Heir in England or to have one My third and last Reason is indeed more general tho' not so conclusive as the two former were upon the particular Reason of the Case tho' not altogether to be neglected viz. The Law of England which is the only ground and must be the only measure of the incapacity of an Alien and of those consequential results that arise from it hath been always very gentle in the construction of the disability and rather contracting than extending it so severely For Instance The Statute de natis ultra Mare 25 E. 3. declares that the Issue born beyond Sea of an English Man upon an English Woman shall be a Denizen yet the construction hath been tho' an English Merchant marries a Foreigner and hath Issue by her beyond the Sea that Issue is a natural born Subject In 16 Cro. Car. in the Dutchy Bacons Case per omnes Justic ' Angl ' And accordingly it hath been more than once Resolved in my Remembrance Pround's Case of Rent The Case of the Postnati commonly called Calvin's Case the Report is grounded upon this gentle Interpretation of the Law tho' there were very witty Reasons urged to the contrary and surely if ever there were reason for a gentle Construction even in the Case in question it concerns us to be guided by such an Interpretation since the Vnion of the two Kingdoms by which many perthance very Considerable and Noble Families of a Scottish Extract may be concerned in the consequence of this Question both in England and Ireland that enjoy their Inheritances in peace I spare to mention particulars So far therefore as the parallel Cases of Attainder warrant this extent of this Ability I shall not dispute but further than that I dare not extend Now as touching the Authorities that favour my Opinion I shall not mention them because they have been fully Repeated and the later Authorities in this very Case are not in my Iudgment to be neglected Touching the Case of Godfrey and Dixon it is true it doth differ from the Case in question and in that the Father was made a Denizen and then had Issue a younger Son who inherited the elder Son an Alien born but Naturalized after the death of his Father yet there is to be observed in that Case either the Naturalization of the elder Son relates to his Birth or relates only to the Time of his Naturalization whether it did relate or not depends upon the words of the Act of Naturalization which I have not seen If it did relate the Cause in effect will be no more but an Alien hath Issue a Natural born Son for so he is as I have Argued by his Naturalization and then is made a Denizen and hath Issue and dies the elder Son purchaseth Lands and dies without Issue the younger Son shall inherit the elder should not have inherited his Father by reason of the Incapacity of the Father But it doth not relate further than the Time of his Naturalization which was after the time of the Death of his Father and consequently he could not divest the Heirship of his younger Brother yet if he purchaseth and dies without Issue his younger Brother shall inherit him tho' there was never Inheritable Blood between the elder Son and his Father so much as in fiction or relation Vpon the whole Case I conclude First That there be two Brochers Natural born in England the Sons of an Alien the one shall inherit the other Secondly That the Naturalization puts them in the same Condition as if born here tho' it does not more Thirdly That John the Son of George stands in the same Condition of inheriting his Vncle the Earl as George should have done had he survived the Earl Fourthly But if the Disability of Robert the Father had disabled the Brothers to have inherited one the other the Naturalization of the Earl or George had not removed that Disability Fifthly But no such Disability of the Father doth disable the Brother George to inherit the Earl it neither doth Consequentially disable John the Son of George to inherit the Earl Consequently as to the Point referred to our Iudgment John the Son of George is Inheritable to the Land of John his Vncle. The End of the First Volume A TABLE OF THE Principal Points Argued and Resolved in the First PART OF THESE REPORTS A. Abatement See Pleadings IN the Ecclesiastical Court a Suit does not abate by the Death of either Party Pag. 134 A Baronet is Sued by the Addition of Knight and Baronet the Action shall abate 154 In all Actions where one Plaintiff of several Dyes the Writ shall abate save in an Action brought by an Executor 235 Acceptance Where Acceptance of Rent from the Assignee shall discharge the Lessee 99 Action See Bail Whether an Action of Debt qui tam upon the Stat. 5 El. c. 4. lies in B. R. 8 Action brought de uxore abducta and concludes contra forman Statuti where there is no Statute in the case yet good 104 Action for a Nusance in stopping of the Lights of his House p. 139 237 248 Action upon the Stat. 13 Car. 2. by one Bookseller against another for Printing his Coppy p. 253 Where the Matter consists of two parts in several Counties the Plaintiff may bring his Action in which he pleases p. 344 Where several Causes may be joyned in one Action and where not 365 366 Action upon the Case See Jurisdiction Way In the Nature of Conspiracy a-against three for Arresting without Cause and only one found Guilty 12 Such an Action lies against one p. 19 Lies for a Justice of Peace against one who Indicts him for Matters in the Execution of his Office p. 23 25 For taking his Wife from him brought against the Womans Father p. 37 Lies not against a Justice of Peace for causing one to be Indicted who was after accquitted 47 Where it lies for Suing one in the Ecclesiastical Court and where not 86 For erecting a Market 7 miles off 98 Upon the Custom of Merchants for a Bill of Exchange accepted 152 For not Grinding at his Mill 167 Where it lies against a Master of a Ship for Goods lost out of the same 138 190 191 Against the Mayor of L. for not Granting a Poll upon a doubtful Election 206 For not repairing a Fence 264 Against a Taylor for Spoiling his Coat in making 268 For Riding over the Plaintiff with an unruly Horse 295 Where Action lies for Defaming the Wife whereby the Husband loses his Customers 348 Action upon the Case For Slander You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds These last Words not Actionable 3 She was with Child by J. S. whereof she miscarried 4 Thou hast received stoln Goods and knew they were stolen J. S. Stole them and thou wert Partner with her 18 Of a Midwife She is an Ignorant Woman and of small Practice and very unfortunate in her Way there
King by general words of all Land c. Conditions c. 3 Co. 2. a. b. much less could it pass from the King if it could pass at all by general words but I rest upon this First That it is a Power or kind of Trust to revoke but no Condition Secondly At least not such a Condition as is given to the King Thirdly If it were it ought to have béen executed by the same means as it should have béen by S. M. In Englefields Case there was no pretence to have more than to execute the Condition it ought here to have béen executed in the Life of S. M. and so it appears to be done in Englefields Case and Harding and Warners Case for I caused the Cases to be searched This is like the Case of the Statutes of 15 R. 2. cap. 5. 1 R. 3. cap. 1. 19 H. 7. cap. 15. these Statutes give the same advantage to Lords c. where persons have Uses in Lands respectively as if they had the very Lands but the Lord's c. cannot thereby claim any greater Interest than the cestuy que Uses had respectively in the Uses Now in this Case The Body of the Act and the Proviso fetch back and save the Trusts for all but S.M. As to the Execution for the Kings Debts it differs for the Process for they ever did and do run de terris de quibus illi aut aliquis ad eorum usum c. 'T is true in Sir Charles Hattons Case it was resolved That the Kings Debr should be executed upon Land wherein he had a power of Revocation Vid. Chirtons Case 11 Co. 92. And so Iudgment was affirmed per toram Curiam Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Anonymus IN Debt upon a Bond. After Verdict for the Plaintiff the Judgment was entred quod recuperet the Sum pro misis custag ' instead of pro debito praed ' But this was ordered to be amended as the default of the Clerk tho' in another Term The Court having power over their own Entries and Judgments Anonymus IN an Account it was held by the Court that if a man delivers Money to his Bayliff or Factor to lay out for him in Commodities he cannot bring an Assumpsit but only his Action of Account For the Chief Justice said that he knew such an Action once brought and the Jury that were to try the Cause informed him That if they should Examine all the Accounts which were between the Plaintiff and Defendant it would take up three or four days time So that it hath been always holden that in such case he should be driven to his proper Remedy which is an Action of Account and it may be the Factor hath laid out more Mony that he received Eaton versus Barker IN an Action upon the Statute of 17 Car. nunc for residing in a place where he had formerly kept a Conventicle and demands the 40 l penalty After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Costs or Damages given For it was said that where a Statute gave a certain Penalty if this be not paid upon demand he that sues for it shall recover his Costs and Damages as North and Wingate's Case in the 3 Cro. 559. is But the Court held that they ought not to be given in Actions Popular whether the Forfeiture be certain or not but where a certain Penalty is given to the party grieved there he shall recover his Costs and Damages 10 Co. 116. Vide postea Polexphen versus Polexphen IN a Prohibition the Case was that Henry Polexphen died Intestate Andrew his Brother gets Letters of Administration in the Inferiour Diocess One who pretended to be the Wife of H. surmizing Bona notabilia procured Administration from the Prerogative Court Andrew appeals to the Delegates and dies Henry his Son and Heir comes in and gets the Administration committed in the Prerogative Court Repealed and hath Letters granted to himself Vpon this the Wife prayed a Prohibition supposing that the Delegates could not proceed after the death of Andrew but that their Commission was determined For their Authority is by that to proceed in a Case between such parties one of which is dead To which it was Answered That the Commission is to hear and determine the Cause And both in the Civil and Ecclesiastical Law the Suit shall continue after the death of either party for those which shall be concerned as appears by the Bishop of Carlisle's Case in 2 Cro. 483. and in the 1st Leonard 117 and 178. it is said That if one party dies ante litis conrestationem then it shall abate but if after it is otherwise And there are a number of Presidents of this nature both in the Arches and Admiralty Courts c. And in this very Case Henry Polexphen having obtained Administration de bonis non of his Vncle Andrew in the Country the now Plaintiff got it set aside by the Delegates because granted while an Appeal was depending and that upon full debate before them who would yet now suggest that the Appeal was determined by the death of Andrew The Court were of Opinion that no Prohibition was to be granted and that the Delegates Authority to proceed in that case continued notwithstanding the death of Andrew For the Commission is to proceed in causis Administration c. una cum suis incidentibus vel annexis qualitercunque c. Summariè juxta Juris exigentiam So that the Ecclesiastical Law is appointed to be their Rule by the course of which a Suit doth not abate by the death of the parties And Hale said The Appeal is to the King in Chancery and it is by reason of his Original Jurisdiction and thereupon he grants a Commission to hear it Now if he could hear it in Person none could object but that he might determine the Cause after the death of the parties and by the same Reason they may to whom he hath delegated his Authority But the Attorney General coming in and desiring to be heard in it for the Plaintiff the Court gave further time Eaton versus Barker THe Case was now moved again upon the Statute for coming to a place where he had formerly Preached in a Conventicle And Exception was taken to the Declaration For that it was not averred that the Defendant was in Holy Orders For the words of the Statute are That if any one that hath been Parson Vicar Lecturer c. or within Holy Orders and have taken upon them to Preach c. But to this it was Answered that there is another Clause in the Act That all such persons as shall take upon them to Preach c. which is general and extends to all men whether in Orders or no which have been Preachers And of that Opinion were the Court. It was also Objected That there was no Averment That the Defendant was not there upon Summons Sub
Mesne Process but an Action upon the Case only Vaughan Loyd IN an Audita Querela the Party appeared upon the Sciri Facias and demurred for that the Sciri Facias bore Date the 23 day of October and the Audita Querela the 3 of November after To which it was said that this fault in the Mesne Process is aided by Appearance but if an Original should bear Date upon a Sunday or the like the Appearance of the Party would not help it But on the other side it was said That the Party had no day in Court by the Audita Querela and this was a default in the first Process against him and compared it to a Sciri Facias upon a Judgment in which such a fault will not be cured by Appearance To which the Court agreed For there the Sciri Facias is the Foundation and quasi an Original and the Judgment is given upon it 2 Cro. 424. but here the Sciri Facias is only to bring in the Party to answer and in the nature of a Mesne Process and the Judgment is given upon the Audita Querela wherefore they disallowed the Demurrer Barnes versus Hughes DEbt tam pro Domino Rege quam pro seipso upon the Stat. of 5 Eliz. cap. 4. for exercising of the Trade of a Grocer in Salisbury not being bound Apprentice thereunto The Defendant pleads Nil debet and being tried by Nisi prius and a Verdict for the Plaintiff it was moved in Arrest of Judgment that this Action could not be brought in this Court for by the Stat. 21 Jac. cap. 4. It is Enacted that all offences against any penal Statute for which an Informer may lawfully ground any popular Action Bill Plaint Suit or Information before Justices of Assize Nisi prius or Gaol-delivery Justices of Oyer and Terminer or of the Peace in their General Quarter-Sessions shall be Commenced Sued c. before the said Justices they having power to hear and determine the same and not elsewhere which Negative words as it was said take away the Iurisdiction of this Court And whereas 31 Eliz. restrained not the Kings Attorney because it only made mention of Common Informers the Kings Attorney is expressely named in this Statute and the Cases in 2 Cro. 85. between Beane and Druge and Moyl and Taylours Case 2 Cro. 178. were quoted And the Statute would be to little purpose if it did not extend to Actions of Debt as well as Informations and Indictments But it was said on the other side That it could not extend to Actions of Debt