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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

Alien they might inherit their Mother and consequently they might inherit one the other It hath been endeavoured to be Answered that it is not possible the Mother could be an English Woman because the Sons are found to be Aliens But that will not be so altho' an English Man marry an Alien beyond the Seas and having there Issue the Issue will be Denizens as hath been often Resolved Yet it is without question that if an English Woman go beyond the Seas and marry an Alien and have Issue born beyond the Seas the Issue are Aliens for the Wife was sub potestate viri and yet the Issue born in England should inherit tho' the Husband be an Alien But the true Answer is That in this Case Robert the Husband being an Alien born out of the Allegiance of the Crown of England and marrying and having all his Issues born there She shall not be presumed an English Woman but shall be presumed a Native in Scotland where her Husband lived and had Issue unless the contrary had been expresly found Now touching the Point in question it is true that Sir Edw. Coke in his Littl. fo 8. is of another Opinion He says That if an Alien have two Sons born in England and one dye without Issue the other shall not inherit him But I take the Law to be the contrary First I will shew what Reasons do not move me Secondly What Reasons do convince and satisfie me It doth not move me thus to conclude because there is no defectus Parriae or Nationis or Ligeantiae of either of the Brothers for tho' there be no personal defect in either of the Extreams yet it may be possible that a consequential Impediment arising from another Ancestor may hinder the Discent and this is apparent in the Case in question for Patrick the Son of Nicholas the Elder Brother of John the Earl hath no Defectus Ligeantiae for he was naturalized yet the Land shall not Discend from John the Earl to Patrick by reason of the defect of Nicholas his Father neither doth it move me that George or John his Son do not claim the Land from Robert the Father but from John the Earl for if the Grandfather be seized the Father is an Alien The Son of Denizen born the Father dies in the Life of the Grandfather the Son shall not inherit by reason of the defect of the Father tho' he claim nothing from him but from the Grandfather But the Reasons that satisfie me are these three in order as they are propounded My first Reason is because the Discent from a Brother to a Brother tho' it be a Collateral Discent yet it is an Immediate Discent and consequently upon what hath been premised at first unless we can find a disability or impediment in them no impediment in another Ancestor will hinder the Discent between them Now to prove this Discent immediate I shall use these three ensuing Instances or Evidences First In point of Pleading one Brother shall derive himself as Heir to another without mentioning another Ancestor this hath been at large insisted on by others and therefore I shall pass it over Secondly According to the computation of Degrees according to the Laws of England Brother and Brother make one Degree and the Brother is distant from his Brother and Sister in the first degree of Consanguinity According to the Civil Law the Brother is in the second Degre from the Brother for they make one Degree from the Brother to the Father and from the Father a second Degree to the other Brother but yet they say in Collaterals Nullus est proximior Fratre ideoque in Collateralibus nullus est primus Gradus sed secundus Gradus obtinet vocem primi Inst lib. 3. Tit. B. de Gradibus Consaguinitatis According to the Cannon Law Frater Frater Soror Soror sunt in primo Gradu Decret ' gratian Laus 35. quest 5. ad sedem and therefore their Laws prohibiting Marriage in the fourth Degree take Brother and Sister to be the first Degree of the fourth The Laws of England in computation of the Degrees of Consanguinity agree with the Common Law and reckon the Brother and Brother to be the first Degree and this is apparent by Littl ' sect 20. and the Objection of Lord Coke thereupon and the Book of 31 E. 3. Hollands Case cited by Littleton And with this likewise agrees the Laws and Custome of Normandy which tho' in some things they differ from the Law of England as is before observed yet in this particular and divers other touching Discents they agree with it Vid. Glov Com. super Customeir de Normandy in Cap. de Escheat Et doir un ' Scavoir que tonque le Custome de paijs de Normandy pur compter les Degrees en Line Collateral solonque les Cannoists deux freres ont le primier Degree eont que en Degree My third Evidence that the Discent between Brothers is immediate this viz. the Discent between Brothers differs from all others Collateral Discents whatsoever for in other Discents Collateral the half Blood doth inherit but in a Discent between Brothers the half Blood doth impede the Discent which argues that the Discent is immediate The Vncle of the part of the Father hath no more of the Blood of the Mother than the Brother of the Second Venter The Brother by the second Venter hath the immediate Blood of the Father which the Vncle viz the Fathers Brother hath not but only as they meet in the Grandfather The Brother of the half Blood is nearer of Blood than the Vncle and therefore shall be preferred in the Administration And so it hath been resolved in 5 E. 6. in Browns Case and tho' the Book of 5 E. 6. B. Administration 47. mistakes the Law in preferring the Brother of the half Blood before the Mother yet it had been right in the case of a Competition between him and the Vncle. And yet the Vncle is preferred in the Discent before the Brother of the half Blood and the reason is because that is a mediate Discent mediante Patre but the Discent to the Brother must be immediate if at all and therefore the half Blood impedes it Again it is apparent that if in the Line between Brother and Brother the Law took notice of the Father as the Medium thereof the Brother by the second Venter should rather succeed the other Brother because he is Heir to his Father therefore in a Discent between Brothers the Law respects only the mediate relation of the Brothers as Brothers and not in respect of their Father tho' it is true the Bosom or Foundation of their Consanguinity is in the Father and Mother My second principal Reason is to prove that the disability of the Father doth not at all hinder the Discent between the Brothers immediate is this If the Father in case of a Discent between Brothers were such an Ancestor as the Law

