Selected quad for the lemma: death_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
death_n	abate_v	act_n	action_n	24	3	6.6528	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A64839	The reports of Sir Peyton Ventris Kt., late one of the justices of the Common-pleas in two parts : the first part containing select cases adjudged in the Kings-Bench, in the reign of K. Charles II, with three learned arguments, one in the Kings-Bench, by Sir Francis North, when Attorney General, and two in the Exchequer by Sir Matthew Hale, when Lord Chief Baron : with two tables, one of the cases, and the other of the principal matters : the second part containing choice cases adjudged in the Common-pleas, in the reigns of K. Charles II and K. James II and in the three first years of the reign of His now Majesty K. William and the late Q. Mary, while he was a judge in the said court, with the pleadings to the same : also several cases and pleadings thereupon in the Exchequer-Chamber upon writs of error from the Kings-Bench : together with many remarkable and curious cases in the Court of Chancery : whereto are added three exact tables, one of the cases, the other of the principal matters, and the third of the pleadings : with the allowance and approbation of the Lord Keeper an all the judges.	Ventris, Peyton, Sir, 1645-1691.; Guilford, Francis North, Baron, 1637-1685.; Hale, Matthew, Sir, 1609-1676.; England and Wales. Court of King's Bench.; England and Wales. Court of Common Pleas.	1696 (1696)	Wing V235; ESTC R7440	737,128	910

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

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

Perkins IN Debt upon a Bond entred into Eliz. Perkins who was the Plaintiffs Wife and he as her Administrator brings this Action The Defendant pleads That he delivered the Bond to one Eliz. Perkins his Sister quae obiit sola innupta absque hoe that he delivered it to Elizabeth Perkins the Plaintiffs Wife And to that the Plaintiff Demurres Specially For if it be taken that there are two of the name the Defendant should have pleaded non est factum for it amounts to no more Or at least he ought to have induced his Plea that there were two Elizabeth Perkins But this Traverse is designed to bring the Marriage in question which is not to be tried now Wherefore the Court gave Iudgment for the Plaintiff Twisden said If the Issue be Whether the Wife of such a Man or no This is to be tried per Pais For if she be a Wife de facto it serves upon the Issue But Loyalty of Matrimony is to be tried by the Certificate of the Bishop only 2 Cro. 102. Dightons Case A Mandamus was prayed to the Corporation of Stratford super Avon to restore Dighton the Town Clerk They returned their Letters Patents of Incorporation whereby they had Authority to Grant the Office of Town Clerk Durante bene placito and that he was amoved from his Office by the Mayor and Burgesses It was said that here appeared no Cause of amoval upon the Return which was manifestly needless having Authority to turn them out at their Pleasure But Twisden said It hath béen held that where any such like Power is to chuse one into a Iudicial Office as an Alderman whose place concerns Judicature that they cannot amove him without Cause But this was in a Misterial Office It was further moved That it did not appear that they had discharged him by any matter in Writing under Seal and it could not be by Parol Sed non allocatur for it is returned to be done by the Mayor and Burgesses and a Corporation cannot do any thing by Parol Post An Executor obtained Judgment in Debt in this Court and was afterwards upon an Information here convicted of Forging the Will It was also made void by Sentence in the Ecclesiastical Court Whereupon the Court was moved to vacate the Judgment which they ordered accordingly and the Cause of Vacuteing thereof to be entred upon the Record Vide Ante in Paris's Case King versus Atkins IN Debt upon a Bond the Condition recited That whereas the Plaintiff was bound with the Defendant being an Excise-Man that he should render a true Account in the Exchequer that the Defendant should save him harmless at all times c. The Defendant pleaded non fuit damnificatus The Plaintiff replied That a Scire facias issued out against him c. To which the Defendant demurred because he did not alledge that he gave notice This being spoken to divers times the Court thought notice not requisite in this Case no more than upon a Promise to pay so much at the others Marriage or return into England vid. Hob. 112 113. 1 Bulst 12 and 13. Where it is held upon a Promise notice is not necessary otherwise upon a Bond because of the penalty Ante Chester versus Wilson TRin. 21 Car. 2. Rot. 498. The Case was two Ioyn-tenants the one Grants Bargains and Sells all his Estate and Interest to the other It was held clearly by all the Court That this amounted to a Release but it must be pleaded quod relaxavit for one Ioyn-tenant cannot grant to another Wilson versus Armorer IN Debt against the Heir upon the Bond of his Ancestor who pleaded riens per discent the Jury find a Special Verdict to this effect That the Father was seised of a Mannor in Fee and made a Feoffment of it excepting two Closes for the life of the Feoffor only and refered it to the Iudgment of the Court whether these Closes descended to the Defendant or not So that the Question was Whether the Closes were well excepted or passed by the Feoffment And it was argued by Levins for the Plaintiff That by these words the two Closes were Totally excepted and that the Law should reject the latter words because they cannot take effect according to the Parties intention to reserve to the Feoffor a particular Estate If one surrendred a Copyhold to the use of J. S. and his Heirs which Estate to begin after his death adjudged in 2 Rolls 261. a present Fee simple passed 3 Cro. 344. A Man said to his Son being upon his Land Stand forth Eustace my Son reserving and Estate for mine and my Wifes Life I do give you this Land to you and your Heirs Resolved there that this is a good Feofment Moor 950. Popham 49. A Man possessed of a Term in an House in the right of his Wife granted it excepting the Cellar pro usu suo proprio and held that by these words it was altogether excepted out of the grant 1 Anderson 129. Serjeant Turner è contra For that it is but one Sentence and cited 38 H. 6. 