for they could not be brought before Iustices of Assize or the other Iustices named in the Act and it shall only extend to such Suits as an Informer might lawfully Commence before them And it hath been resolved that this Act did give no new Iurisdiction as 1 Cro. 112 Farrington and Keymer's Case in an Information upon the Statute of 23 H. 8. cap. 4. for selling of Beer at an unlawful price which gives the forfeiture to be Recovered in Courts where no Protection or Wager of Law shall be allowed in any Suit grounded upon it extends only to the Courts at Westminster as 6 Co. in Gregory's Case it was resolved That no Information for an offence against this Statute could be commenced before the Iustices of Assize or Peace at the Sessions notwithstanding the Act in 21 Jac. which ordains That Suits for offences against Penal Laws shall be before them and the rest there mentioned for the Act only extends to those offences for the which an Informer might lawfully ground any popular Action before them and it was never held that that Act gave any new Iurisdiction Now if this Action cannot be brought in this Court the Statute must Repeal a great part of the Remedies given by 5 Eliz. against this offence and only leave it to be punished by Indictments and Informations which certainly was never the intent of the Statute and would be very mischievous for if the Offender goes out of the Country after the offence committed he cannot be punished for the Iustices named in the Statute cannot award Process out of the County and therefore for that reason there should be remedy in a Court of General Jurisdiction and since 21 Jac. there have béen many Presidents of like Actions all which would be Reversed if that Act should take away Actions of Debt in this Court. And for these Reasons the Case being moved divers times the Court gave Iudgment for the Plaintiff Styl 340. Anonymus IN Debt upon an Obligation the Defendant pleads That he delivered it as an Escrow hoc paratus est verificare This Plea is vicious for he ought to shew to whom he delivered it and also he ought to conclude his Plea issint nient son fait Anonymus A Lease for Years is made to A. and then another Lease is made for Twenty years to commence after the Expiration of the former Lease if B. and C. shall so long live with a reservation of several things and reddend ' 3 l nom ' Hariotte after the death of B. or C. B. dies during the continuance of the first Lease The 3 l must be paid for it is not in the nature of a Rent but a Sum in gross Clipsham and Morris THe Plaintiff in an Assumpsit declared That J. S. being indebted unto him in 50 l gave him a Note directed to the Defendant requiring him to pay the Plaintiff the said Sum of 50 l then he saith That the Defendant upon view of the Note in Consideration that the Plaintiff would accept of his Promise for the Mony and stay a Fortnight for the same he did assume to pay him To which the Defendant demurs for the Insufficiency of the Consideration it being nothing of trouble or prejudice to the Plaintiff or benefit to the Defendant for he might Sue his Debtor in the mean time neither is it alledged that the Defendant was indebted to J. S. But if it had been in Consideration That the Plaintiff would accept of the Defendant for his Debtor that might have béen good for that is an implied Discharge of the other whom if he had sued the Defendant might have had an Action Roll's 1st Part 29. And for this Reason the Opinion of the Court was against the Plaintiff And this Point was said to be Adjudged between Newcomen and Lee in this Court Paschae 1650. Rot. 62. Styl 249. Anonymus A Man was Indicted for saying The Justices of the Peace had nothing to do with the Excise And it was quashed by the Opnion of the Court for such an Information could not make a man Criminal Nurstie versus Hall THe Grantee of a Reversion brings a Writ of Covenant against the Lessee for years for non-payment of Rent The Question was Whether it ought to be laid where the Lease is alledged to be made or where the Land lies It was said That the Statute of 32 H. 8. cap. 34. which
if it were Repaired be it by any Body the Plaintiff hath no Damage nor cause of Action But Twisden doubted and afterwards the parties waived their Demurrer and went to Issue Anonymus AN Information was brought upon the Statute of Usury for taking the 30th of May in the 20th year of the King 42 s pro deferendo 25 l for three Quarters of a year viz. from the 30th of August Anno 19. Vpon Not Guilty pleaded it was found for the King and moved in Arrest of Judgment that this was not within the Statute which extends only where there is an Usurious Contract in the beginning and there it makes the Security void Or if there be an Agreement after the Money lent for Forbearance upon Consideration of paying more than the Statute allows for Interest which is punishable in an Indictment or Information but the Money is not lost But in this case the time of Forbearance was past and the party might give what he pleased in recompence for it there being no precedent Agreement to enforce him to it Sed non allocatur For the Court said They would expound the Statute strictly and if liberty were allowed in this case the Brokers might oppress the People exceedingly by detaining the Pawn unless the party would give them what they would please to demand for the time after failure of payment Wingate and Stanton the Bail of William Stanton IT was Resolved That where a Scire facias goes against the Bail in this Court an two Nichils are Returned and Judgment is had thereupon no Writ of Error can be brought in the Exchequer Chamber but in the Parliament only Also after such a Return it cannot be Assigned for Error that there was no Capias awarded against the Principal But in that case the Bail is relievable only by Audita querela But if the Sheriff Returns a Scire feci they may plead it Fitz. N.B. 104. I. Nota A man cannot Release a Debt by his Will The King versus Saunders SAunders was Convicted before two Justices upon the Statute of 32 H. 8. cap. 6. for carrying of a Gun Which being removed by Certiorari was quashed because it was coram nobis Justiciariis Domini Regis ad pacem suam conservand ' wanting the word assignatis Anonymus AN Indictment was quashed because it was Justiciarii ad pacem conservand ' assign ' and not ad pacem Domini Regis neither would ad pacem publicam serve And for another Reason because it was ad Sessionem in Com' tent ' and not pro Com' But if it were ad Sessionem in a Borough Incorporated it were good tho' it were not pro Burgo Maleverer and Redshaw DEbt upon a Sheriffs Bond The Defendant pleads that there was an Attachment issued out of Chancery against him Returnable Octab ' Sanctae Trin ' and the Condition of this Bond was that he should appear Crast Sanctae Trin. and so he pleads the Statute of 23 H. 6. against it for that it was taken for Easiamento favore The Plaintiff Replies That the Writ was Returnable Crastino Sanctae Trin. And Traverses That the Bond was taken for ease and favour To which the Defendant demurs Vid. 11 Co. 10. a. supposing that he should have Traversed that the Writ was Returnable Octab. Sanctae Trin. which is the Matter of the Defendants Bar and the other is but the consequence or Conclusion Et Adjornatur Gregory versus Eades ERror to Reverse a Judgment given in an Inferiour Court where an Assumpsit was brought and the Plaintiff declared upon three several Promises and the Jury found two for him and the other non Assumpsit And Judgment was given for the two that he should recover but no Judgment for the third that he should be amerced pro falso clamore or that the Defendant eat inde sine die And for this Cause Error was assigned But Powys Argued for the Defendant in the Writ of Error that the Judgment should be affirmed as to the Two Promises for which it was perfect and cited Miles and Jacob's Case in Hob. 6. and 2 Cro. 343. where an Action was brought for Words declared to be spoken at several times and several Damages given and Judgment and a Writ of Error brought and assigned for Error that the Words spoken at one of the times were not Actionable which tho' they were not yet the Judgment was Reversed quoad them only But the Court said That it was not like this Case for here the Judgment was altogether Imperfect and so were inclined to Reverse it but gave further time Ante. Anonymus IN Replevin the Defendant avows for Rent Arrear Vpon non concessit pleaded the Jury find for the Avowant The New Statute says That the Defendant may pray that the Jury should enquire what Rent is arrear and that he shall have Judgment for so much as they find Now the Court was moved that this might be supplied by a Writ of Enquiry as if they omit to enquire of the Four Points in a Quare Impedit it may be so supplied 10 Co. Cheney's Case But the Court held this could not be so for the Defendant loseth the advantage of it by not praying of it As where a Tales is granted if it be not Entred ad requisitionem Querentis or Defendentis it is not good wherefore he was bid to take his Judgment quod returnum habeat averiorum at the Common Law Anonymus FOur Executors two of them are under Age quaere Whether they shall all sue by Attorney Note An Infant may bring an Action against his Guardian which pleads any thing to his prejudice Not so of an Attorney Wells versus Wells IN an Assumpsit the Plaintiff declares as Administratix to her Husband who in his Life-time agreed with the Defendant That they should be Partners in making of Bricks for J. S. and after his Death the Defendant promised the Plaintiff in Consideration That she had promised him to relinquish her Interest in the Partnership that he would pay her so much Money as her Husband had been out about the Brick And upon non Assumpsit pleaded it was found for the Plaintiff It was moved in Arrest of Judgment that here was no Consideration for the Plaintiff had no interest in the Partnership which being joynt must survive to the Defendant and she ought to have shewn how she relinquished her Interest But the Court held it a good Consideration for it may be there were Covenants that there should be no Survivorship and the Court will intend after a Verdict that there were which tho' they do not sever the joynt Interest in Law yet they give Remedy in Equity which to debar her self of is a good Consideration and being laid by way of Reciprocal Promise there needs no averment of performance Termino Sancti Michaelis Anno 21 Car. II. In Banco Regis William Bate's Case A Prohibition was prayed to the Commissary of the Archdeacon of Richmond to stay a Suit
TRin. 20 Car. 2. Rot. 719. A Custom that Lands should descend always to the Heirs Males viz To the Males in the Collateral Line excluding Females in the Lineal was held good Which it was said was allowed anciently in the Marches of Scotland in order to the Defence of the Realm which was there most to be looked to tho' it is said in Davis's Reports That the Custom of Gavelkind which was pretended in Ireland and Wales to divide only between Males was naught But the former Custom was adjudged good in this Court Hill 18 Car. 2. Rot. 718. Foot versus Berkly BErkly had Iudgment in an Ejectment in Communi Banco and Execution of his Damages and Costs Foot brings Error and the Judgment is affirmed Whereupon Berkly prays his Costs for his delay and charges but could not have them For no Costs were in such case at the Common Law and the Statute of 3 H. 7. cap. 10. gives them only where Error is brought in delay of Execution so 19 H. 7. cap. 20. And here tho' he had not Execution of the Term yet he had it of his Costs If one hath Iudgment in a Formedon in Remainder and before Execution the Tenant brings Error the Judgment is affirmed yet he shall pay no Costs because none were recoverable at first 1 Cro. Ante. Weyman versus Smith A Prohibition was prayed to the Mayor and Court of Bristol Suggesting that a Plaint was Entred there for 66 l and that the Cause of Action arose in London and not in Bristol and so out of their Iurisdiction Note An Affidavit was also made thereof and this is upon Westm cap. 35. and so is F.N.B. 45. Vnless the party pleading in Bar or Imparling admits the Iurisdiction of the Court 2 Inst Tarlour and Rous versus Parner AN Account brought by the Plaintiffs as Churchwardens against the Defendant the former Churchwarden for a Bell c. The Defendant pleads That it lacked mending and that by the Assent of the Parishioners it was delivered to a Bell Founder who kept it until he should be paid To which the Plaintiff Demurred For this Plea is no bar of the Account but a good Discharge before Auditors But it was said on the other side That the Matter pleaded shewed that the Defendant was never Accountable therefore it might be in Bar. The contrary whereof is Adjudged in the same Case in terminis 1 Rolls 121. between Methold and Wyn and so was the Opinion of the Court here But then it was alledged that the Declaration was not good for there were two Plaintiffs and yet it is quod reddat ei compotum and it is de bonis Ecclesiae whereas it should have been bonis Parochianorum For the first the Court said that it should be amended for it was the default of the Clerk But the other was doubtful For the Presidents were affirmed to be both ways but they rather inclined that the Declaration was not good for that cause Anonymus AN Indictment of Forcible Entry in unum Messuagium vel domum Mansional ' quaere if not uncertain and other Lands and Tenements tent ' ad voluntat ' Dom ' secundum consuetudinem Manerii and doth not express what Estate For which the Court held it ought to be quashed for the Statutes 8 H. 6. and R. 2. extend only to Freeholds and the Statute in King James's time to Leases for years and Copyholds And here tho' he saith at the Will of the Lord according to the Custom of the Mannor yet 't is not sufficient because he saith not by Copy of Court Roll. And it was Adjudged in 1653 in this Court that none of the Statutes extended to Tenants at Will Martyn versus Delboe IN an Assumpsit the Plaintiff Declared That he was a Merchant and the Defendant being also a Merchant was Indebted to him in 1300 l And a Communication being had between them of this Debt the Defenant promised him in Consideration thereof That he should have Share to the Value of his said Debt in a Ship of the Defendants which was then bound for the Barbadoes and that upon the Return of the Ship he would give him a true Account and pay him his proportion And sets forth That the Ship did go the said Voyage and returned to London and that after the Defendant with some other Owners had made an account of the Merchandize returned in the said Ship which amounted to 9000 l and that the Plaintiffs Share thereof came to 1700 l which he had demanded of the Defendant and he refused to pay it c. To this the Defendant pleads the Statue of Limitations and the Plaintiff Demurred Alledging that this Action was grounded upon Merchants Accounts which were excepted out of the Statute Tho' if an Action be brought for a Debt upon an Account stated between Merchants the Statute is pleadable as was Adjudged in this Court last Hillary Term between Webber and Perit yet here there being no Account ever stated between the Plaintiff and Defendant it is directly within the Statute And of that Opinion were Keeling and Rainsford But Twisden inclined otherwise because the Plaintiff declares upon an Account stated and tho' between Strangers yet he bringing his Action upon it admits it Et Adjornatur Nota Every Parish of Common Right ought to Repair the High-ways and no Agreement with any person whatever can take off this Charge which the Law lays upon them Crispe and Jackson versus The Mayor and Commonalty of Berwick IN Covenant after Verdict for the Plaintiff it was moved in Arrest of Judgment that there was a Mis-Trial the Venire being awarded to an adjoyning County Which the Court after Hearing of Arguments in it Ruled it to be well enough but one of the Plaintiffs died before the Court had delivered their Opinions It is prayed notwithstanding that Judgment might be Entred there be no default in the Plaintiffs but a delay which came by the act of the Court and that it was within the Statute of this King That the death of the Party between Verdict and Judgment should not abate the Action and that it was in the discretion of the Court whether they would take notice of the Death in this case for the Defendant hath no Day in Court to plead there being no Continuances entred after the Return of the Postea 1 Leon. 187. Isley's Case Latches Rep. 92. And the Court were of Opinion that Judgment ought to be Entred and there being no Continuances it may be as if immediately upon the Return of the Postea Ante. Lion versus Carew THe Case was A Lease was made to two for 99 years if three Lives should so long live and this to commence after the end of a Lease for Life Reddend ' a certain yearly Rent and two Work-days in Harvest post principium inde reddend ' inde 3 l nom ' Harriotte post mortem of the Lessees or either of them and reddend ' two Capons at Christmass post