Demurrer to the Replication Joynder in Demurrer 241 7. Debt upon a By-Law made by a Corporation by Prescription 243 The Declaration sets forth That the Town of G. is Antiqua Villa a Corporation time out of mind Power to implead and be impleaded A Custom to make By-Laws for good Government of the Corporation and to impose Penalties Custom to elect a Bayliff annually 243 The By Law sets forth Forfeiture for the Breach The Defendant elected Bayliff for the year then next following who refused to execute the Office per quod Actio accrevit The Defendant pleads the Act of 13 Car. 2. 244 The Act set forth 245 And alledges that he is and at the time aforesaid was a Protestant Dissenter and had not received the Sacrament according to the Rites of the Church of England with a year before his Election and that the said Election by virtue of the said Act was void The Plaintiff demurs The Defendant joyns 246 8. Debt for Rent upon two several Demises by Lease Parol 249 The first Demise Exception Habendum Reddendum Entry Rent arrear Actio accrevit 250 The second Demise Exception Habendum Reddendum Rent arrear Actio accrevit 251 The Defendant pleads That the Plaintiff Nihil habuit in tenementis tempore dimissionis it should have been temporibus demissionis ibid. The Plaintiff replies That before the several Demises one J. S. demised to him for 41 years the said J. S. having then full Power Right and Title to make such Demise by virtue of which he entred and was possest and demised to the Defendant 252 The Defendan demurs The Plaintiff joyns in demurrer 253 Distress and Avowry Vide Replevin E Error 1. ERror in the Exchequer Chamber The Style of the Court 286 The Writ of Error 287 The Return of the Writ The Memorandum and Declaration in a special Action of the Case for not grinding at an Ancient Mill. Seisin of the Mannor and Mill. The Plaintiff Farmer of the Mill habuit habere debuit the Toll 288 The Defendant Occupier of an Ancient Messuage which ought to grind at his Mill. That the Defendant erected a Hand-Mill and ground therewith ratione cujus the Plaintiff lost his Toll The Defendant imparles and pleads Not guilty 289 Postea Tales Verdict for the Plaintiff The Judgment The Placita in the Exchequer Chamber 190 The General Errors assigned A Scire facias ad audiendum Errores prayed and awarded The Defendant in the Writ of Error appears and pleads in nullo est Erratum 291 2. The Placita in the Exchequer Chamber The Writ of Error 296 The Return of the Writ The Placita 297 The Memorandum and Declaration upon an Inland Bill of Exchange The Custom set forth That any Merchant or other person vel Ordini suo super visum acceptavit sic per Indorsamentum appunctuaret pro valore recept ' c. Upon Refusal to pay the Merchant or other person to become chargable 298 Avers That the Defendant being a Merchant at N. drew a Bill upon one J. S. in London payable to one P. or Order for Value received The Bill presented to J. S. and accepted by him P. orders payment to the Plaintiff J. S. had Notice and the Money demanded of him but refused payment of which the Defendant had Notice 299 And became chargable and thereupon promised payment but tho' after requested non solvit 300 The Defendant Protestando that there is no such Custom for Plea says That one C. an Excise-man paid the Defendant the Money in question being the Kings Money to the intent that it should be paid to the King and the Defendant at C's request drew the Bill That C. was then indebted to the King prout per Record ' Scaccarij 301 That an Extent issued out thereupon ad inquirendum The Writ delivered to the Sheriffs of London An Inquisition taken by them 302 The Money and Bill of Exchange seised and returned into the Exchequer The King became Entituled An Extent issued out to the Sheriff of N. for the levying the Money and the Money paid thereupon Averment of una eadem persona 304 Et una eadem Billa Et una eadem Summa The Plaintiff demurs to the Plea especially Causes of demurrer The Defendant joyns in demurrer 304 Eleven Continuances 304 305 306 The Loquela and Proceedings revived by Act of Parliament 1 W. M. Judgment for the Plaintiff upon the demurrer A Writ of Enquiry awarded 306 The Inquisition return'd Damages found Judgment for the Plaintiff 307 Mill and Toll Vid. Error 1. Outlawry pleaded Vid. Action on the Case 8. Prerogative Process Vid. Action on the Case 3. Error 2. Trover 2. Quantum meruit Vid. Action on the Case 8. R Rent Vid. Debt 3. 8. Replevin 1. THe Plaintiff Declares for taking and detaining 8 Cows c. The Defendant acknowledges the taking as Bayliff to the Dean and Chapter of Canterbury 131 Sets forth that they are Lords of the Mannor of M. That J. S. was seized of the Locus in quo parcel of the said Mannor and held it of the Dean and Chapter by Fealty Rent and Suit of Court Sets forth a Custom for the Lord to have a year and an halfs Rent upon every Alienation and power to distrain for it Shews the Alienation and the Purchasers Entry and that there was so much due for a Fine by Custom and because the same was unpaid the Defendant distrained infra feodum c. 132 133 The Plaintiff demurs to the Conizance The Defendant joyns in demurrer 134 2. Against two Defendants One of which avows the other acknowledges the taking as Baily to the former 145 They set forth that long before the taking R.L. and L.L. were seized in Fee of the Locus in quo and by Deed granted an Annuity to the Ancestor of the Avowant and his Heirs issuing out of certain Lands of which the Locus in quo was parcel with power of Distress Conditionally to be void upon payment of 100 l on a certain day then to come which was not paid c. 146 147 And for six years Rent Arrear the Distress was made which the one Defendant bene advocat and the other bene cognoscit as in the Lands charged with the Distress The Plaintiff demurs to the Avowry and Conizance The Defendants joyn 148 3. The Plaintiff declares for taking his Colt c. 210 The Defendant avows for Damage fesant and sets forth that E. M. being seized in Fee demised the Locus in quo to the Avowant to hold at Will That he entred and was possest and took the Cold Damage fesant prays Judgment and a Return and Costs and Damages according to the Statute The Plaintiff pleads in Bar to the Avowry That E. M. demised the Locus in quo to him before the pretended Demise to the Defendant to hold for 6 years That he entred and was possest and that the Defendant took his Colt there absque hoc that E. M. demised to

cepisset seu cepissent Sacramentum Coenae Dominicae secundum ritus Ecclesiae Anglicanae quod quaelibet talis persona personae sic locata electa vel delecta vel locatae electae sive delectae similit ' caperet seu caperent praedict ' tria sacramenta subscriberent praed ' declaracon ' ad idem tempus quando Sacramentum ꝓ debita Execuc̄one dictorum locor ' officior ' respective administraretur Et in defalt ' inde quaelibet tal ' locatio elecco delecco per eundem Actum inactitat ' declarat ' existit fore vacua Et per eundem Actum ulterius inactitat ' existit authoritate p̄d ' quod potestates concess dictis Commissionariis Virtute ejusdem Actus continuarent essent in vigore usque vicesimum quintum diem Marcij anno Domini Millesimo sexcentesimo sexagesimo tertio non longius prout per eundem Actum plenius apparet Et idem Johannes Clarke ulterius dic ' quod ipse est tempore praed ' elecconis ipsius Johannis fore Balliv ' praed ' Villae de Guldeford ' in Narracone praed ' superius fieri supponit ' fuit ꝓtestan ' Subditus dict' domini Regis dominae Reginae nunc dissentiens ab Ecclesia Anglicana quodque ipse idem Johannes Clarke ad aliquod tempus infr ' The Defendant hath not taken the Sacrament within a year before his Election unum annum ꝓx ' ante tempus Eleccon ' ipsius Johannis fore Ballivum praed ' Villae de Guldeford ' praed ' per Narraconem praed ' superius fieri supponit ' non cepisser Sacramentum Coenae Dominicae secundum ritus Ecclesiae Anglicanae per quod vigore praed ' Statuti idem Johannes Clarke tempore Elecconis praed ' in Narracone praed ' superius fieri supponit ' So that he is become incapable of it fuit inhabil ' incapax fore eligend ' ad praed ' locum sive officium Ballivi Villae de Guldeford ' praed ' praed ' elecco ipsius Johannis fore Ballivum ejusdem Villae per Narraconem praed ' superius supponit ' vigore Actus praed ' fuit vacua Et hoc parat ' est verificare Unde pet ' Judicium si praedict ' Major ' probi homines de Guldeford ' praedict ' acconem suam praedict ' versus eum habere debeant c. The Plaintiff Demurrs Et praedicti Major probi homines Villae de Guldeford ' praed ' dicunt quod praedictum placitum ipsius Johannis superius in barram placitat ' materiaque in eodem content ' minus