38. An Addowson was granted saving the Presentation to the Grantor during his life and held void and Pl. Com. 156. where it is said if a Termour granted his Term after his Death it is void But if in two Sentences as to grant his Term Habendum after his Death there the Habendum is only void Er Adjurnatur Postea Love versus Wyndham AN Action upon the Case upon an Issue directed out of Chancery upon a Special Verdict the Case was George Searl being seised of the Mannor of N. Demised the same to Nich. Love for 99 years if 3 Lives should so long live N. Love devised it to Dulcibell his Wife the remainder to Nich. his Son for life and if he the said N. the Son should dye without Issue then to Barnaby Love the Plaintiff The Executor assented and whether the Devise to Barnaby were good was the Question Jones for the Plaintiff this is a good possibility I shall make two points First If a Termor Devise first to one and then to another whether he may Devise it over Secondly Whether the Limitation here after the Death without Issue be a good Limitation over First He may make a third Limitation which is a Possibility upon a Possibility at least he may make 2 or 3 such Limitations over I can't certainly say where it will end It can't be denied but that a Termour may Devise first to one for life and after to another 8 Co. 95. But I say he may go further and that will appear by Reason and Authority First By Reason The Reason given why the Executory Devise in the first case is good is because 't is in Construction of Law as much as if he had Devised it to the last first if the first Man should dye within the Term and then had Devised that the first should hold during life and without such a transposition it cannot

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

not to be removed out of Corporation Courts where they are held before an Utter Barrister so that 't is far better for the Corporation to have such an one their Recorder Twisden said The case of Bernardiston differed besides that he apprehended he had much of the favour of the times in it for he that was tried before him for having two Wives was arraigned before him not as Recorder of Colchester but as a Commissioner of the Gaol delivery neither was it returned That he was Summoned which was said not to be material because they could not have examined the matter It was returned also That he absented himself for nine Months but not set forth that any Court was held during that time or any occasion for it He said That Cholmley Recorder of Lincoln was turned out of his place for trying the Accessory before the Principal and altho' there be no Special Fact returned here yet it may be tried in an Action upon the Case The Court said They would look upon Bernardistons Case Et Adjornatur Anonymus A Prohibition shall not go to the Admiralty to stay a Suit there for Mariners Wages tho' the Contract were upon the Land For First It is more convenient for them to sue there because they may all joyn Again according to their Law if the Ship perish by the Mariners default they are to lose their Wages therefore in this special Case the Suit shall be suffred to proceed there Dier versus East WHere by the Statute of Ed. 6. It is ordained That striking in the Church-yard shall be Excommunication Ipso facto this tho' it takes away the necessity of any Sentence of Excommunication yet he that Strikes doth not stand Excommunicated until he be thereof convicted at Law and this transmitted to the Ordinary Theodore Morris's Case HE was indicted of Murther in Denbigh and obtained a Certiorari to remove it into this Court in order to have it tryed in an adjacent English County And it was moved whether by Law it might be The Statute of 26 H. 8. cap. 6. empowers the next English County to take Indictments of Treasons and Felonies committed in Wales and to try them but here the Indictment was taken in a Welsh County Herbets Case in Latch was cited who was indicted at Montgomery and tryed at Salop and Plowden Matters del corone avenants a Salop and Southley and Prices Case 3 Cro. is That the Statute doth not extend to a Tryal upon an Appeal In Chedleys Case a Certiorari was granted as here to remove an Indictment found in Anglesy which was afterwards tryed in the next English County 3 Cro. 331. And the Court held that so it might be here Large versus Cheshire HIll 22. and 23 Car. 2. Rot. 520. In Covenant the Plaintiff declared upon Articles of Agreement between him and the Defendant whereby the Defendant covenanted to pay him such a Sum the Plaintiff making to him a sufficient Estate in such Lands before the Feast of St. Thomas next ensuing the date of the Deed and then he saith that licet he the Plaintiff semper a tempore confectionis scripti paratus suit ad performand ' all the Agreements of his part usque ad diem Exhibitionis bille the Defendant had not paid the Money The Defendant pleaded quod ipse obtulit solvere the Money aforesaid apud Derby si le Plaintiff faceret ei bonum sufficient ' Statum de in Premissis c. The Plaintiff replied Protestando That the Defendant did not offer the Money pro placito that he the 21 of Decemb. apud Derby fecit sigillavit quandam Chartam Feoffamenti whereby he conveyed the Premisses to the Defendant and that he came to the Premisses an hour before Sun-set the same day paratus ad deliberand ' seisinam c. quod Desendens nec aliquis ex parte