a Suit And to stay a caussess Suit can be no Consideration 1 Cro. 804. Yelv. 84.184 as the Case of Smith and Johns 2 Cro. 257. where one having married an Executrix after her decease promised J. S. that if he would forbear a Suit against him for a Legacy he would pay it It was held to be a void Promise being in no wise liable to be sued after the Death of his Wife And the Opinion of my Lord Coke 9 Rep. 94. in Bane's Case is That an Executor shall not be charged with such Promise unless he hath Assets But the Court Resolved for the Plaintiff For it is not material whether the Defendants had Assets or no at the time of the Promise for by the Promise they caused the Plaintiff to desist who peradventure at that time was prepared to prove Assets and relying upon such Promise might be much to his prejudice if he could not afterwards recover upon it But the Chief Justice said If it had appeard upon the Declaraton that there were no Assets the Plaintiff by shewing that would have destroyed his Action Vere versus Smith IN Debt upon an Obligation The Condition recited that the Defendant served the Plaintiff as a Brewer's Clerk and that if he performed such Covenants c. The Defendant pleads performavit omnia The Plaintiff Replies That one of the Covenants was to give the Plaintiff a true Account of all such Moneys as the Defendant should receive c. whensoever he should be thereunto requested and alledged that 30 l came to his hands and that he requested him to give an account of it which he refused to do The Defendant Rejoyns confessing the Receipt of the said Money but saith That before Request made by the Plaintiff he laid it up in the Plaintiffs Warehouse and that certain Malefactors to the Defendant unknown stole it away hoc paratus est verificare And to this the Plaintiff Demurs generally And Jones Argued That the matter contained in the Rejoynder was a Departure from the Bar for it doth not amount to an Account but rather an Excuse or Discharge of himself why he should not account Again He ought not to have averred his Plea but to have concluded to the Country For the Plaintiff in his Replication having alledged That he gave no Account and the Defendant in his Rejoynder setting forth That he did give an Account there is an Issue joyned wherefore it ought to have been concluded de hoc ponit se super Patriam But these Matters were Over-ruled For as to the first the Court held it no Departure but a Fortification of the Bar for shewing that he was Robbed is a giving an Account And as to the second the Conclusion is proper because the Defendant alledges New Matter and therefore ought to give the Plaintiff liberty to come in with a Surrejoynder and answer to it for he doth not only say that he gave an Account but sets forth the Special Matter how Wherefore the Court gave Judgment for the Defendant Note A Clerk of the Court must appear de die in diem to any Matters against him on the Crown side as well as on the Plea-side Reynell versus Heale AN Information was brought upon the New Statute against Conventicles for that the Defendant being a Justice of the Peace in Devonshire and Complaint being made to him by Reynell of a Conventicle he refused to go to the place to suppress it and sets forth three Omissions of that kind and that the Statute Enacts That a Justice of Peace for every such neglect of doing his Duty shall forfeit 100 l the one Moiety to the King the other to the Informer unde actio accrevit for 100 l to the King and himself The Defendant pleads non debet the said 100 l to the Informer nec aliquam inde parcellam de hoc ponit se super Patriam praedict ' Reynell similiter And upon this Issue Verdict was given for the Informer Jones moved in Arrest of Judgment That he conceived there were no words in the Act to oblige the Justice of the Peace upon such Information to go in person to the Place where such Meeting is and 't is not said here that he refused to grant a Warrant or the like But he did not much insist upon that but moved that the Issue was not well joyned for it is only between the Informer and the Defendant and so the Plea is quod non debet to the Informer and no mention of the King whereas the Action is qui tam and the Act gives the Moiety of the Penalty to the King The Court said nothing to the first matter but held clearly that the Issue was misjoyned and said that a Repleader ought to be awarded Polexfin and Ashford versus Crispin HIll 22 23 Car. 2. Rot. 225. The Plaintiff brought Trespass Quare pisces suos cepit in separali Piscaria Vpon Not Guilty pleaded and Verdict for the Plaintiffs it was moved in Arrest of Judgment that the Plaintiffs ought not to have called them Pisces suos unless they had been in a Trunk or Pond For there is no more property in Fishes in a Several Piscary than in a Free Piscary In an Action for taking of Conies in a Warren 5 Co. 34. b. F.N.B. 192 193. 2 Cro. 195. he shall not say Cuniculos suos and this is such a default as the Verdict shall not aid Sed non allocatur For the Chief Justice said it might be intended a Stew Pond which is a mans Several Piscary and after a Verdict the Court shall admit any Intendment to make the Case good And Twisden cited a Case which was in Trespass Quare Phasianos suos cepit and the Plaintiff had Judgment after Verdict for it shall be intended they were dead Pheasants And the Case of Child and Greenhill 3 Cro. 553. is the same with this But the Court held that it had been good upon a Demurrer by reason of the local Property And so is the Register Hoskins versus Robbins IN Replevin the Defendant avowed for Damage feasant The Plaintiff Replies and saith That the place Where is parcel of the Waste of such a Mannor within which Mannor there are Copyholds demisable time out of mind and that the Copy-holders have had time out of mind the sole Feeding of the said Waste and that J. S. being a Copyholder of the said Mannor Licensed him to put in his Cattel The Defendant traverses the Prescription and it was found for the Plaintiff Levins moved in Arrest of Judgment that Prescription to have the sole Feeding 1 Cro. 434. 2 Cro. 256. whereby the Lord shall be excluded from all the benefit of his Soyl is not allowable and the Lord cannot in this case ever make any profit of the Mines for he may not Dig. 'T is true a Prescription may be to have the sole Feeding from such a Day for there the Owner hath his time also
And Doderidge gives the Reason That the Party by his words hath abridged what otherwise the Law would make and so it is held in Bland and Inmans Case 3 Cro. 288. where a Man possessed of a Term for a 100 years did joyn in a Lease with his Wife solvendo so much Rent during the Term to him and his Wife and the Survivor of them that the Executors should not have this Rent Hunt contra In the Reservation of a Rent there is no need of words of Limitation If the words are Yeilding and Paying Generally without saying to whom it is a good Reservation to all those to whom the Reversion shall come so if two Joynt-tenants reserve a Rent generally it is good to both Here are sufficient words to declare the intent that the Rent should continue and then they shall not be restrained by any affirmative words after and where Executors Administrators and Assigns are named that shall be taken as an Enumeration of some particulars without any intent to exclude others as where a man made one his Executor of all his Corn and moveable Goods this gave him an Interest as Executor in all his Chattels as well as in those which were named 3 Cro. 292. Rose and Barlett's Case 8 Co. Whitlock's Case If the Reservation be to such persons to whom the Reversion shall come this is good to the Heir and all others If a Lease be made excepting a Chamber to the Lessor this remains excepted after the death of the Lessor 7 H. 8. 19. Hale If this were res integra it might be a strong Case for the Plaintiff but the Authorities go the other way Sed Adjornatur Vide postea Termino Sancti Michaelis Anno 23 Car. II. In Banco Regis Dorrel versus Jay THe Plaintiff declared that Communication being between J.S. and the Defendant of the last Will of John Rowe Esquire deceased that the Defendant said of the Plaintiff He hath forged his Uncle Rowes Will. After Verdict for the Plaintiff it was moved by Serjeant Ellis in Arrest of Judgment that it is not averred that John Rowe was dead at the time of the speaking of the words Sed non allocatur For it is said there was a discourse of the Will of John Row Esquire defuncti and there defuncti goeth to the description of his person and expresseth that he was then dead and not only when the Action was brought Besides the words imply it for if he were not dead he could not forge his Will Vid. ante Phillips and Kingston's Case Pasch 23 Car. The Case of St. Katherines Hospital THe Case as it appeared upon the Evidence at a Trial at Bar in Ejectment for part of the Lands of the Hospital between the Lessee of Sir Robert Atkins the Queens Solicitor and George Mountague Esquire was this Elianor Queen Dowager of Henry the Third in the year 1273. Founded or at least amply Endowed this Hospital reserving to her self during her Life Reginis Angliae nobis succedentibus the Nomination of the Master to this Hospital which was Incorporated and her Grants to it confirmed by the King's Letters Patents In the Year 1660 Henrietta Maria Queen Mother granted the Mastership of this Hospital to H. Mountague for Life and the King in the same year reciting his Mothers Grant and that the Right of it belonged unto her Confirmed it by his Letters Patents and did further by the same Letters Patents grant unto the said H.M. the said Mastership Afterwards the King married Katherine the now Queen Consort and she granted the Mastership to Sir Robert Atkyns for his Life It was urged on the part of the Plaintiff that the Right of appointing the Master was only in the Queen Consort for Queen Elianor reserved it to her self and her Successors Queens of England and Queen of England is not Queen Dowager but Queen Consort And tho' Land cannot be limited to discend in such manner without Act of Parliament as is Resolved in the Prince's Case in 8 Co. yet such a Desultory Inheritance as this was called may be created of a thing de novo As a Rent may be granted and appointed to cease during the Minority of the Heir or upon the first Foundation of a Church the Patronage may be reserved to A. and if he Presents not within four Months then to B. So in the Book of E. 3. it was limited that the Chapter should present while the Deanry was vacant And to prove that this Clause had been construed only to intend the Queen Consort a Record was shewn of a Case between Luttishall and Basse in 4 E. 3. Where Luttishall exhibited a Petition to the King which was Intituled To our Lord the King and his Counsel Which Petition was sent into the Kings-Bench under the Great Seal in which Luttishall sets forth That Queen Isabel Mother to Edward the Third had granted him the Mastership of the Hospital for his Life and that he was disturbed by Basse and Process was issued out against Basse who appeared and pleaded a Grant from Queen Philip. Wife to Edward the Third and a Writ came from the King reciting That the Nomination of the Master did belong to Queen Isabel And so three Writs more came after to the same purpose and expressing that the Matter was delayed ad inestimabile damnum Consortis nostrae And in that Record Isabel tho' living is styled nuper Regina and Luttishall that claimed under her was barred On the other side Divers Grants were produced during the time that there were no Queens by the King and sometimes by a Queen Dowager during the time that there was a Queen Consort And these Points following were agreed by all the Court First That an Inheritance might be limited in this manner in a thing de novo Secondly That this Reservation being to Queen Elianor and her Successors Queens of England did not exclude Queen Dowagers and extend only to Queen Consorts For 1. A Dowager Queen is Queen of England and as Hale said hath the Prerogative to Sue in the Exchequer 2. When once she is so qualified to have the Estate vest in her it shall continue tho' she doth not remain in the same Capacity As where one hath power to Limit an Estate to his Wife it may very well continue in her after the Coverture Thirdly It was much observed and relyed upon that Queen Elianor was only Dowager at the time of the Foundation and so could never be intended to exclude such Queens as should succeed her in that Capacity Fourthly During such time that there should be no Queen it was held that the King was to constitute the Master for he is Heir to Queen Eleanor And whereas it was urged for the Plaintiff That the King had not power to dispose of the place but only by way of provision till such time as a Queen should be so as to commit the Care of the Poor to one but not the Interest of the Mastership It was
