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end_n	act_n	parliament_n	session_n	2,713	5	11.3473	5	true

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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

the Mayor and Burgesses which never had been Mayors and if in regard it was indefinite it should be intended that all the Burgesses were there and it may be the Amotion was by the Vote of such Burgesses as have not been Mayors they being the greater number and the others might dissent as if the Mayor and Court of Aldermen in London were impowered to do a thing and this is done per Cives Londini it cannot be good Sed non allocatur For First it shall be intended That all the Burgesses were there and that they all agreed in the amoving of Braithwaite And if the truth were that the Burgesses which were qualified dissented which must not be presumed they might bring an Action upon the Case for the false Return And further to enforce the intendment as before it is said to be per Majorem Burgenses secundum Chartam If it had been returned that he was amoved secundum Chartam generally that had not been good for there must be the manner returned That the Court may adjudge whether the Authority be pursued Nota hoc It was further declared by Keeling Rainsford and Moreton That the King and Council might Disfranchise any Member of a Corporation And it was said by Rainsford that the Walls of Northampton were ordered to be pulled down by the King and Council à fortiori an Alderman might be displaced upon just Cause and here was no Exception to the Causes returned But to this Twisden said nothing Anonymus Vid. 5 Co. 32. UPon a Fieri facias to Levy a Debt recovered against an Executor the Sheriff returned nulla bona whereupon after a Testatum c. a Writ was awarded to the Sheriff to enquire c. who returned that Goods to the value of the Debt came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit And Issue was taken by the Party who came in upon a Scire facias quod non elongavit c. and the Iury found for the Plaintiff And it was moved by Saunders in Arrest of Judgment That there was no proper Issue neither did it appear that there was any Devastavit for the Executor may eloigne and sell the Goods therefore the Return and Issue ought to have been quod Devastavit Sed non allocatur for this tantamounts and the Presidents are so as 't is a good Warrant for a Capias in Withernam when the Sheriff returns that the Defendant in Replevin hath eloigned the Beasts so the Executor ought to be charged de bonis propriis upon his Return Wharton and Brooke IN an Action for Words the Plaintiff declared That she was and had been a long time a Midwife and got divers Gains and that the Defendant to scandalize her in her Profession said of her She is an Ignorant Woman and of small Practice and very unfortunate in her way There are few that she goes to but lye desperately Ill or die under her hands The Court held the Action maintainable But Twisden said this hath been Adjudged Where one brought an Action declaring she was a Schoolmistress and taught Children to Write and Read by which she got her Livelyhood and that the Defendant said of her She was a Whore and that J. S. kept her as his Whore That to slander one in such a Profession was not maintainable without special Damage Sir Thomas Player Chamberlain of London and Jones REsolved by the Judges That the By-Law in London whereby the Number of Carts were restrained was a good By-Law Walter and Chauner IN Trespass the Defendant Iustifies for Damage feasant The Plaintiff in his Replication prescribes for Common in the place where c. in this manner Until the Field was sown with Corn and after it was sown post blada illa messa until it was sown again To which the Defendant Demurs And it was said That this Prescription was unreasonable viz. To have Common in Land sown To which it was Answered and Resolved by the Court That as the Prescription was laid the Common was not claimed until after the Corn was reaped Nota Vpon a Fieri facias the Sheriff Returned That he had taken Goods and that they were rescued from him by certain Persons And it was held to be no Return and that he was to be Amerced Anonymus ONe recovers Debt and then brings a new Action of Debt upon the Judgment The Defendant pleads Tender of the Money before the Action brought uncore prist and the Plaintiff could have no Costs If the Defendant plead in Abatement of the Writ and the Plaintiff Demurs and 't is Adjudged against the Defendant it shall be only quod respondeat ulterius But if he alledge any thing in Abatement whereupon Issue is joyned and tryed and found against the Defendant there the Plaintiff shall have his Judgment to recover his Debt Skier and Atkinson IN an Action upon the Statute of 8 H. 6. of Forcible Entry the Secondary craved the direction of the Court before he could