent of the Parties 't is inclusive and therefore in one Nichol's Case 20 Car. 2. in B. R. Rot. 21. the Term was not named a Lease was made Habendum from Lady-day usque Festum Sancti Michaelis 1665. paying the Rent reserved at Michaelmas during the Term the Rent shall be paid on Michaelmas-day 1665. and so the day shall not be excluded So where a Man prescribes to put Cattle from and immediately after Lady-day where they are to stay till Michaelmas-day the putting them in on Lady-day and driving them away on Michaelmas-day is not justifiable in strictness yet it hath been allowed good So in a Devise the Question was whether the Testator was of Age or not and the Evidence was that he was born the first day of January in the Afternoon of that day and died in the Morning on the last day of December And it was held by all the Iudges that he was of full Age for there shall be no fraction of a day North Chief Iustice said that prima facie this is to be intended good for a day is but Punctum temporis and so of no great consideration But the other three Iustices were of Opinion that the Word Usque was exclusive and that the Plaintiff should not be put to shew that there was a Trespass done on the 24th of April and said that in a Release of all Demands till the 26th of April a Bond dated that day is not released wherefore Iudgment was given for the Plaintiff Trevil versus Ingram COvenant to pay an Herriot post mortem J. S. or 40 s. at the election of the Plaintiff Release of all Demands doth not barr a future Duty Mod. Rep. 216. and sets forth the death of J. S. and that afterwards he chose to have the 40 s. for which he brought this Action and assigns the Breach for Non payment The Defendant pleaded that the Plaintiff released to him all Actions and Demands c. But this Release was made in the Life time of J. S. and there was an Exception in it of Herriots The Plaintiff demurred and Serjeant George Strode argued that this Action was not discharged by that Release and cited Hoes Case 5 Co 70. where it was held that a Duty incertain at first which upon a Condition precedent was to be made certain afterwards was but a possibility which could not be released that the Duty in this Case was incertain because the Plaintiff could not make his Election till after the death of J. S. A Covenant to repair 2 Cro. 170. Roll. Abr. 407. But a Release of all Covenants in such an Indenture had been a Barr 5 Co. 71. a. and a Release pleaded to it within thrée days after the date of the Indenture And upon a Demurrer it was held that it being a future Covenant and not in demand at the time of the Release although it was of all Demands yet that Covenant was not thereby released So here neither the Herriot nor the 40 s. were either of them in demand at the time of the Release given and it plainly appears by the Exception in the Release that it was the intention of the Parties not to release the Herriots 2 Cro. 623. and of that Opinion was the whole Court whereupon Iudgment was given for the Plaintiff North Chief Iustice It is the Opinion of * Sect. 508 510. 2 Roll. Abr. 408. Sid. 141. Littleton That a Release of all Demands doth Release a Rent And of that Opinion was Iustice Twisden in the Argument of Hen and Hanson 's Case though it was resolved there that a Release of all Demands did not discharge a Rent reserved upon a Lease for years because such Rent is executory and incident to the Reversion 2 Cro. 486. and grows every year out of the Land but when it is severed from the Reversion as by assigning over the whole Term then it becomes a Sum in gross and is due upon the Contract and in that Case a Release of all Demands discharges a Rent afterwards due DE Term. Sancti Hill Annis 29 30 Car. II. in Communi Banco Shambrok versus Fettiplace PRohibition Prescription to have an Isle in a Church because of repairing no good cause for a Prohibition Hob. 69. The Question was whether a Prescription be good to an Isle in a Church which he and all those c. used to repair as belonging to a Mannor where he had no Dwelling House but only Land and Serjeant Geo. Croke argued that it was good and cited the Case of Boothby and Bayly where such a Prescription as this was held to be a good ground for a Prohibition Vide Moor Rep. 878. contra The Court inclined that it was not good but ordered the Prohibition to go and the Defendant to plead that it might come Iudicially before them to be argued Dashwood versus Cooper alios in Cammera Scaccarii ERror of a Iudgment in Trespass In a Negative Plea viz. That three did not such a thing it must be said nec eorum aliquis wherein Cooper and others brought an Action of Trespass against Dashwood for entring into a Brew-house and keeping of possession and taking away of 50 s. The Defendant pleaded That the Plaintiffs had committed an Offence against the Statute of 12 Car. 2. cap. 23. by which it is Enacted That all Offences thereby prohibited except in London shall be heard by two or more of the next Justices of Peace and in case of their neglect or refusal by
Plaintiff Blackbourn versus Conset Place where it shall be intended tho' not laid in the Pleading IN Replevin the Avowant pleads an Execution taken out and that a Term for years was extended and an Assignment thereof made by the Sheriff but alledges no place where the Assignment was made But upon Demurrer it was held good for it shall be intended to be assigned where the Land doth lie Hall versus Carter Bond to render himself a Prisoner good IN an Action of Debt upon a Bond the Defendant craves Oyer of the Condition which was That if another person who was arrested at the Suit of the Plaintiff and for whom the Defendant was now bound should give such Security as the Plaintiff should approve of for the payment of 90 l. to him Sid. 132. pl. 4. or should render his Body to Prison at the return of the Writ then the Obligation to be void The Defendant pleads the Statute of 23. H. 6. cap. 10. That this Bond was given pro easimento favore And this Case coming to be argued upon a Demurrer the question was whether such Bond be within the Statute or not And the Court were of Opinion that it was not If the Sheriff takes Bond in another Man's name to elude the Statute such Bond is void but the Plaintiff may give directions to the Officer to take such Bond as this to himself 't is only an expedient to prevent a new Arrest and the Agreement of the Plaintiff makes it good If a Capias be taken out against the Defendant and a third person gives the Plaintiff a Bond that the Defendant shall pay the Mony or render himself at the Return of the Writ 't is a good Bond and not within the Statute because 't is not by the direction of the Officer but by the agreement of the Plaintiff and there is no Law that makes the Agreement of the Parties void and if the Bond was not taken by such Agreement it might have been traversed But Iustice Atkyns doubted because a Bond to render himself a Prisoner is void Bewfages's Case 10 Co. But if it had been to pay the Mony or appear at the Return of the Writ it had been good But notwithstanding Iudgment was given for the Plaintiff Shaxton versus Shaxton THE Condition of a Bond was Non damnificatus not a good Plea where the person and Lands are to be indempnified Antea That the Defendant should save harmless Thomas Shaxton and the Mortgaged Premisses and should pay the Interest for the prinicipal Sum. The Defendant pleads that Thomas Shaxton non fuit damnificatus for that the Defendant had paid the 120 l. principal mony with all the arrears of Interest due at such a day And upon a Demurrer this was held no good Plea because the first matter non damnificatus goes to the Person and not to the Premisses And so Iudgment was given for the Plaintiff Anonymus After acquittal for a Common Trespass an Action on the Case will not lie Sid. 465 466. Antea THE Defendant was Indicted for a Common Trespass and Acquitted and now was Plaintiff in an Action on the Case against the Prosecutor And by the Opinion of the Chief Iustice the Action will lie for the Charges and Expences in defending the prosecution which the acquittal proves to be false and the Indicting him proves to be malicious for if he had intended any thing for his own benefit or recompence he might have brought a civil Action and then if he had been found Not Guilty he would have had his Costs allowed Though the prosecution be for a Trespass for which there is a probable cause yet after Acquittal it shall be accounted malicious the Difference only is where the Indictment is for a Criminal matter but where 't is for such a thing for which a Civil Action will lie the Party can have no reason to prosecute an Indictment it is only to put the Defendant to charges and make to him pay Fees to the Clerk of the Assises Penrice and Wynn's Case Habeas Corpus may be granted in Civil matters SErjeant Maynard moved for a Habeas Corpus for them being committed to the Poultry Compter by the Commissioners of Bankrupts for refusing to be examined and sworn touching their Knowledge of the Bankrups Estate The Process against them in this Court was an Attachment of Priviledge which was a Civil Plea and of which the Court had Iurisdiction and therefore the Habeas Corpus must be granted And the Chief Iustice said that it might be without motion because all the Habeas Corpus's in that Court were ad faciendum recipiend and they issue of course Antea but in the Kings-Bench they are ad subjiciendum which are in Criminal Causes and not to be granted without motion Then the Serjeant moved that the Sheriff might Return his Writ which was done and being filed he took Exceptions to the Return by which the ground of the Commitment appeared to be by virtue of a Warrant under the Hands and Seals of the Commissioners c. which he said was ill for want of an Averment of their refusal to come and be sworn for it did not appear that they did refuse and they ought not to be committed without refusing so that should have been positively averred viz. That they did refuse and still do for if they are willing at any time they ought to be discharged and so they were but were ordered to put in Bail upon the Attachment Abbot versus Rugeley THE Plaintiff declared in an Action of Assault and Battery to which the Defendant pleaded non cul Plea puis darrein continuance must be certified as part of the Record of Nisi prius and at the Assises a Plea was put in puis darrein continuance and a Demurrer thereunto The Court were clear of Opinion That if the Plea had been issuable it could not have been then tried neither could the Demurrer be there argued but must be certified up hither by the Iudge of Assise as part of the Record of Nisi prius Yelv. 180. Hawkins versus Moor. Ballard versus Oddey It was ruled in this Case The Contract it self must be Usurious to make it void 1 Sand. 295. Mod. Rep. 69. That to avoid a Security by reason of Vsury the Contract it self must be usurious for if the Party takes afterwards more than is allowed that will not make it so so that if the Agreement of the Parties be honest but made otherwise by the mistake of a Scrivener yet 't is not Vsury As if a Mortgage be for 100 l. with a Proviso to be void on payment of 106 l. at the end of one year and no Covenant for the Mortgagor to take the Profits till default be made in paiment so that in strictness the Mortgagee is intituled both to the Interest and the Profits yet if this was not express'd the Agreement is not Vsury DE Term. Sanctae Trin.
Anno 30 Car. II. in Communi Banco The Case of one Randal and his Wife an Administrator c. Judgment may be avoided without a Writ of Error by a Plea where the Party is a Stranger to it DEBT upon a Bond against the Defendant as Administrator They plead a Iudgment recovered against the Intestate in Hillary Term 26 27 Car. 2. and that they had not Assets ultra The Plaintiff replies that there was an Action against the Intestate but that he dyed before Iudgment and that after his death Iudgment was obtained and kept on foot per fraudem The Defendant traversed the Fraud but did not answer the death of the Intestate and upon a Demurrer it was said for the Plaintiff that the Iudgment was ill and that he being a Stranger to it could neither bring a Writ of Error or Deceit and had no other way to avoid it but by Plea and that 't is put as a Rule That where Iudgment may be reversed by a Writ of Error the Party shall not be admitted to do it by Plea but a Stranger to it must avoid it by Plea because he is no Party to the Iudgment as if a Scire Facias be brought against the Bail 't is a good Plea for them to say that the Principal was dead before Iudgment given by way of excusing themselves to bring in the Body but 't is not good to avoid the Iudgment because 't is against the Record Cro. Eliz. 199. which must be avoided by Writ of Error 1 Roll. Abr. 449 742. The Court were of Opinion that the Plaintiff might avoid the Iudgment without a Writ of Error especially in this Case where 't is not only erroneous but void Hill versus Thorn IN an Arbitrament it was held by the Court Rules in an Award that if two things be awarded the one within and the other not within the Submission the later is void and the breach must be assigned only upon the first 2. If there be a Submission of a particular difference and there are other things in Controversie if in such Case a general Release is awarded 't is ill and it must be shewed on the other side to avoid the Award for that cause 3. If the Submission be of all differences till the 10th day of May 1 Sand. 33. and a Release awarded to be given of all differences till the 20th day of May if there be no differences between those two days the Award is good if any it must be shewed in Pleading 1 Roll. Abr. 257. otherwise the Court will never intend it 4. Smith and Shelbury Antea That reciprocal Covenants cannot be pleaded in barr of another and that in the assigning of a Breach of Covenant 't is not necessary to averr performance on the Plaintiffs side Staples versus Alden DEBT upon a Bond conditioned to deliver forty pair of Shooes within a Month at Holborn-Bridge to Henry Knight a Common Carrier to G. for the use of the Obligee Tender of Goods to the Man shall be a Tender to the Master The Defendant pleaded that in all that space of a Month Henry Knight did not come to London but that such a day at Holborn-Bridge he delivered forty pair of Shooes to A. G. the Carriers Porter To this Plea the Plaintiff demurred for that the Condition being to do something to a Stranger the Defendant at his peril ought to perform it 33 H. 6. 13. 4 H. 7. 4. like the Case where the Action of Debt was brought upon a Bond conditioned that the Defendant should give such a Release as the Iudge of the Prerogative Court should think fit the Defendant pleaded that the Iudge did not appoint any Release and it was adjudged no good Plea because the Obligation is on his part and he ought to tender a Release to the Iudge Cro. Eliz. 716. But on the other side it was said that a delivery to the Servant is a delivery to the Master himself and if parcels of Goods are delivered to the Porter and lost an Action lies against the Master Curia The Court absente North Chief Iustice held the Plea to be good and that such a Construction was to be made as was according to the intent of the Parties and that a delivery to the Man was a delivery to the Master whereupon Iudgment was given for the Defendant Gillmore versus Executor of Shooter In Banco Regis A new Act shall not take away an Action to which the Plaintiff was entituled at the Commencement of the Act. INdebitatus Assumpsit There was a Treaty of Marriage between the Plaintiff who was of kin to the Testator and the Daughter of one Harris with whom he afterwards had 2000 l. as the Marriage Portion and Mr. Shooter in his Life time promised to give the Plaintiff as much or to leave him worth so much by his Will This Promise was made before the 24th day of June before this Action brought the Marriage took effect Harris paid the 2000 l. and Shooter dyed in September following having made no payment of the Mony or any Provision for the Plaintiff by his Will This Action was commenced after Shooter's death and upon the Tryal a Special Verdict was found upon the Act of Frauds and Perjuries 29 Car. 2. c. 29 Car. 2. which Enacts That from and after the 24th day of June in the year 1677. no Action shall be brought to charge any person upon any Agreement made in consideration of Marriage c. unless such Agreement be in Writing c. And that this was a bare Promise without Writing And by Wyld and Jones absente Twisden Iudgment was given for the Plaintiff for it could not be presumed that the Act had a retrospect to take away an Action to which the Plaintiff was then intituled For if a Will had been made before the 24th day of June and the Testator had dyed afterwards yet the Will had been good though it had not been in pursuance of the Statute Aster versus Mazeen In C. B. IN Covenant Breach assigned did relate to three Covenants the Declaration concludes sic fregit Conventionem and good the Plaintiff declared upon an Indenture in which the Defendant had covenanted that he was seised in Fee c. and would free the Premisses from all Incumbrances in which there was also another Covenant for quiet Enjoyment and the Breach assigned was upon an Entry and Eviction by another and concludes sic Coventionem suam praedictam fregit in the singular Number And upon a Demurrer to the Declaration Maynard Serjeant said That the Breach did relate to all the three Covenants and therefore the Conclusion was ill because he did not shew what Covenant in particular and if he should obtain a Iudgment upon such a Declaration the Recovery could not be pleaed in Barr to another Action brought upon one of the other Covenants But Conyers for the Plaintiff said that Conventio is
be any possibility of a loss there it will create a Fee which is the express resolution in Collier's Case Here the five pounds is payable quarterly and the first payment is to be made the next Quarter after the death of the Testator so as it be a Month after his decease if then he should die a Month before Christmas the Deviseé is to pay the whole quarterly payment at Christmas So that if he should dye the next day after instead of having any benefit he would lose by this Devise in case it should be construed that he had an Estate only for Life The Court were of Opinion that a Legacy or Devise is always intended for the benefit of the party so that 't is reasonable to make such construction of the Will that he may have no possibility of a loss And it hath been resolved where a Devise was to A. upon Condition to pay a Sum of Mony to B. and in case of failure that B. may enter 't is no Condition but an Executory Devise and that * 10 Co. 36. Mary Portington's Case was denyed to be Law in the Resolution of Fry and Porter's Case in the King 's Bench. Judgment And afterwards in this Term Iudgment was given for the Defendant For if there be a Devise to one upon Condition to pay a Sum of Mony if there be a possibility of a loss though not very probable that the Devisee may be damnified it shall be construed a Fee and such Construction hath been always allowed in Wills If A. devise 100 l. per annum to B. paying 20 s. 't is not likely that the Devisee should be dampnified but 't is possible he may and therefore the Estate in this Case being limited to Robert and charged with payments to the Sisters during their Lives doth plainly prove the intent of the Testator was that the Devisee should have an Estate in Fee simple and Iudgment was given accordingly Bridges versus Bedingfield DEBT was brought upon a Bond of Award Arbitrament Where the thing awarded is hindred to be done by the Act of a Stranger and the breach assigned was for not delivering of quiet possession to the Plaintiff of Seats in a Church The Defendant craves Oyer of the Bond and Condition which was for performance of an Award to be made de praemissis vel aliquâ parte inde and if there should be no Award made then for the performance of an Umpirage and pleads that the Arbitrators made no Award de praemissis but the Vmpire awarded that the Plaintiff should abinde upon all occasions hold two Seats quietly and peaceably in such a Church without any disturbance made by the Defendant and that on the first day of November following the Defendant should deliver up the Seats to the Plaintiff and that each should bear his own charge and by his Plea he farther sets forth that the Plaintiff enjoyed the Seats prout till the 30th day of October next following on which day the Seats were pulled down without his knowledge or consent per quod he could not deliver them to the Plaintiff on the said first day of November The Plaintiff demurred Ex parte Quer. and Serjeant Jones maintained the Demurrer and said that the Pleading of nullum fecerunt Arbitrium is not good for 't is said de praemissis only whereas it should have been nec de aliqua parte inde for if a Bond be to perform an Award of two persons or either of them it will not be sufficient to plead that those two persons made no Award without adding nec eorum aliquis But if an Award be to be made of the Mannors of Dale and Sale or either of them and the Award is made only of Dale 't is well enough 2. Except Viz. The Vmpirage is that the Plaintiff should hold the Seats abinde which is for ever and the Defendant pleads that the Plaintiff enjoyed them till the thirtieth day of October 3. Except Viz. The Seats were to be delivered to the Plaintiff on the first day of November and the Defendant pleads that they were pulled down before that day without his privity which is not a good Plea by way of excuse for being bound to deliver the Seats he is to prevent what may hinder the performance of the Condition 'T is agreed that if a thing be possible and afterwards by the Act of * Jones 179. Win's Case God becomes impossible to be done that will be a good excuse as if I promise to deliver a Horse at such a day and he dies before the day I am excused 21 E. 4. 70. b. So if a Scire Fac̄ be brought against the Bail and they plead that before the Writ brought the Principal was dead this was held not good upon Demurrer unless he is alledged to be dead before the Capias awarded against him Cro. Jac. 97. But if the Action of a Stranger interpose which makes the thing impossible that is no excuse 22 E. 4. 27. And therefore 't is no Plea for the Bail to say that the Principal was arrested at another Mans Suit and had to Prison for which reason he could not render him Cro. Eliz. 815. So if I deliver Goods to the Defendant and in Action of Detinue brought he pleads they were stole 't is no good Plea because the delivery charges him at his peril unless he undertake to keep them as his own 4 Co. * Cro. El. 815. Southcot's Case So if an Escape be brought against a Goaler he is not excused by alledging that Traitors broke the Prison Roll. Abr. 1. part 808. Et sic de similibus Ex parte Def. Seys Serjeant contra As to the first Exception nullum fecerunt Arbitrium de praemissis is well enough for that implies nec de aliqua inde parte especially if the contrary is not shewn in the Replication and therefore it shall never be intended that an Award was made of some part 2. 'T is said he enjoyed the Seats till the thirtieth of October and then they were taken down so not being in rerum natura they could not be enjoyed longer 3. And this is a good excuse for not delivering them to the Plaintiff on the first day of November and so a good performance of the Award Co. Lit. 206. b. If A. be bound to B. that C. shall marry Jane such a day and B. the Obligee doth marry her himself before that day the Obligor is excused because by his means the Condition could not be performed There is a difference taken where a Man is bound to deliver things which are in his Custody and other things which are not in his possession as in the first Case to deliver my Horse or Dog for such I may secure in my Stable from casualties But in this Case it is expresly said in the Award that the Property of the Seats was in the Plaintiff and that they were fixed in the Church so that he