sufficien ' in lege existunt ad ipsos Major ' probos homines Villae de Guldeford ' p̄d ' ab accone sua praedicta versus praefat ' Johannem habend ' praecludend ' quodque ipsi ad placitum illud modo forma praedict ' placitat ' necesse non habent nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defectu sufficien ' placiti ipsius Johannis iidem Major ' probi homines Villae Guldeford ' praed pet ' Judicium debitum suum praedictum unacum dampnis suis occone detenconis debiti ill ' sibi adjudicari c. The Defendant joyns in Demurrer Et praedict ' Johannes ex quo ipse sufficien ' materiam in lege ad p̄d ' Major ' ꝓbos homines Villae de Guldeford ' praed ' ab accone sua praedict ' versus ipm̄ Johannem habend ' praecludend ' superius placitando allegavit quam ipse parat ' est verificare Quam quidem materiam praedict ' Major probi homines Villae de Guldeford ' praedict ' non dedic ' nec ad eam aliqualit ' respond ' set verificacon ' ill ' admittere omnino recusant pet ' Judicium Et quod praedict ' Major probi homines Villae de Guldeford ' p̄d ' ab accone sua praed ' versus ipsum Johannem habend ' praecludentur c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium indè reddant dies dat' est partibus praedict ' hic usque à die Sancti Michaelis in tres Septimanas de audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Major probi homines de Guldeford ' versus Clarke IN an Action of Debt by the Mayor and probi homines of Gildford against Clarke they declared upon a Prescription to make By-Laws ꝓ bono Regim ' Gubernac̄one Vill ' p̄d ' and that there has been an ancient Officer called a Bayliff of the said Town elected for time whereof c. upon the Monday next after Michaelmass Day and they set forth a By Law made That if any Inhabitant of the said Town should be duly Elected to the said Office of Bayliff and should refuse to take it upon him he should forfeit and pay to the Corporation 20 l And that after the said Law made viz. upon the 30th of September anno primo Willielmi Mariae the Defen-being then an Inhabitant and Freeman of the said Town was Chosen a Bayliff according to ancient Vsage for the year following and had Notice thereof but he refused to take upon him the said Office unde actio accrevit Major ' prob ' homin ' for Twenty pounds c. The Defendant pleaded Actio non for that by the Statute made 13 Cat. 2. for Regulating of Corporations it was amongst other things Enacted That after the determination and expiration of the Commission for Regulating of Corporations in the said Act mentioned no person or persons should for ever after be Chosen into any of the Offices or Places before mentioned in the said Act who within One year next before such Election had not Received the Sacrament of the Lord's Supper according to the Usage of the Church of England and that every person Elected should take the Oaths and subscribe the Declaration in the said Act mentioned at the same time as the Oath for the due Execution of the Office he is Elected to shall be Administred and in default thereof every such Election to be void And the Defendant further said That he is and at the time of the said Election he was a Protestant Subject of the King and Queen and a Dissenter from the Church of England and that he had not Received the Sacrament within a year before the said Election by reason whereof he was not capable to be Elected to the said Office and the Election by reason of the said Act was void hoc parat ' est verificare c. To this Plea the Plaintiffs Demurred In the Argument of this Case Sir John Read's Case was Cited who several years since was made Sheriff of Hertfordshire who was then under an Excommunication and so could not Receive the Sacrament and

B. for causing to be framed printed and published a Scandalous Libel Entituled c. thereby scandilizing of one C. D. Vpon Not guilty pleaded It appeared upon the Evidence that after the discovery of the Libel there were Warrants from the Lord Arlington Principal Secretary of State to search the Lodgings of the Defendant who was suspected to be the contriver of it where were found two of these Libels printed The Opinion of the Court was That this was no Crime within the Information though he gave no account how they came there 5 Co. 125. B. and the having of a Libel and not delivering of it to a Magistrate was only punishable in the Sarchamber unless the Party maliciously published it Anonymus Hob. 192 300 301. IF the Jury upon an Issue joyned in a Prohibition upon a Modus Decimandi find a different Modus yet the Defendant shall not have a Consultation for it appears he ought not to Sue for Tythes in Specie there being a Modus found Termino Sanctae Trinitatis Anno 21 Car. II. In Banco Regis Jurado versus Gregory THe Case was this There was a Contract of Malaga concerning the Lading of a Ship and for breach of this which was laid to upon be the Sea viz. That he would not receive 40 Butts of Wine into the Ship according to the Agreement there was a Libel in a Foreign Admiralty and Sentence that the Wine should be received into the Ship which being refused another Libel was commenced in the Admiralty here in England Reciting the former Sentence and charging the Defendant with the breach of it and a Prohibition was prayed because it appears the Contract was made upon the Land Vid. Latch 234. Against which it was objected by Finch Solicitor that where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here because all the Courts of Admiralty in Europe are governed by the Civil Law and are to be assistant one to another though the matter were not Originally determinable in our Court of Admiralty and for this he cited a Judgment 5 Jac. Rolls Tit. Courts Sect admiralty And this the Court agreed But here was no compleat Sentence in the Foreign Admiralty but only an Award that the Wine should be received and now for breach thereof he Sues here which is in the nature of an Original Suit and to have Execution of the Sentence and this ought not to be though the breach were at Sea it being of a Contract made upon the Land wherefore they granted a Prohibition The King Grants bona catalla felonum the Grantée shall not have Felons Debts nor bona catalla Felonum de se Anonymus A Conviction was certified of one for carrying of a Gun not being qualified according to the Statute where the words in the Statute are Upon due Examination and proof before a Justice of the Peace The Court resolved That that was not intended by Jury but by Witnesses and no Writ of Error lies upon such Conviction And an Exception was taken because it was before such an one Iustice of the Peace without adding Nec non ad diversas Felonias Transgressiones c. audiend assign ' And the Court agreed so it ought to be in Returns upon Certiorari's to remove Indictments taken at Sessions But otherwise of Convictions of this nature for 't is known to the Court that the Statute gives them Authority in this Case The King versus Benson IN an Information against him for Extortion an Issue was joyned the day the Jury were returned and the King sent a Writing under his Sign manual to Sir Thomas Fanshaw Clerk of the Crown to enter a Cesser of Prosecution And Palmer Attorney General affirmed that the King might stay proceedings yet notwithstanding the Court proceeded to swear the Jury and said they were not to delay for the great or little Seal whereupon the Attorney entred a Noli prosequi Anonymus TRover against Baron and Feme and laid quod ad usum proprium converterunt and it was alledged proprium might be applied only to the Husband so also if it had been ad usum suum But the Court held neither had been good so it was prayed that Judgment