tax Costs and they were doubtful in it and rather inclined that the Plaintiff was to have no Costs But upon the view of Pilford's Case in 10 Co. and the Books there cited they resolved that he should have Treble Costs Crosse and Winter IN an Action for these Words Thou art of Thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Defendant Iustified for that he did steal the Colledge Plate The Plaintiff Replied De injuria sua propria The Words were alledged to be spoken in London and thither the Venire facias was awarded and there was a Verdict for the Plaintiff It was moved in Arrest of Judgment That there was a Mis-Trial for the Iury ought to have come out of Oxford for the Issue is joyned upon the Matter in the Justification and the Words are confessed Hob. 76. And with this agrees Ford and Brooke's Case in 3 Cro. 361. expresly But it was Resolved by the Court That this was aided by the late Statute made at Oxford being tried by a Jury of the proper County where the Action is laid tho' the Issue upon pleading may arise out of another place and County Note An Act of Parliament was made to continue for Three years and from thence until the end of the next Session of Parliament Vid. Hob. 78. and no longer And it was Resolved that this must be intended a Session which commences after the Three years expired For if a Session should be within the Three years and continue for many years after the Act would continue Note It cannot be called a Session of Parliament unless the King passes an Act. The King and Serjeant UPon a Certiorari to remove a Conviction of Forcible Detainer by the View of two Iustices upon the Statute of 15 R. 2. The Record Returned was Questa est nobis Jana Wood Vid ' quod quidem pacis Domini Regis perturbatores in domum mansional '

might be given in Evidence tho' upon Non est factum it could not The King versus Alway and Dixon ERror to Reverse a Judgment upon an Indictment because the Award of the Venire was Entred Praeceptum fuit Vicecomiti c. which is more like an Hystory of the Record than the Record it self for it ought to be Praeceptum est and so are the Presidents And for this Cause it was Reversed Waldron versus Ruscarit Hill ult Rot. 225. In an Ejectment a Special Verdict was found That one levied a Fine of all his Lands in Saint Inderion in Cornwal and that he had Lands in Portgwyn and that the Constables of Saint Inderion exercised their Authority in Portgwyn and that Porgwyn had a Tythingman And whether this Fine conveyed the Lands in Portgwyn was left to the Iudgment of the Court and Resolved that it did A Parish may contain ten Vills and if a Fine be levied of the Lands in the Parish this carries whatsoever is in any of those Vills So where there are divers Vills if the Constablewick of the one goes over all the rest that is the Superiour or Mother Vill and the Land which is in the other shall pass per nomen of all the Lands in that And tho' it be found that Portgwyn had a Tythingman Decenarius which prima facie is the same with a Constable and differed little in the Execution of that Office concerning Keeping the Peace Yet Hale said He was not the same Officer and 't is found that the Constables of St. Inderion have a superintendency over Portgwyn and therefore 't is but as an Hamlet of St. Inderion But if found that they had distinct Constables and could not interfere in their Authority it would be otherwise Owen 60. Note It was said by the Court That if there be a Conviction of a Forcible Entry upon the View of the Justices of the Peace no Writ of Error lyes upon it but it may be Examined upon a Certiorari The King versus Green al' THey were Indicted for refusing to take the Oath of Allegigiance contained in the Statute of 3 Jac. tendred to them at the Sessions of the Peace One appeared and the Entry was Nihil decit c. ideo remansit Dom ' Rex versus eundem indenfensus And the other were Convicted and Judgment given quod forisfaciant omnia bona catalla terr' tenementa Domino Regi extra protectionem Dom ' Regis ponantur committuntur quilibet eorum committitur Gaolae They brought Error And First It was moved that the Indictment was for refusing the Oath contained in the Statute of 3 Jac. in his Anglicanis Verbis Viz. I do truly and sincerely acknowledge c. that our Sovereign Lord King Charles the Second is Rightful King of this Realm c. Whereas the Statute is King James and the words of the Statute are That the Justices of the Peace shall demand of such persons there mentioned to take the Oath hereafter following So that 't is tyed up to that Oath in terminis and then it cannot be Administred after the Death of King James And the diversity of the Penning of this Act of 3 Jac. and the Act of 7 Jac. was observed in the last the words are Shall take and receive an Oath according to the Tenour and Effect of the Oath contained in 3 Jac which is as much