Governour of Barbadoes and the Council there have power of probate of Wills and granting of Administration that the Secretary belongs and is an Officer to the said Governour and Council as Register and is concerned about the registring the said Wills and so his Office concerns the Administration of Iustice and then sets forth that this Covenant upon which the Plaintiff brought his Action was entred into upon a corrupt Agréement and for that reason void The Plaintiff replies protestando that this Office concerned not the Administration of Iustice and protestando that here was no corrupt Agréement pro placito he saith that Barbadoes is extra quatuor Maria and was always out of the Allegeance and power of the Kings of England till King Charles the First reduced that Island to his Obedience which is now governed by Laws made by him and not by the Laws of England The Defendant rejoyns protestando that this Island was governed by the Laws of England long before the Reign of King Charles the First and confesses it to be extra quatuor Maria but pleads that before King Charles had that Island King James was seised thereof and died such a day so seised after whose death it descended to King Charles the First as his Son and Heir and that he being so seised 2 Julii in the third year of his Reign granted it under the great Seal of England to the Earl of Carlisle and his Heirs at such a Rent absque hoc that King Charles the First acquired this Island by Conquest Baldwyn Serjeant demurred for that the Traverse is ill Ex parte Quer. for the most material thing in the Pleadings was whether Barbadoes was governed by the Laws of England or by particular Laws of their own And if not governed by the Laws of England then the Statute made 5 E. 6. cap. 16. concerning the Sale of Offices doth not extend to this place He said that it was but lately acquired and was not governed by the Laws of England that it was first found out in King James his Reign which was long after the making of that Statute and therefore could not extend to it The Statute of 1 E. 6. cap. 7. Enacts That no Writ shall abate if the Defendant pending the Action be created a Duke or Earl c. And it has béen doubted whether this Act extended to a Baronet being a Dignity created after the making thereof Sir Simon Bennets Case Syd 40. Cro Car. 104. Statutes of England extend no more to Barbadoes than to Scotland or Virginia New England Isles of Jersey and Gernsey 't is true an Appeal lies from those Islands to the King in Council here but that is by Constitutions of their own No Statute did extend to Ireland till Poyning's Law nor now unless named In Barbadoes they have Laws different from ours as That a Deed shall bind a Feme Covert and many others Ex parte Def. Seys Serjeant contra He agreed that the Traverse was ill and therefore did not indeavour to maintain it but said there was a departure betwéen the Declaration and the Replication for in the Declaration the Plaintiff sets forth that Nokes was admitted Secretary apud Insulam de Barbadoes viz. in Parochia Sancti Martini in Campis and in the Replication he sets forth that this Isle was not in England which is in the nature of a departure as Debt sur obligat ' 1 Maii the Defendant pleads a Release 3 Maii the Plaintiff replies primo deliberat ' 4 Maii 't is a departure for he should have set forth that the Bond was 4 Maii primo deliberat ' Quaere Bro. Departure 14. So in a Quare Impedit the Bishop pleaded that he claimed nothing but as Ordinary The Plaintiff replies Quod tali die anno he presented his Clerk and the Bishop refused him the Bishop rejoyns that at the same day another presented his Clerk so that the Church became litigious and the Plaintiff surrejoyns that after that time the Church was litigious he again presented and his Clerk was refused this was a Departure Bro. Departure So likewise as to the place the Tenant pleads a Release at C. The Demandant saith that he was in Prison at D. and so would avoid the Release as given by Duress and the Tenant saith that he gave it at L. after he was discharged and at large 40 E. 3. Bro. 32. 1 H. 6.3 The Plaintiff might have said that Nokes was admitted here in England without shewing it was at Barbadoes for the Grant of the Office of Secretary might be made to him here under the Great Seal of England as well as a Grant of Administration may be made by the Ordinary out of his Diocess 2. Except Viz. By the Demurrer to the Rejoynder the Plaintiff hath confessed his Replication to be false in another respect for by that he hath owned it The Defendant hath pleaded that King James was seised of this Island and that it descended to King Charles c. and so is a Province of England whereas before he had only alledged that it was reduced in the time of King Charles his Son and so he hath falsified his own Replication And besides this is within the Statute of 5 Ed. 6. for the Defendant saith that the Plaintiff hath admitted Barbadoes to be a Province of England and it doth not appear that ever there was a Prince there or any other person who had Dominion except the King and his Predecessors and then the Case will be no more than if the King of England take possession of an Island where before there was vacua possessio by what Laws shall it be governed certainly by the Laws of England This Island was granted to the Earl of Carlisle and his Heirs under a Rent payable at the Exchequer for which Process might issue and it descends to the Heirs of the Earl at the Common Law And if it be objected that they have a Book of Constitutions in Barbadoes that is easily answered for 't is no Record neither can the Iudges take any notice of it 'T is reasonable that so good a Law as was instituted by this Statute of Edw. 6. should have an extensive construction and that it should be interpreted to extend as well to those Plantations as to England for if another Island should be now discovered it must be subject to the Laws of England Curia advisare vult Lever versus Hosier THIS was a special Verdict in Ejectment Recovery suffered of Lands in a Liberty passeth Lands in a Vill distinct within that Liberty Mod. Rep. 206. Postea The Case upon the Pleading was viz. Sir Samuel Jones being Tenant in Tail of Lands in Shrewsbury and Cotton being within the Liberties of Shrewsbury suffers a Common Recovery of all his Lands lying within the Liberties of Shrewsbury and whether the Lands in Cotton which is a distinct Vill though within the Liberties shall pass was the Question And it was argued
of the next Avoidance was not good because it was made by those who were not Head of the Corporation and it must be void immediately or not at all and Iudgment was given accordingly Threadneedle versus Lynam THere being two Mannors usually let for 67 l. 1 s. 5 d. by the year Lease by a Bishop and more than the old Rent reserved good Mod. Rep. 203. a Bishop lets one of them for 21 years reserving the whole Rent and whether this was a good Lease within the Statute of 1 Eliz. cap. 19. was the Question which depended upon the construction of the Words therein viz. All Leases to be void upon which the old accustomed Rent is not reserved and here is more than the old Rent reserved and this being a private Act is to be taken literally North Chief Iustice agreed that private Acts which go to one particular thing are to be interpreted literally but this Statute extends to all Bishops and so may be taken according to Equity and therefore he and Wyndham and Atkins Iustices held the Lease to be good But this Case was argued when Vaughan was Chief Iustice and he and Iustice Ellis were of another Opinion DE Term. Sancti Mich. Anno 27 Car. II. in Communi Banco Thorp versus Fowle No more Costs than Damages NOTA. In this Case the Court said that since the Statute which gives no more Costs than Damage 't is usual to turn Trespass into Case Cooper versus Hawkeswel Words IN an Action upon the Case for these Words I dealt not so unkindly with you when you stole a Stack of my Corn Per Curiam the Action lies Escourt versus Cole Words IN an Action on the Case for Words laid two ways the last Count was Cumque etiam which is but a recital and dubitatur whether good Sharp versus Hubbard Six Months for proving of a Suggestion THE six Months in which the Suggestion is to be proved must be reckoned according to the Calendar Months and 't is so computed in the Ecclesiastical Court Crowder versus Goodwin Justification by Process out of inferiour Court IN Assault and Battery and false Imprisonment as to the Assault c. the Defendant pleads Not-Guilty and as to the Imprisonment he justifies by a Process out an inferiour Court and upon Demurrer these Exceptions were taken to his Plea 1. The Defendant hath set forth a Precept directed Servienti ad Claven and 't is not said Ministro Curiae 2. 1 Rol. 484. Cro. Car. 254. Dyer 262. b. It was to take the Plaintiff and have him ad proximam Curiam which is not good for it should have beén on a day certain like Adams and Flythe's Case * Cro. Jac. 571. Mod. Rep. 81. where a Writ of Error was brought upon a Iudgment in Debt by Nil dicit in an inferiour Court and the Error assigned was That after Imparlance a day was given to the Parties till the next Court and this was held to be a Discontinuance not being a day certain 3. 'T is not said ad respondend ' alicui 4. Nor that the Action arose infra Burgum 5. The Precept is not alledged to be returned by the Officer To all which it was answered That a Pleint is but a Remembrance and must be short Rast 321. and when 't is entred the Officer is excused for he cannot tell whether 't is infra * Squibb versus Hole antea 29. Jurisdictionem or not And as to the first Exception a Precept may be directed to a private person and therefore Servienti ad Clavem is well enough Then as to the next Exception 't is likewise well set forth to have the Plaintiff ad proximam Curiam for how can it be on a day certain when the Iudge may adjourn the Court de die in diem Then ad respondendum though 't is not said alicui 'tis good though not so formal and 't is no Tort in the Officer but t is to be intended that he is to answer the Plaintiff in the Plaint As to the fourth Exception the Defendant sets forth that he did enter his Plaint secundum consuetudinem Curiae Burgi and when the Plaintiff declared there he shewed that the Cause did arise infra Jurisdictionem And as to the last The Officer is not punishable though he do not return the Writ The end of the Law is that the Defendant should be present at the day and if the Cause should be agreed or the Plaintiff give a Release when the Defendant is in custody no Action lies against the Officer if he be detained afterwards But the Chief Iustice doubted that for the second Exception the Plea was ill for it ought to be on a day certain and likewise it ought to be alledged infra Jurisdictionem But the other threé Iustices held the Plea to be good in omnibus and said that the inferior Court had a Iurisdiction to issue out a Writ and the Officer is excusable though the cause of Action did not arise within the Iurisdiction which ought to be shewn on the other side And so Iudgment was given for the Defendant Snow and others versus Wiseman Traverse necessary where omitted is substance TRespass for taking of his Horse The Defendant pleads that he was seised of such Lands and intitles himself to an Herriot The Plaintiff replies that another person was jointly seised with the Defendant Et hoc paratus est verificare The Defendant demurs generally because the Plaintiff should have traversed the sole Seisin But it was said for him that the sole Seisin néed not be traversed Sid. 300. because the matter alledged by him avoids the Barr without a Traverse In a Suggestion upon a Prohibition for Tythes the Plaintiff entituled himself by Prescription under an Abbot and shews the Vnity of Possession by the Statute of 31 H. 8. by which the Lands were discharged of Tythes Yelv. 231. Pl. Com. 230. 231. The Defendant pleads that the Abbey was founded within time of Memory and confesseth the Vnity afterwards and the Plea was held good for he néed not traverse the Prescription because he had set forth the Foundation of the Abbey to be within time of Memory which was a sufficient avoiding the Plaintiffs Title Yelv. 31. The Plaintiff therefore having said enough in this Case to avoid the Barr if he had traversed it also it would have made his Replication naught Cro. Jac. 221. like the Case of * Bedel and Lull where in an Ejectment upon a Lease made by Elizabeth the Defendant pleads that before Elizabeth had any thing in the Lands James was seised thereof in Fee and that it descended to his Son and so derives a Title under him and that Elizabeth was seised by Abatement The Plaintiff confesses the Seisin of James but that he devised it to Elizabeth in Fee and makes a Title under her absque hoc that she was seised by Abatement and upon a Demurrer the
this Action they would have named it he said he was for restoring the Common Law as much as he could but doubted much whether this Proviso did help the Plaintiff But Iudgment was given for the Plaintiff Doctor Samways versus Eldsly COvenant The Plaintiff declares Where Covenants are mutual and where not That by Indenture made between him and the Defendant reciting that there were divers Controversies between them as well concerning the right title and occupation of Tythes arising and renewing upon the Fréehold of the Defendant in T. and upon other Lands held by the Defendant by a Lease for years from the Plaintiff under the annual Rent of c. and concerning the arrearages of Rent due upon that demise as concerning other matters for the determination thereof the said Parties did by the said Indenture bind themselves in consideration of 12 d. given to each other to observe the Arbitration of an Arbitrator indifferently to be chosen between them to arbitrate order and judge between them de super praemissis and the Plaintiff and Defendant mutually covenanted to do several other matters That the Arbitrator did thereupon afterwards Award and the Defendant did Covenant with the Plaintiff that in consideration of the Plaintiffs sealing and delivering at the Defendants request one part of a Lease for years to the Award annexed for the Rent therein reserved that the Defendant should pay so much Mony for the Tythes That it was also Awarded by the said Arbitrator and the Defendant did covenant that he would be accomptable to the Plaintiff for all such arrearages of Rent Tythes and Composition-Mony for Tythes as should be arising and renewing upon the said Land c. according to such a value per Annum whereof the Defendant could not lawfully discharge himself And the Plaintiff avers That he hath observed all the Covenants on his part and that the Defendant hath not observed all the Covenants on his part and assigns for breach that he hath not accounted with him for all arrears of Tythes and Composition-Mony for Tythes arising upon the Lands in c. and that he hath requested him to accompt which he hath refused The Defendant pleads Actio non For he says that 't is true there was such an Indenture as in the Declaration is set forth and such a Covenant to be accountable as the Plaintiff hath declared But saith in eadem Indentura agreatum fuit ulterius provisum that the Plaintiff should allow and discount upon the Account all Sums of Mony for Parsons Dinners at the request of the Plaintiff and for his concerns laid out and disbursed by the Defendant and such other Sums which he had direction to lay out and that such a day paratus fuit obtulit se adhuc paratus est to account for all arrears of Rent c. if the Plaintiff would discount c. That such a day the Plaintiff would not and often after refused and yet doth refuse to allow upon such accompt all such Sums of Mony as the Defendant at the request and for the concerns of the Plaintiff had laid out and this he is ready to aver and then he avers that after c. on such a day he did expend several Sums of Money for the Plaintiff which were just and reasonable to be allowed by the Plaintiff upon accompt made by him To this Plea the Plaintiff demurred and the Defendant joyned in Demurrer which was argued by Turner Serjeant for the Plaintiff and by Serjeant Seys for the Defendant This was a bad Plea for 't is a Rule in all Law Books that every Plea ought to answer the matter which is charged upon the Defendant Ex parte Quer. in the Declaration which is not done here because the Defendant doth neither aver that he did accompt or confess or avoid or traverse it which he ought to do after the Plaintiff had alledged a request to accompt and a refusal 'T is an absolute Covenant which charges him to be accomptable and not if the Plaintiff would allow Parsons Dinners c. for 't is impossible that the Plainntiff can make any such allowance till the Defendant hath accompted for how can there be a discounting without an Accompt If the Plaintiff had told him before the Accompt that he would not allow any thing upon the Accompt this would not have been prejudicial to bart him of his Action so as it had been before the request For if a Man makes a Feoffment in Fee upon condition that if the Feoffor pay 100 l. at Michaelmas the Feoffment shall be void and before Michaelmas the Feoffee tells him that he will not receive the Money at that time this shall not prejudice him because t is no refusal in Law The Defendant in this Case is to do the first act viz. to Accompt and when that is neglected by him it shall never prejudice him who is to do a subsequent act 5 Co. 19 20. Higginbottoms Case 22 23 Hallin and Lambs Case One Covenants to make an Estate in fee at the Costs of the Covenantee the Covenantor is to do the first act viz. to let him know what Conveyance he will make The like Case was in this Court between Twiford and Buckly upon an Indenture of Covenants wherein one of the parties did Covenant to make a Lease for the Life of the Covenantee and for two other Lives as he should name and the Covenantor was to give possession The breach assigned was that the Defendant had not made Livery and Seisin and upon performance pleaded the Plaintiff did demux and upon great debate it was resolved that the Covenant was not broken because the Plaintiff had not performed that which was first to be done on his part viz. to name the Lives It may be objected that these Covenants have a relation one to the other and so non-performance of the one may be pleaded in bar to the other But to that he answered they are distinct and mutual Covenants and there may be several Actions brought against each other The Case of * Stiles 186. 187. Ware and Chappel comes up to this point Ware was to raise 500 Soldiers and bring them to such a Port and Chappel was to find Shipping for which he sued upon the Covenant though the other had not raised the Soldiers for that can be only alledged in mitigation of Damages and is no excuse for the Defendant and it was adjudged that this was not a condition precedent but distinct and mutual Covenants upon which several Actions might be brought This cannot be a Condition precedent for the Defendant pleads ulterius agreat̄ provisum est that the Plaintiff shall discompt and reimburse the Defendant and here the word provisum est doth not make a Condition but a Covenant 27 H. 8. 14 15. Bro. Condition 7. There is another fault in the Plea for the Defendant averrs that the Plaintiff hath not reimbursed him several Sums of Mony which
to shew that the Proceedings of that Court did not alter but interpret the Law But admitting the Case of the Duke of Norkfolk to be Law yet it concerns not this because the Sub Marshal there was taken as a Deputy but there is no such Officer as a Sub-Warden for Duckenfield had it for Life And then a Deputy being a person removable at pleasure will not be so considered in Law as one who hath a more fixed Estate for having nothing to lose it cannot be intended that he will be so careful in the execution of his Office as the other and therefore 't is reasonable in such Case that the Superiour should answer But he who hath a Freehold for Life hath an Estate of some value in the Law which he cannot be supposed easily to forfeit and therefore 't is reasonable that he alone should be lyable for his own Miscarriages for if the Defendant should be charged by the same reason the Grantee of the Reversion may be charged who is altogether an innocent person and so may be liable to a vast Sum for the Fault of another for which Reasons he prayed Iudgment for the Defendant The Court delivered no Opinion this Term Judgment but took time to advise and afterwards in Easter Term following Rainsford Chief Iustice delivered the Opinions of Twisden Wild and Jones Iustices who said they were all agreéing in the main Point but thought the Verdict imperfect and not to warrant the Plaintiffs Case for he declared that at the time when the Grant was made to Duckenfield when the Commitment was and when the Escape was suffered and ever since that Duckenfield was insufficient and not able to answer the Plaintiff but the Iury in the Special Verdict do not find the insufficiency at that time when this Action was brought But as to the main Question they were of Opinion that the Defendant was Superior and that he is chargeable for this insufficiency of Duckenfield but if he had béen sufficient when the Plaintiff brought this Action it might have been otherwise but his Inability being fully averred in the Declaration and the Defendant denying it and the Iury having found nothing against it but there being strong Suspicions of the truth of the Fact the Court would not make an intendment to the contrary The Iury have found expresly that Duckenfield was insufficient at the time of the Escape which was within six Weeks of the time when the Action was commenced so that having once found him disabled unless it appear that he was of Ability afterwards the Court will not intend him so but rather that he was insufficient at the time of the Action brought for there being strong surmises of it and there being no ground within the Record to intend him sufficient a Fact may be collected that is not found in the Verdict Fulwoods Case 4 Co. The King versus Moor. Difference between a prohibitory Clause and a Clause which gives a Penalty in a Statute AN Information was brought upon the Statute of the 4th 5th of Philip and Mary cap. 8. which Enacts That if any Person c. above the Age of 14 shall after the first day of April next after the making the Statute unlawfully take a Maid or Woman unmarried being within the Age of 16 years c. the Party shall suffer two years Imprisonment or pay such Fine as shall be assessed in the Star Chamber and that the Defendant existens supra aetatem quatuordecim annorum did take a young Maid away unmarried and kept her three days contra formam Statuti upon which he was found Guilty and now moved in Arrest of Iudgment 1. It was said for the Defendant that this Court could not Fine him upon this Statute because when the Informer entitles himself by a Statute he must take the remedy therein prescribed and so 't is not like an Information at the Common Law for in such case this Court might Fine the Plaintiff 2. It is not averred that the party offending was above the age of 14 years at the time of taking but only that he being above the age of 14 such a day did take Where there are not Negative Words the Court of Kings Bench is not restrained Mod. Rep. 34. Sid. 359. Sir William Jones contra If the first Objection hath any weight in it 't is to bring the Party to an Imprisonment for the space of two years which is a punishment directed by that Statute but the Fine is limited to the Star Chamber and those Offences which were punishable there are likewise to be punished here because there are no Negative words in this Statute to abridge the authority of this Court which is never restrained but when the Statute directs before whom the Offence shall be Tried and not elsewhere It was the Opinion of my Lord Chief Iustice Hales That where there is a prohibitory Clause in a Statute and another Clause which gives a Penalty if the Party will go upon the prohibitory Clause Postea he is not confined to the manner expressed in the Statute but if he will go upon the Penalty he must then pursue what the Statute directs The first part of this Statute is but a Declaration of the Common Law the second Clause is introductive of a new Law as to the Court of Star Chamber but is not a restriction as to this Court which might have punished the Defendant if there had been no such Law The first Clause is prohibitory viz. That it shall not be lawful for any person to take away a Maid unmarried and upon this Clause this Information is brought The second Clause is distinct and directs the punishment viz. Upon Conviction to suffer Imprisonment for two years Now by taking away the Court of Star Chamber this prohibitory Clause is not repealed upon which a Man may be Indicted without demanding the Penalty and the Statute having directed that the Offence shall be heard and determined before the Kings Council in the Star Chamber or before the Iudge of Assise and no Negative words to restrain this Court therefore the Chief Iustice who is the Iudge of * Cro. Car. 463. Assise in the County of Middlesex may hear and determine this Offence and by consequence Fine the Party if he be found Guilty As to the second Objection That it is not averred that the Party offending was above the age of 14 years at the time of the taking it had been better if it had been said tunc existen ' supra aetatem quatuordecim annorum but notwithstanding 't is well enough for 't is said that being above the age of 14 years such a day he did take c. so that it cannot be otherwise but that he was of such an age at the time when the Maid was taken and the Iury found him Guilty contra formam Statuti which may likewise be an Answer to the first Objection for he being found Guilty contra formam