might be entred quod Querens nihil capiat per billam For if it had been quod Defendens eat inde sine die the Plaintiff could not have brought an Action de novo Note A man is Outlawed in Middlesex A Capias utlagatum may be sued out against him into any other County without a Testatum Anonymus IN Trespass the Defendant justifies by reason of Common in the place where for Cattel Levant and Couchant upon his Land and doth not aver the Beasts were Levant and Couchant This is aided after a Verdict A Judgment in Debt is had in the Kings Bench and a Writ of Error is brought it still remains a Record of the Kings Bench and an Action of Debt may be brought upon the Judgment In a Writ of Error if the Defendant dyed the Writ is not abated Otherwise if the Plaintiff die And the Secondary informed the Court of a Case betwéen Sir H. Thyn and Corie where a Scire facias ad audiend Errores went against the Executors when the Defendant in the Writ of Error dyed Note The Exchequer Chamber doth not award a Scire facias ad audiend Errores but notice is given to the Parties concerned Skirr and Sikes IN Trespass upon the Stat. of 8 H. 6. the Plaintiff had Iudgment It was moved whether a Writ of Error would lie of this into the Exchequer Chamber For though Trespass be one of the seven Cases where the Statute gives it yet it might intend Common Trespasses only and not where the Action is founded upon a Statute as Actio de Scandalis Magnatum is not within the Statute And the Court would advise Cabell and Vaughan 5 Co. Whelphdales Case He cannot plead non est factum IN an Action of Debt upon a Bond against one and it appears another was joyntly bound with him wherefore the Defendant Demurrs But it was adjuged for the Plaintiff for the Defendant cannot Demurr in such case unless the other Obligor be averred to be living and also that he sealed and delivered the Bond 3 Cro. 494 544. Ascue and Hollingworth's Case 28 H. 6. 3. And if one be bound to two one Obligee cannot Sue unless he Averrs the other is dead In B.R. 1651 1068. Levit Staneforth Perries Case IN an Information of Forgery against him there was a Mis-trial And it was moved That this was aided by the Statute of 21 Jac. the general Purview whereof is extended to any Action Suit Bill or Plaint Then there is a Proviso which excepts Indictments and Informations upon Penal Statutes and this being an Information at Common Law was not within the Proviso and it may be taken within the word Suit for it is Secta Domini Regis But the Court held it not

Grant recites the former Settlement which Grant was without Consideration And Secondly makes a Feoffment And it was Resolved that the Grant should not hinder the arising of the Contingent Use because the Grantee had Notice and was therefore subject to the Covenant to stand seized by the Grantor and that the Feoffment should not destroy the Contingent Estate because the right of Remainder for Life in the Daughter upon which she might have entred for the Forfeiture did support it tho' indeed the Remainder for Life in the Wife would not for the Feoffment by the Husband tolls her Right during the Coverture cui contradicere non potest upon which reason is Biggot and Smiths Case adjudged 3 Cro. Now this is stronger than the Case at Bar because the Settlement was by way of use but here Act executed The Case of my Lord Cooke was adjudged by Roll in Banco Regis and after by Glyn. It hath béen the most common way of Conveyancing to prevent the disappointing Contingent Estates to make Feoffments c. to the use of the Husband c. for Life Remainder to the use of the Feoffees for the Life of the Husband and so on to Contingent Remainders and the more modern ways have béen to make the first Estate but for years but in both Cases he which hath the first Estate cannot destroy the Remainders It hath been a question Whether a right of Action would support a Contingent Estate but never doubted but that a right of Entry would Vid. Archers Case 1 Co. Katherin Austins Case AN Indictment was found against her that she vi armis a certain part of the Kings High-way leading from Shorditch Church to Stoke Newington thorough Hogsdon postibus repagulis inclusit c. Vpon a Tryal at Bar the principal question was Whether the place where the obstruction was were an High way Hale said If a way lead to a Market and were a way for all Travellers and did communicate with a great Road c. it is an High-way but if it lead only to a Church to a Private House or Village or to Fields there 't is a Private way But 't is a matter of Fact and much depends upon Common Reputation If it be a publick way of Common right the Parish is to repair it unless a particular person be obliged by Prescription or Custom Private ways are to be repaired by the Village or Hamlet or sometimes by a particular person In the Case at Bar it was found no High-way Ante. Castilian versus Platt ERror of Judgment in Communi Banco in Scire facias against three Executors the Error assigned was that one was an Infant Hale No doubt a Scire facias lies against him and seeing this case is that he did not appear Iudgment was well given against him Symon Morse versus Willam Sluce MIchael ' ult Rot. 421. An Action upon the Case was brought by the Plaintiff against the Defendant and he declared that whereas according to the Law and Custom of England Masters and Governours of Ships which go from London beyond Sea and take upon them to carry Goods beyond Sea are bound to keep safely day and night the same Goods without loss or substraction ita quod pro defectu of them they may not come to any damage and whereas the 15 of May last the Defendant was Master of a certain Ship called the William and John then riding at the Port of London and the Plaintiff had caused to be laden on Board her three Trunks and therein 400 pair of Silk Stockings and 174 pound of Silk by him to be transported for a reasonable reward of Fraight to be paid and he then and there did receive them and ought to have transported them c. but he did so negligently keep them that in default of sufficient care and custody of him and his Servants 17 May the same were totally lost out of the said Ship Vpon Not guilty pleaded a Special Verdict was found viz. That the Ship lay in the River of Thames in the Port of London in the Parish of Stepney in the County of Middlesex prout c. That the Goods were delivered by the Plaintiff on Board the Ship prout c. to be transported to Cadiz in Spain That the Goods being on Board there were a sufficient number of Men for to look after and attend her left in her That in the night came 11 persons on pretence of pressing of Seamen for the Kings service and by force seized on these Men which were 4 or 5 found to be sufficient as before and took the Goods That the Master was to have Wages from the Owners and the Mariners from the Master The She was of the Burden of 150 Tunn c. So the question was upon a Tryal at Bar whether the Master were chargeable upon this matter It was insisted on for the Plaintiff that he who took Goods to carry them for profit ought to keep them at his peril To which it was answered That there was no negligence appeared in the Master By the Civil Law if Goods were taken by Pirates the Master shall not answer for them and this is not the Case of a Carrier for tho' here the Goods are received at Land yet they are to be transported and being one intire Contract they shall not be under one Law in the Port and another at Sea the Master is not liable in case of Fire or Sinking the Ship Owen 57. every one knows the Ship is liable to inevitable accidents and there is no Case of this nature in experience And Serjeant Maynard added that