illius venit ad recipiend ' c. to which the Defendant demurred and adjudged for him It was held That these words ipso faciente bonum statum were a Condition precedent to the payment of the Money therefore the Plaintiff in his Declaration should have averred the performance of it particularly and not by such general words that he had done all on his part And it differs from the Case where in Assumpsit the Plaintiff declared That the Defendant in Consideration the Plaintiff should permit him to enjoy such Land for seven years that he would pay him pro quolibet anno 20 s and the Action was held well brought within the seven years for that it was Executory contract for every of the years according to the intention of the Parties It was resolved also That the Replication was insufficient for that the Plaintiff having Election to make what Conveyance he pleaded he ought to have given notice to the Defendant that he would execute this Charter of Feoffment by Livery for it might have béen by Enrollment But Hale said The time when in this Case was not necessary to be in the notice because the Charter was sealed and delivered upon the extream day limited by the Agreement so the Defendant knew it must be upon that day so for the place because it is a local thing and must be done upon the Land But because he had set forth no notice given to the Defendant that he would make Livery the Replication is insufficient as if a Man be bound to Levy a Fine he must shew whether he will do it in Court or by Dedimus and the Court said if the Defendant had refused to accept of Livery the Plaintiff might as well have brought the Action as if he had actually made it Sacheverel versus Frogate IN Covenant the Plaintiff declares That Jacinth Sacheverel was seized in Fee and demised to the Defendant certain Lands for 21 years rendring to him his Executors Administrators and Assigns 120 l Annually during the Term By force of which Lease the Defendant entred and that J. S. Devised the Reversion to the Plaintiff and died and for Non-payment of Rent accrued since his Death he brought the Action and to this Declaration the Defendant demurred And it was argued by Winnington That the Rent determined by the Death of the Lessor as where the Lessor reserves the Rent only to himself 1 E. 4. 18. 27 H. 8. 19. Dier 45. Com. 171. the Heir shall not have it for reservations are taken strongliest against the Lessor so where the reservation is to the Lessor his Executors and Assigns it continues but for his Life Co. Lit. 47. a. 'T is true Here is also added Durante Termino and in Mallories Case 5 Co. where the reservation was to the Abbot or his Successors during the Term it went to the Successor but that was because they expounded or as a Conjunctive for if Successor had béen left out I suppose it would have been resolved otherwise Richmond and Butchers Case 1 Cro. 217. is in point that the Heir shall not have it So 2 Rolls 451.

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

Court the Woman was a Witness tho' married as here and Rainsford cited my Lord Castlehavens Case where the Countess gave Evidence that he assisted the committing a Rape upon her But Hale said he was not governed by that case because there was a Wife de jure the Evidence being clear as to all the Points of the Statute viz. First That the taking was by force Secondly That the Woman had substance according to the Statute Thirdly That Marriage ensued tho' it did not appear she was deflowred the Jury found him guilty Whereupon Judgment was given and he was hanged Note 39 Eliz. cap. 9. takes away Clergy from this Offence Bayly versus Murin IN an Ejectment upon a Special Verdict the Case was to this effect One Cooper Vicar of Granbrook in Kent being seized of an House and Lands thereunto appertaining parcel of the Endowment of his Vicaridge situate in a Market Town in the year 1672 lets it for three years and one year of the said Lease being expired the 11 of Sept. 1673. lets it for 21 years to begin from Michaelmas following reserving the Rent during the Term payable at the usual Feasts or within ten days after this Lease was confirmed by the Archbishop Patron of the Vicarage and Dean and Chapter of Canterbury Some years after Cooper dies and the Question was Whether Buck the succeeding Vicar could avoid this Lease The first Point was Whether the Lease became void within 80 Days after the death of Cooper by the Statute of Non-residence 13 Eliz. 20. And as to that all the Justices were of Opinion that Death would not make such a Non-residence as should avoid the Lease for the Intention of the Statute was to oblige the Incumbents to Residence First By imposing of the Forfeiture of a years Value of their Benefice if they did not Reside Secondly By making their Leases void which tho' prima facie seemed to be to their advantage yet was not so in the consequence for none would be induced to Farm their Lands because it was in their power to defeat their Leases by Non residence Again 'T is plain the Statute meant a Wilful Absence because it says The party so offending the Statute of the 13th of Eliz. that allows Leases of Houses c. in Market Towns for 40 years would be of no effect if Death should be interpreted a Non-residence and the Confirmation of Patron and Ordinary would be to no purpose Butler and Goodale's Case in the 6 Co. 21. b. is that where the Incumbent is absent upon an Inhibition or for the sake of his Health he is not within the Penalty of that Law There is only one single Authority against this viz. Mott and Hale's Case in the 1 Cro. 123. which Twisden doubted whether it were so adjudged because my Lord Coke mentions it no where supposing so Notable a Point would not have escaped his Observation especially in a Case wherein he was Counsel But Hale said It was Adjudged by the Opinion of three Judges tho' in Moor 't is said the Court was Divided but it