as to say the same Oath in substance So the Act of 1 Eliz. cap. 1. is That the Oath shall be taken according to the Tenour and Effect hereafter following Therefore it was Objected that the Indictment might have been upon the Act of 7 Jac. but not upon 3 Jac. which it was conceived was tyed up to the Person of King James and therefore determined by his Death As if a Lease be made durante bene placito Regis nunc it doth end by the Dimise of that King that made it Otherwise if it be durante bene placito Regis Moor pl. 311. And though these Statutes for the Oath of Allegiance be General Laws and need not have been recited yet when an Indictment is grounded upon an Act therein mentioned which will not maintain it it shall not be made good upon any other General Act. Secondly Another Matter insisted upon for Error was in the Entry of the Nihil dicit which was Ideo remansit Dom ' Rex versus eundem indefensus whereas it ought to have been remanet and so the Record it self must express But as it is 't is but an History of the Record and therefore upon Indictments where the Award of the Venire is Praeceptum fuit 't is not good but should he Praeceptum est Thirdly An Exception was taken to the Venire which Commands the Sheriff to Return 12 probos legales homines qui nec Dom ' Regem nec aliquam partem aliqua affinitate attingunt whereas in the King's Cases his Kindred may be Returned and therein no Challenge to the Favour neither ought the Sheriff to be restrained from Returning them Fourthly The Judgment is Committuntur quilibet eorum committitur which is an Execution of the Judgment that should have been given and not the Judgment it self which ought to have been Committantur c. as 't is extra protectionem Domini Regis ponantur and not ponuntur Fifthly It was alledged that the Statute was mis-recited in two places 1. For See of Rome it is written Sea of Rome so instead of sedes Romana it is mare Romanum which makes it to be no Sense 2. The Words of the Statute are I do declare in my Conscience before God whereas the Indictment is I do declare c. in Conscience and leaves out my It was also Objected That the words of the Act being That such as refuse the Oath shall incur the danger and penalty of Praemunire mentioned in the Statute of 16 R. 2. which Enacts That Process shall be made against the Offenders therein mentioned by Praemunire facias in manner as 't is Ordained in other Statutes And it appears that no such Process was made upon this Indictment wherefore the Statute is not observed Curia The first Error was disallowed by all the Court and held clearly that the Judgment was well grounded upon the Statute of 3 Jac. For the naming of the King is but an instance of the thing as it stands at present and it might as well be objected that the Oath in the Statute is I A.B. do swear c. And tho' some Statutes say according to the Tenour and Effect and this is the Oath hereafter following it was held to be all one for according to the Tenour and Effect and according to the words are all one as where a Certiorari is to certifie Tenorem Recordi The second was held to be Error and that the Iudgment given upon the nihil dicit must be reversed for there were several Iudgments given viz. One upon that and another given

taken strictly and here upon the first Fine the Earl of Leicester had no Estate left in him Mich. 6 Car. 1. in Communi Banco the Case of Ingram and Parker which tho' it may not be a clear Authority for me yet I am sure it does not make against me The Case was Catesby levied a Fine to the use of himself in Tail with Remainders over reserving a Power to himself and his Son to Revoke by Deed c. as in our Case and his Son after his decease by Deed intended to be Enrolled conveyed to one and his Heirs and after levied a Fine and it was held no Revocation First Because he having an Estate Tail in him the Deed might operate upon his Interest Secondly Because it was but an inchoation of a Conveyance and not perfected and they held it no Revocation and that the Fine levied after tho' intended to be to the Vses of the Deed yet should extinguish the Power Hale Chief Justice Vpon the close and nice putting of the Case this may seem to be no Revocation for 't is clear that neither the Deed nor Fine by it self can revoke but quae non valent singula juncta prosunt The Case of Kibbett and Lee in Hob. 312. treads close upon this Case where the Power was to Revoke by Writing under his Hand and Seal and delivered in the presence of three Witnesses and that then and from thenceforth the Uses should cease It was there Resolved that a Devise of the Lands by Will with all the Circumstances limited in the Power should Revoke yet the Delivery was one of the Circumstances and the Uses were to cease then and from thenceforth Whereas a Will which could have not effect while his Death did strongly import that