this differed from the case of a Carrier for that he is paid by the Owner of the Goods but here the Master is Servant to the Owner of the Ship and he pays him and not the Merchant The Court inclined strongly for the Defendant there being not the least negligence in him but it was appointed to be Argued but since I 've heard it was compounded It was agreed on all hands that the Master should have answered in case there had been any default in him or his Mariners Anonymus UPon a motion for Restitution after the Reversal of an Outlawry Hale said that he must plead the Reversal to the seisure in Scaccario Puckle versus Moor. MIchael ult Rot. 461. A Promise was made seven years since to pay Money within three Months after The Defendant pleaded Non Assumpsit infra sex annos ante exhibitionem Bille whereas it should have béen causa Actonis non accrevit infra sex annos tho' in this case it appears within the Declaration that the time of payment was not within six years before yet because the Defendant had not pleaded it he cannot have advantage of it Goff versus Loyd MIchael ult Rot. 268. Trespass quare domum fregit and took away so many Nails c. The Defendant pleads Specially and sets forth the two Acts for Hearth-Money 14 Car. nunc cap. 10. and 16

But since H. 8. time it had béen for the most part administred by the Dean and Chapter and the Verdict was here for the Dean and Chapter King versus Melling IN an Ejectment upon a Special Verdict the case was this R. Melling seized in Fee having Issue four Sons William Robert Bernard and John devised the Land in question in this manner I give my Land to my Son Bernard for his natural Life and after his decease I give the same to the Issue of his Body lawfully begotten on a second Wife and for want of such Issue to John Melling and his Heirs for ever Provided that Bernard may make a Joynture of all the Premisses to such second Wife which she may enjoy during her Life R.M. dies Bernard in the life of his first Wife suffered a Recovery to the use of himself in Fee and after her decease Marries a second Wife and then by Indenture covenants to stand seized to the use of himself for Life and after to the use of his Wife for her Life for her Joynture and dies J.M. Enters and makes a Lease to the Plaintiff And this Term after Arguments at the Bar the Court gave their Opinions Rainsford for the Plaintiff First I hold in this Case that B. M. takes but an Estate for Life with a Contingent Remainder to the Issue by his second Wife for the Devise is by express words for Life as in Archers Case 1 Co. a Devise to R. A. for Life and after to the next Heir Male of R. and the Heirs Males of that Heir Male Resolved to create but an Estate for Life to R. A. I rely mainly upon Wilds Case 6 Co. which was brought before all the Judges of England where the Devise was to a Man and his Wife and after their decease to the Children and resolved to be but an Estate for Life 't is true there were Children at the time of the Devise but in the end of the Case 't is said that in such Case if there were no Children the Children born after might take by remainder and the first Estate to be but for Life Clerk v. Day 1 Cro. 313. the Devise was to Rose his Daughter for Life and that if she married after his Death and had Heir of her Body then that the Heir after his Daughter's Death should have the Land and to the Heirs of their Body begotten and if his Daughter died without Issue then to a Stranger It was held by Gawdy and Fenner that Rose had but an Estate for Life in this Case 1 Rolls 837. Devise to his eldest Son for Life and after his decease to the Sons of his Body lawfully begotten the Son resolved to have but an Estate for Life The Second point Whether the power to make a Joynture be destroyed by the Common Recovery these powers to make Estates are of two sorts either Collateral as when Executors have power by a Will to sell Land and such a power cannot be destroyed as appears in Diggs's Case 1 Co. or powers appendant to Estates as to make Leases which shall continue after the Estates to which the power is annexed determins and the power in the Case at Bar to make a Joynture are of this second sort and are destroyed by the alteration of the Estate to which it is annexed in privity as 1 Co. Albany's Case is so that the Common Recovery being a Forfeiture of the Estate for Life by consequence 't is an extinguishment of the power Thirdly But admitting the power continues whether it be well executed and I hold that it is not for being seized in Fee at the time of the Covenant to stand seized to the use of his Wife for her Joynture and this without any reference to his power the use shall arise out of his Interest and not be executed by vertue of his power according to the resolution in Sir Ed. Cleeres Case 6 Co. Twisden of the same Opinion As to the first Point it must be agreed that these words Issue of the Body ex vi termini make not an Entail if they were in a Conveyance by Act executed no more than Children as the words were in Wilds Case 'T is true in a VVill a Devise of Land to a Man and his Issue creates an Entail if the Devisee had no Issue at that time for otherwise those words would be void for in regard they are limited to take presently the Issue born after cannot take as by Remainder there being none to take in praesenti they must be intended to be words of Limitation as a Devise to a Man and his Heirs Males makes an Entail or otherwise the word Males must be rejected then seeing the words in themselves are not proper to make an Entail the next thing to be considered is the intention which is to be known by the expressions in the VVill and not any averment dehors the words are J will give my Land to my Son for Life and after his decease I will give the same to the Issue c. so that the Land is given to him expresly for Life Devise of Land in perpetuum makes Fee but if Land be given by Deèd in perpetuum there an Estate only for Life will pass 15 H. 7. A Devise to one paying 10 l this is a Fee 6 Co. Coliers Case But a Devise to one for Life paying 10 l makes but an Estate for Life the Case of Furse and VVinter was Mich. or Trin. 13 Regis Caroli Rot. 1339. A Devise to his two Daughters equally to be divided between them and to the Survivor of them and to the Heirs of the Body of the Survivor This was so expresly to the Surviror that it was resolved to be a Joynt Estate and not in Common The words here are after the decease of Bernard I give the same to the Issue of the Body c. implying that the Issue should take by Purchase as a Gift and not by Descent Again The power given to Bernard to make a Joynture shews that he could not do it by Virtue of his Estate and therefore needed a power to be annexed And tho' such powers are usually affixed to Estates Tail yet when the construction is doubtful what Estate shall pass the giving such a power is an argument that 't is such an Estate that cannot make a Joynture or the like by any other means The words go further and for want of such Issue then to J.M. 'T is true if Land be devised to a Man and if he dies without Issue then to remain over the Devisee shall have an Entail Owen 29. But it shall not be so in this Case because that Clause is crowded in with other Clauses directly to the contrary I rely mainly upon VVilds Case 6 Co. and the Case quoted out of Bendlowes in the end of that Case A Devise to Baron and Feme and to the Men Children of their Bodies begotten because it did not appear that there were any more Children at