Toll c. which were first created by the King 9 Co. Abbot de Strata Marcella's Case So that this Toll is not become in gross by the dissolution whereupon Iudgment was given for the Defendant Sir William Turner's Case Amendment not after issue joyned DEbt qui tam c. for 100 l. against Sir William Turner being a Iustice of Peace in London for denying his Warrant to suppress a seditious Conventicle of one Mr. Turner in New-street This Cause was to be tried by Nisi prius this Term before the Chief Iustice And now the Plaintiff moved to amend one Word in the Declaration wherein he was mistaken for he had laid the Meeting to be at Turner's Mansion House and upon Enquiry he understood the place of Meeting was not at his Mansion House but at a little distance from it and so prayed the word Mansion might be struck out But the Chief Iustice said that after Issue joyned Curia and the Cause set down to be tried and this being a penal Statute no President could be shewn of an Amendment in such case and therefore would not make this the first and so Leave was given to the Plaintiff to discontinue upon payment of Costs Brown versus Johnson IN Accompt The Plaintiff declares against the Defendant Time where 't is made parcel of the issue not good for that upon the first of March 22 Car. 2. abinde to the first of May 27 Car. 2. he was his Bayliff and Receiver of 80 Piggs of Lead The Defendant pleads that from the said first day of March 22 Car. 2. to the first day of May 27 Car. 2. he was not the Plaintiffs Bayliff or Receiver of the said 80 Piggs of Lead hoc paratus est verificare To this the Plaintiff demurred and assigned specially for cause that the times from the first of March to the first of May are made parcel of the Issue which ought not to be because the Plaintiff in his Declaration must alledge a time for Form sake but the Defendant ought not to tye him up to such time alledged for he might have said he was not Bayliff modo forma And for this the Case of Lane and Alexander was cited where the Defendant by Ejectment makes a Title by Copy of Court Roll granted to him 44 Eliz. and the Plaintiff replies his Title by the like Grant 1 Junii 43 Eliz. The Defendant maintains his Barr and traverseth that the Queen 1 Junii 43 year of her Reign granted the said Land by Copy and upon Demurrer it was adjudged that the traversing of the day is matter of substance which being made part of the Issue is naught But on the other side it was objected that time is material and that in Actions of Accompt 't is proper to make it parcel of the Issue for a Man may be Bayliff for two but not for three years and a Release may be pleaded from such a time to such a time Fitz. Accompt 30. Rast Entry f. 8. 19 pl. 1. f. 20. pl. 6. f. 22. pl. 2. 1. Then Exceptions were taken to the Plea first for that the Plaintiff having charged the Defendant as Receiver of 80 Piggs of Lead the Defendant pleads and that he was not Receiver thereof but doth not say of any part thereof for which reason the Court held the Plea ill because he might retain 79 and yet not 80 Piggs but to plead generally ne unques Receptor is well enough though it was urged that if it had been found against him upon such an Issue that he had received any parcel of the Lead he should have accompted 24 H. 4. 21. 2 Roll. 3. 14. 32 H. 6. 33. Fitz. Accompt 16. Cro. Eliz. 850. Fitz. Accompt 14. Rast Entry 18 19 20. 2. The Defendant concludes hoc paratus est verificare whereas it should be de hoc ponit se super patriam but the Court doubted of this because it was not specially assigned Postea 3. The Plaintiff charged the Defendant as his Bayliff upon the first of March and the Defendant pleads that he was not his Bayliff from the first of March so he excludes that day and this the Court held to be incurable and likewise that the time ought not to be made parcel of the Issue 2 Sand. 317 318. and so Iudgment was given quod computer Abraham versus Cunningham Administrator sells a Term afterwards an Executor appears and renounces yet the Sale was adjudged void Jones 72. 1 Vent 303. IN a special Verdict in Ejectment the Case upon the Pleadings was Viz. Sir David Cunningham being possessed of a Term for years made his Will and therein appointed his Son Sir David Cunningham to be his Executor and dyed Sir David the Executor in the year 1663. made his Will also and therein appointed David Cunningham his Son and two others to be his Executors and dyed those two Executors dye and B. a Stranger takes out Administration cum Testamento annexo and continues this Administration from the year 1665. to the year 1671. in which time he made an Assignment of this Term to the Lessor of the Plaintiff for which he had received a thousand Pounds And in the year 1671. the surviving Executor of Sir David the Executor made Oath in the Archbishops Court that he never heard of his Testators Will 'till then nor ever saw it before and that he had not medled with the Estate nor renounced the Executorship 6 Co. Packmans Case Then a Citation goes to shew cause why the Administration should not be repealed and Sentence was given that it should be revoked upon which the Executor enters and the Lessor of the Plaintiff entred upon him This Case was argued by Saunders for the Plaintiff Ex parte Quer. and Levints for the Defendant And first it was said in behalf of the Plaintiff that the Authorities in the Books were strong on his side that the first Administration was well granted 'T is true if a Man make a Will and Administration is granted and that Will is afterwards proved such Administration is void as in Greysbrook and Foxes Case Pl. Com. But in this Case after the death of Sir David Cunningham the Executor his Testator is dead Intestate for to make an Executor there must be first the naming of him then there must be some concurring act of his own to declare his assent that he will take onus executionis upon him for no man can make another Executor against his will so that if after the death of the first Executor those other Executors appointed by him had made such a Declaration as this surviving Executor hath since done their Testator had dyed Intestate 7 E. 4. 12 13. The Executor is made by the Testator and the Ordinary is empowered by the Statute to make the Administrator where the person dies Intestate so that 't is plain there cannot be an Executor and Administrator both together If he who is
likewise addressed to my Lord as before making several Protestations of his Innocency But having once in a Passion said that he scorned to submit My Lord for that Reason would not remit the Damages it was therefore moved for a new Tryal upon these Reasons 1. Because the Witnesses who proved the Words were not Persons of Credit and that at the time when they were alledged to be spoken many Clergy-men were in Company with the Defendant and heard no such Words spoken 2. It was sworn that one of the Iury confessed that they gave such great damages to the Plaintiff not that he was damnified so much but that he might have the greater opportunity to shew himself noble in the remitting of them 3. And which was the principal Reason because the Damages were excessive Curia The Court delivered their Opinions seriatim and first The Chief Iustice North said In Cases of Fines for criminal Matters a Man is to be fined by Magna Charta with a salvo contenemento suo and no Fine is to be imposed greater than he is able to pay but in Civil Actions the Plaintiff is to recover by way of compensation for the damages he hath sustained and the Iury are the proper Iudges thereof This is a Civil Action brought by the Plaintiff for Words spoken of him which if they are in their own nature actionable the Iury ought to consider the damage which the Party may sustain but if a particular Averment of special damages makes them actionable then the Iury are only to consider such damages as are already sustained and not such as may happen in futuro because for such the Plaintiff may have a new Action He said that as a Iudge he could not tell what value to set upon the Honour of the Plaintiff the Iury have given 4000 l. and therefore he could neither lessen the Sum or grant a new Trial especially since by the Law the Iury are Iudges of the damages and it would be very inconvenient to examine upon what account they gave their Verdict they having found the Defendant guilty did believe the Witnesses and he could not now make a doubt of their Credibility Wyndham Iustice accorded in omnibus Atkins Iustice contra That a new Trial should be granted for 't is every days practice and he remembred the Case of Gouldston and Wood in the Kings Bench where the Plaintiff in an Action on the Case for Words for calling of him Bankrupt recovered 1500 l. and that Court granted a new Tryal because the damages were excessive The Iury in this Case ought to have respect only to the damage which the Plaintiff sustained and not to do an unaccountable thing that he might have an opportunity to shew himself generous and as the Court ought with one Eye to look upon the Verdict so with the other they ought to take notice what is contained in the Declaration and then to consider whether the Words and Damages bear any proportion if not then the Court ought to lay their hands upon the Verdict 'T is true they cannot lessen the damages but if they are too great the Court may grant a new Tryal Scroggs Iustice accorded with North and Wyndham that no new Tryal can be granted in this Cause He said that he was of Council with the Plaintiff before he was called to the Bench and might therefore be supposed to give Iudgment in favour of his former Client being prepossess'd in the Cause or else to shew himself more signally just might without considering the matter give Iudgment against him but that now he had forgot all former relation thereunto and therefore delivered his Opinion that if he had been of the Iury he should not have given such a Verdict and if he had been Plaintiff he would not take advantage of it but would overcome with Forgiveness such Follies and Indiscretions of which the Defendant had been guilty but that he did not sit there to give Advice but to do Iustice to the People He did agrèe that where an unequal Tryal was as such must be where there is any Practice with the Iury in such Case 't is good reason to grant a new Tryal but no such thing appearing to him in this Case a new Tryal could not be granted Suppose the Iury had given a scandalous Verdict for the Plaintiff as a Penny Damages he could not have obtained a new Trial in hopes to increase them neither shall the Defendant in hopes to lessen them and therefore by the Opinion of these three Iustices a new Tryal was not granted Afterwards in this Term Serjeant Maynard moved in Arrest of Iudgment and said that this Action was grounded upon the Statute of R. 2. Which consists of a Preamble reciting the Mischief and of the Enacting part in giving of a Remedy and that the Defendants Case was neither within the Mischief or the Remedy This Statute doth not create any Action by way of particular design and if the matter was now Res integra much might be said that an Action for Damages will not lye upon this Statute for the Statute of Westm 2. appoints that the Offender shall suffer imprisonment until he produces the Author of a false Report Ca. 33. and the Statute of 2 R. 2. which recites that of Westm 2. gives the same punishment and the Action is brought qui tam c. and yet the Plaintiff only recovers for himself It was usual to punish Offenders in this kind in the Star Chamber as in the * Earl of Northampton's Case where one Goodrick said of him That he wrote a Book against Garnet and a Letter to Bellarmine 12 Co. 132. intimating that what he wrote in the Book was not his Opinion but only ad captandum populum which was a great disgrace to him in those days being as much as to say he was a Papist Cro. Eliz. But the Serjeant would not insist upon that now since it hath been ruled that where a Statute prohibits the doing of a thing which if done might be prejudicial to another in such case he may have an Action upon that very Statute for his Damages But the ground on which he argued was that these words as spoken are not within the meaning of the Act for they are not actionable 1. Because they are no scandal and words which are actionable must import a great Scandal which no circumstance or occasion of speaking can excuse and if they are scandalous and capable of any mitigation by the precedent discourse the pleading of that matter will make them not actionable and for this the Lord * 4 Co. Cromwel's Case is a plain Authority the Words spoken of him were You like those that maintain Sedition against the King's Person the occasion of speaking of which was to give an account of his favouring the Puritan Preachers which was all that was intended by the former discourse for that Lord had approved a Sermon which was preached by a Parson
notwithstanding Iniquum non est praesumendum may be well intended here and so Iudgment was given against the Defendant that this was no good Plea Adams versus Adams DEBT upon Bond to perform an Award Award Exceptions thereunto overruled so that it be made before or upon the 22d day of December or to choose an Vmpire The Defendant pleads no Award made The Plaintiff replies and sets forth an Award and assigns a Breach The Defendant demurrs 1. That here is no good Award Mod. Rep. 274. because the Arbitrators were to make it before or upon the 22d day of December and if they could not agrée to choose an Vmpire 2 Sand. 133. Now the Award set forth in the Replication was made by an Vmpire chosen after the 22d day of December which the Arbitrators had not power by the Submission to choose Sed non allocatur because they might have made their Award upon the 22d of December and therefore could not choose an Vmpire till afterwards for their Power was only determined as to the making an Award 2. Antea Because the Vmpire recites that the Parties submitting had bound themselves to stand to his Award which is not true Sed non allocatur because 't is but Recital 3. The Award is that the Defendant should pay the Plaintiff two Sums at several times and that several Releases shall be given presently and so the Bond and the Mony would be discharged and for that reason the Awarding the Release was void against the Plaintiff and by consequence there is nothing on his side to be done and the Court were all of Opinion that for this last reason the Award was not good Serjeant Baldwyn who was of Council for the Plaintiff said that it was an Exception which he could not answer if true but said that the Award was not that Releases should be given presently but that the Mony should be paid and Releases given by which it appears by the very Method and Order of the Award that the general Releases were not to be given till after the Mony paid and that being the Case the Court were clear of Opinion that it was well enough and so Iudgment was given for the Plaintiff Brook versus Sir William Turner Feme Covert made a Will and disposed of her Estate and good IN a Prohibition to the Spiritual Court to prove the Will of Philippa Brooks by Sir William Turner her Executor A Tryal at the Barr was had in which the Case was viz. That James Phillips by Will in Writing dated 24 Aprilis 1671. inter alia gave to Philippa for Life in lieu and full of her Dower all his Houses in Three Crown Court in Southwark purchased by him of one Mr. Keeling another House in Southwark purchased of one Mr. Bowes and all his Houses in New Fishstreet Pudding-Lane Buttolph Lane Beer Lane Duxfield Lane and Dowgate London and died That afterwards there being a Treaty of Marriage between the Plaintiff Mr. Brooks and Philippa Phillips it was agréed that all the said Houses and Rents and Profits thereof and all Debts Ready Mony Iewels and other real and personal Estate whatsoever or wherein Philippa or any in Trust for her were interessed or possessed should at any time as well before as after the Marriage be disposed in such manner as should be agreed on between them And thereupon by Indenture tripartite between Mr. Brook of the first part the said Philippa Phillips of the second part and William Williams and Francis Gillow of the third part reciting the said Will of James Phillips and the said Agréement the said Philippa in consideration of a Shilling paid to her by Williams and Gillow did with the full and free Consent of the said Edward Brook the now Plaintiff grant bargain and sell to the said Williams and Gillow all the said Houses devised by the last Will of the said James Phillips in Trust that the said Trustees should permit her to receive and enjoy the whole Rents and Profits of all the Houses purchased of Mr. Keeling and of all the Houses in Beer Lane and of two of the Houses in Broadstreet in the possession of James and Worsley and the Quarters Rent only due at Christmas then last past and no more saving to Philippa all former Rents and Arrears thereof to be received by her and not by Mr. Brook and to be imploied as therein after was mentioned And upon this farther Trust that after Mr. Brooks death in case the said Philippa survived that then the Trustées should permit Philippa and her Assigns from time to time to grant sell and dispose of the rest of the Premisses and all others whereof she was seised or possessed as she should think fit and also to receive dispose of and enjoy all the Rents and Profits of the Premisses not thereby appointed to be received by the Plaintiff for her only particular and separate use and not for the use of the Plaintiff without any account to be given for the same and not to be accounted any part of Mr. Brook's Estate and that the Acquittances of the said Philippa be good discharges against the Plaintiff and the said Trustees to joyn with Philippa in the Sale and disposition of the Premisses And Philippa in farther consideration of the said Marriage agreed to pay to Mr. Brook on the day of Marriage 150 l. and to deliver him several Bonds and Securities for Mony in the said Indenture particularly named And the said Philippa in farther pursuance of the said Agreement and in consideration of a Shilling paid to her by the said Trustees did with the like assent assign to them all her Iewels Rings Mony c. and other her real and personal Estate upon Trust that they should permit her to enjoy the same to her own separate and distinct use and to dispose thereof from time to time as well before the said Marriage as afterwards as she should think fit without any Accompt and for want of such Limitation or Appointment in Trust for her her Executors Administrators or Assigns and the Plaintiff not to hinder or impeach the same and not to be taken as any part of his Estate or be subject to his Debts Legacies or Engagements And the Plaintiff covenanted that if the Marriage took effect the Trustees should quietly enjoy the Premisses and Philippa to dispose thereof without trouble or molestation by him his Executors c. and that Philippa notwithstanding the Marriage should at any time either before or after have liberty by Deed or Will in Writing by her published in the presence of two or more credible Witnesses or otherwise howsoever at her pleasure to give and dispose all her real and personal Estate Goods Chattels c. whereof she was possessed before the said intended Marriage or at any time after or any other person in Trust for her except such part thereof as was thereby agreed to be paid to and received by the Plaintiff