was a hard Opinion And in the 38th of Eliz. B.R. Moor 609. the very Point was adjudged contrary The second Point Whether it were void because the Rent was reserved at the usual Feasts or within Ten days after For it was urged that the Term ending at Michaelmas would be expired before the last Payment And for the other payments 't is for the Successor's advantage because the Predecessor may dye within the Ten days But the Court were clear of Opinion in regard the Reservation was during the Term that there should be no Ten days given to the Lessee for the last payment according to Barwicke and Foster's Case in the 2 Cro. 227 233. The third point Whether this were a Lease in Reversion and so not warranted by the Statute of the 14 of Elizabeth And all the Court held that it was This Statute repeats that of the 13th of Eliz. as to Houses in Market Towns which Liberty was given as Twisden said to render those places more populous but excepts Leases in Reversion which this is being to commence at a Day to come where a Power is annexed to an Estate for Life to make Leases in possession A man cannot make a Lease to commence in futuro In the 6 Co. Fitz William's Case 4 E. 3. tit Waste 18. the Lessor made a Lease to commence after the death of the Tenant for Life and notwithstanding maintained an Action of Waste And Co. Lit. citing that Case distinguishes between a Grant of the Reversion and a Lease in Reversion as that Case was In Plowden's Commentaries Tracy's Case A Lease made to commence at a Day to come is given as a most proper Instance of a Lease in Reversion In the 1 Cro. 546. Hunt and Singleton's Case a Lease of an House for 40 years there being 10 years unexpired of a former Lease by the Dean and Chapter of St. Pauls was held not warranted by the 14th of Eliz. The like was Resolved in C. B. 14 Car. 2. in the Case of Wyn and Wild of a Lease of the Dean and Chapter of Westminster and there the Court denied the Opinion in Tomson and Trafford's Case Poph. 9. And two of the Judges seemed to be of Opinion and Twisden strongly that if the Lease in the Case at Bar had been made to commence presently it yet would have been void there being another Lease in being so that for so many years as were to come of the former Lease it would be a Lease in Reversion And that the 18th of Eliz. that permits a concurrent Lease so that there be not above three years in being shall not in their Opinion make any alteration of the 14th of Eliz. but it only extends to the 13th of Eliz. because it recites that but not the former And so is the Opinion of Hobart in the Case of Crane and Taylour 269. and it hath been often held that it does not extend to the Statute of 1 Eliz. concerning Bishops But of this Hale doubted and rather conceived the contrary viz. That the Lease had been good if it had been made to commence presently there being less than three years to come of the former Lease And that of the 18 of Eliz. did give a qualification to Leases made upon the 14th as well as the 13th First Because the 14 of Eliz. is a kind of an Appendix to the 13th of Eliz. and does not repeat it but sub modo a little enlarging it as to Houses in Market Towns Wherefore the 18th of Eliz. reciting the 13th does by consequence recite the 14th also Secondly There is such a Connexion betwixt all the Statutes concerning Leases of Ecclesiastical persons that they have been taken into the Construction of one another The Statute of the 32d of H. 8. is not recited neither in the 1st or the 13th of Eliz. yet a Lease is not warranted upon those Statutes unless it hath the Qualifications

Tenant in Tail and levying of a Fine there is an Instantaneous Fee in him out of which the new Estate Tail is supposed to be created and that cannot hold bring derived out of a Fee subject to the Forfeiture by Relation but this Point was not touched by the Judges for that they were fully agreed upon the other Point Beasly's Case HE was taken in Execution taken a Recognizance of Bail and he made it appear to the Court that he never acknowledged the Recognizance but was personated by another and thereupon it was moved that the Bail might be vacated and he discharged as was done in Cottons Case 2 Cro. 256. But the Court said since 21 Jac. cap. 26. by which this Offence is made Felony without Clergy it is not convenient to vacate it until the Offender is convicted and so it was done 22 Car. 2. in Spicers Case Wherefore it was ordered that Beasly should bring the Money into Court an be let at large to prosecute the Offender Twisden said it must be tried in Middlesex tho' the Bayl was taken at a Judges Chamber in London because filed here and the Entry is venit coram Domingo Rege c. So it differs from a Recognizance acknowledged before my Lord Hobart upon 23 H. 8. at his Chamber and Recorded in Middlesex there Scire facias may be either in London or Middlesex Hob. rep If a false Bayl be acknowledged it is not Felony unless it be Filed and so held in Timberly's Case The King versus Humphrey's al. AN Indictment upon the Statute of Maintenance and one only found Guilty and it was moved in Arrest of Judgment that seeing but one was found Guilty it did not maintain the Indictment 2 Rolls 81. several were indicted for using of a Trade and said uterque eor ' usus fuit and held not good Sed non allocatur for that in that case in Rolls the using of the Trade by one cannot be an using by the other But this is an Offence that two may joyn in or it may be several as in a Trespass But then it was alledged that the Maintenance was in quodam placito in Cur ' coram Domino Rege pendent ' and not said where the Kings Bench Sate and this was held fatal Termino Sancti Hillarij Anno 28 29 Car. II. In Banco Regis Jay's Case A Mandamus to restore to his place of a Common Council Man in the Corporation of Eye in Suffolk The Return was that he was amoved for speaking of approbious words