appearing that B. had made this Discovery to him of which he was now about to give Evidencee before such time as he had Retained him the Court were of Opinion that he might be Sworn Otherwise if he had been retained his Solicitor before The same Law of an Attorney or Counsel Sir Samuel Jones versus the Countess of Manchester IN an Ejectment upon a Trial at the Bar the Evidences which as the Plaintiff pretended would have made out his Title and would have avoided the Settlement in Joynture which the Countess of Manchester claimed were locked up in a Box which was in the Custody of a Stranger who before the Trial delivered the Key to the Earl of Bedford Brother to the Countess of Manchester and Trustee for her who being present in Court and requested to deliver the Key that the Box might be opened which was brought into Court He said being a Trustee in the behalf of his Sister He conceived he was not obliged to shew forth any Writings that might impeach her Estate and if he should it would be a breach of the Trust reposed in him which he held sacred and inviolable The Court told him That they could not compel him to deliver the Key But Hales said It were more advisable for him to do it For he held tho' it is against the Duty of a Counsellor or Solicitor c. to discover the Evidence which he which retains him acquaints him with yet a Trustee may and ought to produce Writings c. But they could not Rule him to do it here and the Earl declaring his Resolution not to do it the Plaintiffs Counsel desired leave of the Court to break open the Box. The Court said that they would make no Order in it nor would determine how far the Title to the Writings drew in the property of the Box or whether the delivering the Key to the E. did not amount to a Pledge of the Box. Serjeant Maynard said It was the course of the Chancery when a Bill was Exhibited against a Joyntress to discover Writings not to compel her to do it till such time as the Plaintiff agrees to confirm her Joynture And he knew a Bill of Discovery brought against a Purchasor upon a valuable Consideration and the Court would not compel him to Answer tho' it was proved there was a Deed and a real Settlement Vpon opening the Evidence in the Case at Bar these Points were stirred and Resolved by the Court That where a man makes a Feoffment c. to Uses with power of Revocation when he hath executed that Power he cannot limit New Uses but if it had been with a Power to revoke and limit New then he might revoke and limit New with a power of Revocation annexed to those New which if he doth afterwards revoke he may again limit New Uses according to the first Power and so in infinitum But always the New Uses must correspond to those Circumstances c. which the first Power appoints for that is the Foundation 2 Rolls 262. Beckett's Case The Plaintiff being at a loss for his Writings was Nonsuit Seaman versus Dee AN Indebitat ' Assumpsit as Executor of S. was brought against the Defendant by the Plaintiff as an Attorney of this Court by Original The Defendant pleads four Judgments against him One in an Action of Debt upon which the Question was for Money borrowed by the Testator upon Interest which Debt with the Interest at the time of the Action brought amounted to such a Sum which was recovered against him And pleads three Judgments besides ultra quae he had not to satisfie The Plaintiff Demurs and after being divers times spoken to the Court Resolved for the Plaintiff First For that Hale said No Action of Debt lies for the Interest of Money tho' he which borrows it Promises to pay after the rate of 6 l per Cent. for it but it is to be recovered by Assumpsit in Damages So where by Deed the party Covenants or Binds himself to pay the Principal with Interest the Interest is not to be included with the Principal in an Action of Debt but shall be turned into Damages which the Jury is to measure to what the Interest amounts to which is allowed to be done tho' indeed the Statutes which permit the taking of Interest say That Usury is damned and forbidden by the Law of God And tho' it was Objected That the Judgment is but Erroneous and the Executor liable while Reversed and it cannot be said it was the Executor's fault to suffer it For an Executor may plead a Judgment against him in Debt upon a simple Contract tho' it could not have been recovered if he had pleaded to the Action or without his voluntary Consent To that Hale said That Debt upon a Simple Contract lies against an Executor if he please nay it hath been Adjudged that an Executor may retain for a Debt but to him from the Testator upon a Simple Contract But in this Case no Action lies by the Law nor any admission of the Executor can make it good Secondly It appears that part of the Interest accrued after the Testator's death which is the Executors proper Debt being his own default to suffer the Interest to run on Then the Action being brought both for that which is due in the Testator's time and for that which grew due since is manifestly Erroneous and there is nothing in the Defendants Plea to take away the Intendment that he had Assets to satisfie at the Testator's death To the Objection That the Plaintiff once had abated his Writ for that he declares by Priviledge as an Attorney of the Court. It was Answered That the alledging of his Profession and Priviledge in the Declaration was Surplusage and an impertinent Flourish and that being rejected the Declaration is sufficient upon the Writ and an Attorney is at election to Sue either by Original or by Priviledge Wherefore the Rule was that the Plaintiff should have his Judgment The Lady Anne Fry's Case IN an Ejectment by Williams Lessee of George Porter Esquire against the Lady Anne Fry The Case appeared to be this upon a Special Verdict That Mountjoy Earl of Newport was seised of an House called Newport-House in the County of Middlesex and had three Sons who are yet living and had two Daughters Isabel married to the Earl of Banbury by whom she had Issue Anne the Defendant and Anne married to Porter by whom she had Issue George Porter Lessor of the Plaintiff and made his Will in this manner I give and bequeath to my Dear Wife the Lady Anne Countess of Newport all that my House called Newport House and all other my Lands c. in the County of Middlesex for her Life and after her Death I give and bequeath the Premisses to my Grandchild Anne Knolles viz. the Defendant and the Heirs of her Body Provided always and upon Condition that she Marries with the Consent of my said Wife and
the Earl of Warwick and the Earl of Manchester or the major part of them And in case she Marries without such Consent or happen to dye without Issue then I give and bequeath it to George Porter viz. the Lessor of the Plaintiff The Earl of Newport dies and the Lady Anne Knolles being of the Age of 14 years marries with Fry without the Consent of her Grandmother or either of the Earls and it was found that she had no Notice of the Will until after the Marriage and that George Porter at that time was of the Age of 8 years and that after the Death of the Countess she Entred and George Porter Entred upon her and made the Lease to the Plaintiff This Case having been twice Argued at the Bar viz. in Michaelmas Term by Sir William Jones for the Plaintiff and Winnington for the Defendant And in Hillary Term last by Finch Attorney General for the Plaintiff and Sir Francis North Solicitor General for the Defendant It was this Term Resolved by the Court viz. Hale Twisden and Rainsford Moreton being absent for the Plaintiff upon these Reasons Rainsford Here have been three Questions made First Whether the words in the Will whereby the marriage of the Defendant is restrained make a Condition or Limitation If a Condition then none but the Heir can Enter for the Breach But 't is clear that they must be taken as a Limitation to support the intent of the Devisor and to let in the Remainder which he limits over 1 Rolls 411. Secondly Whether the Infancy of the Defendant shall excuse her in this Breach and clearly it cannot For a Condition in Deed obliges Infants as much as others 8 Co. 42. Whittingham's Case the difference between Conditions in Fact and Conditions in Law Especially in this Case the nature of the Condition shewing it to be therefore imposed upon her because she was an Infant Thirdly and the main Point of the Case Whether the want of Notice shall save the Forfeiture of the Estate As to that Let the Rules of Law concerning Notice be considered First I take a difference where the Devisee who is to perform the Condition is Heir at Law and where a Stranger The Heir must have Notice because he having a Title by Discent need not take notice of any Will unless it be signified to him And so is Fraunce's Case 8 Co. Where the Heir was Devisee for 60 years upon Condition not to disturb the Executor in removing the Goods and Resolved that he should not lose his Estate upon a Disturbance before he had Notice of the Will But where the Devisee is not Heir as in this Case he must inform himself of the Estate devised to him and upon what terms Another Rule is When one of the Parties is more privy than the other Notice must be given but where the Privity is equal Notice must be taken by the party concerned A Bargainee shall not Enter for a Condition broken before Notice for the Bargain and Sale lies in his Cognizance and not the Lessees So if a Lease be made to commence after the end of the former if the first be surrendred the Lessor shall not Enter for a Condition broken for Non payment of Rent until Notice given of the Surrender 3 Leon. 95. And therefore there shall be no Lapse to the Ordinary upon a Resignation without Notice If a man makes a Feoffment upon Condition to Enter upon payment of such a Sum at a place certain he must give Notice to the Feoffee when he will tender the Money Co. Lir. 211. a. Dyer 354. And upon this Reason is Molineux's Case 2 Cro. 144. where a Devise was that his Heir should pay such Rents and if he made default then his Executors should have the Lands paying the said Rents and if they failed of Payment then he devised the Land to his younger Children to whom the Rents were to be paid It was Resolved Non-payment by the Executors should be no Breach until they had Notice that the Heir had failed which was a thing that the younger Children must be privy to But in 22 E. 4. 27 28. Tenant for Life Lets for years and dies the Lessee must remove in convenient time to be reckoned from the death of the Tenant whether he had Notice of it or no For he in Reversion is presumed to be no more privy to it than himself So Gymlett and Sands's Case 3 Cro. 391. and 1 Rolls 856. where Baron and Feme were Tenants for Life Remainder to the Son in tail Remainder to the right Heirs of the Baron the Baron makes a Feoffment with Warranty and dies then the Feme and Son joyn in a Feoffment this is a Forfeiture of the Estate of F. tho' she had no Notice of the Feoffment or Warranty whereby the Right of the Son was bound So Spring and Caesar's Case 1 Rolls 469. A. and B. joyn in a Fine to the use of A. in Fee if B. doth not pay 10 l to A. before Michaelmas and if he doth then to the use of A. for Life Remainder to B. B. dies before Michaelmas the Heir of B. is bound to pay the 10 l without any Notice given by A. The Reason given which comes home to our Case is For that none is bound to give Notice and then it must be taken tho' indeed a second be added For that B. from whom his Heir derives had Notice The Mayor and Comminalty of London aganst Atford 1 Cro. where a Devise was to six Persons to pay certain Sums for the Maintenance of an Almshouse c. and if through Obliviousness or other Cause the Trusts were not performed then to J. S. upon the same Condition and if he failed by two Months then to the Mayor and Comminalty of London upon the same Trusts The six did not perform the Trusts J.S. enters J. N. enters upon him and a Fine with Proclamations was levied and Five years passed and the better Opinion was that the Mayor and Comminalty of London were bound to pay the Money appointed by the Will altho' they had no Notice that the six persons or J. S. had failed tho' indeed the Case is adjudged against them as being barred by the Fine and Non-claim Sir Andrew Corbet's Case 4 Co. is very strong to this purpose where a Devise is to J. S. until he shall or may raise such a Sum out of the Profits of the Land If a Stranger Enters after the death of the Devisor tho' the Devisee had no Notice of the Will yet the time shall run on as much as if he had the Land in his own possession These Rules being applied to the present Case it will appear no Notice is to be given First The Defendant is as privy to the Will as any one else viz. as George Porter who is found also to be an Infant It is not found whether there were any Executors if it had they were not concerned to give Notice nor did it
illam modo forma praed ' fact ' necesse non habet nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defectu sufficien ' Narration ' ipsius Francisci in hac parte ijdem Edwardus Walterus pet ' Judicium qd ' praed ' Franciscus ab actione sua praedicta versus eos habend ' praecludatur c. Et praedictus Franciscus dic ' qd ' Joynder in Demurrer narratio praedicta materiaque in eadem content ' bon ' sufficien ' in lege existunt ad ipsum Franciscum actionem suam praedictam inde versus praed ' Edwardum Walterum habend ' manutenend ' Quam quidem materiam idem Franciscus parat ' est verficare Unde ex quo praedict ' Edwardus Walterus ad narrationem praed ' non responder ' nec materiam in ead ' content ' aliqualit ' dedixer ' idem Franciscus pet ' judicium dampna sua occasione fractionis conventionis praed ' sibi adjudicari c. Et quia Justic ' c. Morly versus Polhill IN an Action of Covenant the Plaintiff declared as Executor to George Morly late Bishop of Winchester and sets forth that Brian the Predecessor of the said Bishop had demised a Rectory and certain Lands to J. S. for 21 years who had assigned it to the Testator of the Defendant and that the Lessee covenanted with Brian and his Successors to repair the Chappel of the Church and the Barns c. and assigned a breach in the not xepairing by the Testator of the Defendant in the life of George Morly and that the Lease afterwarns expired To this the Defendant demurred for that it was pretended that the Executor of the Bishop could not bring this Action for the Covenant was with the Predecessor Bishop and his Successors and cited the Cases of Real Covenants 1 Inst 384 385. A Parcener after partition Covenants to acquit the other Parcener of a Suit and the Covenantee assigns the Assignee shall not bring Covenant But the whole Court gave Iudgment for the Plaintiff and that the Executor is here well entituled to the Action for the Breach in the Testators time Wright versus Wyvell IN an Ejectment the Plaintiff declared upon a Demise of Dorothy Hewly and upon a Special Verdict the Case appeared to be thus That Christopher Hewly was seised of the Premisses in Fee and made his Will in this manner I make my last Will in manner following As concerning my Personal Estate First I give and bequeath unto Ann Hewly my Wife the sum of Six Hundred Pounds to be paid unto William Weddall of Eastwick Esq and it 's for the full payment of the Lands lately purchased of the said Mr. Weddall by the said Christopher Hewly and is already estated in part of a Joynture to Ann my said Wife during her natural Life being of the value of Sixty Seven Pounds per annum That of Wiskow York and Malton the Lands and Tenements there amounting to the yearly value of Sixty Three Pounds in all One Hundred