is not like the Case at the Barr where 't is not a Stranger but the Obligee himself that must procure the Conveyance for 't is to be advised by his Council and to be done at his Costs and therefore in * 5 Co. 23. Lamb's Case it was held that if a Man be bound to give such a Release before such a day as the Iudge of the Admiralty shall direct there 't is no Plea to say that he appointed none for the Iudge being a Stranger to the Condition 1 Roll. Abr. 452. lit L. placito 6. the Defendant is to apply himself to him having undertaken to perform it at his peril which is the same Resolution with Moor's Case in Crook So that he took it for a Rule in all Cases that where the Act of God or of the Obligée discharges the Obligor from one part of a disjunctive Obligation that the Law discharges him of the other and therefore prayed Iudgment for the Defendant Dyer 361. Ex parte Quer. Serjeant Pemberton contra It appears that one thing or the other was to be done in this Case for if the Plaintiff demanded and tendred an Annuity the Defendant was to seal it and if he did not tender it then likewise the Defendant was to do something viz. to pay 300 l. So that the Plaintiff was either to have the Annuity or the Mony He agreed that where the Obligor hath the Election if in such Case the Obligée shall wilfully determine it that the Bond is thereby discharged But if a Stranger take away the Election 't is no discharge for in such case the other part is to be performed In this case the Plaintiff hath done no wilful Act to determine the Defendants Election but all which is pretended is that he hath not done something necessary to be performed which is that he hath not made a request But by his omission thereof the Defendants Election is not taken away for though no request was made within the six Months yet the Defendant might have prepared a Grant of the Annuity himself and have offered it to the Plaintiff within the six Months upon the last part of the day and if he had thus set forth his case and alledged that the Plaintiff made no request nor tendered him a Grant of the Annuity to Seal this had been a good performance of the Condition for he had done that which was the substance which though it was to be done at the Plaintiffs charge yet the Defendant might have brought an Action for so much Mony by him laid to the use of the other and the Cases put in the principal Case in Moor 645. are expressly for the Plaintiff in this Case where the Iudgment was That if there be a Statute with a Defeazance to make such Conveyance as the Council of the Conusee shall direct the Cognisor must prepare the Conveyance if the other doth not and there is a Case put where a thing was to be done at the Costs of the Plaintiff yet the Defendant did it at his own Charge which he recovered of the other North Chief Iustice Judgment and the whole Court were of Opinion that the Plea was good because the Defendant had the benefit of Election and the Plantiff not making the request within the six Months had dispensed with one part of the Condition and the Law hath discharged the Defendant of the other part and they relied upon the Case of Grenningham and Ewre which they held to be good Law and an Authority express in the very point In this Case the Obligee was to do the first act Viz. To make the request Where the Condition is single concilium non dedit advisamentum is a good Plea to discharge the Defendant so here the Condition is but single as to the Defendant for though it be disjunctive yet the Plaintiff hath taken away the benefit of Election from the Obligor of doing the one and therefore he shall be excused from doing the other The Pleading as alledged by the Council of the Plaintiff would not have been a good performance of the Condition for if one be bound to Convey as the Council of the other shall advise and he makes the Conveyance himself this is not such a Deed as was intended by the Parties and so no performance of the Condition But however the Defendant need not plead it for he is not bound so to do Here if the Plaintiff had requested the Sealing of such a Grant of an Annuity even the Defendant had liberty either to execute it or to pay the 300 l. and where the Election is on the Obligors part neither the act or neglect of the Obligee shall take it away from him for it would be unreasonable that the Obligee should have his choice either to accept of the Annuity or the 300 l. when 't is a known Rule That all Conditions where there is a Penalty in the Bond are made in favour and for the benefit of the Obligor and the 300 l. in this case to be paid upon the refusal of the Defendant to make such Grant is in the nature of a Penalty to enforce him to do it The principal Case in Moor 645. was agreed to be Law but the Rule there put was denied as not adequate to the present Case which was that if by the Act of God or of the Party or through default of a Stranger it becomes impossible for the Obligor to do one thing in a disjunctive Condition he is notwithstanding bound to do the other This is true only as to the last Case but not to the two first and for an Authority * 5 Co Laughter's Case was full in the Point which is that when a Condition consists of two parts in the disjunctive and both are possible at the time of the Bond made and afterwards one becomes impossible by the Act of God or of the Party the Obligor is not bound to perform the other part And Iudgment was given for the Defendant Smith versus Tracy In Banco Regis Distribution shall be equally made amongst the Children of the whole and half Blood Mod. Rep. 209. Jones 93. 1 Ventris 307 IN a Prohibition The Case was A Man dies intestate having three Brothers of the whole Blood and a Brother and Sister of the half Blood and the Question was whether they shall be admitted to a distribution in an equal degreé Mr. Holt argued that they were all in aequali gradu because before the Act of Distribution the Ordinary had power to compel the Administrator to give and allot filial Portions to the Children of the deceased out of his Estate And by the Civil Law such provision is made for the Children of the Intestate that the Goods which either the Father or Mother brought to each other at the Marriage shall not remain to the Survivor but the use and occupation of them only during Life for the Property did belong to the Children
Trotter versus Blake In Scaccario THIS was the Case of my Lord Hollis upon a Tryal at the Barr in the Exchequer in an Ejectione firmae Ejectment will not lie for a Forfeiture where the Tenant refused to pay a Fine being doubtful wherein the Case was this viz. The Lord Hollis was seised of the Mannor of Aldenham in the County of Hartford in Fee and the Lands in question were held of the said Lord by Copy of Court Roll and are parcel of the aforesaid Mannor That the Defendant was admitted Tenant and a Fine of 8 l. imposed upon him for such admittance payable at three distinct payments that the 8 l. was personally demanded of him by the Lord's Steward and he refused payment whereupon the Lord enters and seises the Estate for a Forfeiture which he would not have insisted on but that the obstinacy of the Defendant made it necessary for him to assert his Title and Right Mr. Walker the Lord Hollis his Steward being sworn gave Evidence that a Fine of 8 l. was set upon the Defendant when he was admitted and that the Lands to which he was admitted were usually lett for 7 l. per annum so that the Fine was but a little more than a years value That he himself demanded the 8 l. of the Defendant being a Seafaring-man who refused to pay it That he knew the Defendant to be the same person who was admitted to this Copyhold That the Demand was made at the Stewards Chamber in Staple Inn and because it was payable at three several days he then demanded of him only 2 l. 13 s. 4 d. as a third part of the 8 l. and that he did enter upon the 25th day of November last for Non-payment of the said 2 l. 13 s. 4 d. The Council for the Defendant insisted that the Steward ought to produce an Authority in Writing given to him by the Lord to make this Demand and Entry upon refusal Ex parte Def. for the Lords owning it afterwards will not make a Forfeiture But the Court held clearly that there was no need of an express Authority in Writing Curia and that it was not necessary for the Steward to make a Precept for the seizure but that it was necessary that the Demand should be personal The Reason why the Defendant refused to pay this Fine was because he said that by a Decree and Survey made of this Mannor in the Reign of Queen Elizabeth the Fine to be paid for this Copyhold was setled and it was but 3 l. and no more And Sir Francis Winnington Solicitor General said for the Defendant that the Case was very penal on his side but that he would make it clear that there was no colour for the bringing of this Action either as to the Matter or the Form He said that the Mannor of Aldenham had not been long in this noble Lord he came in as Purchaser or a Mortgagee under the Family of the Harvies whose Inheritance it was anciently and there has been some doubt whilst it was in their possession what Fines were customary to be paid upon Descents and Alienations but that is now settled and the Defendant was in the Case of a descent for which the Fine is not to be arbitrary at the Will of the Lord but is reduced to a certainty in Queen Elizabeth's Reign by Consent and Agreement between the Lord and Tenants and that a Survey was then made by vertue of a Commission directed to some Men of Credit and Worth in those days who were impowred to set forth the quantity of Land and the value thereof which was done accordingly and it was then agreed that a year and an halfs value in case of a Descent and two years value in case of an Alienation should be paid as a Fine to the Lord and the proportion of the value was then computed by the Commissioners and decreed by the Court of Chancery to be binding to the Lords and Tenants for ever The Question now is how this years value shall be computed the Lord would have it according to the improved value the Tenant will pay according as it was rated in Queen Elizabeth's time by those Commissioners Now if this Land had decayed in value the Tenant had still been obliged to pay a Fine according to the valuation of that time and if so it would be very unreasonable to make him pay for his Industry and Improvement of the Land now it is raised in value because that was done by his Labour and at his expence so that the doubt being what Fine shall be paid an Ejectione firmae will not lie because the Matter is doubtful and the Law gives the Tenant Liberty to contest it with the Lord and will never let him be under the peril of a Forfeiture because he will not comply with the Lord to give up his Right without Law But the Lord hath another and a more proper remedy for he may bring an Action of Debt for the Fine thus imposed which will try the Right and is not so penal to the Copyholder which Point was lately resolved And that if a Copyholder had a probable cause to induce him to believe that he ought not to pay the Fine demanded let the Right be as it would yet no Ejectment will lie for it must be only in a plain Case that the Lord can enter for a Forfeiture For no Man forfeits his Estate but by a wilful default in himself such a Forfeiture as is done and presumed to be committed upon his own knowledge but want of understanding cannot be made a wilful neglect 'T is true the Decree in Chancery made here cannot vary the Law but it may be Evidence of the Fact for prima facie it shall be intended that such values have been paid time out of mind because the Court have so decreed but then when the Fine was declared to be certain a doubt did arise how the years value shall be reckoned which has been setled also by another Decree and from that time all the respective Lords of this Mannour have taken Fines according to that value which is mentioned in the Survey and this Lord himself hath taken Fines in pursuance of the same so that 't is clear the Fine cannot be Arbitrary but be it so or not 't is not material to this purpose because the Tenant hath a good and colourable ground to insist upon the Decree and Survey and consequently there is no wilful Forfeiture The Lord Chief Baron agreed That if it be a doubt and the Tenant gives a probable Reason to make it appear that no more is due than what he is ready to pay 't is no Forfeiture but the Law in general presumes that the Fine is incertain if the contrary is not shewed now if the Tenants doubt did arise upon the equitableness of the Fine in such case if he refuse to pay 't is a Forfeiture but here it was whether it shall be paid
without any actual Entry 2 Cro. 604. and the Bargaineé thereby is capable of a Release though he cannot bring an Action of Trespass without Entry for when Mony is the Consideration of making the Bargain and Sale 't is executed by the Statute of Vses and so the Release upon it is good but if the Deed be not executed 't is otherwise But this being to support a Common Recovery Antea Addison and Otway was to be favoured and therefore the Court took time to consider till the next Term and then The Chief Iustice said That if a real Action be brought against A. who is not Tenant to the Praecipe and a Recovery be had against him the Sheriff can turn him out who is in possession but if he who is not in possession comes in by Voucher he is estopped to say afterwards that he was not party to the Writ so that he who is bound must be Tenant or Vouchee or claim under them Conveyances have been altered not so much by the Knowledge of the Learned as by the Ignorance of Vnskilful Men in their Profession The usual Conveyance at Common Law was by Feoffment to which Livery and Seisin were necessary the Possession being given thereby to the Feoffee Antea Lord Salisburies Case but if there was a Tenant in Possession and so Livery could not be made then the Reversion was granted and the particular Tenant always attorned and upon the same reason it was that afterwards a Lease and Release was held a good Conveyance to pass an Estate but at that time it was made no question but that the Lessee was to be in actual Possession before the Release Afterwards Vses came to be frequent and Settlements to Vses were very common by reason whereof many inconveniencies were introduced to prevent which the Statute of the 27th of H. 8. was made by which the Vse was united to the Possession for before that Statute Vses were to be executed according to the Rules of Equity but now they are reduced to the Common Law and are of more certainty and therefore are to be construed according to the Rules of Law At the Common Law when an Estate did not pass by Feffoment the Lessor or Vendor made a Lease for years and the Lessee actually entred and then the Lessor granted the Reversion to another and the Lessee attorned and this was good Afterwards when an Inheritance was to be granted then also was a Lease for years usually made and the Lessee entred as before and then the Lessor released to him and this was good But after the Statute of Vses it became an Opinion That if a Lease for years was made upon a valuable Consideration a Release might operate upon that without an actual Entry of the Lessee because the Statute did execute the Lease and raised an Vse presently to the Lessee Sir Francis Moor Serjeant at Law was the first who practised this way Nota. But because there were some Opinions that where Conveyances may enure two ways the Common Law shall be preferred unless it appear that the party intended it should pass by the Statute thereupon the usual course was to put the Words Bargain and Sale into the Lease for a Year to bring it within the Statute and to alledge that the Lease was made to the intent and purpose that by the Statute of Vses the Lessee might be capable of a Release but notwithstanding this Mr. Noy was of the Opinion That this Conveyance by Lease and Release could never be maintained without the actual Entry of the Lessee This Case goes farther than any that ever yet came into Iudgment for Mony is not mentioned here to be the Consideration or any thing which may amount to it unless the Pepper Corn which he held to be a good Consideration The Lease and Release are but in nature of one Deed and then the intent of the Parties is apparent that it should pass by the Satute and eo instanti that the Lease is executed the Reservation is in force The Case put by Littleton in Sect. 459. is put at the Common Law and not upon the Statute where he saith That if a Lease be made for years and the Lessor releaseth all his Right to the Lessee before Entry such Release is void because the Lessee had only a Right and not the Possession which my Lord Coke in his Comment upon it calls an interesse termini and that such Release shall not enure to enlarge the Estate without the Possession which is very true at the Common Law but not upon the Statute of Vses And therefore Iudgment was given by the whole Court Judgment that the Word Grant in the Lease will make the Land pass by way of Use that the Reservation of a Pepper Corn was a good consideration to raise an Vse to support a Common Recovery that this Lease being within the Statute of Vses there was no need of an actual Entry to make the Lessee capable of the Release for by vertue of the Statute he shall be adjudged to be in actual possession and so a good Tenant to the Praecipe and Iudgment was given accordingly in Michaelmas Term following Kendrick versus Bartland THE Plaintiff brought an Action on the Case for stopping the Water going to his Mill with a Continuando c. Continuando laid after a Nusance abated yet Damages shall be recovered for what was done before The Defendant pleads that the stopping was contra voluntatem and that tali die which was betwéen the first and the last day laid in the Continuando the Plaintiff himself had abated the Nusance and so he had no cause of Action To this Plea the Plaintiff demurred and Serjeant Baldwyn who argued to maintain the Plea did not relye upon that part of it where the Defendant saith that the stopping of the Water was involuntary because he doing the thing it could not be contra voluntatem but the Question would be whether the Plaintiff had any cause of Action to recover damages after the Abatement of the Nusance and he said that he had abated it before the Action brought and counted for damages after the Abatement for which he had no Cause of Action and this he had confessed by his Demurrer But the Court were of Opinion that it was not a good Plea and took this difference between a Quod permittat or an Assize for a Nusance and an Action on the Case for the same for the end of a Quod permittat or an Assise was to abate the Nusance 2 Cro. 207 618 but the end of an Action on the Case was to recover damages therefore though the Nusance was removed the Plaintiff is intituled to his damages that accrued before and 't is usual in Actions of this nature to lay the Sid. 319. Continuando for longer time than the Plaintiff can prove but he shall have damages for what he can prove and so here he shall recover the
gave him the Goods at London by force whereof he took them at London absque hoc that he took them at Coventry because by such Gift or Delivery he might justifie the taking any where as well as where the delivery was made 2. That the Declaration was ill for the Agreement was to deliver the Goods at London and the breach was that he left them at London and so but argumentative Aston pl. Red. 62. Herns Pleader 76. Brownl Pleadings 139. But the Court were of Opinion that the Declaration was good and the Plea was naught in substance but if it had been good the Traverse notwithstanding had been ill because the justification was not local 2 Cro. 45 372 though Iustice Scroggs was of a contrary Opinion And Iudgment was given for the Plaintiff Nota Visne altered Propter necessiatem The Plaintiff had leave given by the Court to alter the Visne from London to Middlesex because all the Sittings in London were on a Saturday and his Witness was a Jew and would not appear that day Mendyke versus Stint PRohibition was prayed to the Sheriffs Court of London Prohibition to the Sheriffs Court after Verdict and Judgment comes too late The Suggestion was That the Plaintiff was sued in that Court in an Action on the Case and sets forth the Proceedings at large that there was a Verdict against him there and averred that the Contract upon which he was sued there revera was made in Middlesex and so the cause of Action did not arise within their Iurisdiction and upon Demurrer to the Prohibition Serjeant Pemberton argued 2 Inst 229 243 601. West 1. c. 35. F. N. B. 45. b. Hob. 106. 1. That a Prohibition doth lie to any Court as well Temporal as Spiritual where such Courts exceed their Bounds for both those Iurisdictions are united to the Imperial Crown it may be granted to the Dutchy Court if they hold Plea of Lands not parcel of the Dutchy 2. Though the Iury have here found that the Defendant assumpsit modo forma yet such finding as to time and place is not material nor is it any Estoppel in a new Action laid in another County to aver that it was for the same thing 'T is true both time and place may be made material by pleading and so it had been in this Case if the Iury had found the place precisely for it would have been an Estoppel The Verdict therefore is nothing and all they have done is coram non Judice The Case of * Antea Squib and Holt. Squib and Hole he cited as an Authority in point where it was adjudged no Escape in the Officer to let a Man at Liberty who was in Execution upon a Bond sued in an Inferior Court the Bond not being made within the Iurisdiction thereof Ex parte Def. But Maynard Dolben Goodfellow and Sympson Serjeants contra They agreed that where it appears by the Plaintiffs Libel that the Court had no Iurisdiction there a Prohibition lies at any time but if what is in the Declaration is laid infra jurisdictionem there the Party must plead extra jurisdictionem and if they refuse to plead to the Plea a Prohibition will lie after Sentence But here is an Action on the Case brought of which the Sheriffs Court can hold Plea and which is laid to be infra jurisdictionem and not denied by the Plaintiff in his Plea and therefore now after Verdict and Iudgment he comes too late for a Prohibition and upon this difference Prohibitions have been usually either granted or denied to the Spiritual Courts Though the Court hath not cognisance of the Cause yet the Proceedings are not coram non Judice for if it be alledged to be within the Iurisdiction and the Defendant takes no exception to it and then Sentence is given against him he hath there by admitted the Iurisdiction So where a Man sued for a Legacy in the Prerogative Court where the Will was proved Stiles 45. by the Opinion of Rolls C. J. 2 Roll. Abr. 318. and Sentence given and an Appeal to the Delegates and Sentence affirmed and then a Prohibition granted but without notice upon the Statute of 23 H. 8. cap. 9. for that the Parties lived in another Diocess but the Plaintiff having allowed the Iurisdiction in all the former proceedings though the Prohibition was granted the Court would not compel the Party to appear and plead but granted a Consultation Cro. Car. 97. Smith versus the Executors of Pondrel In Hillary-Term 1675. in B.R. between Spring and Vernon and in Michaelmas-Term in 22 Car. 2. B. R. Buxton's Case and in Hillary Term the 22 23 Car. 2. in the same Court between Cox and St. Albon Prohibitions were denied after the Iurisdiction adadmitted by Pleading Mod. Rep. 81. The Chief Iustice Wyndham and Atkyns upon the first Argument enclined that a Prohibition ought to be granted because the admittance of the Party cannot give a Iurisdiction where originally there was none but afterwards they were all of Opinion That the Prohibition should not go but said that the Plaintiff in the Inferiour Court ought to have been Non-suited if it appeared upon the Evidence that the Cause of Action did arise extra jurisdictionem In this Case these things were agreed by the Court. 1. Sid. 151. That if any matter appears in the Declaration which sheweth that the Cause of Action did not arise infra jurisdictionem there a Prohibition may be granted at any time 2. If the subject matter in the Declaration be not proper for the Iudgment and determination of such Court there also a Prohibition may be granted at any time 3. If the Defendant who intended to plead to the Iurisdiction is prevented by any Artifice as by giving a short day or by the Attornies refusing to plead it c. or if his Plea be not accepted or is over-ruled in all these Cases a Prohibition likewise will lie at any time And the Chief Iustice and Wyndham Iustices were of Opinion that after the Defendant had admitted the Iurisdiction by pleading to the Action especially if Verdict and Iudgment pass the Court will not examine whether the Cause of Action did arise out of the Iurisdiction or not But Atkyns and Scroggs Iustices said nothing to this last point but that many times an advantage given by the Law was lost by coming too late and instanced that a Visne may be changed in time but not if the Party come too late so if the time of the promise be laid above six years from the time of the Action brought if the Statute of Limitations be not pleaded the Defendant cannot take afterwards advantage of it Whereupon a Prohibition was denied and Iudgment was given for the Defendant Birch versus Wilson Plea tho' it amount to a general Issue if it doth disclose matter of Law besides it shall not be demurred unto IN an Action on the Case the Plaintiff declared