of one of the Aldermen viz. That he was a Knave and deserved to be posted for a Knave all over England And it was moved that the Return was insufficient for words are not good cause to remove a Man from his place in the Corporation To which it was said that this not a difranchising of him but only removing him from the Common Council as a person not fit to sit there To which Twisden said that his place there could no more be forfeited than his Freedom for he was chosen thereunto by the Custom of the place And Magna Charta is that a Man shall not be disseised de liberis consuetudinibus But he held that words might be a cause to turn out a Freeman as if they were that the Mayor or the like did burn the Charters of the Town or other words that related to the Duty of his place But in the Case at Bar the words do not appear to have any reference to the Corporation wherefore it was ordered that he should be restored The Court said that my Lord Hale held That Returns of this nature should be sworn tho' of late days it has not been used and that it was so done in Medlecot's Case in Cro. Abram versus Cunningham UPon a Special Verdict the Case appeared to be to this effect A. possessed of a Term makes B. Executor who makes three Executors and dies two of them dies and the Will of B. the Executor not being discovered Administration is granted cum Testamento annexo to D. who grants over the Term. The surviving Execcutor never intermeddles but so soon as he had Notice of the Will Refused before the Ordinary and the Point was Whether the grant of the Term in the mean time was good Saunders to maintain it Argued That to the making of an Executor besides the Will there was requisite that the Executor should assent and if the Executor refuses 't is as much as if there never had been any There is no Book which proves the Acts of an Administrator void where there is a Will and the Executor renounces Greysbrook and Foxe's Case in Plowden's Com. is that after Administration granted the Executor proved the Will And so in 7 E. 4. 14. in Dormer and Clerke's Case it was held that where there was an Executor who after refused and Administration committed the Administrator should have all the Rent belonging to the Term in Reversion which accrued after the death of the Testator If an Executor be a Debtor and refuses the Administrator may Sue him Which was denied by Twisden because a Personal Action once suspended is ever so Dyer 372. If one makes an Executor who dies and never proves the Will Administration shall be granted as upon a dying Intestate suppose an Executor de son tort had Judgment against him Shall not there be Execution upon a Term as Assets in his hands Twisden It hath been Doubted whether there could be an Executor de son tort of a Term or whether he were not a Disseisor And by the same Reason it may be granted in the present Case for at least the Administrator here is an Executor de son tort before the Refusal Levins contra Anciently Bona Intestati capi solebant in manus Regis as appears in Hensloe's Case in the 9 Co. And since the Power of the Ordinary hath been introduced it was only to grant Administration upon a dying Intestate 4 H. 7. Pl. 10. If the Ordinary cites the Executor to prove the Will and he Renounces 't is said he may grant Administration which implies that it cannot be before So 21 H. 8. cap. 5. is to grant Administration c. upon a dying Intestate or refusal of the Executor the Interest of the Executor commences before the Probat In 36 H. 6. 8. an Executor commanded one to take the Goods and after the Executor refused before the Ordinary who committed Administration and the Administrator Sued the person that took the Goods who Iustified by the Executor's Command and it was held good And a Relation shall never make an Act good which was void for defect of Power And the Court seemed strongly of that Opinion But Serjeant Pemberton desiring to Argue it the Court permitted him to speak to it the next Term. Et sic Adjornatur And afterwards it was Argued again and Judgment was given for the Defendant per totam Curiam Dunwell versus Bullocke IN an Action of

is very clear For tho' in M. Portington's Case in 10 Co. 't is said that the word Condition shall not in a Will be taken as a Limitation yet the Current of the Authorities since are otherwise But here the Court held the Condition void for a man cannot be restrained from an Attempt to Alien For non constat what shall be judged an Attempt and how can it be tryed And when the express words are so there shall not be made another sort of Condition than the Will imports And so the Judgment was affirmed Osborn versus Beversham DEbt for Rent incurred at two Half years As to one of them the Defendant pleaded non debet And as to the other Actio non because he says He was ready to pay it at the Day and Place and has been ever since profert in Cur ' the Rent ideo petit Judicium de damnis To which the Plaintiff Demurred For that he did not say quod obtulit for where the Time and Place of Payment is certain Semper paratus is no Plea without an Obtulit For the Defendant it was said That the Plaintiff ought to reply to a Demand 1 Inst 34. 