and Thirty Pounds which being also estated upon my said Wife it is in full of her Joynture And after this he gives several Legacies and the rest of his Personal Estate he gave to his Wife and made her Executrix Then they find that he had made no settlement of the Premisses or of any part of them upon his Wife and that the Lessor of the Plaintiff was Heir at Law to Christopher Hewly and that Ann the Wife is still living So that the sole Question was whether the Lands should pass to the Wife upon these words in the Will and divers Cases were put upon implicit Devises as that his Feoffees should stand seised to the use of J. S. has been held a good Devise to J. S. tho' there were no Feoffees 3 Leon. 167 162. Devise to his eldest Son after the death of his Wife there the Wife takes tho' nothing expresly devised to her After Arguments heard on both sides by the Opinion of Pollexfen Chief Justice Rokeby and Ventris Iudgment was given for the Plaintiff against the Opinion of Powell Here it appears indeed that the Testator took it that she had the Land but it appears he did not intend to devise any thing by the Will for he mentions that she was estated in it before and in the Cases of Implicit Devises there is no reference to any Act that should have conveyed the Land to the Devisee before but the Will there passes the Land by Construction and Implication Again This Devise is introduced with this Clause as to the disposing of my Personal Estate and throughout the Will he giveth only Personal Things Again This recital comes in as part of another Clause of an express Devise of the Six-Hundred Pounds But Powell relied upon the Case in Mo. 31. A man made a Will in this manner I have made a Lease to J. S. paying but 10 s Rent this was held a good Lease by the Will To which it was answered That the Case there was of little authority for it did not appear how that matter came in question or in what Court or in what Action and said only fuit tenus 3 Eliz. And Iudgment here was given for the Plaintiff Bowyer versus Milner IN a Formedon against several Tenants one appeared and was Essoigned and then another appeared and it was moved whether he could be Essoigned by reason of the Statute of W. 1. c. 43. which seems to be that Parceners or Ioyntenants should have but one Essoign and that they should not fourch Cut ' Contra. The Statute is to be understood of Essoigns after appearance and so is the Book of 28 Ed. 3. 18. it is said to have been the Law of the Times for Tenants to fourch before appearance and so is Co. 2. Inst 250. Hob. 8 46. The Case of Essoigns if the Tenant voucheth two one Essoign may be cast for each of them singly Vid. Stat. of Glouc. c. 6. Anonymus IN an Action of Trespass de Uxore abducta cum bonis viri to his damage of 10000 l Upon Not Guilty pleaded and a Trial at the Bar the Return of the Jury was Octab ' Trin. and the Appearance Day was die Mercurij at which day the Jury appeared but it being appointed for the keeping of a solemn Fast by the King's Proclamation the Jury was adjourned to the Day following and then the Jury and Parties being at the Bar a Plea was offered by the Defendants Counsel puis darrein continuance that the Plaintiff was Excommunicated and produced it under the Seal of the Court and begun their Plea thus Ad hunc diem viz. die Jovis prox ' post Octab ' Trin ' c. So that the Plea came too late for it should have been pleaded die Mercurij for tho' the Jury was adjourned to Thursday yet all Matters were entred as upon Wednesday So this Plea did appear upon the
usque diem martis prox ' post tres septiman ' Sanct ' Michael de audiend ' inde Judicio suo quod iidem Justic ' hic inde nondum c. Bockenham versus Thacker IN an Action upon the Case the Plaintiff declared that J. S. was indebted in a sum of Mony to the Plaintiff not exceeding 12 l and that the Defendant as he the Defendant said was indebted to J. S. in 12 l or there about That the Defendant in consideration that the Plaintiff at his request would procure an Order from J. S. in writing to the Defendant for payment of the Mony which the Defendant owed J. S. or any part thereof to the Plaintiff he promised to pay the Mony according to such Order The Plaintiff avers that he procured such Order from J. S for the Defendant to pay him 5 l which he shewed to the Defendant and the Defendant refused to pay c. The Defendant demurs generally to the Declaration Levinz for the Defendant argued that it was no sufficiently set forth that the Defendant was indebted to J. S. and if not there was no consideration Cur ' contra for it must be intended that he was indebted for 't is set forth that the Defendant said so but if not the procuring the Note at the Defendants request by the Plaintiff was a sufficient consideration It was Objected further that the Plaintiff had not alledged that he procured the Note at the request of the Defendant as the agreement was and for that 3 Leon. 91. was cited in consideration that he should repair such part of the House at his request it was held naught for not laying the repairing to be done at request Sed non allocatur for it shall be intended to have been done at request and so is Bretton and Boltons Case 3 Cro. 246. 2 Cro. 404. Berisfords Case and Poynters Case 1 Cro. Sed Nota All those Cases are after Verdict and so is the above cited Case See more of this Case afterwards Termino Sancti Michaelis Anno 1 W. M. In Communi Banco SErjeant Trinder moved the Court to set aside a Verdict recovered in an Action for the mesn Profits after a recovery in an Ejectment shewing that the Defendant in the Ejectment had brought another Ejectment since and recovered so that the first recovery was disaffirmed and therefore there ought to have been no recovery for the mesn Profits but the motion was denied by the whole Court Leigh versus Ward DEbt upon a Bond the Condition was to perform an Award and the Defendant pleaded that the Arbitrator made no Award The Plaintiff replied that after the Bond entred into and before the time set in the Condition for making of the Award scilicet tertio die Novembris anno c. per quoddam Scriptum suum arbitr ' adtunc ibidem fact ' c. and so sets forth the Award upon which the Defendant demurred because no place was mentioned where the Award was made Tremain for the Plaintiff said that the adtunc ibidem should refer to the place mentioned in the Declaration where the Bond was made Cur ' contra The adtunc ibidem cannot be referred to the place in the Declaration and there is no place mentioned in the Replication Whereupon Iudgment was given for the Defendant Memorandum Mr. Justice Eyres came to this Court at the desire of the Court of Kings Bench who were trying of a Cause at the Bar to know the Opinion of the Court of Common Pleas upon this Question An Infant who was a party to the Ejectment that was upon trial had answered a Bill in Chancery by his Gardian whether that Answer could be read in Evidence against the Infant And the Opinion of the whole Court was that it could not be read for it is not reason that what the Gardian swears in his Answer should affect the Infant Blake versus Clattie TRespass Quare clausum fregir diversa onera equina of Gravel had carried away per quod viam suam amifit After Verdict it was moved in Arrest of Judgment that the diversa onera equina was incertain and then mentioned the loss of his Way and had set forth no Title to the Way nor set forth any certainty of it It was said on the other side that the Incertainty was aided by the Verdict and the other Matter about the Way was only laid in aggravation of Damages But the Court held the Exceptions material and thought it would be very inconvenient to permit such a Form of putting in of a Way to a Declaration in Trespass Anonymus IN an Action of Debt for Rent the Plaintiff declared in Michaelmass Term last and laid the Demise to be Anno primo Jacobi Secundi Regis The Defendant pleaded Nil hab ' in Tenementis and the Plaintiffs Attorney delivered a Copy of the Issue where the Demise was laid Anno primo Regis nunc and so the Nisi prius Roll was at first but it was observed that the Plaintiffs Attorney had amended it but gave no Notice thereof to the Defendants Attorney nor delivered him a new Copy of the Issue and so went to Trial which proceeded the Nisi prius Roll being right and a Verdict was found for the Plaintiff And it was moved by Serjeant Rotheram that there should be a New Trial granted for the Defendant was surprized to find the Record right when they had a wrong Copy of the Issue But it appearing to the Court that the Defendant notwithstanding proceeded in his Defence and the Verdict was after a long Evidence that the Court would not set it aside but ordered the Plaintiffs Attorney to attend for the undue Practice in making of an Amendment in such manner Bailes versus Wenman IN an Ejectment upon a Special Verdict the Case appeared to be thus That Articles of Marriage were made between the eldest Son and Heir apparent of the Defendant and Martha one of the Daughters of one William Nailor whereby the Defendant was to settle the Lands in question upon the Lessor for his Life and after his decease upon Martha for her Ioynture with a Proviso that the Lessor should make a Lease of the Premisses to the Defendant for 99 years if the Defendant and Susan his Wife should so long live and that Susan died before the Lease made to the Plaintiff So the only Question was Whether the Lease for 99 years determined by the Death of said Susan The Court upon the first opening without Argument were all of Opinion that it did determine and Ordered Judgment to be Entred for the Plaintiff 5 Co. 9. in Brudnell's Case Daniel and Waddington 2 Cro. 378. Vide Dyer 67. and 1 Inst 225. a. Trupenny's Case Vide Anderson 151. A Lease made to two for their Lives absque impetitione vasti durant ' vitis of the Lessees and held that this Priviledge would hold to the Survivor for 't is reasonable to give the Priviledge as large a Construction as
libras duos solidos un ' denar ' un ' obul ' seu aliquem inde denar ' eidem Mariae nondum reddider ' nec eorum alt ' reddidit set ill ' ei reddere omnino contradixer ' ac praedicta Thomasina ill ' ei reddere adhuc contradic ' injuste detinet Unde dic ' quod deteriorat ' est dampnum habet ad valentiam quadraginta librarum Et-inde produc ' sectam c. The Defendant pleads in Abatement that the party died Intestate and that Administration was granted to her Died intestate Letters of Administration granted The Defendant ought to be sued as Administratrix and not as Executrix Et praedicta Thomasina per Thomam Clarke Attorn ' suum ven ' Et dic ' quod praedict ' Isaacus Woolland apud Civit ' Exon ' praedict ' obiit intestat ' post cujus mortem Edwardus Lake Clericus Sacrae Theologiae professor ' Archi Archidiac ' Exon ' legittime constitut ' apud Civit ' Exon ' praedict ' per Litteras suas Administratorias commisit eidem Thomasinae Administraconem omnium bonorum catallorum quae fuer ' praedict ' Isaaci tempore mortis suae qui quidem Edwardus adtune habuit plenam Authoritatem ad Administraconem illam in ea parte committend ' in quo casu praed ' Maria ipsam Thomasinam Administratricem bonorum catallorum quae fuer ' praedict ' Isaaci non Executricem Testamenti ipsius Isaaci in brevi suo praedict ' nominare debuit Et hoc parat ' est verificare Unde pet ' Judic ' de brevi illo Et quod breve illud cassetur Et praedicta Maria dic ' quod breve suum praedict ' The Plaintiff Replies That the Defendant administred as Executrix before the granting of the Administration to her ratione praeallegat ' cassari non debet Quia dic ' quod post mortem praefat ' Isaaci ante commissionem Administrationis praedict ' eidem Thomasinae in forma praedicta scilicet decimo octavo die Septembris anno regni domini Regis dominae Reginae nunc primo praefat ' Thomasina diversa bona catalla quae fuer ' praefat ' Isaaci tempore mortis suae ut Executrix testamenti ipsius Isaaci Administravit videlt apud paroch ' Sancti Edmundi praedict ' Et hoc parat ' est verificare Unde pet ' Judicium debitum suum praedict ' unacum dampnis suis occ̄one detentionis debiti illius sibi adjudicari c. Et praedicta Thomasina dic ' quod praedict ' placitum praedict ' Demurrer to the Replication to the Plea in Abatement Mariae superius replicando placitat ' materiaque in eodem content ' minus sufficien ' in lege existunt ad acconem ipsius Mariae praedict ' versus ipsam Thomasinam habend ' manutenend ' quodque ipsa ad placitum ill ' modo forma praedict ' placitat ' necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' placiti praedict ' Mariae in hac parte eadem Thomasina pet ' Judicium Et quod breve ipsius Mariae cassetur c. Et praedicta Maria dic ' quod placitum praedict ' per ipsam Mariam superius replicando placitat ' materiaque in eodem content ' Joynder in Demurrer bonum sufficien ' in lege existit ad actionem ipsius Mariae versus praefat ' Thomasinam habend ' manutenend ' quod quidem placitum materiaque in eodem content ' ipsa ' eadem Maria parat ' est verificare probare prout Cur ' c. Et quia eadem Maria ad placitum illud non respond ' nec ill ' hucusque aliqualit ' dedic ' ipsa eadem Maria ut prius pet ' Judicium debitum suum praedict ' unacum dampnis suis occasione detentionis debiti illius sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemiss priusquam Judicium inde reddant dies dat' est partibus praedict hicusque in Crastino Sanctae Trinitatis de audiendo inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Pyne versus Woolland IN an Action of Debt against the Defendant as Executrix of her Husband for Arrears of Rent due from the Testator The Defendant pleaded in abatement of the Writ That after the death of her Husband Administration of his Goods and Chattels was granted to her and that she ought to have been named Administratrix in the Writ and not Executrix unde pet ' Judicium de brevi quod breve istud cassetur The Plaintiff Replied That after the death of the Husband and before the Administration committed the Defendant administred divers Goods and Chattels of her Husbands at such a day and place c. To this the Defendant Demurred and Judgment was given for the Plaintiff For she sets not forth the Day when Administration was committed so it might be after the Writ brought And besides if she disposed of the Goods as Executrix of her own wrong the taking of Administration afterwards tho' before the Writ brought will not hinder the Plaintiff from charging her as Executrix of her own wrong And the difference is taken in the Case of Williamson and Norwich Styl Rep. 337. 1 Ro. 923. where an Action of Debt was brought upon a Contract against the Defendant as Executor of his own wrong The Defendant pleads the party was Indebted to him upon Bond and died Intestate and that he afterwards took out Letters of Administration to him which appeared to be after the Writ brought and pleads a Retainer for his own Debt And the Plaintiff Demurred and Judgment was given for the Defendant that such Administrator might Retain for his own Debt tho' he had been before Executor of his own wrong But such taking of Administration should not abate the Plaintiffs Writ Kelw. 127. a. Vid. 5 Co. Coulter's Case and Executor of his own wrong cannot Retain Anonymus TRespass Quare clausum fregit and declared of divers other Trespasses The Defendant pleaded Not guilty as to the clausum fregit and Iustified as to the other Trespasses which upon the Issue was found for the Defendant and as to the clausum fregit it was found for the Plaintiff The Court held it a clear Case within the late Statute that the Plaintiff should have no more Costs than Damages the Damages being under 40 s Alleson versus Marsh A Prohibition was prayed to the Court of Admiralty to stay a Suit commenced there by some of the Marriners in a Ship against two of the Part owners for their Wages upon a suggestion that the Contract was made with them upon Land It was said that tho' Suits had sometimes been permitted there for Marriners Wages yet that was when they all joyned in the Suit to avoid