the space of 14 days after complaint made then the Sub-Commissioners of the Excise are to determine the same from whom no Appeal doth lye to the Justices of the Peace at their next Sessions which Commissioners of Excise Justices of the Peace and Sub-Commissioners amongst other things are inabled by the said Act to Issue out Warrants under their Hands c. to levie the Forfeitures and so justified the Entry under a Warrant from the Sub-Commissioners three Iustices having refused to hear and determine this Offence To this Plea the Plaintiffs demurred and had Iudgment in the Court of Kings-Bench and a Writ of Inquiry of Damages was Executed and 750 l. Damages given and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given because the Writ of Inquiry was executed the last day of the Term and the Court did immediatly rise and that he could not move the next Term because the Iudgment was given the Term before the Writ of Error was brought The Attorny General therefore said that this was a hard Case and desired a Note of the Exceptions to the Plea which he would endeavour to maintain which Mr. Pollexfen gave him and then he desired time to answer them The Exception to the Plea upon which the Iudgment was given was this Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences and so to issue out Warrants for the Forfeitures but where the Iustices or any two of them refuse And though it was said by the Defendant that three refused yet it was not said that two did refuse for there is a great difference between the allegation of a thing in the Affirmative and in the Negative for if I affirm that A. B. C. did such a thing that affirmation goes to all of them but negatively it will not hold for if I say A. B. C. did not such a thing there I must add nec eorum aliquis So if an Action be brought against several Men and a Nolle prosequi is entred as to one and a Writ of Enquiry awarded against the rest which recites That the Plaintiff did by Bill implead naming those only against whom the Inquiry was awarded and leaves out him who got the Nolle prosequi this is a variance for it should have been brought against them all 'T is true where a Iudgment is recited 't is enough to mention those only against whom it is had but the Declaration must be against all so in a Writ of Error if one is dead he must be named and so the Iustices ought all to be named in this Case viz. that the three next Iustices did not hear and determine this Offence nec eorum aliquis Wells versus Wright In Communi Banco DEBT upon Bond conditioned Bond with an insensible Condition good that if the Obligée shall pay 20 l. in manner and form following that is to say 5 l. upon four several days therein named but if default shall be made in any of the Payments then the said Obligation shall be void or otherwise to stand in full force and vertue The Defendant pleads that tali die c. non solvit 5 l. c. and upon this the Plaintiff demurred Barrel Serjeant The first part of the Condition is good which is to pay the Mony and the other is surplusage void and insensible but if it be not void it may be good by transsposing thus viz. If he do pay then the Obligation shall be void if default shall be made in Payment then it shall be good and for Authority in the Point the Case of Vernon and Alsop was cited Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill 14 Car. 2. Rot. 1786. in B. R. Where the Condition was that if the Obligée pay 2 s. per Week until the Sum of 7 l. 10 s. be paid viz. on every Saturday and if he fail in Payment at any one day that the Bond shall be void and upon the like Plea and Demurrer as here it was adjudged that the Obligation was single and the Condition repugnant The Court were all of Opinion that Iudgment should be given for the Plaintiff and the Chief Iustice said that he doubted whether the Case of 39 H. 6. 9 10. was Law Brittam versus Charnock Where the the Heir takes by the Will with a Charge he is a Purchaser and the Lands shall not be Assets DEBT upon Bond against the Defendant as Heir Vpon Riens per discent pleaded the Iury found a Special Verdict in which the Case was viz. The Father was seized of a Messuage and thrée Acres of Land in Fee and devised the same to his eldest Son the Defendant and his Heirs within four years after his decease provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts and then he deviseth his other Lands to be sold for payment of Debts c. The Father dies the Son pays the 20 l. and if this Messuage c. was Assets in the Hands of the Defendant was the Question Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets it was said because the Heir shall not take by descent but by Purchase for the Word Paying is no Condition if it should the Heir is to enter for the breach and that is the Defendant himself and for that reason it shall be a Limitation Southcot and Stowel Antea 'T is true where there is no alteration of the Estate the Heir must take by descent but in this Case there is an alteration of the Estate from what is directed by the Law viz. the manner how he shall come by the Estate for no Fee passeth to him during the four years But this was denyed by Serjeant Pemberton for he said if a Devise be of Land to one and his Heirs within four years it is a present Devise and if such be made to the Heir 't is a descent in the mean time and those Words within four years are void so that the Question will be whether the Word Paying will make the Heir a Purchaser and he held it would not He agreed that it was usual to make that a Word of Limitation and not a Condition when the Devise is to the Heir and therefore in a Devise to the Heir at Law in Fée he shall take by descent Styles Rep. 148. But if this be neither a Condition or Limitation 't is a Charge upon the Land and such a Charge as the Heir cannot avoid in Equity North Chief Iustice and Atkins Where the Heir takes by a Will with a Charge as in this Case he doth not take by Descent but by Purchase and therfore this is no Assets Moor versus Pit SPecial Verdict in Ejectment The Case was this Surrender of a Copyhold to a Disseisor whether good to extinguish the Right viz. A Copyholder for Life the Remainder for Life he in
new Will and the Grandson should take by the Name of Son And Iustice Atkins relied on the Case of Brett and Rigden in the Commentaries where new purchased Lands passed by a Republication but a Writ of Error being brought upon this Iudgment in the Kings Bench it was reversed Anonymus In Banco Regis MR. Sanders moved for a Prohibition to the Spiritual Court in the Case of the Children of one Collet and Mary his Wife to stay Proceedings there upon a Libel against them that the said Collet had married Anne the Sister of the said Mary They both appear and confess the Matter upon which a Sentence of Divorce was to pass whereas in truth Collet was never married to Ann but it was a contrivance between him and his Wife to get themselves divorced and the Marriage declared void ab initio to defeat their Children of an Estate settled upon them in Marriage with Remainders over by bastardizing them after they had been married and lived together 16 years The Reason why a Prohibition was prayed was because Marriage or no Marriage was to be tried in pais for that the Inheritance and Freehold of Land were concerned in this Case The Court directed that they should suggest this Matter Curia and that it was a Contrivance to obtain a Sentence of Divorce to defeat them of their Estate entailed on them and then to move for a Prohibition Smallwood versus Brickhouse THE Suggestion was Spiritual Courts are proper to determine where a person is capable of making a Will Godolph 276. that B. being under the Age of sixteen years had made a Will and that the Prerogative Court proceeded to the proof of it whereas by the Common Law a person is not capable till 17 years and therefore a Prohibition was prayed And that the Common Law hath determined the time my Lord Coke's Comment upon Littleton was cited 1 Inst 89. b. where 't is said That at 18 years of Age he may make his Testament and constitute Executors and the Age of a person is triable also in pais But the Court said Curia that the Proof of Wills and the Validity of them doth belong to the Ecclesiastical Court and if they adjudge a person capable the Court will not intermeddle for 't is within their Iurisdiction to adjudge when a person is of Age to make a Will and sometimes they allow Wills made by persons of 14 years of Age and the Common Law hath appointed no time it depends wholly on the Spiritual Law and therefore a Prohibition was denied Joan Bailies Case NOTA. One Joan Bayly being in Execution Administration was committed to the Debtor in Execution the Plaintiff dyed intestate and the Right of Administration came to her and a Motion was made for a Habeas Corpus to bring her from the Compter into this Court for that having administred to her Creditor she might be discharged but it was denyed for she could not be thus discharged because non constat de persona neither can she give a Warrant of Attorny to acknowledge satisfaction therefore let her renounce the Administration and get it granted to another and then she may be discharged by a Letter of Attorny from such Administrator Anonymus Mandamus MAndamus to swear one who was elected to be one of the Eight Men of Ashburn Court it was denyed because it is incertain for it ought specially to be inserted what the Office is and what is the place of one of the Eight Men of Ashburn Court that it may appear to the Court to be such a place for which a Mandamus doth lye and though such a Writ hath been granted for one of the approved Men of Guilford yet it was specially set forth what his Office was Birch versus Lingen Trin. 34 Car. 2. in B. R. Discontinuance where amendable JVdgment was obtained upon a Bond 25 years since and in one of the Continuances from one Term to another there was a blank The Executors of the Defendant now brought a Writ of Error and the Plaintiff in the Action got a Rule to amend and insert the Continuance suggesting to the Court that it was a Iudgment of a few Terms and so aided by the Statute of 16 17 Car. 2. cap. 8. Hughes Abr. tit Costs 480. 2 Sand. 289. Moor 710. Cro. Eliz. 320 489 553 619. Cro. Jac. 211 353 528. Vpon this Rule the Plaintiff fills up the Blank and the Record was certified so filled up into the Exchequer-Chamber And Mr. Pollexfen moved for the Defendant that the Record might stand as it did at first and that the Rule was got by a trick and on a false Suggestion it being a Iudgment before the Restoration of this King and a Discontinuance not amendable for 't is the Act of the Court and for an Authority in the Point the Case of Friend and Baker was cited where after a Record certified Stiles 339. a Motion was made to amend it because day was given over to the Parties from Easter to Michaelmas-Term and so Trinity-Term left out where by the Opinion of Roll Chief Iustice that the giving of a day more than is necessary is no Discontinuance but where a day is wanting 't is otherwise But Sanders for the Plaintiff said that this was only a Misprision of the Clerk and no Discontinuance but amendable The Clerks commonly leave Blanks in the Venires and if they neglect to fill them up 't is only a Misprision and amendable by the Court and the Record being now filled up by the Rule of the Court ought not to be razed to make an Error The Chief Iustice was of Opinion That this was not a discontinuance but an insufficient continuance and an omission of the Clerk only who if he had filled up this Blank himself without Rule it could not afterwards be set aside But Iustice Jones was of another Opinion That it was such a misprision of the Clerk as was not amendable by the Statute of H. 6. since it was not the same Term and all the Proceedings being in the Breast of the Court only during the Term it ought not to be altered but left in Blank as it was for where Iudgment is entred for the Plaintiff the Court may upon just cause alter it the same Term for the Defendant but not of another Term the whole Term being but one day in Law And though the Writ of Error be returned into the Exchequer that will make no alteration for the Record it self remains still here and 't is only a Transcript that is removed thither Sed Adjornatur Anonymus TRespass for breaking of his Close The Defendants plead Power where 't is coupled with an Interest is assignable That the place where were c. the Lands of one Martin who made a Lease thereof to the Plaintiff and did thereby except the Trees growing on the same In which Lease the Plaintiff did Covenant with the said Martin his
praedicto loco c. but doth not say tempore quo c. for a Herriot tempore quo c. being left out and so doth not say a Herriot was due at the time of the taking of the Goods But he answered That that was usual and common and of that Opinion were all the Iustices and so it was held good It was farther objected That here is a variance between the Avowry and the finding in the Special Verdict The Avowant says that the Rent was 12 s. and 4 d. and the Iury find that it was but 3 s. and 1 d. He also saith that the Herriot was due upon every Alienation without notice and they find it due with or without notice But to that he said the Iury have doubted only of the last Point for the Avowry was not for Rent but for the Herriot so the substance is whether he had good cause to distrein for the Herriot or not Postea And as to that the Substance is sufficiently found like the Case in Dyer 115. Debt upon Bond for performance of Covenants and not to do waste the Breach assigned was that the Defendant felled twenty Oakes who pleads Non succidit viginti quercus praed ' nec earum aliquam the Iury find he cut down ten yet the Plaintiff recovered for though the intire Allegation of the Breach was not found because ten did not prove the issue of twenty literally yet the Substance is found which is sufficient to make the Bond forfeited So in Trespas where the Plaintiff makes a Title under a Lease which commenced on Lady-day Habendum à Festo c. and the Issue was non demisit modo forma the Iury found the Lease to be made upon lady-Lady-day Habendum à confectione and so it commenced upon lady-Lady-day and not à Festo c. which must be the day after the Feast yet 't was adjudged for the Plaintiff because the * Moor 868. Yelv. 148. Substance was whether or no the Plaintiff had a Lease to intitle himself to commence an Action Hob. 27. But in Ejectment or Replevin such a Declaration had been naught because therein you are to recover the Term and therefore the Title must be truly set out and in Replevin you are to have a Retorn̄ habend ' but in Trespas 't is only by way of excuse Sed quaere A second Reason is because both Plaintiff and Defendant in pleading have agréed the matter in this particular for both say the Rent was 12 s. and 4 d. 'T is a Rule in Law That what the Parties have agreed in pleading shall be admitted though the Iury find otherwise 2 Ass pl. 17. 18 E. 3. 13. b. 2 Co. 4. Goddard's Case Iurors are not bound by Estoppel ad dicend ' veritatem for they are sworn so to do unless the Estoppel be within the same Record but here that which is confessed cannot be matter of Issue not being Lis contestata It has beén objected that in 33 H. 6. 4. b. the Plaintiff brought Debt for 20 l. the Iury found the Defendant only owed 10 l. and the Plaintiff could never recover But that must be intended of a Debt due upon Contract and there the least variance will be fatal 38 H. 6. 1. As to the second variance 't is not material for 't is not true as the Avowant hath said for if the matter in issue be found the finding over is but surplusage both the Verdict and the Avowry agree that the Defendant may take a Distress in case of Alienation without notice And so he prayed Iudgment for the Defendant Judgment for the Defendant The Court were all of Opinion that Iudgment should be given for the Defendant for what is agréed in pleading though the Iury find contrary the Court is not to regard and here the substance of the Issue as to the second Point is well found for the Defendant Iudge Atkins told Serjeant Wilmot who argued for the Plaintiff that he had cited many Cases which came not up to the matter and so did magno conatu nugas agere for which reason I have not reported his Argument Smith versus Feverel Case for surcharging a Common THE Plaintiff brought an Action on the Case against the Defendant setting forth that he had right of Common in A. and that the Defendant put in his Cattel viz. Horses Cows Hogs c. ita quod Communiam in tam amplo modo habere non potuit The Defendant pleads a Licence from the Lord of the Soil to put in Averia sua which was agreéd to comprehend Hogs as well as other Cattle in the most general sense The Defendant demurs and after Argument the Court were all of opinion that Iudgment should be given for the Plaintiff because the Defendant in his Plea hath not alledged that there was sufficient Common left for the Commoners for the Lord cannot let out to pasture so much as not to leave sufficient for the Commoners And though it was objected that the Plaintiff might have replyed specially and shewn there was not enough yet it was agreed by the Court that in this Case he need not because his Declaration to that purpose was full enough and that being the very Gist of the Action the Defendant should have pleaded it It was held indéed that in an Action upon the Case by the Commoner against the Lord he must particularly shew the Surcharge but if the Action be brought against a Stranger such a shewing as is here is sufficient North Chief Iustice said and it was admitted that the Licence being general ad ponend ' averia it should be intended only of Commonable Cattel and not of Hogs Sed contra if the Licence had been for a particular time Anonymus A Man devises Land to A. his Heir at Law Devise and devises other Lands to B. in Fee and saith If A. molest B. by Suit or otherwise he shall lose what is devised to him and it shall go to B. The Devisor dies A. enters into the Lands devised to B. and claims it the Court were of Opinion that this Entry and Claim is a sufficient breach to entitle B. to the Land of A. It was also agreed that these words If A. molest B. by Suit c. make a Limitation and not a Condition Pl. Com. 420. the Devise being to the Heir at Law for if it were a Condition it descends to him and so 't is void because he cannot enter for the breach 3 Co. 22. Cro. Eliz. 204. Wellock and Hamonds Case Paying in the case of the eldest Son makes a Limitation Owen 112. So in the Case of Williams and Fry in an Ejectione firmae in B. R. lately for Newport-House A. deviseth to his Grand-daughter Provided and upon Condition that she marry with the consent of the Earl of Manchester and her Grandmother 't is a Limitation 2dly It was agreed That an Entry and Claim in this Case was a sufficient molestation for when the
but it was denied for the Court agréed the Writ well issued Some have made a difference between the King's Bench and the Common Pleas as if an Execution might go into Wales upon a Iudgment obtained in the King's Bench but aliter if in the Common-Pleas But the Law is the same in both Courts Mich. 1653. betwéen Wyn and Griffith this very Case came in question and there it was held that Execution goes into Wales as well as into any part of England upon a Iudgment in the Courts of Westminster In 2 Bulstr 54. Hall versus Rotheram it was held that a Ca. sa shall go into Wales against the Bail upon a Iudgment recovered in the Kings-Bench here against the Principal Of the same Opinion was Iustice Atkins and that the Defendant cannot averr against the Sheriffs Return nor a Bishops Certificate and the true reason is given by my Lord Coke in 2 Inst 452. for the Sheriff is but an Officer and hath no day in Court to justifie his Return In special Cases Exception may be made to the Sheriffs Return but this is by reason of the special provision that is made for the doing of it by the Statute of W. 2. cap. 39. as in case too small Issues be returned or that the Sheriff return a Rescous the Party in his Averment must alledge of what value the Issues are 2dly That notwithstanding the common saying Breve Domini Regis non currit in Walliam yet a Fi. Fa. Ca. Sa. or any Execution whatsoever may issue into Wales upon a Iudgment obtained here And to prove this he considered 1. How Wales formerly stood in relation to England 2. How it stood before it was united by the Statute of H. 8. 3. How it now stands since the Vnion 1. And as to the first of these England and Wales were once but one Nation they used the same Language Laws and Religion and so continued till the time of the Roman Conquest before which they were both comprehended under one name viz. The Isle of Great Britain But when the Romans came those Britains who would not submit to their yoak betook themselves to such places where they thought themselves most secure which were the Mountains in Wales and from whence they came again soon after the Romans were drove away by their dissentions here and then these Britains enjoyed their ancient Rights as before After this came the Saxons and gave them another disturbance and then the Kingdom was divided into an Heptarchy and then also and not till then began the Welsh to be distinguished from the English but yet at that time they had great Possessions in England viz. Gloucester part of Worcester Hereford Shrewsbury which they kept till King Offa drove them out of the plaine Countries and made them fly for shelter into those Mountainous parts in Wales where they now continue Cambden 15. And 't is observable that though Wales had Kings and Princes yet the King of England had Superiority over them for to him they were Homagers Cambden 67. The Word Princeps implying a Subordinate Dignity Selden's Titles of Honor 593. 2dly During the time of the Separation Wales had distinct Laws and Customs from those in England whence that saying took its effect viz. Breve Domini Regis non currit in Walliam yet the Parliament of England before that time made Laws to bind Wales As the Act of 25 Edw. 1. for confirmation of the old great Charter of the Liberties of England and of the Forests which enacts That certain Duties shall be paid for every Sack of Wool c. exported out of Wales 2 Inst 531. So the Statute 3 Edw. 1. cap. 17. which gives remedy if a Distress be taken and detained in a Castle and upon deliverance demanded by the Sheriff if the Lord of the Castle should refuse he might raise the Posse Comitatus and beat down the Castle and if such detainer or refusal be in the Marches of Wales the King as the Statute saith is Soveraign Lord of all and shall do right upon complaint and the Conquest was not made till 9 E. 1. so that at that time likewise though Wales had Princes of its own Vaugh. 400. yet the Kings of England were Sovereigns to those Princes and though they had Laws of their own yet were they bound by those that were made here and though their Princes had ordinary remedial Writs yet in Cases extraordinary the Kings Writs here run into Wales and it was not for want of power but because there was no need for that it went so seldom and when the Kings Writ did issue it was necessary to direct it to the Sheriff of an English County for Wales was not then divided into Shires but afterwards by the Act called Statutum Walliae 12 Edw. 1. * 2 Inst 195. 4 Inst 239. it was divided into six Counties and then again by the Act of 27 H. 8. cap. 26. it was divided into the other six Counties But during this time there were frequent Hostilities between England and Wales until by the Conquest in Edw. 1. time they were united 'T is pretended that H. 3. Father to Edw. 1. was the Conqueror and 't is probable something considerable might be done in his time yet the absolute Conquest of the whole Dominion was made by Edw. 1. in whose time the aforesaid Statutum Walliae was made Vaugh. 414 415. and after that the Statute of 27 H. 8. to compleat the Vnion the end of which is declared to bring the Subjects of both to an entire Vnity and that it may be done with effect 't is enacted That the Laws of England be executed there ◠Bulst 54. for which reason it is held in 5 Co. Rep. Vaughan's Case fol. 49. that the Statutes of Jeofails do extend to Wales and in 2 Bulstr 156. * This was a Resolution upon no Debate the Sheriff of Radnor upon a Scire Fac̄ directed to him returned Breve Domini Regis non currit c. and was amerced 10 l. for his false Return Vide 19 H 6. 20. Fitzherb Trial pl. 40. tit Jurisdiction 13 E. 3. 23 24 34. idem Brief 621. Assize 382. It was objected That by express provision in 1 E. 6. cap. 10. Exigent and Proclamations shall be awarded out of the Courts of Westminster into Wales which if they might before this Law was then needless 'T is true the Opinion of the Parliament seems to be that had it not beén for this particular provision such Proclamations might not have issued for by 6 H. 8. cap. 4. Vaugh. 414. such Proclamations went but to the next County but they do not declare so and perhaps they might ground themselves upon that vulgar Error Breve Domini Regis non currit in Walliam which is not true unless the Clause be limited to original Writs only Objection That the Statute of 5 El. cap. 23. which enacts that the Excommunicato Capiendo shall be returned in the Kings-Bench