'T is a good Plea for the Heir in Dower to save his Damages to say That he was always ready Rastal's Entries 159. Semper paratus is pleaded without an Obtulit So 1 Rolls 573. no mention made of a Tender But then another Fault was found that it was pleaded in Bar whereas it ought to have been only in Bar of Damages and not to the Action and this was agreed to be fatal But the Court held the Plea to be naught for the other Cause also Anonymus IN an Ejectment upon a Special Verdict the Case was A man Devised his Land to J. S. after the death of his Wife And after Argument the whole Court were of Opinion that J.S. not being Heir to the Devisor there should go no implied Estate to the Wife for an Heir shall not be defeated but by a necessary Implication Anonymus AN Action for Words for that the Defendant said of the Plaintiff He would have given Dean Money to have Robbed Golding's House and he did Rob the House After Verdict it was moved in Arrest of Judgment that the first part of the words import only an Inclination and not that he did give any Money And the words He did Rob the House shall be referred to Dean as the last antecedent and not the Plaintiff But the Court were of Opinion for the Plaintiff as was Adjudged where the words were He lay in wait to Rob. Vid. Cockain's Case in the 1 Cro. and in the 4 Co. And the Court said the Words might be construed That the Plaintiff offered Dean Money and he refusing it that the Plaintiff robbed the House himself Smith versus Tracy THe Case being moved again the Opinion of the whole Court was That the Half-Blood should come in for Distribution upon the new Act For as to the granting of Administration the being of Guardian c. the Half-Blood may be taken nearer of Kin than a more remote Kinsman of the Whole Blood Mo. 635 Ro. Rep. 114. Ante. J 's Case J. Brings his Habeas Corpus The Return was that he was Committed by J. S. J. N. T. K. to whom and others a Commission of Bankrupt was awarded for refusing to answer a Question put to him concerning the Bankrupt's Estate c. and so Commissus fuit in custodia by a Warrant to the Officer Virtute Commissionis praedictae haec est causa captionis seu detentionis c. The Counsel for the Prisoner took three Exceptions to the Return First For that there did not appear a sufficient Authority For the Commission is said to be granted to them and others and then they could not act without the rest for the Return does not express any Quorum c. in the Commission Secondly Instead of Commissus in custodia it ought to be Captus for that is the usual Form For this is as if the Commitment were by the Officer that makes the Return Thirdly Haec est causa captionis seu detentionis is uncertain for it ought to be detentionis And upon the first and last Exception the Prisoner was Discharged by the Court but at the same time was told by the Court That he must answer directly to such Questions as were put to him in order to the discovery of the Bankrupts Estate or else he was liable to be Committed Termino Sancti Hillarij Anno 29 30 Car. II. In Banco Regis Harrington's Case AN Information was preferred against him for that he maliciously and traiterously intending to stir up Sedition and to create a Disturbance between the King and his People upon Discourse of the late Rebellion and those Persons which were Executed at Charing-Cross for the Murder of the late King in praesentia audita quamplurium utteravit propalavit haec verba pernitiosa sequentia viz. Gubernatio nostra consistebat de tribus statibus si eveniret Rebellio in Regno nisi foret Rebellio contra omnes Status non est Rebellio Vpon Not Guilty pleaded he was found Guilty of speaking the precedent Words and Not guilty as to other Words contained in the Information It was moved in Arrest of Judment that Gubernatio signified the Exercise and Administration of the Government and not the State of it which Regimen doth Again That it was Consistebat and so might relate to the Britons or Saxons Time or to the late mutations of the Form of Government amongst us and that to put the words in Latin without an Anglicè was not to be allowed for the Translation might either aggravate or mitigate the Sense And that such a President might be prejudicial as well to the King as the Defendant But those Exceptions finding little weight with the Court his Counsel proceeded to justifie or at least to extenuate the Words alledging That the Relation was so great between the King and People that to raise a Rebellion against the King must also affect the other States and this whether the King be taken as some would have it as one of the Three Estates or as others that the Lords Spiritual and Temporal make two of the Estates and the Commons the third and the King as Chief and Head of all as is the Statute of 1 Eliz. cap. 3. where the Lords and Commons call themselves the Queens Obedient Subjects Representing the Three Estates of the Realm of England and so is the 4 Inst 1. But the Court supposing that the Words did tend to set on Foot that Position upon which the War Levied in 1641. by the Two Houses against the King was grounded were much displeased that the Counsel would pretend to defend them or put any tolerable Sense upon them It was also insisted upon by the King's Counsel and agreed by the Court that the Ancient Presidents and many latter also were to express the

it will be agreed he might have released it or by cutting of the Wood might have taken away all the right of Action Again it does not appear by the Record that the Defendant was here and so no benefit by the forbearing to cut the Wood. Rookwoods Case cited on the other side 1 Cro. 163. 1 Leonard 192. is that the Promise was made to the younger Brothers and the Consideration that they would consent but here the Plaintiff who was to have the Money had no share in the Consideration or Meritorious Act as where the Father promises J. S. if his Son will Marry his Daughter he will give him 1000 l the Son may bring the Action because the Consideration moves from him Hetlys Rep. 20. the Case was to this effect A Man promises a Woman whom he was to Marry upon a certain Consideration that if he had a Son by her he should have a Term whereof the Woman was then possessed and if it were a Daughter she should have the Moiety of the Goods c. they Intermarry and after the death of the Husband the Daughter born between them brings an Action against the Executor of the Husband and resolved that it would not lie tho' they did not think the Agreement made with the Wife to be discharged by the Intermarriage but only suspended which is a Quaere in my Lord