for payment of so much for being Buried in the Body of the Church and a Prohibition was prayed suggesting that there was no such Custom The Court held such a Custom must be good because the Parish is to be at the charge to make up the Church Floor but if the Custom be denied it must be tried at Law And therefore inclined that a Prohibition was to go tho' it was objected that this duty belongs properly to the Ecclesiastical Court and no remedy for it elsewhere for so is the Case of a modus decimandi which may be demanded in the Spiritual Court but if the Custom be denied there shall be a Prohibition and so the case of a Mortuary since the Statute of H. 8. And it afterwards being moved again Hale Chief Justice being present the Prohibition was granted Which Hale said was sometimes granted pro defectu Jurisdictionis and sometimes pro defectu Triationis as in this case and others where the ground of the Suit is Prescription for in their Law they have sometimes allowed Prescriptions of 20 years sometimes of 40 years but we admit none but what are de temps dont c. St. John versus Moody IN an Action upon the Case the Plaintiff declared That he was possessed of a Wood and that he had a way leading from such a place to the said Wood and that the Defendant had obstructed it Vpon not Not guilty it was found for the Plaintiff and moved in Arrest of Judgment that the Plaintiff had not set forth his Title to the way whether by Prescription or otherwise and this ought to be that the Defendant might be ascertained what to make defence unto Also 't is proper to the nature of an Action upon the Case to set forth the Case at large Curia contra The Action here is grounded upon the Possession indeed if Trespass were brought by the owner of the Soil in a justification for a way 't is necessary to express by what right 't is claimed but this for ought appears may be against a Stranger In Assize for a Rent against the Terre-tenant he may demand Judgment whether he ought to answer before Title made otherwise of an Assize brought against the Pernor of a Mans Rent Where 't is pleaded that the Party ought to keep the Fence it sufficeth to say occupatores reparare consueverunt for in Truth the greatest part of the Enclosures in England have been within time of Memory The Writ of Curia claudenda is only quod debet solet 't is true before 7 Jacobi the usage has been in Actions of this nature to prescribe but not since Vid. 2 Cro. 43 123 3 Cro. 499 575. Sands and Trefuses Case and 325 Symonds and Seabourn Whereupon Iudgment was given for Plaintiff Note This Case was afterwards affirmed upon a Writ of Error in the Exchequer Chamber Drue versus Baily THe Case was an Executor had a Term and let part of it reserving a Rent and made his Executor and died The question was Whether the Executor should have the Rent or the Administrator de bonis non And it was held that the Executor should have it Bell versus Thatcher IN Error upon a Judgment given in the Court of Common Pleas where the Plaintiff in an Action upon the Case declared That he had been retained by the under Postmaster to carry about post Letters of which he made a profit and had behaved himself honestly in that Employment And that the Defendant to defame him said He had broken up Letters and taken out Bills of Exchange which brought him to such discredit that he lost the said Employment And Iudgment was given for the Plaintiff and Error assigned upon the matter for that the words do not import but that he might break open the Letters by the direction of those to whom they were directed neither do they express that they were Post Letters and the innuendo will not help it unless there had been such a signification in the words Neither is it such an Employment that an Action should lie for Scandalizing Also the Plaintiff does not declare that he was retained for above a year and seems to be little more then a Common Porter And for these reasons by the Opinion of the Court the Iudgment was reversed and Hale principally from the quality of the Employment for he said a Man should not speak disparagingly of a mans Cook or Groom but an Action would be brought if such Actions as these should be maintained Anonymus IN an Action for words the case was that the Defendant speaking to the Plaintiff said thus I know my self and I know you I never buggered a Mare And the Opinion of the Court was that the words were Actionable or else there might be sly ways to defame any Man and evade an Action Hodgkins versus Robson and Thornborow IN Debt for Rent The Defendants pleaded in Bar to the Action that the Plaintiff had entred into a Back-yard part of the Land demised by Force and Arms c. The Plaintiff replied that he ought not to be foreclosed of his Action for that the Defendant had let that Back-yard to J.S. for a lesser Term reserving no Rent and that J. S. entred and after assigned unto the Plaintiff c. which is the same Entry in the Bar. The Defendants rejoyns that J. S. did not enter to which it was demurred And after it was several times spoken to at the Bar Iudgment was given this Term by the whole Court for the Plaintiff viz. Hale Chief Justice Twisden Rainsford and Wild. And First They all held that as the pleading was in this case there could be no Apportionment of the Rent for when there is to be an Apportionment either the Jury shall do it upon nil debet pleaded or the Defendant may in his pleading set forth the value of the Land and to what the Apportionment shall be Hale said if the Lessee redemise part to the Lessor reserving a Rent there shall be no Apportionment for the parties by the Reservation have ascertained what Rent shall be allowed for that part but where there is no Rent reserved upon the Redemise there shall be an Apportionment but if part be assigned by the Lessee to a Stranger who Assigns it to the Lessor and the Lessee had reserved no Rent in that case there shall be no Apportionment for the Lessor comes under the benefit of the Strangers Contract And Hale resembled it to the Case of Lord and Tenant by an entire Service if such Tenant aliens part the Service is multiplied and after it be conveyed to the Lord the entire Service still remains upon the Tenant that holds the residue A Rent upon a Lease is not within the Statute of Quia emptores terrarum yet in many Cases there shall be an apportionment at Common Law If the Lessor enters into part by Wrong this shall suspend the whole Rent for in such case he shall not so apportion his

George because being descended from an Alien the Law takes no notice of them as to this purpose otherwise 't is if the said Nicholas had been a Denizen born and Attainted because in such a case though he could not take himself by Discent he could obstruct the Discent to the younger Brother so the Land would Escheat Thirdly That the Case of George the Son naturalized and the Case of John his Son as in reterence to John the Earl and the Discent from him will be all one if George had survived him John the Earl might have inherited so will John his Son who jure Representationis is the same with his Father Et è Converso These things being unquestionably to be admitted before I come to the Argument of the Case I shall premise certain General Observations First Touching Discents Secondly Touching the Capacities of Incapacities of an Alien Thirdly Touching Naturalizations Touching Discents I shall consider First The Rule whereby they are to be Governed Secondly The various kinds of Discents or hereditary Successions Concerning the Rule of Discents we must not govern our selves therein by the General Notions of Law or Proximity of Nature but by the Principal Laws of the Country where the Question ariseth for the various Countries have variously disposed the manner of Discents even in the same Law or Degree