Assumpsit the Plaintiff sets forth That the 25th of March 1685. he had Demised to William Brady the former Husband of the now Defendants Wife divers Lands at the Rent of 320 l per Annum to hold at Will and that there was due from the said Brady 160 l for Half a years Rent and that he died possessed of the Premisses and that the Wife of the now Defendant while she was sole and soon after the death of the said Brady her late Husband in Consideration that the Plaintiff would permit her to hold and enjoy the Premisses till our Lady-day next ensuing the decease of her said Husband and permit her to remove divers Posts Rails and other things fixed and placed upon the Premisses by her said Husband did promise to the Plaintiff That she as well the aforesaid 160 l that then was in arrear as aforesaid in the life of her said late Husband as also 260 l more would well and truly pay and shews that she did enjoy the said Premisses by the permission of the Plaintiff till Lady-day aforesaid And that he suffered her also to take away the things before-mentioned yet she when she was sole nor the Defendant or she since her Marriage did not pay the said Sums of Money or any part of them c. Vpon Non Assumpsit pleaded a special Verdict was found The the Defendants Wife did make the Promise prout and that she enjoyed the Lands and took away the Posts c. as in the Declaration is set forth and that since she had paid the 160 l to the Plaintiff but had not paid the 260 l or any part thereof and they find that the said Promise nor any Memorandum or Note thereof was not put into Writing or signed by the Wife of the Defendant or any person authorized by her to do it and they find that she paid the 160 l before the Action brought and they find the Act of Parliament in 29 Car. 2. against Frauds and Perjuries whereby it is Enacted That no Action should be brought to charge an Executor or Administrator upon any special Promise to answer of his own Estate or upon any Promise to answer for the Debt Default or Miscarriage of any other person c. unless the Agreement or some Memorandum or Note thereof were by the person or some other empower'd by him put into Writing signed c. prout in Statuto and made the General Conclusion It was Argued for the Plaintiff that altho' as to the payment of the 160 l which was the Debt of her the Defendants late Husband the Promise might be void in regard it was not in Writing according to the said Statute yet as to the payment of the 260 l the Promise is not within the Statute for that is upon a good Consideration and her own proper Debt and Damages are only given for that the 160 l is found to have been paid But by the Opinion of all the Court Iudgment was given for the Defendant for the Promise as to one part being void it cannot stand good for the other For 't is an entire Agreement and the Action is brought for both the Sums and indeed could not be otherwise without variance from the Promise Note It did not appear by the Record that the Wife was Executrix or Administratrix to her former Husband Kemp versus Cory al' Cornub ' ss Replevin JOHANNES CORY nuper de West-Putford in Com' Devon ' gen ' Johannes Cocke nuper de ead ' Yeoman Willielmus Cocke nuper de Launceston in Com' Cornub ' praed ' Yeoman sumÌ„ fuer ' ad respondend ' Willielm ' Kempe Edwardo Laundry Edwardo Cheapman de placito quare ceperunt averia ipsorum Willielmi Kempe Edwardi Laundry Edwardi Cheapman ea injuste detinuer ' contra vad ' pleg ' c. Et unde iidem Willielmus Kempe Edwardus Laundry Edwardus Cheapman per Willielmum Crowne Attorn ' suum queruntur quod praedict ' Johannes Cory Johannes Cocke Willielmus Cocke decimo nono die Junij anno regni domini Regis dominae Reginae nunc primo apud Blisland in quodam loco ibidem vocat ' Fludder Park alias Bladder Park ceper ' Tres Juvencas unam Equulam averia videlicet tres Juvencos quatuor Juvencas unam Equulam ipsorum Willielmi Kempe Edwardi Laundry Edwardi Cheapman ea injuste detinuer ' contra vad ' pleg ' quousque c. Unde dic ' quod deteriorat ' sunt Et dampn ' habent ad ' valenciam decem librarum Et inde ê“duc ' sectam c. Avowry and Conuzance for Rent by the Heir of the Lessor upon a Lease of a Third part of a Farm for 99 years if A.B. C. or either of them shall so long live The Avowants Father seised in Fee of a Third part of a Messuage c. Et praed ' Johannes Cory Johannes Cocke Willielmus Cocke per Thomam Horwell Attorn ' suum ven ' defend ' vim injuriam quando c. Et idem Johannes Cory in jure suo ê“prio bene advocat praed ' Johannes Cocke Willielmus ut Ballivi praed ' Johannis Cory bene cogn ' capconem averiorum praedictorum in praed ' loco in quo c. Et juste c. quia dic ' quod idem locus in quo supponitur capconem averiorum illorum fieri continet praed ' tempore quo supponitur capconem averiorum illorum fieri continebat in se viginti acras terrae cum pertin ' in Blisland praedict ' quodque diu ante praed ' tempus quo c. Quidam Johannes Cory gen ' pater praed ' Johannis Cory modo Advocan ' fuit seisit ' in dominico suo ut de feodo de in tercia parte cujusdam mesuagij tenementi vocat ' Trewint in Blisland praed ' unde praed ' viginti acrae terrae in quibus c. sunt praed ' tempore quo c Necnon à tempore cujus contrarii memoria hominum non existit fuer ' parcell ' praedictoque Johanne Cory patre sic inde seisit ' existen ' ipse idem Johannes Cory pater ante praedict ' tempus quo c. scilicet tricesimo die Septembris anno regni domini Caroli secundi nuper Regis Angl ' decimo nono apud Blisland praed ' And demised for 99 years if A.B. c. or either of them should so long live dimisit ad firmam tradidit cuidam Jacobo Robyns Executoribus Administratoribus Assign ' suis praed ' terciam partem praed ' mesuagij tenementi vocat ' Trewint scituat ' jacen ' existen ' infra paroch ' de Blisland alias Bliston in Com' Cornub ' nuper in tenura occupacone Johannae Smith Vid ' assign ' vel assign ' ejus habend ' tenend ' praed ' Jacobo Robyns Executoribus Administratoribus Assign '
that King James came to the Crown and the time is supposed to have influenced the Opinion of the Court and the Plaintiff had Iudgment After having heard the Case several times spoken to the Court gave Iudgment for the Plaintiff principally for the words that he went to Mass for by the Statute of 23 Eliz. cap. 4. the Offender is to Forfeit 100 l and he imprisoned for a year so that they expose him to Corporal Punishment It is held that to say a Man committed petit Larceny is Actionable Allens Rep. 11. The Chief Justice here said That where a Man had been in an Office of Trust to say that he behaved himself corruptly in it as it imported great Scandal so it might prevent his coming in to that or the like Office again and therefore was Actionable Note The time these words were spoken was taken notice of viz. between King James the Second's Desertion of the Kingdom and the Proclaiming of the King and Queen when to call a Man Papist would have exposed to him the danger of the Rabble whereupon Judicium pro Quer. Lade versus Parker VIde ante Termino Michal ' ult It was this Term moved again That the pleading dedit concess ' Nicholao Marsh filio suo Annuitatem praed ' habend ' praed ' Nicholao heredibus assignat ' suis ad opus usum dicti Nicholai haered ' assign ' suor ' per quod vigore Statuti de usibus in possession ' transferen ' the said Nicholas became seised c. was sufficient and the words quae quidem concessio c. quod vide ante were to be rejected as Surplusage And of that Opinion were Powell Rokeby and Ventris But Pollexfen Chief Justice held strongly to the contrary and he agreed this Deed being to the Son with an express Consideration of natural affection tho' Money was also part of the Consideration mentioned that it would work as a Covenant to stand seised But then the Parties ought to have pleaded it as a Covenant to stand seised according to the legal construction of such a Deed where there is no Execution at Law whereas here they have pleaded it as a Grant at the Common-Law The other Judges differing in their Opinion said it was sufficient to plead the Deed as it was worded and if there were sufficient matter to intitle the Avowant Iudgment ought to be given accordingly and then the Avowant concludes that he became seised by the Statute of Vses which shews he intended to take the operation of the Deed that way so Iudgment was given for the Avowant Chief Justice contra Note Serjeant Levins cited the Pleading in Foxes Case 8 Co. where the words Demise and Grant in consideration of Money amounted to a Bargain and Sale it being of an Estate for years without enrolment it was pleaded dimisit concessit ad firmam tradidit non Barganizavit Woodward c. versus Fox IN an Action sur Assumpsit for 200 l received to his use Vpon non Assumpsit a Special Verdict was found quod vide ante Term ' Trin ' ult ' and the Case this Term came to have the resolution of the Court The case upon the Special Verdict is to this effect an Arch-deacon maketh a Register of the Court belonging to his Arch-deaconry in Consideration of 100 l The Bishop of the Diocess who was also Patron to the Archdeacon supposing the Office to have been void by the Statute of 5 and 6 Edw. 6. against the Sale of Offices relating to the Administration of Iustice granted the said Office of Register to the Defendant and the said Grant was confirmed by the Dean and Chapter The Archdeacon after the Death of that person to whom he had sold the Office ut supra Grants the said Office to the three Plaintiffs for their Lives and the Life of the longer liver of them the Plaintiffs before any Office found for the King or any Record shewing the Sale of this Office obtains a Grant of it from the now King and Queen The Court were all of Opinion for the Plaintiffs The Court did not speak to two Points stirred in the case viz Whether this Office could be granted for three Lives or whether it was within the said Statute of 5 and 6 Edw. 6. because they were in a manner agreed at the Bar and the Points setled But the two main Points in the Case which were spoken to are First Where an Archdeacon sells the Office of Register in the Court of the Archdeaconry whether by the Statute of 5 and 6 Edw. 6. the Grant and Nomination to this Office shall come to he Crown or whether it shall go to the Bishop of the Diocess Secondly Admitting the Right to be in the Crown whether the King and Queen can make a Register till Office found or that the Title appeareth by some matter of Record 1. It was resolved that the Right of appointing the Register it being Forfeited by the said Statute of 5 and 6 Edw. 6. did come to the King and Queen It is a Rule laid down by Manwood Chief B. Mo. 238. That where a Statute giveth a Forfeiture either for Nonfesans or Mis-fesans the King shall have it so in 11 Co. 68. This follows the Reason of the Common-Law in case of things which are nullius in bonis where no visible Right appears the Law giveth them to the King Siderfin 148 86. As Derelict Land Treasure Trove and a great number of such like instances may be cited from the Books so it is in Extraparochial Tithes tho' things of an Ecclesiastical nature 2 Inst 646. Cawdry's Case 5 Co. 18. Nay if the Right lie equal between the King and Subject the Kings Title hath the preference by Law Detur digniori is a Rule 9 Co. 24. In case of concurrence of Titles between the King and Subject It was objected That this held in valuable things and matters of profit to the Crown But the Court said there was no such distinction made in the Books and many Prerogatives c. were given to the King for the publick good and interest of the Government as well as for encrease of the King's Treasure There is no exception out of this construction of Forfeitures upon Penal Statutes unless they are in recompence for the Damage suffered by a Subject as the Statute of 2 Ed. 6. that giveth the Forfeiture of the treble value for not setting out of Tithes 2 Inst 650. And this follows the Reason of the Common Law that Fines and Penalties for Offences at Law go to the King as the Head of the Government and that was the second Reason the Court went upon that the Offence for which this Forfeiture is inflicted is principally against the King By the preamble of the Statute it appears to be made for avoiding of corruption in Offices and abuses in the Administration of Justice Now the King is the Fountain of Justice and that Ecclesiastical as well as Civil in