Hobart Yet the Daughter being no Party to the Promise or to the Consideration could not bring an Action The Case of Norris and Pine before cited is stronger for there he that made the Promise had a benefit for it was in Consideration of Marriage On the other side it was said that tho' it doth not appear that the Defendant was Heir yet it may be intended after Verdict however 't is not nudum pactum for if the Defendant had no benefit yet there was a restraint upon the other and that is Consideration enough And for the objection of releasing that holds where J. S. promises J.N. if his Son will Marry his Daughter he will pay him 1000 l J.N. may Release but 't is doubtful whether he can after Marriage because then 't is vested in the Son as Scroggs Chief Justice said 1 Roll. 31. The Uncle of an Infant delivered J.S. 12 l who promised to pay the Infant when he came of Age and the Action was well brought by him after his Age. So Goods sold to A. to pay 10 l to B. B. may Sue Vid. 1. Roll. 32 Starkey and Mills The Court said it might be another Case if the Money had béen to have been paid to a Stranger but there is such a nearness of Relation between the Father and Child and 't is a kind of Debt to the Child to be provided for that the Plaintiff is plainly concerned And so by the Opinion of them all viz. Scroggs Wild Jones and Dolben Judicium pro Querente Ante. Anonymus A Prohibition was prayed to the Sheriffs Court of London for that an Action was there Commenced to which the Defendant pleaded That the cause of Action did not arise within the Jurisdiction and offered to swear his Plea but it was refused The Counsel for the Plaintiff objected against the Prohibition that the Plea came too late for it was after an Imparlance But it being proved by Affidavit that the Plea was tendred within two days after the Declaration was delivered and that immediately upon delivering the Declaration there is an Imparlance of course The Court granted the Prohibition and said that the other side might Demurr if they thought fit for the liberty of the Subject was infringed by bringing him within a private Jurisdiction when the Matter arises out of it and Attorney's in such places are sworn to advise no Plea to the Jurisdiction nor that none shall be put in by them And whereas 't was said that the Party had not prejudice for he might remove his Case by Habeas Corpus The that the Court answered coming by Habeas Corpus Bail must be put in above tho' the Cause otherwise did not require it Note It appeared here that there was no defence made in this to the Jurisdiction and Co. Inst was quoted that defence should be made tho' not full defence But the Court said it was not necessary and that Presidents were otherwise especially where the Court have no Jurisdiction of the matter otherwise where not of the person James versus Richardson IN Ejectment the Case upon a Special Verdict was thus A. devised the Lands to B. and his Heirs during the Life of J. S. and after to the Heirs of the Body of R. D. now living and to such other Heirs was should after be Born the Devisee for Life levied a Fine in the Life of him to whose Heirs the Remainder was limited but he had a Son at the time of the death of the Testator The question was Whether it was a Contingent Remainder the consequence whereof was to be destroyed by the Fine and that it was vested in the Son Scroggs Chief Justice Wild and Jones held it a Remainder vested by reason of the words now living which was a sufficient Designation of the person that was to take in a Will tho' improper to call him Heir But Dolben Contra for by this Construction the Heirs Born after are excluded and the Son would take but an Estate for Life tho' it were devised to the Heirs in the Plural Number Note Vpon a Writ of Error in the Exchequer Chamber this Iudgment was reversed Hillary 31 32. Car. 2. Termino Paschae Anno 31 Car. II. In Banco Regis A Mandamus was prayed to the Ecclesiastical Court to grant the Probat of a Will under Seal c. The Case was the Executor named in the Will had taken the usual Oath but after a Caveat entred and then Refused and another endeavoured to obtain Letters of Administration the Executor came after to desire the Will under Probat and contested the granting of Administration Which was Adjudged against him supposing that he was bound by his Refusal And after an Appeal to the Delegates this Mandamus was prayed and granted by the Court for having taken the Oath he could not be admitted to Refuse and the Ecclesiastical Court had no further Authority and the Caveat did not alter the Case Note The Oath was taken before a Surrogate yet it was all one Anonymus A Prohibition was prayed to a Suit for Tythes upon the Suggestion that the Lands out of which they were demanded say out of the Parish and the Bounds of Parishes are tryable at the Common Law But the Court denied the Prohibition because it did not appear that a Plea thereof had been offered in the Ecclesiastical Court Anonymus A Prohibition was prayed to stay a Suit against J. S. Lessee of a Rectory out of which a Pension was demanded It was suggested that the Lord Biron had three parts in four of this Rectory upon which the Pension was chargeable and that