of Proximity For Instance The Father is certainly as near of Kin to the Son as the Son is to the Father and is nearer in Proximity than a Brother and therefore shall be preferred as next of Kin in an Administration 3 Rep. Ratcliffs Case Yet touching the Succession of the Father to the purchase of his Son the Laws of several Countries variously provide First According to the Jews for want of Issue of the Son the Father succeeds excluding the Brother and that hath been the Vse and Construction of the Jewish Doctors upon Number 27. Selden de Successionibus Hebr. Cap. 12. But the Mother was wholly excluded Secondly According to the Greeks the Provision for the Succession of the Father is left doubtful Petit Leges 1 6. fol. 6. According to the Romans or Civil Law by the Construction of the Law of the Twelve Tables the Father succeeds in the purchase of the Son for want of Issue of the Son under the Title of Proximus Agnatus and accordingly was their Vsage tho' my Lord Coke supposed the contrary Co. Lit. 5. But to settle all the Institutes of Justinian Lib. 3. Tit. 3. in an Authentick Collection 8. Tit. de Haered ' ab intestato venientibus the Son dying without Issue his Brothers and Sisters Father and Mother do succeed him in a kind of Coparcenary as well to Lands as Goods According to the Customs of Normandy which in some things have a Cognition with the Laws of England the Son dying without Issue his Brothers are preferred before the Father but the Father is preferred before the Vncles Terrien lib. 6. c. 6. la Customier de Normandie cap. Descheants 5. According to the Laws of England the Son dying without Issue or Brother or Sister the Father cannot succeed but it descends to the Vncle. And it is a Maxim of the English Law An Inheritance cannot Lineally ascend Consequently the Question being in this Case touching a Discent of Lands in England it must be Ruled and Disputed according to the Grounds and Reasons of the Laws of England Secondly Touching the Second the Division of Discents are of two kinds First Lineal as from the Father or Grandfather to the Son or Grandson Secondly Collateral or Transversal as from Brother to Brother Vncle to Nephew or è converso And both these are again of two sorts First Immediate as in Lineals from Father to Son Secondly Mediate as in Lineals from Grandfather to Grandson the Father dying in the Life of the Grandfather when the Father is the medium differens of the Discent Thirdly In Collaterals from the Vncle to the Nephew or from the Nephew to the Vncle where the Father is likewise the medium differens And I call this a Mediate Discent tho' as to many purposes it be Immediate for the Father dying in the Life of the Grandfather the Son succeeds in point of Discent of the Laws immediately to the Grandfather and in a Writ of Entry shall be supposed in the Per to the Grandfather and not in the Per and Cui But I call it a Mediate Discent because the Father is the medium through or by whom the Son derives his Title to the Grandfather Therefore if any man thinks the term of Mediate Discent not properly used he may if he please use the words of Mediate or Immediate Ancestors Words are imposed to signifie Things and therefore the Terms being explained what I mean by them I shall retain the Terms of Mediate or Immediate Discents This distinction of Discents or Relations between Ancestor and Heir and Hereditary Succession will be of use throughout this whole Debate In Immediate Discents there can be no Impediment but what arises in the parties themselves For Instance The Father seised of Lands the Impediment that hinders the Discent must be either in the Father or the Son as if the Father or the Son be Attaint or an Alien In Immediate Discents a Disability of being an Alien or Attaint in him that I call a medius Ancestor will disable a person to take by Discent tho' he himself hath no such Disability For Instance In Lineal Discents If the Father be Attaint or an Alien and hath Issue a Denizen born and dies in the life of the Grandfather the Grandfather dies seised the Son shall not take but the Land shall Escheat In Collateral Discents A. and B. Brothers A. is an Alien or Attainted and hath Issue C. a Denizen born B. purchaseth Lands and dies without Issue C. shall not inherit for A. which was the Medius Ancestor or medium differens of this Discent was incapable Dyer 274. Gray's Case And this is apparent in this very Case for by this means Patrick tho' a Denizen and the Son of an Elder Brother is disabled to inherit the Earl A. and B. Brothers A. is an Alien or person Attainted and hath Issue C. and dies and C. purchaseth Lands and dies without Issue B. his Vncle shall not inherit for the Reason before-going for A. is a Medius which was disabled This is Courtney's Case And if in our Case Patrick the Son of Nicholas altho' a Denizen born had purchased Lands and died without Issue John his Vncle should not have Inherited him by reason of the Disability of Nicholas and yet Nicholas himself had he not been an Alien could not immediately have Inherited to his Son but yet he is a Block in the way to John See the Reason 17 E. 4. cap. 1. But this must be intended of such as are absolute Impediments as Attainder or Alien not Temporary suspensions As in the Lord Delaware's Case in 10 Co. But in any Discents the Impediment of

an Ancestor that is Medius Ancestor between the persons from whom and to whom will not impede the Discent The Grandfather and Grandmother both Aliens or Attaint of Treason have Issue the Father a Denizen who hath Issue the Son a Denizen the Son shall be Heir to the Father notwithstanding the Disability of the Grandfather For they are not Medii antecessores between the Father and the Son but Paramount and yet all the Blood the Father hath he derived from his disabled Parents And this Observation states in effect the Case For if the Discent between Brothers be an Immediate discent and that the Father be not Medius antecessor between them then the Disability in Robert will not impede the Discent of George his Brother or to John his Brother's Son But if it be a Mediate discent and the Father be a Medius antecessor between them then the Disability in Robert the Father may impeach the Discent The Second Term to be explained is that disabling Term of an Alien and to consider what Disability ariseth from it The Law that is the Rule of Discents in England is also the measure of this Nonability and is the only Rule that must determine how far it extends Therefore I consider what Disability the Law doth induce in case of an Alien It doth not hinder but that an Alien is of the same Degree and Relation of Consanguinity as in the like cases of a Denizen born The Son Father and Brother tho' Aliens are yet Son Father and Brother as Natural born Subjects and so taken notice of in our Law In Cro. Car. Carroon's Case he shall be preferred in Administration as next of Kin. Secondly What the Law doth do as to Disabilities of an Alien And this is of two kinds First the Disability that is Personal or Original to the Alien himself in reference to Inheritance Tho' he may take by Purchase by his own Contract that which he cannot retain against the King yet the Law will not enable him by Act of his own to transfer by Hereditary discent the Alien dying having since a Denizen born the Land will not descend Or to take by an Act in Law for the Law quae nihil frustra will not give an Inheritance or Freehold by Act in Law for he cannot keep it And therefore the Law will not give him 1. Discent 2. Courtesy 3. Dower 4. Guardianship And in respect of this Incapacity he doth resemble a person Attaint yet with this difference