Mesuages Lands and Premisses And to the intent that the Contingent Remainder by the said Will limited to the Heirs Males and Females of the Body of the said Robert Durdant might be extinguished and destroyed he the said John Higden by the appointment of the said Robert Durdant did surrender his Estate in the Premisses to the said Gideon Durdant and by the said Deed it was Covenanted That the said Robert Durdant John Higden and Gideon Durdant should levy a Fine of the Premisses which should be to the use of the said John Higden and his Heirs They find that a Fine was levied accordingly in Easter Term 15 Car. 2. They find That Robert Durdant died on the 19th of August 20 Car. 2. and that John Higden after in 20 Car. 2. upon a valuable Consideration in money enfeoffed John Burchet of the Premisses and that the said Burchet died the 1st day of October in the same year and that the Premisses from him came to the Defendant Burchet who entred into the Premisses and became seised prout lex postulat And they find That Robert Durdant as well at the time of the said Will making as at the death of the said Henry Wicks had an only Son called George Durdant who was also Godson to the Testator and that the said George Durdant died and that William Durdant Lessor of the Plaintiff was his Son and Heir and entred and made the Demise prout c. si super totam materiam c. Vpon his Special Verdict Iudgment was given in the Kings-Bench for the Plaintiff And the Court here afterwards having heard the Case thrice Argued did affirm the Iudgment And the first Point spoken to was Whether the Estate did not execute in Robert Durdant by the Statute of 27 H. 8. of Uses For if so he would be seised of an Estate tail and then Burchet would have a good Title It is clear Lands may be Devised to the use of another as in Popham 4. 'T is true a Devise implies a Consideration and will lodge the Estate in the Devisee if no Vse be limited upon it Here it is Devised to John Higden and his Heirs upon trust and confidence that he should permit and suffer c. The word Trust is proper for the Limitation of an Use and the Estate shall Execute unless it be first limited to the use of a man and his Heirs in Trust for another there the Intention is that it should be only a Trust and here Robert Durdant is restrained only from doing waste which shews that he intended he should take an Estate or else he could not commit waste But Lands may be Devised to an Use tho' the Statute of Wills is since the Statute of Uses Mo. 107. 1 Cro. 343. The Court over-ruled this Point and Resolved it to be only a Trust in Robert Durdant for the words are That Higden should permit him to take the profits which shews that the Estate was to remain in Higden And for the restraint of waste it was proper for Higden was to permit Robert Durdant to have the possession but the Testator would not have him to commit waste or spoil The second and principal Point was Whether the Remainder to the Heirs of Robert Durdant now living did vest in George Durdant or was a Contingent Remainder It was much urged That one could not take in the Life of his Ancestor by the name of Heir for nemo est haeres viventis in the 1 Co. Archer's Case A Devise to Robert Remainder to the next heir Male of Robert and to the heirs Males of the Body of that heir Male this is Resolved to be a Contingent Remainder during the Life of Robert and it was said in that Case that the next heir Male is as much a designation of a person as an Heir now living He that will take by purchase by the name of Heir must be a compleat Heir to all intents Co. Littl. 24. b. 2 Leon 70. Chaloner and Bowyer 's Case upon a Devise But it was Resolved that this was a Remainder vested in George Durdant for the Remainder being limited to the Heirs of the Body of Robert Durdant now living and George being found to be then the only Son it was a sufficient designation of the person and as much as if it had been said to his Heir apparent and such an one is called Heir sometimes in proceedings in Law where the greatest strictness of phrase is used as in Writs of Ravishment of Ward Quare filium haeredem rapuit 2 Inst 439. Westm 2. cap. 35. 25 Ed. 3. the Statute of Treasons Treason to kill the Heir of the King The third Point was Whether George Durdant took an Estate Tail or only an Estate for Life for it was Objected that if the words Heirs of the Body were taken for the description only of the person who should take then he must take only for Life But the Court held that they would make an Estate Tail for Heirs is nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number A Devise to one for life Remainder to the heir Males of his Body for ever this is an Estate Tail in the Devisee Pawsey and Lowther in Rol. Abr. 2. Part 253. But in case the first words viz. Heirs of the Body now living would carry but an Estate for Life to George Durdant yet the subsequent words would make an Entail in him viz. and to such other Heirs Male and Female as he should hereafter happen to have of his Body this would clearly vest an Entail in George he being Heir of the Body of Robert and surviving Robert So the Judgment was affirmed Sed Nota as to the second Point the Lord Chief Baron Atkyns and Justice Powell seemed to be an Opinion that the Remainder was Contingent But in regard the Point had been upon a Writ of Error brought in the House of Lords upon a Judgment given in the Kings-Bench in another Case upon the same Will adjudged to be a Remainder vested they conceived themselves bound by that Judgment in the House of Lords Paschae Anno 2 Willielmi Mariae Memorandum BY an Order of the King and Council 1 Willielmi Mariae the Judges were Ordered to meet and all of them except Gregory Eyre and Turton were assembled at the Lord Chief Justice's Chamber to give their Opinion concerning Colonel Lundy who was appointed Governour of London Derry in Ireland by the King and Queen and had endeavoured to betray it and afterwards he escaped into Scotland where he was taken and brought Prisoner into England and Committed to the Tower Whether admitting he were guilty of a Capital Crime by Martial Law committed in Ireland he might be sent thither from hence to be Tryed there in regard of the Act of Habeas Corpus made Anno 31 Car. 2. which Enacts That no Subject of this Realm shall be sent over Prisoner to any Foreign parts But
against Bates a Schoolmaster who as it was alledged taught School without the Bishops Licence and it was granted because they endeavoured to turn him out whereas they could only Censure him he coming in by the Presentation of the Founder In a Feoffment of Tythes and Lands where there is no Livery if they do adjudge the Tythes to pass notwithstanding there is no Livery a Prohibition will lye In Debt upon a Lease at Will there must be an Averment that the Lessee occupied the Lands But it is otherwise upon a Lease for Years Anonymus THe Court was moved to grant an Attachment against a Justice of the Peace who upon Complaint refused to come and view a Force But the Court denied it and directed the party to bring an Action of Debt for the 100 l Forfeiture given by the Statute in that case It was said by the Court That in an Execution upon a Statute Merchant there is no need of a Liberate as there is upon a Statute Staple And in the Case of a Statute Staple the Conusee can bring no Ejectment before the Liberate neither can the Sheriff upon the Liberate turn the Terre-Tenant out of possession as he is to do upon an Habere facias possessionem Dier versus East AN Action was brought against the Defendant upon an Indeb ' pro diversis Mercimoniis venditis deliberatis to the Wife to the use of her Husband it being for her wearing Apparel And after Verdict for the Plaintiff it was moved in Arrest of Judgment that this Declaration being laid That the Sale was to the Wife tho' it was to the use of the Husband it was not good as if it had been sold to the Servant of the Plaintiff Nevertheless the Court were of Opinion That it being for her Apparel and that suitable to her Degree the Husband was to pay for it as had been Resolved in this King's time in Scot and Manby's Case in the Exchequer Chamber and that the Declaration was well enough Anonymus THe Defendant in an Action of Debt upon a Bond sued out an Injunction in Chancery where after the Case had depended for two years the Court was moved that the Plaintiff might accept of his Principal Interest and Charges The Court said If the Defendant comes before Plea pleaded and makes such a proffer they are ex debito Justitiae to allow it But now he having delayed the Plaintiff in Chancery two years it was in their discretion And the other three against the Opinion of Keeling thought fit to deny it Clarke versus Phillips al' UPon the Trial in an Ejectment the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him for Life upon divers other Estates and that there was a Fine levied and Proclamations passed but he within the Five years after his Title accrued sent two persons to deliver Declarations upon the Land as the course is upon Ejectments brought The Court Resolved that this was no Entry or Claim to avoid the Fine he having given no express Authority to that purpose and the Confession of Lease Entry and Ouster by the Defendant should not prejudice him in this respect In this Case Keeling and Twisden were of different Opinions in this Point Viz. If he that hath power of Revocation over Lands c. makes a Lease for Life whether it suspends the Power only as a Lease for years would do or extinguisheth it as a Feoffment The King versus Monk al' IN an Information for a Riot it was concluded contra formam Statuti 13 H. 4. which appoints Justice of the Peace upon complaint of Riots to View and Record them And after Verdict it was moved in Arrest of Judgment that this Information was not good it being grounded upon this Statute which only mentions Riots and appoints them to be punished in the manner there expressed But the Chief Justice Keeling was of Opinion that it being a Crime at the Common Law and mentioned in this Statute the Information was well concluded But the other Justices inclined to the contrary Anonymus DEbt upon a Bond Conditioned to perform Covenants in an Indenture The Defendant pleaded That there were no Covenants contained in the Indenture on his part to be performed The Plaintiff demands Oyer of the Indenture which is Entred verbatim and then Demurs which he could not well do before the Entry of it whereby it becomes part of the Bar so the cause of the Demurrer appears Then it was alledged by Saunders whose Hand was to the Plea That the Plaintiff could not have Judgment because he had set forth no Breach But the Court was much offended with him For they held the Plea in Bar meerly for delay and advised against the Statute of Westm 1. Robinson versus Pulford IN an Assumpsit the Plaintiff declared That the Defendant in Consideration that the Plaintiff would deliver such silver Threads and other Wares into the Shop of J. S. that he should require that he would see him paid Now after an Assumpsit pleaded and Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not averred in his Declaration that J. S. had not paid for the Goods For the promise to see him paid was no more than if he had said If J.S. doth not pay you I will in which Case such Averment must have been But the Court Resolved that a Promise to pay and to see him paid was all one and the Averment unnecessary Rushden versus Collins IN an Assumpsit the Plaintiff declared the Consideration to be pro opere preantea facto After Verdict for the Plaintiff it was moved in Arrest of Judgment that opere was too general and might intend so inconsiderable a matter as would not amount to a Consideration for the Plaintiff But they gave Judgment for they said labore or servitio had been adjudged sufficient Lee versus Edwards IN an Assumpsit the Plaintiff declared That in Consideration that he would employ his skill and pains and provide Medicaments for and Cure a certain person of a Pthysick that he would pay what he deserved and lays another Promise at the same time in Consideration as aforesaid and alledges the Promise somewhat varying from the first and concludes with an Averment That he had bestowed his pains and cured accordingly Vpon Non Assumpsit pleaded and a Verdict for the Plaintiff the Court was moved to stay Judgment because the Plaintiff had made no Averment of the Cure upon the first Promise and entire Damages were given so it was ill in all But the Court were of Opinion That in regard he had Averred it upon the second Promise so as it appeared upon Record that the Cure was done it aided the omission of it in the first especially being after a Verdict Nota There is an Inquisition upon every ones death that dies in the Kings-Bench by the Master of the Crown-Office and Coroner Pomfret versus Rycroft IN a Writ of
Covenant the Plaintiff declared That the Defendant demised to him a House with the use of a Pump and that he suffered it to be so out of Repair that it became Useless To this Declaration the Defendant demurs and Counsel being heard on either side divers times the Court delivered their Opinions severally Keeling Rainsford and Moreton held that the Action did lye the Use of the Pump being part of the things demised which Words make a Covenant as in 4 Co. Noke's Case and in 5 Co. Spencer's Case If a man let an House together with Estovers to be taken in the Wood of the Lessor and afterwards the Wood is stubbed up there Covenant lies for the Lessee And Rainsford put this Case If a mans Lets the Middle Rooms of his House to one and the Vpper to another and lets the Roof of the House decay he conceived Covenant would lie for the Lessee of the middle Rooms And if a Parson makes a Lease and then Resigns he is liable to Covenant as in 12 H. 4. And the Lessee would be at a mischief for he should be a Trespasser to Enter and Repair and if the Lessor ousts the Lessee of any of the things demised 't is clear the Covenant lies and this is as much an ouster as can be in this case where the Lessor is possessed himself And so Iudgment was given for the Plaintiff against the Opinion of Twisden who held strongly to the contrary for he said he might have an Action upon the Case and so remedy for his Damage Also he held clearly That he might Enter and Repair as if one Licence another to lay Pipes in his Ground to convey Water he may justifie an Entry to Repair the Pipes And he cited a Case adjudged in 9 Jac. where one by Licence erected a Cock of Hay in anothers Ground And it was held That the Owner of the Soil might put in his Beasts into that Ground but he that had the Licence might by vertue of that Licence also fence in his Hay Quando aliquid conceditur conceditur id sine quo res ipsa uti non potest and he said that he never met with a Case where Covenant would lie but upon an actual ouster either by a Stranger that hath eigne Title or the Lessor himself And this was a non feasans and in that he differenced it from the Case of Estovers being an actual Tort to stub the Wood up and in Covenant upon an ouster of a Term if it be not incurred Iudgment shall be to recover the Term it self as F. N. B. 145. which cannot be in this Case for the Sheriff cannot put him into possession of the use of the Pump neither is it fit that he should recover Damages for all the Term for it may be the Pump will be presently repaired And he conceived that if the Lessor Cuts down Trées growing upon the Land Demised no Covenant lies yet the Trees are Demised with the rest Ante. Anonymus A Draws a Bill upon B. to the use of C. and Vpon Non-payment C. Protests the Bill he cannot Sue A. unless he gives him notice that the Bill is Protested for A. may have the Effects of B. in his Hands by which he may satisfie himself Note It was said if an Action to recover Lands of which a Fine was Levied were brought and discontinued by the Demandant this would not amount to a Claim Glyn versus Smith A Scire facias upon a Record in the Kings Bench where the Action is brought by Original must alledge a place where the Court was holden because 't is Ambulatory and the Writs returnable there are coram nobis ubicunque tunc fuerimus in Angliâ But it is otherwise upon Records in the Common Pleas for that is confined to a certain place by Magna Charta Anonymus IT was moved to quash a Return of a Rescous because it was Mandavi Ballivis who took him virtute Warr ' praed ' And it was said Mandavi did not imply that it was in Writing But the Exception was disallowed by the Court. Anonymus IF the Party that brings an Audita Querela be out of Prison the Court will Bail him though grounded upon a surmise of a matter of Fact as payment c. But if he be in Prison not unless there be a Specialty Parries Case DIvers Deeds and Evidences were shewn to Counsel for his Opinion of the Title to certain Lands which were to be sold He delivers them to one Parry a Scrivener by the consent of the Parties Parry finding a Deed to concern the interest of a third person gives it to him and upon complaint to the Court they commanded him to produce the Deed that it might be delivered back again to the Parties they conceiving it an abuse in his practice which was under the Regulation of this Court Anonymus IN Replevin in the Court at Canterbury the Defendant avowed for Rent Afterward this was removed by the Plaintiff into the Kings-Bench and the Defendant prayed a Procedendo because Canterbury was a County of it self and no Assizes there and so the Cause could not be tried But the Court denied it saying it was their own fault that they had not the Assizes there and every Subject had the liberty of removing his Suit into a Superiour Court Twisden said He had formerly known it to be denied in an Ejectment Girlington versus Pitfield IN an Action upon the Case for malitiously prosecuting of an Indictment of Perjury against him of which he was acquitted upon Not guilty pleaded it appeared upon the Evidence that the Defendant was a Justice of the Peace and procured some as Witnesses to appear against him and his own name was endorsed upon the Indictment to give Evidence The Court agreed that this did not make him a Prosecutor for if a Iustice of the Peace knows any person that can give Evidence against one that is indicted he ought to cause him to do it But it was proved on the Defendant's side That this Indictment was drawn up by an Order of the Sessions Wherefore Keeling Chief Justice said That the Plaintiff deserved to be bound to his Good Behaviour for bringing of this Action Horne versus Ivie IN Trespass for taking of a Ship and Sails the Defendant justified by a command from the Governours and Society of the Trade into the Canaries who were Incorporated by that name and had the sole Trade granted to them with a Forfeiture of all such Goods as should be imported hither from thence by any person not of their Company and that the Ship of the Plaintiff brought Goods from thence To this the Plaintiff Demurred His Counsel did not much insist upon the validity of the Patent because it was a Monopoly though it was said to be also against divers Statutes to Prohibit Merchants frèe trading to forein parts as 9 E. 3. cap. 1. 25 Ed. 3. cap. 2. 11 R. 2. cap. 7 and that there could grow no Forfeiture of