of Priviledge fitting the Parliament 154 Prohibition A second Prohibition not grantable after a Consultation 47 Q Quantum meruit See Outlawry Que Estate See Corporation R Recovery A Deed Fine and Recovery do all make but one Assurance but each hath its several effect 31 Common Recoveries are Common Assurances and are not to be overthrown by nice Constructions 32 A Common Recovery stopt what shall be good Cause to stop it 90 Relation Of Relation its force and where it shall Operate 200 Remainder What shall be accounted a Contingent Remainder and what a Remainder vested 313 Rent Rent due if the thing let hath been really enjoy'd 68 A Rent cannot be reserved out of a thing Incorporeal 69 Every Quarters Rent is a several Debt and distinct Actions may be brought for each Quarters Rent Not so for part of the Money due upon Bond or Contract unless the Plaintiff shews that the rest is satisfied 129 A Debt for Rent payable by an Executor before Bonds because it savours of the Realty and is maintain'd in regard of the Profits of the Land received 184 Request Request where necessary to be set forth and where not 75 Rescous See Return Return If a Sheriff Return a Rescous it is not now Traversable tho' formerly it was 175 Reversion A Reversion is a present Interest tho' to take effect in possession after another Estate determined 328 Revocation What shall be a good Revocation in Equity 350 S Scire facias WHere one Ter-tenant is Return'd summon'd he may plead That there are other Ter-tenants tho' in another County 104. But he must not plead this by way of Abatement but demand Judgment si ipse ad breve praed in forma praed retorn ' respondere compelli debeat 105 The Record of a Scire facias naught in the Titleing not permitted to be amended 105 Scire facias in Chancery to Repeal a Patent 344 Settlement See Conveyance Marriage Mortgage A Voluntary Settlement avoided by a following Settlement in Joynture 363 Sheriff If a Sheriff of a City be in Contempt the Attachment shall go to the Coroners and not to the Mayor but if he be out of Office then it shall go to the succeeding Sheriff 216 Simony To sell an Advowson ea intentione that J.S. shall be presented Simony 39 In case of Simony the Presentation vests in the King without Office Quaere in other Cases 213 Statutes 13 E. 1. Stat. of Winton In an Action upon this Statute not necessary to set forth more in the Declaration than is pertinent to the Action 215 4. H. 7. cap. 24. Of Fines Of Claims after the coming in of Future Interests in the second Saving in this Act 333 21 Jac. 1. cap. 16. See Limitations 22 23 Car. 2. cap. 9. No more Costs than Damage explain'd 36 What Trespass within this Statute What not 48 29 Car. 2. cap. 3. A Promise by Letter a sufficient Promise in Writing within this Statute 361. This Statute does not extend to Trusts raised by Operation of Law 361 31 Car. 2. cap. 2. Where a Man commits a Capital Crime in Ireland he may be sent thither to be Tried thereupon notwithstanding that by this Act No Subject of this Realm shall be sent Prisoner to any Foreign parts 314 1 W. M. cap. 4. That Statute which saves time of Limitation does not alter the Form of Pleading but that shall be as it was before 185 197 Statute Recognizance See Fine What shall be esteemed a regular Extending of a Statute Merchant 326 Where the Interest of a former Statute shall drown'd in that of a latter being both Extended and assigned to the same person 326 327 328 The Extent of a Statute what it is and the Effect thereof 326 338 An Extent upon a Puisne Statute where Extended after a Prior Statute is in the nature of a Reversional Interest 328 When a former Statute is determin'd whether it be by release of the Debt by purchase of part of the Lands by being barr'd by Non-Claim upon a Fine Satisfaction acknowledged or any other means this lets in the Puisne Statute 332 An Extent begins by Record but it may end without Record for a Release by the Conizee after Extent determines it and he that hath a Puisne Statute may Enter 336 Cannot be assigned before Extent in Law 362 Surrender No Surrender of an Estate without Acceptance by the Surrenderee 199 Yet quaere for the Judgment was reverst in Parliament 208 That a Surrender divesteth the Estate immediately before express Assent of the Surrenderee 203 infr T Tail A Devise to one for Life Remainder to the Heir Males of his Body for ever this is an Estate-Tail in the Devisee 313 A Sum of Money cannot be Entailed 349 Tender Plea of a Tender without setting forth a Refusal not good otherwise if a place of Payment was appointed and the Party to Receive was not there 109 Tythes Whether Notice be necessary to be given to the Parson upon setting forth of Tythes 48 Traverse See Pleading Treason Whether Listing of Men to send beyond Seas to joyn the King's Enemies be Treason within the Clause of Levying War in the Stat. 25 Ed. 3. 316 Whether the indictment should not express in particular who those Enemies are or whether the General Words be not sufficient ibid. To List c. and an Intent to Depose the King is Treason within the Clause of Compassing the Death of the King 317 Trespass See Assent Whether a Suit in an Action of Trespass be a Breach of Covenant to hold and enjoy quietly 46 61 62 Where an Action of Trover will lye for Goods tho' an Action of Trespass would not for taking them 169 170 Trust See Chancery Limitation The force of the Word Trust in the Limitation of a Use 312 Where a Man buys Land in anothers Name and pays Money it will be a Trust for him who pays the Money tho' there be no Deed declaring the Trust 361 Trust executed in Chancery according to the Parties meaning 363 364 Tryal A New Tryal directed by the Lord Chancellor where the former Verdict has been complain'd of in a Bill before him the Complainant paying the Costs of the first Tryal 351 352 V Variance See Pleading Verdict See Baron and Feme A Mistake in an Indebitatus Assumpsit where good after Verdict 36 A Declaration tho' Inartificial is notwithstanding good after Verdict 174 Vill. Vill and Parish the Diversity and where Lands in One shall pass in the Other of the same Name 31 Vmpire Arbitrators and Umpire cannot lawfully have concurrent Authorities at the same time 115 Vse Where Money is paid to A. for the Use of B. in whom the Right and Interest vests 310 Lands may be Devised to the Use of another but if no Use be limited they will lodge in the Devisee for a Devise implies a Consideration 312 Vsury No Unlawful Usury if the Agreement be not Corrupt tho' the Wording of the Condition may be otherwise by Mistake