could not possibly secure them in his own House without subjecting himself to an Action and an Award that one Man shall take the Goods of another is void But if the Plea is not good yet if the Vmpirage be naught Iudgment is to be given for the Defendant for the advantage is saved to him upon the Demurrer And as to that the Vmpirage is but of one side for the Plaintiff is to do nothing nor is the Defendant to be acquitted of all Suits To which it was answered by the Plaintiff's Council That the Vmpirage was of both sides for there being Suits depending 't is awarded that each shall bear his own Charges which is a benefit to the Defendant for otherwise seing the right was in the Plaintiff the Defendant should have paid the Plaintiffs Costs as well as his own for which he cannot now sue without forfeiting his Bond Curia advisare vult Squibb versus Hole THE Plaintiff brought an Action of Escape Escape Action of Escape the Process was upon Bond not made within the Jurisdiction of an Inferiour Court and therefore no Escape and declares That he prosecuted one J. S. in the court of Ely upon a Bond made infra Jurisdictionem of that Court upon which he was taken and the Defendant suffered him to Escape Vpon Not Guilty pleaded the Iury found a special Verdict to this effect viz. That there was such a Bond upon which there was such a prosecution and such an Escape as in the Declaration but they find farther that this Bond was not made infra Jurisdictionem Curiae Maynard Serjeant who Argued for the Plaintiff said that this Action was commenced in an Inferiour Court upon a Bond which the Plaintiff sets forth to be infra Jurisdictionem Curiae and that the Defendant was Arrested and suffered to Escape and whether if in truth the Bond was not made infra Jurisdictionem an Action of Escape would lye or whether all the proceédings are coram non Judice was the doubt He took a difference where an Inferiour Court hath an Original Iurisdiction of the Cause and hath conusance of such a Suit as is brought there for in such Cases the proceedings are not extra-judicial but if an Action is brought where properly no Action doth lye all the proceedings there are coram non Judice At the Common Law one who had a particular Iurisdiction to hold Pleas within a Liberty could not hold any Plea of a thing which did arise out of the Liberty for though it was transitory in its nature yet being alledged not within his Iurisdiction it was ill 2 Inst 231. But when the cause of Action arises infra Jurisdictionem that gives them Authority to proceed and therefore it would be hard that the Iudge and Officer should be punished by a construction to make all extra judicial when they have no possible way of finding whether in truth the Cause did arise within the * Post Crowder and Goodwin Iurisdiction of the Court or not But the Officer is bound to obey the Process of the Court if it appear as in this Case that they had conusance of it the Iudge is likewise bound to grant the Process otherwise he is subject to the Plantiffs Action for his refusal In some Cases the Plaintiff himself may not know where the Bond was made as if he be Executor of the Obligee c. Besides in this Case 't is set forth That in the Action below the Defendant pleaded non est factum and so had admitted the Iurisdiction or at least had waived it and it would be an insufferable mischief if after all this labour and charge the Defendant might avoid all again North Chief Iustice said That if this Cause had been tryed before him he would have Non-suited the Plaintiff because he had not proved the truth of what he laid down in his Declaration viz. That the Bond was made infra Jurisdictionem Curiae But as to the Matter as it stood upon the special Verdict he inclined that as to the Plaintiff who knew where the Bond was made all the proceedings were coram non Judice but as to the Officer it was otherwise for the Pleint and Process would be a good Excuse for him in an Action of false Imprisonment Judgment And afterwards by the Opinion of three Iudges viz. the Chief Justice Wyndham and Atkyns Iustices Iudgment was given for the Defendant That this was no Escape and that though the Party had admitted the Iurisdiction by his Plea of non est factum below yet that could not give the Court any Iurisdiction which had not any originally in the Cause and the Case of * Roll. Abt. tit Escape 809 pl. 45. Richardson versus Bernard was cited as an Authority in point where the Plaintiff in an Action brought against an Officer declared in Hull upon a Bond made at Hallifax and had Iudgment and Execution and the Defendant escaped And in an Action brought for this Escape the Declaration was held ill because it did not alledge the Bond to be made infra Jurisdictionem Curiae Ellis Iustice of a contrary Opinion in omnibus Sams versus Dangerfield THE Plaintiff being Collector of the Hearth-Mony Departure brought an Action of Debt upon a Bond against his Sub-Collector conditioned to pay such Sums as he should receive within 14 days after receipt at such a place in the City of Worcester as the Plaintiff should appoint The Defendant pleads payment The Plaintiff assigns a breach in non-payment of such a Sum received at a place by him appointed The Defendant rejoyns that the Plaintiff appointed no place and the Plaintiff demurr'd And after Argument for the Plaintiff by Jones Serjeant this was adjudged a departure because the Defendant ought to have pleaded first that he had paid all but such a Sum for which as yet the Plaintiff had appointed no place of payment and Iudgment was given accordingly Smith versus Hall IN an Action brought against the Defendant for false Imprisonment he justified by virtue of a Latitat False Imprisonment doth not lye but an Action on the Case against the Sheriff for refusing sufficient Bail which the Plaintiff agreed in his Replication but farther set forth that after the Arrest and before the Return of the Writ he tendered sufficient Bail which the Defendant refused and Issue was joyned upon the tender which was found for the Plaintiff Newdigate Serjeant moved in Arrest of Iudgment 1. Though it was an Offence in the Defendant who was the Sheriff's Bayliff to refuse good Bail when tendred yet 't is not an Offence within the Statute 23 H. 6. cap. 10. because a Sheriffs Bayliff is not an Officer intended in that Statute neither will this Offence make him a Trespasser ab initio because the taking was by lawfull Process Cro. Car. 196. * Roll. Abr. 2 part 561. pl. 9. Salmon versus Percival The Defendant as Bayliff to the Sheriff is not the proper Officer to
Trusteés therein named are appointed to sell it for payment of Debts and raising this Portion by which Act all Conveyances made by old Sir Robert Carr since the year 1639. are made void except such as were made upon valuable considerations but all those made by him before the said year with power of revocation if not actually revoked are saved and in the year 1636. he had executed a Conveyance by which he had made a Settlement of his Estate in Tayl with a power of revocation but it did not appear that he did ever revoke the same The greatest part of the Lands appointed by this Act of Parliament to be sold by the Trustees are the Lands comprised in that Settlement and now after the death of Sir Robert Carr the Plaintiff exhibits his Bill against the Son not knowing that such a Settlement was made in the year 1636. till the Defendant had set it forth in his Answer and by this Bill he desires that the Trustees may execute their Trust c. and that he may have relief On the Defendants side it was urged Ex parte Def. that after the Marriage there was a Bond given for an additional Ioynture and it was upon that account that the Defendant was drawn in to execute these Articles And if the very reason and foundation of his entring into them failed then they shall not bind him in Equity and in this Case it did fail because the Plaintiff had disabled himself to make any other Ioynture by a Pre-conveyance made and executed by him of his whole Estate and if this agreement will not bind him then this Court cannot enlarge the Plaintiffs remedy or appoint more than what by the Articles is agreed to be done neither can the Defendants sealing incumber the Estate Tayl in Equity because the Lands were not then in him his Father being Tenant in Tayl and then living and the subsequent descent by which the Lands are cast upon him alters not the Case for the very right which descends is saved by the Act from being charged But on the other side it was argued that though the Marriage did proceed upon the Defendants sealing yet the Assurance which was to be made was a principal Motive thereunto and it being agreed before Marriage though not executed it was very just that he should Seal afterwards and though the additional Ioynture was not made yet there was no colour that the Defendant should break his Articles for that reason because if the Bond be not performed 't is forfeited and may be sued and nothing appeared in the case of any Conveyance made by Sir Francis whereby he had disabled himself to make an additional Ioynture and he hath expresly denied it upon his Oath And though it was was objected that the Money was raised by the old Lady Carr and by the direction of the Trustees lodged in the hands of one Cook who is become insolvent It was answered that there was no proof of the consent of the Trustees and therefore this payment cannot alter the case After the matter thus stated the Lord Chancellor delivered his Opinion That the 6000 l. is doe to the Plaintiff unpaid and unsatisfied for though the Marriage had not taken effect yet the Covenant binds the Defendant because a Deed is good for a Duty without any consideration 2. The Plaintiff has remedy against the person of the Defendant at Law for this 6000 l. 3. He has remedy against such of the Defendants Lands which are not comprised in the Settlement made 1636. for as to them the Trustees may be enjoyned to execute the Trust And he desired the Opinions of the two Iustices if any thing more could be done in this case Iustice Windham was of Opinion that nothing more could be done but to make a Decree to enforce the execution of the Trust And Iustice Wild said that the Plaintiff has his remedy at Law against the Defendant and upon the Act of Parliament against the Trustees but upon these Articles no Decree could be made to bind the Lands for that would be to give a much better security than the Parties had agreed on But if there had been a Covenant in the Articles that a Fine should be levied it might have been otherwise 't is only that a Fine is intended to be levied But as to that the Lord Chancellor was of Opinion that it was a good Covenant to levy a Fine for the words Articles of Agreement c. go quite through and make that Clause a Covenant but because Iustice Wild was of another Opinion he desired the Attorny General to argue these three Points 1. Whether this was a Covenant to levy a Fine or not 2. If it was a Covenant whether this Court can decree him to do it for though the Party has a good remedy at Law yet whether this Court might not give remedy upon the Land 3. If it was a Covenant to levie a Fine and the Court may decree the Defendant to do it yet whether such a Decree can be made upon the prayer of this Bill it not being particularly prayed for the Plaintiff concluded his Bill with praying relief in the execution of the Trust c. In Trinity-Term following these Points were argued by Serjeant Maynard Sir John Churchil and Sir John King for the Plaintiff Mr. Attorny and Mr. Solicitor and Mr. Keck for the Defendant all in one day and in the same order as named The Councel for the Defendant urged Ex parte Def. that this was no Covenant in Law to enforce the Defendant to levy a Fine 'T is agreéd that there is no need of the word Covenant to make a Covenant but any thing under the Hand and Seal of the Parties which imports an Agreement will amount to a Covenant so in 1 Roll. Abr. 518. these words in a Lease for years viz. That the Lessee shall repair make a Covenant so in the Case of Indentures of Apprentiship there are not the formal words of a Covenant but only an Agreement that the Master shall do this and the Apprentice shall do that and these are Covenants but in all these Cases there is something of an undertaking as in 1 Roll 519. Walker versus Walker If a Deed be made to another in these words viz. I have a Writing in my custody in which W. standeth bound to B. in 100 l. and I will be ready to produce it This is a Covenant for there is a present engaging to do it but there are no such words here 't is only a recital That whereas a Fine is intended to be levied to such Uses c. 'T is only Introductive to another Clause without positive or affirmative words and therefore can never be intended to make a Covenant but are recited to another purpose viz. To declare the Use of a Fine in case such should be levied If Articles of Agreement are executed in consideration of an intended Marriage and one side Covenants to do one
any other thing which lies in Grant and the Deed is lost or cancelled the Office or the thing granted falls to the ground for the Deed is the foundation and a Case was cited in the Lord Dyer If there be two Iointenants and one cancels the Deed it hath destroyed the Right of the other Quaere of these things But it was agreed that if two Men who have one Office for their Lives and the survivor of them if one surrenders to the other and then a new Grant is made to this other and a Stranger he hath debarred himself of the Survivorship and he and the Stranger are jointly seised Crossman versus Sir John Churchil IN a Quare Impedit the Plaintiffs Title was set forth in his Declaration which was also found in a Special Verdict Where an Agreement for a Presentation by turns is good that Sir George Rodney was seised of the Advowson in Fée and died seised leaving two Sisters who were his Coheirs that Sir John Rodney being also one of the same Family and pretending a Right to the Estate for preventing Suits that might happen they all enter into an Agréement by Indentures mutually executed by which it was agreed that Sir John Rodney shall hold some Lands in severalty and the Co-heirs shall hold other Lands in the like manner and as for this Advowson a temporary provision was made thereof that each of them should Present by turns and this was to continue till partition could be made then comes an Act of Parliament and confirms the Indenture and Enacts That every Agreement therein contained shall stand and that all the rest of the Lands not particularly named and otherwise disposed by the said Indenture should be held by these three in common one of the three who by Agréement was next to Present grants the next Avoidance the Church being then full to the Plaintiff and the Question was whether these threé persons were not Tenants in Common of the Advowson and if so then the Grant of the next Avoidance cannot be good by one alone because he hath not the whole Advowson but only a Right to the third part It was said that if Tenants in Common had made such an Agreément it would not have beén any division of their interest for there must be a partition to sever the Inheritance The Court were all of Opinion Curia that Iudgment should be given for the Plaintiff for there was an Agréement that there shall be a Presentation by turns and therefore for one turn each hath a Right to the whole Advowson by reason of the Act of Parliament by which that Agreement is confirmed and thereby an Interest is setled in each of them till Partition made but this Agreement would have vested no Interest in either of them without an Act of Parliament to corroborate it therefore there had been no remedy upon it but by an Action of Covenant This Case was argued four times and not one Authority cited The Earl of Shaftsbury versus Lord Digby In Banco Regis For Words upon the Statute of 2 R. 2. c. 5. Jones 49. SCandalum Magnatum The Plaintiff declares upon the Statute of 2 R. 2. cap. 5. for these Words viz. You are not for the King but for Sedition and for a Common-wealth and by God we will have your Head the next Sessions of Parliament After Verdict for the Plaintiff and 1000 l. damages given it was moved in Arrest of Iudgment and several Exceptions taken 1. As to the Recital of the Statute the Words of which are That no Man shall devise any Lies c. and the Plaintiff for the Word devise had used the Latin Word contrafacio in his Declaration which was very improper that being to counterfeit and not to devise for it should have béen machino or fingo those are more expressive Words of Devise 2. 'T is alledged that the Defendant dixit mendacia of the Plaintiff viz. haec Anglicana verba sequen̄ and doth not alledge that he spoke the Words 3. The most material Objection was a mistake in the Recital of the Statute the Words of which are That none shall speak any scandalous Words of any Dukes Earls c. the Justices of either Bench nor of any other great Officer of the Kingdom but the Plaintiff in his Declaration recites it thus viz. None shall speak any scandalous Words of any Dukes Earls c. Justices of either Bench great Officers of the Kingdom and leaves out the Words neque al so that it must be construed thus None to speak of any Dukes Earls c. being great Officers of the Kingdom and then 't is not enough that the Plaintiff is Comes but he also ought to be a great Officer of the Kingdom which is not set out in this Case But upon great Debate and Deliberation these Exceptions were overruled and the whole Court gave Iudgment for the Plaintiff As to the first Exception they said contrafacio is a legal Word and apt enough in this sense and so are all the Presidents and thus it was pleaded in the Lord Cromwel's Case As to the second Exception it was said the Mendacia which were told were the English Words which were spoken and the viz. haec Anglicana verba sequen̄ being in the Accusative Case are governed by the same Verb which governs the Words precedent viz. horribilia mendacia Besides for the supporting of an Action the viz. may be transposed and then it will be well enough viz. the Defendant spoke haec Anglicana verba viz. Lies of the Plaintiff As to the third Exception it was answered that the Plaintiff neéd not recite the Statute it being a * Sid. 348. general Law and admitting there was no necessity yet if he will undertake to recite it and mistake in a material Point 't is incurable but if he recites so much as will serve to maintain his own Action truly and mistakes the rest this will not vitiate his Declaration and so he hath done here by reciting so much of the Statute which Enacts That no Man shall speak any scandalous Words of an Earl which is enough he being an Earl to entitle him to an Action and he concludes prout per eundem Actum plenius liquet and the Court grounded themselves principally upon a Iudgment given in this Court which was thus viz. There was a Robbery committed and the Party brought an Action upon the Statute of Huy and Cry in which he recited incendia domorum 13 E. 1. cap. 1. the said Statute beginning Forasmuch as from day to day Robberies Murders burning of Houses c. and the Presidents are all so But the Parliament Roll is Incendia generally without domorum and it was strongly urged that it was a misrecital which was fatal But the Court were all of Opinion that the Plaintiffs Case being only concerning a Robbery for which the Statute was well recited and not about burning which was mistaken it was for that reason good
Statuti if there be any other Statute which prohibits and punishes a Riot this Information is as well grounded upon such as upon this Statute of Philip and Mary for 't is expresly said that the Defendant and others did unlawfully assemble themselves together and riotose routose made an Assault upon her so that it shall be intended to be grounded upon such a Law as shall be best for punishing the Offence The Court were of Opinion Curia That notwithstanding these Exceptions the Information was good and was not like the Case of an Indictment upon the Statute for a forceable Entry That such a day by force and arms the Defendant did Enter into such a House 2 Cro. 14610 639. existen ' liberum tenementum of J. N. and if he doth not say tunc existen ' the Indictment is naught because the Iury may enquire of a thing before it is done but here the existen being added to the person carries the sense to the time of the Offence committed The Statute of 1 R. 3. saith that all Grants made by Cestui que use being of full Age shall be good against him and his Heirs and 't is adjudged 16 H. 7. that he need not shew when and where but generally existen ' of full Age and upon the Evidence it must be so proved Where a thing relates to the Condition of a Man it shall be tryed in the County where the Action is laid and 't is not necessary to say in what County he is a Knight or an Esquire any Citizen and Freeman may devise his Land in Mortmain by the Custom of London 't is enough to say in Pleading existen ' a Citizen and Freeman without setting forth when and where If a Man be Indicted for not coming to Church 't is enough to say existen ' of the Age of 16 years he did not come to Church This is an Offence punishable at Common Law 't is malum in se But admitting 't was an Offence created by the Statute there being no Negative words to prohibit this Court hath a Iurisdiction to punish this Offence if the Star Chamber had not been taken away for the Party had his election to proceed in this Court upon the prohibitory Clause and the Iustices of Assise must be intended the Iustices of Oyer and Terminer Moor 564. Whereupon the Defendant was Fined 500 l. and bound to his good Behaviour for a Year Brown versus Waite Entailed Lands forfeited for Treason Jones 57. 1 Ventr 299. UPon a Special Verdict in Ejectment The Case was viz. Sir John Danvers the Father of the Lessor of the Plaintiff was in Anno Domini 1646. Tenant in Tail of the Lands now in Question and was afterwards instrumental in bringing the late King Charles to death and so was guilty of High Treason and dyed Afterwards the Act of Pains and Penalties made 13 Car. 2. cap. 15. Enacts That all the Lands Tenements and Hereditaments which Sir John Danvers had the 25th day of March in the year 1646. or at any time since shall be forfeited to the King And whether these entailed Lands shall be forfeited to the King by force of this Act was the Question Wallop who argued for the Plaintiff said that the entailed Lands were not forfeited his Reasons were 1. These Lands entailed are not expressly named in that Act. 2. Tenant in Tail hath but an Estate for Life in his Lands and therefore by these words All his Lands those which are entailed cannot be intended for if he grant totum statum suum only an Estate for Life passeth 3. These Lands are not forfeited by the Statute of 26 H. 8. cap. 13. which gives the forfeiture of entailed Lands in case of Treason hecause Sir John Danvers was not convicted of it by Process Presentment Confession Verdict or Outlawry which that Statute doth require for he dyed before any such Conviction Sir Francis Winnington the Kings Solicitor argued contra that entailed Lands are forfeited by the Act of Pains and Penalties and in speaking to this matter he considered 1. The words of that Act. 2. How Estates Tail were created and how forfeitable for Treason 1. This Act recites the Act of general Pardon which did not intend to discharge the Lands of Sir John Danvers and others from a Forfeiture 2. It recites that he was Guilty of High Treason 3. Then comes the enacting Clause Viz. That all the Lands Tenements Rights Interests Offices Annuities and all other Hereditaments Leases Chattels and other things of what nature soever of him the said Sir John Danvers and others which they had on the 25th of March 1646. or at any time since shall be forfeited to the King his Heirs and Successors 2. As to the creation of Intails there were no such Estates at the Common Law they were all Fee-simple Conditional and post prolem suscitatam the Condition was performed for three purposes Viz. To Alien Co. Lit. 19. a. 2 Inst 334. To Forfeit Or to charge with a Rent and thus the Law continued till 13 E. 1. and there having been frequent Warrs between King John and the Barons the great Men then obtained the Statute De donis to preserve their Estates lest the like occasion should happen again in which 't is only mentioned that the Tenant in Tail should not have power to alien but it was well known that if he could not alien he could not forfeit for before that Statute as he might alien post prolem suscitatam so the Iudges always construed that he might forfeit 5 Edw. 3.14 for forfeiture and alienation did always go hand in hand 1 Co. 175. Mildmay's Case And from the making of that Statute it always continued a setled and received Opinion That Tenant in Tail could not alien until by the 12th of Ed. 4. a Recovery came in by which the Estate Tail may be docked and which is now become a Common Assurance Then by the Statute of 4 H. 7. cap. 24. Tenant in Tail might bar his Issue by Fine and Proclamation and all this while it was not thought that such Lands could be forfeited for Treason which Opinion continued during all the Reign of H. 7. for though by his Marriage the Houses of York and Lancaster were united yet the Great Men in those days thought there might be some doubt about the Succession after the death of H. 7. if he should dye without Issue and thereby those differences might be again revived and therefore no endeavours were used to make any alteration in the Law till after the death of H. 7. And after his Son H. 8. had Issue those doubts were removed and being never likely to arise again then the Act of 26 H. 8. was made which gives a Forfeiture of entailed Lands in cases of Treason The inference from this will be that all the Cases put before the 26th year of H. 8. and so before entailed Lands were made forfeitable for Treason and where by the general Words