Rogers v. Bradly 143 Rozer v. Rozer 36 Rudyard 's Thomas Case 22 S SAlisbury 's the Lord Case 365 Samon v. Jones 318 Sarsfield v. Witherly 292 Sayle v. Freeland al' Infants 350 Sherborn v. Colebach 175 Shipley v. Craister 131 Smithson 's Sir Jerom Case 345 Snode v. Ward 197 T TArget v. Loyd 272 277 Thompson v. Leach 198 Tovey v. Pitcher 228 234 Tregonwell Jane Vid. Executrix of John Tregonwell v. Sherwin 262 Trethewy v. Ellesdon 141 Trippet v. Eyres 110 113 Tonstal v. Brend 174 Turner Methuselah v. Sir Samuel Sterling 25 Turner 's Case 348 W WAlden Sir Lionel v. Mitchel 263 265 Warren v. Sainthil 185 186 Watmough v. Holgate al' 219 221 Web Prescilla v. Moore 279 282 Welbie v. Phillips 129 West v. The Lord Delaware 357 Westby 's Case 152 Whitaker v. Thoroughgood 130 White v. Ewer 340 Whitmore Frances Vid. v. Weld al' 367 Williams v. Bond 238 Willows v. Lydcot 285 Woodward al' v. Fox 187 213 267 Wright v. Wyvell 56 A TABLE OF THE PLEADINGS IN THE SECOND PART A Actions upon the Case 1. IN a Special Indebitatus Assumpsit against an Attorney The Plaintiff declares That whereas T. S. was Indebted to the Plaintiff in a certain Sum of Money exceeding 12 l and the Defendant was indebted to the said T. S. in 12 l aut eo circiter The Defendant promised That if the Plaintiff would procure an Order under the Hand of the said T. S. for payment of the Money which he owed the said T. S. or any part thereof that then he would pay the same and avers that he procured such Order and shewed it to the Defendant and requested payment which he refused p. 69 After Imparlance the Defendant demurs to the Declaration 70 The Plaintiff joyns in the Demurrer 71 2 Against a Common Carryer for losing Goods delivered him to Carry 75 The Plaintiff declares that the Defendant is a Common Carryer and sets forth the Custom of England and the particulars of the Goods delivered to him to be Carried from B. to London and that he paid him for the Carriage and the Defendant lost them 75 76 Issue thereupon 77 3. Against a Sheriff for Returning Nulla Bona upon a Special Outlawry when the Party had Goods 84 The Declaration sets forth the Special Matter 85 86 Defendant pleads That a Prerogative Writ came out of the Exchequer whereupon the Defendant seized the Gâ—ods Nulla alia â—ona 87 The Plaâ—â—tiff demurs 88 4. For not Folding his Sheep upon the Plaintiffs Land according to Custom 136 The Declaration sets forth the special Custom and Cause of Action Issue thereupon 137 5. For Stopping up a Foot-way 185 The Plaintiff Declares That he was possest of and did inhabit in an ancient Messâ—age and that he had and ought to have a Foot-way for himself and his Servants over such a Close c. as belonging to his said Messuage and that the Defendant to disturb him in his way dug Ditches and Trenches cross the Way and erected Hedges and Fences cross it whereby he was hindred and deprived of his Way 186 6. Indebitatus Assumpsit upon several Promises For Moneys had and received for the Plaintiffs use For Money laid out for the Defendant For Money borrowed of the Plaintiff 254 For Money due to the Plaintiff for the Arrearages of an Account The Defendant hath not paid the said several Sums tho' requested c. As to the first and second Promises the Defendant pleads Non assumpsit infra sex annos as to the third and fourth Promises he pleads Non assumpsit 255 As to the first and second Promises the Plaintiff Replies and sets forth an Original sâ—ed forth iâ— a Clausum â—â—egit within the six years ea â—ntâ—ntione to â—eclare against him and that he promised within six years next before the Suing out of that Original The Defendant craves Oyer of the Original and hath it and says that the Writ will not warrant the Declaration 256 And prays Judgment whether the Plaintiff shall be admitted to set forth that Writ ad Warrantizandum Narracon ' suam The Plaintiff demurs to the â—ejoynder The Defendant joyns in Demurrer 258 7. For Words viz. Papist and Pensioner 263 The Plaintiff declares that he is a Protestant and never profest the Romish Religion that he hath been a Member of Parliâ—â—ent and did his Duty therein sets forth the Colloquium of the Plaintiff and of his being a Member of Parliament the first Words ex ulteriori malitia other Words 264 The Defendant pleads Not guilty 265 8. In Assumpsit the Plaintiff declares for a Runlet of Wine Another Indebitatus as well for Meat Drink Brandy and Tobacco as for Horse-Meat A Quantum meruit for Meat Drink Wine Brandy and Horse-Meat found and provided by the Plaintiff as an Innkeeper 279 Another Indebitatus for Goods sold An Insimul computasset the Plaintiff says that the Defendant hath not paid the several Sums inde producit sectam 280 The Defendant pleads an Outlawry in Bar and shews that J. S. impleaded the Plaintiff in the Common Pleas in an Action of Trespass and for not appearing she was waived and that the Outlawry is yet in force hoc paratus est verificare per Recordum Demurrer to the Plea Joynder in Demurrer 281 Assault Battery and Wounding Vide Trespass 2. Assignees Action by and against them Vid. Covenant 4. 5. Assumpsit Vid. Actions on the Case 1. 6. 8. Award vid. Debt 2. 4. 6. B Bankrupcy vid. Trover 1. 2. Bill of Exchange vid. Error 2. By Law vid. Debt 7. C Carryer Action against him Vid. Action on the Case 2. Clausum fregit Vid. Action on the Case 6. Covenant 1. BRought by the Executor of a Bishop against the Executors of an Assignee of the Executor of the Lessee 51 The Declaration sets forth the Indenture of Demise of a Rectory c. with the Consideration and Particulars demised The Covenants to repair and yield up The Lessees Entry c. 51 52 53 And assigns the Breach in permitting the Chancel c. to be out of Repair Profert in Cur ' the Lease 51 And Letters Testamentary of the Bishop 55 Defendants Demur generally 55 2. Against an Attorney upon Articles of Agreement for quiet enjoyment of Lands 59 The Declaration sets forth That the Defendant Covenanted pro ex parte of another Recites the Articles avers performance of all Covenants on the Plaintiffs part and assigns the Breach That the Plaintiff and his Servants were sued in an Action of Trespass in the Common Pleas and Damages recovered against him which he was compelled to pay sic idem the Plaintiff non quiete pacifice tenuit 60 The Defendant pleads non infregit Conventionem and Issue thereupon 61 3. By Executors upon certain special Covenants with their Testator for a Demise of Land which they set forth 97 They aver performance by the Testator in his life time and since his death by the
Plaintiffs and assign a Breach on the Defendants part Defendant pleads quod Testator nihil habuit in Tenementis The Plaintiffs demur to the Plea 98 4. By an Assignee of an Assignee against an Executor 117 The Declaration sets forth the Demise and that the Defendants Testator Covenanted to pull down three old Houses and build three new ones in their room and to keep the same in good repair and so deliver them up at the end of his Term 119 Sets forth the Plaintiffs Title to the Reversion by Assignment from the Lessor 119 120 And that the Tenant for years Attorned 121 That the Tenant in possession died and left the Defendant his Executor c. The the Plaintiff hath performed all and singular the Covenants on the part of the Lessor and his Assigns Protestando that the Defendant hath not performed those on the part of his Testator 122 He assigns a Breach in facto for permitting once of the new erected Houses to fall down before the end of the Term and other defaults in not Repairing Et sic the Defendant Convenconem non tenuit 123 The Defendant pleads performance specially to each Breach assigned and says that his Testator pull'd down the three Houses and built other three Houses in their room which he kept in Repairs and so delivered at the end of his Term 124 The Plaintiff demurs to the Plea as not being sufficient as to the leaving one House totally prostrate and ruined as the Plaintiff declared The Defendant joyned in Demurrer 125 5. Against the Assignee of an Executrix 228 The Declaration sets forth That the Plaintiff was possest of a Term for years yet in being by Indenture demised to the Testator for 21 years at the yearly Rent of c. 229 With a Clause of Re-entry and Covenants 230 That the Lessee entred made his Will made the Assignor his Exetrix and died That she proved the Will entred and assigned to the Defendant who entred and is still possest The Breach assigned was in the Non payment of Rent 231 The Defendant pleads That he assigned over before any Rent due 232 Demurrer to part of the Plea Joynder in Demurrer Judgment for the other part 233 Cesset executio Brevis de Inquirendo de dampnis quousque the Demurrer be determined 234 6. In Covenant the Plaintiff declares upon an Indenture of Demise from the Defendant 272 Profert in Curia The Demise Habendum Reddendum The Covenants on the Plaintiffs part 273 Covenants on the Defendants part for himself and Assigns to permit to make a Drain The Plaintiff entred and was possest and avers performance of all Covenants on his part The Breach assigned Eo quod the Defendant being possest of certain Tenements adjoyning for a Term of years did demise part of the Term to J. S. who entred 274 And died possest And Administration granted to his Widow who entred and was possest and took Husband The Husband and Wife entred and were possest and refuse to suffer the Defendant to make the Drain Et sic inde producit sectam 275 The Defendant pleads That he permitted the Plaintiff to make a Drain according to Covenant but the Plaintiff refused it The Plaintiff demurs The Defendant joyns in Demurrer 276 D Debt 1. IN Debt upon a Bond the Defendant craves Oyer of the Condition and pleads the Statute of Vsury 80 He sets forth the Usurious Contract the Money lent and the Bond in question given for it and that the Money for Forbearance exceeds the rate of 6 l per Cent. 81 The Plaintiff Replies That the Bond was made by a Scrivener in his absence who mistook the Condition and Traverses the Corrupt Agreement The Defendant demurs to the Replication The Plaintiff joyns 82 2. Debt upon a Bond to perform an Award 110 The Defendant craves Oyer of the Condition and pleads that the Arbitrators made no Award but that they named an Umpire who made no Award by Writing or Word of Mouth 111 The Plaintiff replies That true it is that the Arbitrators nor the Umpire by them first Chosen made any Award but refused whereupon the Arbitrators chose another Umpire who mad an Award within the time limitted 112 The Defendant demurs specially and assigns for Cause That it does not appear by the Replication that the Defendant had Notice that the Arbitrators had named the second Umpire or that he had any Authority to make any Umpirage The Plaintiff joyns in Demurrer 113 3. For Rent against an Executrix upon a Lease parol 176 The Declaration sets forth the Demise to the Defendants Testator of the 4th part of two Corn Mills and of one Mault-Mill under the same Roof to hold for one year sic de Anno in annum as long as both parties shall please paying Monthly for the same the Sum of 60 s 4 d ob so long as the said Testator should hold the Premisses and shews that he entred and held it for so long and that the Rent is due and unpaid for so many Months per quod actio accrevit 176 He also sets forth another Demise from year to year so long as both parties shall please at the yearly Rent of 20 l to be paid Quarterly by equal Portions the Tenants Entry the Rent arrear per quod actio accrevit Another Demise at Will laid Entry Rent arrear Actio accrevit 177 Another Demise at Will laid of the 4th part of another Mill Entry Rent arrear Actio accrevit the The Testator in his Life time nor the Executrix post mortem have not paid 178 The Defendant pleads in Abatement That the Tenant died Intestate and that Administration was granted to her and therefore ought to be sued as Administratrix and not as Executrix 178 The Plaintiff replies That the Defendant administred as Executrix before the granting the Administration to her The Defendant demurs to the Replication The Plaintiff joyns 179 4. Debt upon Bond. The Defendant craves Oyer of the Condition which is to perform an Award 219 Pleads That the Arbitrators made no Award The Plaintiff replies and sets forth the Award made in Writing and assigns a Breach in not paying a certain Sum of Money awarded 220 The Defendant demurs The Plaintiff joyns 221 5. Debt upon a Sheriffs Bond 234 The Defendant prays Oyer of the Condition which was to appear in Chancery to answer a Contempt Pleads the Statute of 23 H. 6. That an Attachment issued out of Chancery delivered to the Plaintiff being Sheriff who caused the Defendant to be arrested and after took the said Bond for his Appearance 236 Contra formam Statuti praedicti sic scriptum Obligatorium illud c. vacuum in lege existit The Plaintiff demurs to the Plea The Defendant joyns 237 6. Debt upon Bond Condition'd to perform an Award 239 The Defendant pleads that the Arbitrators made no award The Plaintiff replies and sets forth an Award made ore tenus 240 Notice of the Award and request for the Performance of it