the meaning was to do it by Deed and yet there the Will alone could be no Revocation for clearly he might have made another Will after and so required other Matter viz. his Death to compleat it And in that Case there is another put That if a Deed of Revocation had been made and the party had declared it should not take place until 100 l paid there the operation of it would have been in suspence until the 100 l paid and then it would have been sufficient yet there it had been done by several Acts and of several Natures the Intention in things of this nature mainly governs the Construction In Terries Case it was Ruled That if A. makes a Lease for years to B. and then Levies a Fine to him to the end that he might be Tenant to the Praecipe for the suffering of a Recovery that after the Recovery suffered his Lease should revive 'T is true in the Case at Bar if the Fine had been levied first and then the Deed of Uses made afterwards the Power had been extinguished by the Fine and so no Revocation of that which had no being could have been by the Deed. Twisden What if before the Fine levied the Intent had been declared to that purpose Hale I doubt whether that would have helped it I cannot submit to the Opinion in Parker and Ingrams Case cited viz. That the Deed not being Enrolled should make no Revocation For in case of a Power to make Leases for life it has been always held by the best Advice that the better way is to do it by Deed without Livery tho' Livery by the Common Law is incident to a Lease for life and so Adjudged in Rogers's Case for Lands in Blandford forum in Moor's Rep. where Tenant for life hath power to make Leases for life and makes a Lease by Livery 't is there held a Forfeiture tho' I conceived not because by the Deed the Lease takes effect and so the Livery comes too late Therefore the omission of Enrolling the Deed in that case does not seem to be material but if that Opinion be to be maintained it is because the party had such an Interest upon which the Deed might enure without Execution of his Power and so rather construed to work upon his Interest But that Reason does not satisfie because such an Estate as was intended to be conveyed could not be derived out of his Interest therefore it should take effect by his Power according to Clere's Case in the 6 Co. So by the whole Court here the Deed and Fine taken together were Resolved to be a good Execution of the Power and Judgment given accordingly Richardson versus Disborow A Prohibition was prayed to the Ecclesiastical Court where the Suit was for a Legacy and the Defendant pleaded That there was nothing remaining in his hands to pay it and that he had fully Administred And producing but one Witness to prove it Sentence was given against him and after he Appealed and because their Court gave no regard to a single Testimony he prays a Prohibition But it was urged on the other Side That it being a Matter within their Cognizance they might follow the Course of their own Law And tho' there are diversities of Opinions in the Books about this Matter yet since 8 Car. 1. Prohibitions have been been denied upon such a Surmize Hale Where the Matter to be proved which falls in incidently in a Cause before them is Temporal they ought not to deny such Proof as our Law allows and it would be a great Mischief to Executors if they should be forced to take two Witnesses for the payment of every petit Sum And if they should after their Death there would be the same Inconvenience In Yelv. 92. a Prohibition was granted upon the not admitting of One Witness to prove the Revocation of a Will Which is a stronger Case because that entirely is of Ecclesiastical Cognizance Wherefore let there go a Prohibition and let the party if he please Demur upon the Declaration upon the Attachment Hob. 188. 1 Cro. 88. Popham 59. Latch 117. Pigot versus Bridge IN Debt upon a Bond Conditioned for performance of Covenants and the Breach assigned was in the not quietly enjoying the Land demised unto him The Defendant pleads that the Lease was made to hold from Michaelmas 1661 to Michaelmas 1668 and that paying so much Rent Half yearly he was to Enjoy quietly and shews that he did not pay the last half years Rent ending at Michaelmas 1668. To which the Plaintiff Demurred supposing that the words being to Michaelmas 1668. there was not an entire Half year the Day being to be excluded and that it was so held in the Case of Umble and Fisher in the 1 Cro. 702. Cur ' contra 'T is true in pleading usque tale Festum will exclude that Day but in case of a Reservation the Construction is to be governed by the Intent Anonymus NOte per Hale Debt doth not lye against the Executor of an Executor upon a Surmize of a Devastavit by the first Executor For First 'T is a Personal Tort for which his Executor cannot be charged Secondly 'T is such an Action of Debt as would