Party to Bail but 't is sub modo it must be upon good Bail and if the Sheriff be Iudge of the Security 't is an Argument that he is lyable for if he was not in danger he need not take Security But afterwards upon the second Argument the Chief Iustice and the whole Court were of Opinion that Iudgment should be given for the Defendant North Chief Iustice The Common Law was very rigorous as to the execution of Process the Capias was ita quod habeas the Body at the day of the Return and if the Sheriff had arrested one it had been an Escape to let him go Before the making of this Statute the Sheriff usually took Sureties for the appearance of the Prisoner and by this means used great Extortion and took great Sums of Mony to prevent which Mischiefs this Statute was made and so designed 1. For the ease of the Prisoner the Sheriff being now compellable to take Security which he was not obliged to do before 2. To prevent Extortion and therefore directs that a Bond shall be taken in such manner and with such conditions as is therein mentioned But the Plaintiff since the Statute is much in the same condition as before for he is to make the same Return of Cepi Corpus 'T is true he may now let him go upon Bail but as to the Creditor he is to have him in Court to answer his Suit as before and shall be amerced if he doth not appear at the Return of the Writ so that tho' this Statute be an ease to the Defendant yet 't is a burthen to the Sheriff who runs a greater hazard since the making of this Act than before because then he might keep him in prison till the Debt was satisfied but now he is obliged to let him at large upon Bail from whom he is directed to take a Bond which he may keep in his own hands to indempnifie himself The Court can only amerce him if the Defendant do not appear at the Return of the Process and 't is not material to the party whether the Sheriff take one or more Security that being in his discretion some he must take for otherwise 't is directly in opposition to the Statute neither is it material to the party whether they are such as are sufficient for if they are not and the Defendant is thereupon discharged this will not amount to an Escape because nothing is done but what is pursuant to the Statute and therefore he is no otherwise chargeable than by Amerciaments The Statute was made and intended for the benefit of the Debtor not of the Creditor and there might be some colour for the Action if the Sheriff might Return that he let him to Bail for then it might have been necessary to have alledged the sufficiency of them which might have been traversed but now he must pursue the substance of the Statute so far as to take Bail he is the proper Iudge of the sufficiency and when the Bail is taken he must return a Cepi Corpus so that he is only to be amerced till he bring in the Body but an Escape will not lie against him Long 's Case ONE Long was arrested in the Pallace-Yard Priviledge of an Attorny not far distant from the Hall Gate the Court being then sitting and being an Attorny of this Court he together with the Officer was brought into Court and the Officer was committed to the Fleet that he might learn to know his distance and because the Plaintiff was an Attorny of the Court of Kings-Bench who informed this Court that his cause of Action was for 200 l. therefore the Court ordered that another of the Sheriffs Bayliffs should take charge of the Prisoner and that Mr. Robinson the Chief Prothonotary should go along with him to the Court of Kings-Bench which was done and that Court being informed how the Case was discharged the Defendant upon filing of common Bail The Writ upon which this Long was arrested was an Attachment of Priviledge which the Court supposed to be made on purpose to oust him of his Priviledge for there was another Writ against him at the Sheriffs Office at the Suit of another person The Countess of Northumberland's Case Knights must be of the Jury where a Peer is concerned ADjudged that where a Péer is Party either Plaintiff or Defendant two or more Knights must be returned of the Iury and it was said that in Cumberland there was but one Free-holder who was a Knight besides Sir Richard Stote a Serjeant at Law and the Court were of Opinion that rather than there should be a failure of Iustice a Serjeant of Law ought to be returned a Iury-man for his Priviledge would not extend to a Case of necessity Bell versus Knight In Banco Regis Smiths Forges are chargeable with the Duty of Fire-hearth IN an Action of Trover Vpon Not Guilty pleaded the Iury found a special Verdict in which the Point was upon the Construction of the Statute of 14 Car. 2. c. 10. for the establishing of an additional Revenue upon the King his Heirs and Successors for the better support of his and their Crown and Dignity by which it is Enacted That for every Fire-Hearth and Stove in every House the yearly Sum of 2 s. shall be paid to the King other than such as in the said Act are exempted Then comes a Proviso which saith That this Act shall not extend to charge any Blowing House Stamp Furnace or Kilne c. And the Question now was whether a Smiths Forge shall be charged with this Duty Winnington Sollicitor General conceived that all Fire-Hearths are liable within the Body of the Act and there is nothing to exempt them but what is in the Exception and that a Smiths Forge cannot be called a Blowing House within the intent of the Act notwithstanding the Iury have found that Smiths use Bellows to blow their Forges For by Blowing Houses such Houses are meant as are in Staffordshire and Suffolk for the making of Iron these were the Blowing-Houses intended by the Parliament to be excepted and no other for if Smiths Forges had béen meant thereby those would have been inserted in the Proviso as well as the other things therein mentioned Words are to be taken in a common Vnderstanding for if a Traveller should enquire for a Blowing House no Body would send him to a Smiths Forge By the Opinion of the whole Court Curia it was adjudged upon the first Argument that Smiths Forges are liable to this Duty and so the Sollicitor said it had been lately adjudged in this Court by the Opinion of Twisden Wyld and Rainsford and that my Lord Chief Iustice Hale was of the same Opinion but Twisden said that neither the Chief Iustice or himself gave any Iudgment upon the Merits but upon a Point in Pleading Stroud versus the Bishop of Bath and Wells and Sir George Horner In Communi Banco IN a Quare Impedit
the Plaintiff alledges that Sir George Horner was seised in Feé of the Mannor of Dowling Traverse shall not be upon a Traverse c. Mod. Rep. 230. to which the Advowson was appendant and that being so seised he presented one Harding and then granted the next Avoidance to the Plaintiff That the Church became void by the death of the said Harding and that now it belonged to him to present The Bishop pleads that he claimed nothing but as Ordinary and the Incumbent pleads that at the time of the bringing of this Writ the Church was full by the Collation of the Bishop upon a Lapse The Plaintiff replies that Sir George Horner being seised in Fee of the said Mannor of Dowling to which the Advowson of the Church was appendant did tali die anno apud c. present him as Clerk absque hoc that the Church was full by Collation The Defendant rejoyns protestando that the Church was full tali die and for Plea saith that it was full upon the Collation of the Bishop absque hoc that Sir George Horner did tali die anno c. present the Plaintiff as his Clerk and so traverseth the Inducement which the Plaintiff had made to his Traverse and to this the Plaintiff demurred And Serjeant George Strode took three Exceptions to this Rejoinder Ex parte Quer. 1. That when the Defendant pleads a Matter in Barr and the Plaintiff hath taken a Traverse upon that the Defendant should then take Issue upon that Travers and so have maintained his Barr Vaugh. 62. 1 Sand. 21 22. from which he had departed here by traversing another Matter In a Quare Impedit the Plaintiff declares that Sir Thomas Chichely granted an Advowson to one East and another in Feé to the Vse of the Wife of the Plaintiff for her Iointure and that she ought to present The Defendant pleads that he is Parson imparsonee ex praesentatione Regis for that Sir Thomas Chicheley died seised as aforesaid of the Mannor and Advowson held in Capite by Knights Service which descended to his Son an Infant and by Office found of the Tenure and descent the King was seised and presented him absque hoc that Sir Thomas granted to East The Plaintiff replies Non habetur tale Recordum de inquisitione and upon Demurrer it was held that this Traverse of the Inquisition was not good Hob. 104. 1 Inst 282. b. Vaugh. 62. for there shall not be a Traverse upon a Traverse but where the Traverse in the Barr is material to the Title of the Plaintiff and in such Case he is bound up to it Cro Car. 104 105. Antea Yelv. 122. 2. In his Traverse he hath made the Time parcel of the Issue viz. absque hoc that tali die anno praesentavit whereas it should have been modo forma only and so is the Case of Lane and Alexander 2 Cro. 202. where the Defendant intituled himself by Copy of Court of Roll 44 Eliz. The Plaintiff replies that a Copy was granted to him 1 Junii 43 Eliz. The Defendant maintained his Bar and traverseth the Grant 1 Junii modo forma and upon a Demurrer it was said that the Rejoynder was not good because the day and year of granting of the Copy was not material if it was granted before the Defendant had his Copy and so the Traverse ought to have been absque hoc that the Queen granted modo forma 1 Sand. 14. 2 Sand. 295. Cro Car. 501. But it was adjudged that the day ought not to be made parcel of the Issue and the traversing of it when it ought not so to be makes it Substance and not Form so as to be aided by the Statute of 27 Eliz. 3. As the Defendant hath joyned they can never come to an Issue for he concludes his Traverse Et hoc paratus est verificare unde petit Judicium whereas he should have concluded to the Country Ex parte Def. Barton Serjeant admitting the Pleadings are not good yet if the Plaintiffs Count is so likewise he cannot have Iudgment and that it was so he said appears in that the Plaintiff had not set forth a sufficient Title for he hath alledged that Sir George Horner was seised in Fee and presented the Plaintiff who was instituted and inducted Old Nat. Br. 25. 1 Inst 249. but doth not say that the Presentation was tempore pacis and therefore it shall be presumed most strongly against himself to be tempore belli and a Presentation must be laid tempore pacis and so is the Writ of Assise of Darrein Presentment F. N. B. 31. The Court held that the Pleadings were not good and that the Count was good for 't is true if a Man count that he and his Ancestors were seised in Fee of an Advowson but declares of no Presentation made by him or them or if he declare of a Presentation without an Estate in both Cases it is naught and good Cause of Demurrer Vaugh. 57. Hob. 101. but here the Count is both of an Estate and a Presentation And this difference was taken if a Man gets a Fée by Presentation which is his Title he must alledge it to be tempore pacis but if it be in pursuance of a Right as if an Advowson be appendant to a Mannor and he who hath Right to the Mannor presents such Presentation is good in time of War and so Iudgment was given for the Plaintiff Stevens versus Austin ADjudged that if a Man hath Common for a certain number of Cattle belonging to a Yard Land he need not say Levant upon the Yard Land sed aliter if it were for a Common sans number The Master Warden and Company of Ironmongers versus Naylor and others Defendants In B. R. IN Trespass The Iury found a special Verdict Jones 85. 1 Ventris 311. they find several Acts of Parliament viz. 14 Car. 2. cap. 10.15 Car. 2. cap. 13. and another Act for the better direction of the collecting of the Duty arising by Hearth-Mony by Officers to be appointed by the King and this was the Act of 16 Car. 2. cap. 3. which provides That if the Party refuses to pay the Duty by the space of an hour that then the Officers with the Constable may distrain They find that the Company was seised in Fée of five Messuages in which were 35 Fire Hearths in the Month of April 1673. And that the Company did never finish these Messuages and that from the time of the building they stood all void and unoccupied by any Tenant or Tenants whatsoever Then they find that the Collectors were lawfully authorised and that such a day they demanded the Duty for the Fire-Hearths in each of the said Messuages which they also demanded of the Company and which they refused to pay and thereupon they took the distress and kept it till the Company paid the said Duty and so make a general Conclusion
other 1000 l. within a year after it being intended when the Plaintiff should by his Trade get an Estate sufficient to qualifie him for the Dignity of a Knight The Son-in-Law without acquainting the Defendant did about nine Months afterwards procure himself to be Knighted and brought an Assumpsit for the 2000 l. which was tried before the Chief Iustice North at Guild-Hall and the Iury gave 1500 l. Damages And now Serjeant Maynard moved for a new Tryal upon the Affidavit of the Defendant that he had found out material Witnesses since the Trial and that such Witnesses as he had ready at the Trial could not get into Court because of the great Tumult and Disorder there with a Multitude of People by reason whereof his Council could not be heard from the noise and when they offered to speak were as often hissed The Chief Iustice thought it was a hard Verdict for he was not clearly satisfied that the Agreement was good it being only for Words which were spoken by the Old Man when he had but a weak Memory and thereupon a new Tryal was granted because the Chief Iustice thought it was fit so to be Basket versus Basket Disjunctive Condition one part is discharged by the Obligee the other part shall not be performed by the Obligor Mod. Rep. 264. DEBT upon a Bond with a Condition to make an Assurance of an Annuity of 20 l. per annum to the Plaintiff within six Months after the death of M. B. and if he refuse when requested by the Plaintiff then to pay 300 l. and if he fail in payment thereof the Bond to be forfeited The Defendant pleads that all the six Months he was a Prisoner at Morocco in Barbary and that after his Return he requested the Defendant and to this Replication the Defendant demurred And Serjeant George Strode maintained the Demurrer The Question was whether the Plaintiff by neglecting to tender a Grant of the Annuity to the Defendant hath not dispensed with the whole Condition and he held that it was dispensed withal and that no Request being made the Bond could not be sued at the Common Law and therefore the Replication was ill 'T is not so much a disjunctive Condition to do one thing or another but the last Clause is a Penalty to inforce the first for seeing the Annuity is to be but 20 l. per annum for a Life and yet that 300 l. is to be paid in case that be not granted this proves it to be only a Penalty because Annuities at the highest value are but at eight years purchase whereas this is fiftéen years purchase so that the 300 l. could never be intended as a Recompence for the Annuity neither could the Defendant possibly save the Condition because the same time is limited both for the Paymenr of the 300 l. and granting of the Annuity viz. within six Months and the Plaintiff hath to the utmost time to request the executing the Grant 1 Sand. 287. and therefore the other cannot pay the Mony before But taking the Case to be that this is a disjunctive Conditions yet since Conditions are always made in favour of the Obligor the power of Election even in such Cases is left wholly in him but according to such Constructions as would be made for the Plaintiff the Election is gone from the Defendant Wright and Bull Postea and left in the Obligée for if he do not request the Annuity then the 300 l. is to be paid and this is directly against the Rules of disjunctive Conditions and the Case of * Cor. Eliz. 396 539. 1 Roll. Abr. 447. Poph. 98. Goldsb 142. Greeningham and Ewre is express in Point where the Condition of a Bond was that if the Obligor delivered to the Plaintiff thrée Bonds by such a day or gave him such a Release of them as the Plaintiffs Council should advise before the said day that then c. The Defendant pleads nothing as to the delivery of the Bonds but saith that the Plaintiffs Council advised no Release and upon a Demurrer this was adjudged for the Defendant because in all Obligations with a Penalty the Election is always in the Obligor and this being a disjunctive Condition each part is likewise in his Election for if the Obligee should not tender the Release the other is not bound to deliver the Bonds and if he should tender it then the Obligor may either deliver the Bonds or execute the Release which he pleaseth 4 H. 7. 4. If a Man enter into Bond with Condition to marry Jane by such a day and the Obligee marry her before the day 1 Roll. Abr. 455. the Condition is saved but 't is otherwise if a Stranger had married her before that day The Act of God and the Act of the Obligée in many Cases dispense with Conditions as 5 Co. 21. b. if a Parson be bound in a Bond conditioned to resign his Church to A. in consideration of a certain Pension agreed on and the Parson refuses the Court was of Opinion that he need not resign till he was sure of his Pension by Deed which they held ought to be first tendred unto him So a Man covenants to grant such an Estate to his Wife or to leave her worth so much Mony if she survive him if she dies before him the Condition is not broken though he did not make such Grant In the Case of Warren and White it was lately adjudged in the Kings Bench that where Warren was indebted to Warner and White became bound with him to pay the Mony before the 25th day of December then next following but if he did not pay it that then Warren should appear the next Hillary Term following to Warner's Action Warren dies after the 25th of December but before the Term and it was held that the Bond was not forfeited 1 Rol. Abr. 451. because the Obligor had Election to do either the one or the other and the performance of the one becoming impossible by the Act of God the Obligation was saved Moor 645. If the Case of Moor and Moorcomb Cro. Eliz. 864. should be objected where the Condition of the Bond was that the Defendant should deliver to the Plaintiff a Ship before such a Feast or in default thereof pay at the same Feast such a Sum as a third person therein named should adjudge which third person appointed no Sum to be paid and yet there it was adjudged for the Plaintiff that it did not dispense with the whole Condition Which Case he agreed to be Law because there the valuation and worth of the Ship and the Mony to be paid was by the appointment of a Stranger and the Condition being for the benefit of the Defendant he is to procure the Stranger to make an appointment what Sum should be paid or to deliver the Goods otherwise the Bond is forfeited and he hath expresly agreed to do the one or the other But this
Seck after demand is a disseisin Pl. Com. 92. b. much more in personal Actions where the substance is found 't is well enough 1 Inst 282. a. But the Court said That notwithstanding this Authority they would not intend a Conversion unless the Iury had found it especially in this Case because they ought to have found it to make the Servant lyable for if the conversion was to the use of his Master there is no colour for this Action to be brought against the Defendant but it ought to be brought against the Master Whereupon a Ve. fa. de novo was prayed to help the Insufficiency of the Verdict the conversion not being found but the Court said it was to no purpose to grant a new Tryal unless the Plaintiff had a new Case and so Iudgment was given for the Defendant Bill versus Nicholl Variance between the Record pleaded and the Record it self IN an Action brought in the Court of Exchequer the Defendant pleaded another Action depending against him for the same matter in the Common Pleas and upon nul tiel Record replied by the Paintiff a Day was given to bring in the Record and when it was brought in it appeared that there was a variance between the Record in the Common Pleas as mentioned in the Defendants Plea and the Record it self for the Defendant in his Plea had alledged one Gerrard to be Attorny instead of Gardiner who was Attorny upon Record and whether this was a failure or not of the Record was the question It was said on the Defendants side that it was such a variance that it made it quite another Action and on the Plaintiffs side it was said that an immaterial variance will not prejudice where the substance is found 7 H. 4. 1. Bro. Failure pl. 2. 15. Curia advisare vult Forest qui tam c. versus Wire Action lyes in the Courts at Westminster upon the Statute of 5 Eliz. but not an Information 3 Cro. 316. DEBT upon the Statute of 5 Eliz. cap. 4. for using the Trade of a Silk Weaver in London not having been an Apprentice seven years the Action was brought in this Court and laid in London and tried by Nisi prius and a Verdict for the Defendant and now the Plaintiff to prevent the payment of Costs moved by Mr. Ward against his own Action and said that it will not lye upon this Statute in any of the Courts of Westminster for 't is not only to be laid as here in the proper County but 't is to be brought before the Iustices in their Sessions and this is by force of the Statute made 31 Eliz. cap. 4. and 21 Jac. cap. 4. Which Enacts That all Informations upon Penal Statutes must be brought before the Justices of the Peace in the County where the Fact was committed But the Court were clear of 2 Cro. 178. Stiles 383. By the Opinion of Rolls Cro. Car. 112. Opinion That the Action may be brought in any of the Courts of Westminster who have a concurring Iurisdiction with the Iustices and so they said it hath been often resolved Attorny General versus Alston AN Inquisition upon an Accompt stated went out to inquire what Lands one Havers had in the twentieth year of this King or at any time since Where the Kings Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be liable by the Statute of the 13th Eliz. he being the Receiver General in the Counties of Norfolk and Huntingdon The Iury found that he was seised of such Lands c. whereupon an Extent goes out to seise them into the Kings Hands for payment of 1100 l. which he owed to the King Alston the Ter-tenant pleads that Havers was indebted to him and that he was seised of those Lands in 20 Car. 1. which was before the Debt contracted with him and that he became a Bankrupt likewise before he was indebted to the King and thereupon these Lands were conveyed to the Defendant by assignment from the Commissioners of Bankrupcy for the Debt due to him from Havers absque hoc that he was seised of these Lands at the time he became indebted to the King The Attorny General replies That he was seised of these Lands before the Commisson of Bankrupcy issued and before he became a Bankrupt and that at the time of his Seisin he was Receiver and accountable for the receipt to the King and being so seised in the 20the year of this present King he was found in Arrear 1100 l. for the payment whereof he was chargeable by the Statute of the 13 Eliz. cap. 4. Which subjects all the Lands of a Receiver which he hath or shall have in him during the time he remains accomptable and so prays that the Kings Hands may not be amoved To this the Defendant demurred And Sawyer for him held that the Replication was ill both in form and Substance 1. It doth not appear that the Defendant continued Receiver from the time he was first made as it ought to be or else that he was Receiver during his Life for if a Man is Receiver to the King and is not indebted but is clear and sells his Land and ceases to be Receiver and afterwards is appointed to be Receiver again and then a Debt is contracted with the King the former Sale is good 2. The Replication is a departure from the Inquisition which is the Kings Title for the Lands of which Inquiry was to be made were such which Havers had 20 Car. 2. And the Defendant shews that Havers was not then seised thereof but makes a good Title to himself by Indenture of Bargain and Sale made to him by the Commissioners of Bankrupcy and so the Attorny General cannot come again to set up a Title precedent to the Defendant for that is a departure 't is enough for the Defendant that he hath avoided the Kings Title as alledged and though Mr. Attorny is not bound to take Issue upon the Traverse yet he cannot avoid waveing both the Title of the Defendant and the King by insisting upon a new matter It was agreed That the King had two Titles and might either have brought his Inquisition grounded upon the Debt stated or upon the Statute of the 13th of Eliz. upon Havers his becoming Receiver but when he hath determined his Election by grounding it upon the Debt stated he cannot afterwards have recourse to the other matter and bring him to be liable from the time of his being Receiver as if an Inquisition goes to inquire what Lands the Debtor of the King had such a day when he entred into a Bond if there be an answer given to that Mr. Attorny cannot afterwards set up a precedent Bond because 't is a departure and the Statute it self vests no Estate in the King but makes the Receivers Lands lyable as if he had entred intred into a Statute Staple The Inquisition therefore should have been grounded
reason alone the Plaintiff had no cause of Demurrer for the Defendant may well disclose the matter of Law in Pleading which is a much cheaper way than to have a Special Verdict and that this is on the same reason of giving of colour but if the matter by which the Defendant justifies be all matter of Fact and proper for the Tryal of a Iury then the Dfendant ought to plead the General Issue And as to the Matter of the Plea the Chief Iustice and Wyndham Iustice held it to be good for the Common which was pleaded was a Common by Grant and not argumentatively pleaded for if the Defendant had pleaded an express Grant of Common in those two places and the Plaintiff had demanded Oyer of the Deed it would have appeared that there was no such Deed and this had been a good cause of Demurrer If this Plea should not be good it would be very mischievous to the Defendant for there being a perpetual Vnity as to the Freehold there can be no Prescription to the Common but there being a constant enjoyment thereof by the Tenants and so a perpetual Vsage and a Grant made referring to that Vsage 't is well enough And since whilst the Lands were in possession of the Lord the Commoners could not complain of a Surcharge why should they if he grant the Premisses the Granteé being in loco c. In the Case of the King a Grant of tot talia Libertates Privilegia quot qualia the Abbot lately had 9 Co. 23. Abbot de Strata Marcella was held good by such general Words Here the Lord Paget granted to the Defendant that which the Lessées had before viz. that Common which the Tenants had time out of mind and it cannot be conceived but that the Tenants had a Right for as a Tort cannot be presumed to be from time immemorial so neither shall it be intended that the Lord gave only a Licence and permitted his Tenants to enjoy this Common But Iustice Atkins was of Opinion that the Plea was not good he said he knew not by what Name to call this Common for it was no more than a Permission from the Lord that the Tenants might put their Cattle into his Freehold or a Connivance at them for so doing and if it be taken as a new Grant then nothing can pass but the Surplus for the Lord cannot derogate from his former Grant and the new Grantee shall not put in an equal proportion with him who hath the Prescription for if he may then such Prescription would be quite destroyed by such puisne Grant for as the Lord might grant to one so he might to twenty and then there would not be sufficient Common left for him who prescribes to the Right So that he conceived that the Defendant had no Right of Common or if he had any it would not be till after the Right of the Plaintiff was served and he said that Vsage shall not intend a Right but it may be an Evidence of it upon a Tryal But if there had been an Vsage 't is now lost by the Vnity of the Possession and shall not be revived by the new Grant like the Case of Massam and Hunter Yelv. 189. there was a Copyholder of a Messuage and two Acres in Feé which the Lord afterwards granted and confirmed to him in Fee cum pertinentiis it was adjudged that though the Tenant by Vsage had a Right to have Common in the Lord's Wast yet by this new Grant and Confirmation that Right was gone the Copyhold being thereby extinguished for the Common being by Vsage and now lost these Words cum pertinentiis in the new Grant will not revive it But notwithstanding Iudgment by the Opinion of the other three Iustices was given for the Defendant Week's Case A Prohibition was prayed to the Ecclesiastical Court at Bristol the Suggestion was that he was excommunicated for refusing to answer upon Oath to a Matter by which he might accuse himself viz. to be a Witness against another that he himself was present such a day and saw the other at a Conventicle which if he confessed they would have recorded his Confession of being present at a Meeting and so have proceeded against him The Court granted a Prohibition but ordered him to appear in the Ecclesiastical Court to be examined as to the other persons being there Anonymus A Man wins 100 l. of another at play Gaming not within the Statute where the Security is given to a third person the Winner owed Sharp 100 l. who demanded his Debt the Winner brought him to the other of whom he won the Mony at Play who aknowledged the Debt and gave Sharp a Bond for the payment of the 100 l. who not being privy to the Matter or knowing that it was won at Play accepted the said Bond and for default of payment puts it in Suit the Obligor pleads the Statute of Gaming The Plaintiff in his Replication discloseth the Matter aforesaid and saith that he had a just Debt due and owing to him form the Winner and that he was not privy to the Monies being won at Play c. and that he accepted of the said Bond as a Security for his Debt and the Defendant demurred And the Court were all of Opinion Hill and Phesant Antea that this Case was not within the Statute the Plaintiff not knowing of the Play and though it be pleaded that the Bond was taken pro Securitate and not for satisfaction of a just Debt it was held well enough like the Case of Warns and Ellis Yelv. 47. Warns owed Alder 100 l. upon an usurious Contract and Alder owed the Plaintiff Ellis 100 l. for which they were both bound and in an Action of Debt brought upon this Bond Warns pleads the Statute of Vsury between him and Alder and Ellis replyed as the Plaintiff here and upon a Demurrer it was adjudged for the Plaintiff by thrée Iudges because the Plaintiff had a real Debt owing him and was not privy to the Vsury And upon this Case the Court relyed and said the Reason of it governed this Case at the Barr whereupon Iudgment was given for the Plaintiff Tissard versus Warcup INdebitatus Assumpsit for 750 l. laid out by the Plaintiff for the use of the Defendant Vpon Non assumpsit pleaded there was a Tryal at the Barr and the Evidence was that the Defendant and another now deceased farmed the Excise that the Mony was laid out by the Plaintiff on the behalf of the Defendant and his Partner and that the Defendant promised to repay the Mony out of the first Profits he received Curia And by the Opinion of the whole Court this Action would not lie 1. Two Partners being concerned the Action cannot be brought against one alone he ought in this Case to have set out the death of the other But if Iudgment be had against one the Goods in Partnership may be
Habens legale jus titulum need not shew what Title the disturber had after Verdict 213 In a Bond to pay 40 l. when an Accompt is stated by two Attornies to be chosen between the Parties 't is a Covenant and not a solvendum 266 Breach is assigned relating to three Covenants and concludes sic Conventionem fregit 't is good 311 Where an Agreement to pay will amount to a Covenant 269 Covenants reciprocal cannot be pleaded in bar to each other 34 75 76 309 Breach where assigned and not necessary to aver performance on the part of the Plaintiff 309 Court Inferiour the cause of Action must arise within the Jurisdiction 30 Judgment therein arrested because the Damages were laid to 30 l. 101 102 For not saying that the Jurors were electi ad triand ' 102 Taliter processum fuit and the proceedings not set forth at large well enough in a Plea but not in a Writ of Error 102 195 Vi armis contra pacem whether good or not 102 Cannot hold Plea for work done without the Jurisdiction though the Promise be made within 141 Cause of Action must appear to be within the Jurisdiction to oust the Courts above 197 Where it doth not appear that the Court was held either by Grant or Prescription good 197 198 If the cause of Action doth not appear to be within the Jurisdiction though there is a Judgment recovered below yet an Action of Trespass will lye and false Imprisonment upon the taking out of that Judgment 197 If upon Evidence it appear that the cause of Action did arise extra Jurisdictionem the Plaintiff must be non-suit 273 If Jurisdiction be admitted in pleading and Verdict and Judgment thereon t is too late for a Prohibition Ibid. Court Ecclesiastical In what Case a Bishop shall administer an Oath in Temporal Matters 118 Custom One cannot be pleaded in bar to another 105 In pleading it must be strictly alledged 41 Where 't is a reasonable Custom for the Lord to have derelict Lands 107 D. Day Vide Plea WHere 't is excluded being alledged in the Declaration it makes the Plea ill 146 'T is but punctum temporis and of no consideration in the Law 281 Release of all demands usque 26 April a Bond dated that day is not released 281 Debt Upon the Sheriffs Bond will be good though the Statute be not pleaded 36 Will lye upon the Contract where the whole Term is assigned 174 175 176 Whether it will lye for a Fine set by a Steward for 't is ex quasi contractu 230 It must be upon the Contract or ex quasi contractu 262 Deed. Where 't is lost the Party must make Oath of it to entitle himself to a Bill in Equity to have it performed in Specie 173 Demand Must be made where an Interest is to be determined 264 Devise To a Man and his Heirs if the Devisee die in the Life time of the Devisor his Heir takes nothing 313 Republication makes it a new Will ibid. To the Heir at Law makes a Limitation and not a Condition 7 To an Infant in ventre sa mere if there is a sufficient description of him 't is good 9 Where the word paying makes a Fee where not 26 To him till he be of Age then to him in Fee he dyed within Age yet a Free-hold vested in him presently 289 To him in Fee when of Age if he dye before then to the Heirs of the Body of R. and their Heirs he died living R. within Age his Sister and Heir shall take by way of Executory devise 289 Executory devise how it differs from a contingent Remainder at Common Law ibid. Construction of words therein 290 Departure From his Plea 31 Disability By a Statute where it ought to be removed by the Party to enable himself to execute an Office 299 Discharge By Parol good before the breach of promise but not afterwards 259 Discontinuance Where amendable 316 In pleading the Plaintiff declared of taking several things the Defenant justifies as to part and saith nothing of the residue 259 In the Adjournment of a Court where a day certain is not given 59 Distress Cannot be of Sheaves of Corn in Shocks for Rent 61 Distribution Shall be equally made amongst the Children of the whole and half Blood 204 205 206 Disturbance Coactus fuit to pay is a sufficient Disturbance 55 E. Escape THE Plaintiff declared upon Process in an Inferiour Court and the Bond was not made infra Jurisdictionem the Action would not lye 29 30 Debt thereon lies against the Warden of the Fleet as Superior where the Grantee for Life is insufficient 119 After an Escape the Plaintiff may have a Capias ad satisfaciendum or Scire facias at his Election 136 Whether it will lye against the Sheriff for taking insufficient Bail 181 Election In disjunctive Conditions where the Election is in the Obligor 201 304 'T is at the Plaintiffs Election to have a Ca. Sa. or Scire facias after an Escape 136 Enclosure Where a Custom is good to Enclose in a Common Field 105 Entry Not necessary to avoid an Estate in case of a Limitation 7 Error Where a Writ of Error will lye upon a Fine in the Old Bayly 219 Error in Fact cannot be assigned in the Exchequer-Chamber 194 If one be dead after the Judgment he must be named in a Writ of Error 285 Where a Judgment shall be avoided by a Plea without a Writ of Error 276 Estate Where the word Body makes an Estate for Life and no Tail 16 Estoppel Good by a Fine levied by a Remainder man in Tail 90 No Uses can be declared of a Fine by Estoppel 90 One who has no Estate levies a Fine 't is good by Estoppel 115 Evidence A Decree in Chancery or Sentence in in the Ecclesiastical Court read as Evidence of the fact 231 232 Excuse If one Man doth not perform his Covenant 't is no Excuse for the breach on the other side 75 76 What is a good Plea by way of Excuse and what not 27 28 29 Executor De son tort cannot retain 51 Where the Judgment shall be de bonis Testatoris 108 What is requisite to make an Executor 147 What must be done when he refuseth Ibid. De son tort where he may be of a Term but not of a Term in futuro because he cannot enter 175 Cannot plead non detinet where the Testator could not plead nil debet 266 Executor of an Executor de son tort where not liable at Law 293 294 Where he pleads a Judgment kept on Foot by fraud 36 Explain A Man grants Tenementa praedicta then follows totum quicquid habet whether these subsequent words shall explain or enlarge the Grant 112 113 c. Execution Payment of the Mony to the Marshal the Defendant may be taken again in Execution at the Suit of the Plaintiff 212 213 Executory Decree Is of no force in Equity 232 Existen
Defendant demands Dyer of the Indenture wherein was a variance between the Covenant which was for notice to be given to the Testator and this Declaration by which notice is averred to be given to the Executor and for this reason he demurred And Serjeant Dolben Recorder of London argued for him that this was in the Nature of a Condition precedent and therefore they ought to have given the Testator notice which according to the Agreement ought also to have been personal which not being done but only notice given to his Executor did make a material and fatal difference between the Covenant and this Declaration 14 H. 6. 1. 1 H. 6. 9. And that in this Case there was no Covenant by the Testator at all for all agree to pay their proportions and the Testator should pay his part which is not a Covenant Barrel Serjeant on the other side said that the Executor doth represent the person of the Testator and that though this Covenant was to give notice to the Testator yet if the Declaration had been of a Covenant to give notice to him his Executors and Administrators c. it had been no material variance so as to prejudice the Action of the Plaintiff because 't is no more than what the Law implies Pl. Com. 192. And upon the first opening this Matter this Term the Chief Iustice and Iustice Atkins enclined that the notice ought to be personal and that the variance was material But afterwards in Hillary Term following mutata opinione the whole Court agreed it to be otherwise because the Covenant runs in Interest and Charge and so the Executor is bound to pay and therefore 't is necessary that he should have notice and that there was no material difference between the Declaration and the Covenant And lastly Antea that the Testator being a Party to the Deed his Agreement to pay amounts to a Covenant though the formal Words of Covenant Grant c. were wanting But then Serjeant Dolben perceiving the Opinion of the Court insisted that the Declaration was naught for another reason viz. they had not declared that this notice was given in writing which is expresly agreed in the Covenant to which it was answered that the Defendant having pleaded that he gave notice secundum formam effectum Conditionis it was well enough But he said that would not help the want of Substance Dyer 243. b. and cited a Case where an Action of Debt was brought for the performance of an Award so as the same was delivered in Writing c. The Defendant pleaded Non deliberavit in scriptis The Plaintiff replyed and set forth the Award in Writing but did not directly answer the Plea of delivering it in Writing only by way of Argument and upon Demurrer there omnes Justiciarii contra Querentem and so they were in this Case that the notice must be pleaded in Writing and that secundum formam Conditionis was not good And so Iudgment was given for the Defendant Frosdick versus Sterling THE Plaintiff alone brought an Action on the Case against the Defendant and sets forth Baron and Feme where the Action if it s not discharged shall survive to her they must both join that he and his Wife in her Right were seised of a Messuage Bake-House and Cole-Yard c. and that the Defendant had erected two Houses of Office so near the said Bake-House that the Walls thereof became foundrous and the Air so unwholesome that he lost his Custom and that the Defendant had digged a Pit so near the said Cole-Yard that the Walls thereof were in danger of falling and that he had built another Wall so near the said Messuage that he had stopped an old Light therein Vpon Not-guilty pleaded there was a Verdict for the Plaintiff And now Serjeant George Strode moved in Arrest of Iudgment for that the Wife should have been joyned in this Action for where she may maintain an Action for a tort done in the Life-time of her Husband if she survive and where she may also recover Damages in such Cases she must joyn and it hath been adjudged that she ought to joyn with her Husband for stopping a way upon her Land Cro. Car. 418. 1 Roll. Abr. 348. pl. 1. 20 H. 6. 1. â— Ed. 4. 15. Cro. El. 461. So also for cutting down Trees on the Ioynture of the Wife made to her by a former Husband by reason whereof the present Husband lost the Loppings they both joyned for though the wrong was done to his Possession and he might have Released yet because there was also a wrong done to the Inheritance they ought both to joyn Cro. Car. 438. 3 Inst 650. So it hath been adjudged that the Husband and Wife in Right of the Wife jojned in an Action of Debt upon the Statute of 2 E. 6. cap. 13. for not setting out of Tythes and held good and where the Wife cured a wound 2 Cro. 205 399. 9 E. 4. 55. both joyned in the Action 11 H. 4. 16. 46. E. 3. 3. The Court held That where the Action if not discharged shall survive to the Wife they ought both to joyn which if they had done here it would have been hard to have maintained this Action because entire Damages are given and for losing the Custom to his Bake-house the Husband alone ought to have brought the Action He may bring an Ejectment of the Lands of his Wife but Iudgment was stayed till moved on the other side Barker versus Warren Justification where 't is not local a Traverse of the place makes the Plea naught AN Action was brought against a Carrier and laid in London for losing of Goods there which were delivered to him at Beverly in Yorkshire to re-deliver at London The Defendant pleads That he was robbed of the said Goods at Lincoln absqe hoc that he lost them in London And the Plaintiff demurred 1. For that Robbery is no excuse for a Common Carrier so that the Plea is not good in substance 2. This was no local Iustification so that the Traverse was ill But on the other side it was said by Serjeant Hopkins that the Plea was good and that the Defendant might Traverse the place For in Trespass for the taking of Goods in Coventry the Defendand pleaded that the Plaintiff did deliver the Goods to him at London to deliver at Dale by force whereof he took them at London and delivered them at Dale accordingly absque hoc that he took them at Coventry and held good for by his Plea he hath confessed the delivery and the taking both at one time and place and he could not have pleaded the delivery at London and justifie the taking at Coventry because the Possession is confessed by the first delivery at London and therefore the justification of the taking at Coventry had been inconsistent 24 H. 6. 5. But it had been otherwise if the Defendant had justified because the Plaintiff