the Law looks upon a person Attaint as one that it takes notice of And therefore the eldest Son Attaint over-living his Father tho' he shall not take by Discent in respect of his Disability yet he shall hinder the Discent of the younger Son But if the Eldest Son be an Alien the Law takes no notice of him and therefore as he shall not take by Discent so he shall not impede the Discent to his younger Brother 32 E. 3. Cousenage 5. A consequential Consecutive Disability that reflects to an Alien from one that must derive by or through him tho' he perchance be a Natural born Subject As in our Case tho' Patrick the Son of Nicholas be a Natural born Subject yet because Nicholas his Father was an Alien there is a Consecutive Impediment derived upon Patrick whereby he is Consequentially disabled to Inherit John his Vncle and this Consecutive Disability is parallel to that which we call Corruption of Blood which is a Consequent of Attainder If the Father be Attainted the Blood of the Grandfather is not Corrupted no nor the Blood of his Son tho' he could not inherit him but only the Blood of the Father But that Corruption of Blood in the Father draws a Consequential Impediment upon the Son to inherit the Grandfather because the Fathers Corruption of Blood obstructs the transmission of the Hereditary discent between the Grandfather and the Son And here we must take notice of a great diversity between a Disability in the Blood and a Bar. Cro. Car. 16. Edwards and Rogers's Case William Rogers was seised of a Reversion in Fee Andrew his Vncle levies a Fine with Proclamations and dies having Issue John who dies leaving Issue William then William Rogers dies without Issue Ruled that William the Grandson of Andrew shall inherit notwithstanding the Fine of his Grandfather and the Reason is because William Rogers dying after Andrew the Estate never passed through Andrew and consequently William the Grandson claiming from William is in effect a Stranger to the Fine of Andrew and may aver that Partes c. But in that Case had Andrew been an Alien or Attaint then had William his Grandson been disabled to have inherited William by the Consecutive Disability Now in the Case at Bar there is first no doubt but that John the Earl and George were Brothers tho' they continued Aliens neither is there any question that they could not have inherited one the other had they continued Aliens neither is there any question whether that Personal Disability be removed by the Naturalization But the Question is Whether any Consequential or Consecutive Disabilities do result upon them from their Father Roberts being an Alien which may disable the one Brother to Inherit tho' there Personal disability be removed I come now to the Explication of the Third Term viz. the Restoring or Enabling Term Naturalization The Means of removing Disabilities of this kind are two A temporary partial and imperfect amotion thereof Letters Patents of Denization which tho' it puts the Person Denized as to some purposes in the Condition of a Subject and enables a Transmission Hereditary to his Children born after the Denization yet it doth not wholly remove the Disease or Nonability as to the point of Discents or Hereditary Transmission and resembles a Pardon in case of an Attainder And therefore in Lineal Discents if there be Grandfather a Natural born Subject Father Alien Son Natural the Father is made Denizen he shall not inherit the Grandfather and if the Father dies in the life of the Grandfather the Grandchild tho' born after the Denization doth not remove either the Personal or the Consequential Impediment or Incapacity of the Father In Collateral Discents the Father a Natural born Subject hath Issue two Sons Aliens who are both made Denizens and one dies without Issue the other shall not inherit him This was agreed in Godfrey and Dixon's Case hereafter cited The Second is more deep viz. Naturalization According to the Laws of Normandy they may Naturalize but such Naturalization shall not divest a Discent already vested Terrien lib. 2. cap. 12. But according to our Law it can only be by Parliament and not otherwise And this cures the Defect and makes them as if they had been Born in England and no man shall be received against an Act of Parliament to say the contrary and therefore if the Father an Alien hath Issue a Son born here and then the Father is Naturalized the Son shall

hujus regni qui Missam frequentant vel audiunt per Statut ' hujusmodi regni Angliae inde edit ' provis ' inferre causare octavo die Decembr ' Anno Domini Millesimo sexcentesimo octogesimo octavo apud Hunt ' praedict ' in Com' Hunt ' praed ' Colloquium habens cum quodam Thoma Waddington tunc Servien ' Colloquium ipsius Lionelli in aperto publico Mercato ibidem tunc tent ' de concernen ' eodem Lionello Religione sua de ejus existen ' un ' Burgens ' Of the Plaintiff and of his being a Member of Parliament sive Membr ' Parliament ' praed ' pro Villa de Hunt ' praedict ' in praesentia auditu quamplurimarum person ' in eodem publico Mercato adtunc ibidem congregat ' praesen ' existen ' haec falsa ficta scandalosa Anglicana verba sequen ' praefat ' Thomae Waddington servien ' ipsius Lionelli tunc ibidem existen ' de eodem Lionello falso malitiose palam ꝓublice dixit retulit propalavit alta voce publicavit pronunciavit videlicet Your Master ipsum Lionellum innuendo is a Papist The first words when he ipsum Lionellum innuendo is at home he ipsum Lionellum iterum innuendo goes to Church but when he ipsum Lionellum iterum innuendo is at London he ipsum Lionellum iterum innuendo goes to Mass Missam in Ecclesia Romana performat innuendo Sir Iohn Cotton quendam Johan ' Cotton de Stratton in Com' Bedf. Baronet ' al' Burgens ' sive Membr ' Villae de Hunt ' praedict ' in Parliamento praedict ' innuendo and he ipsum Lionellum iterum innuendo were both Pensioners ipm̄ Johan ' Cotton Lionellum penc̄ones habere de praedict ' nuper Rege Carolo secundo ad consentiend ' voces suas dand ' in Parliamento pro confeccone legum statut ' in oppressione subdit ' ipsius nuper Regis innuendo all the time of the Long Parliament praedict ' Parliament ' in quo idem Lionellus praedict ' Johannes ut praefertur fuerint Burgens ' sive Membr ' innuendo praedictusque Johan ' ex ulteriori malitia sua postea scilicet eisdem die anno ult ' menconat ' apud Hunt ' praedict ' super quod ' al' Colloquium adtunc ibidem habit ' cum praedict Ex ulteriori malitia Thoma Waddington adtunc ibidem Servien ' ipsius Lionelli existen ' de concernen ' eodem Lionello Religione ipsius Lionelli de suo existen ' un ' Burgens ' sive Membr ' Parliamenti praedict ' pro Villa de Hunt ' praed ' in praesentia auditu quamplurimarum aliarum person ' in publico aperto Mercato ibidem assemblat ' existen ' ad intencon ' praedict ' haec alia falsa ficta scandalosa Anglicana verba sequen praed Thoma Waddington adtunc ibidem Servien ' ipsius Lionelli ut praefertur existen ' de eodem Lionello falso malitiose palam publice dixit retulit asseruit alta voce publicavit pronuncavit videlicet Your Master ipsum Lionellum cujus Servien ' Other words praed ' Thom ' ut praefertur tunc fuit innuendo is a Papist when he ipsum Lionellum iterum innuendo is in the Country he ipsum Lionellum iterum innuendo goes to Church but when he ipsum Lionellum iterum innuendo is at London he ipsum Lionellum iterum innuendo goes to Mass ipsum Lionellum ad audiend ' Missam in Ecclesia Romana performat ' ivisse innuendo Sir Iohn Cotton praedict ' Johan ' Cotton ' iterum innuendo and he ipsum Lionellum iterum innuendo were both Pensioners all the time of the Long Parliament Quorum quidem falsorum fictorum scandalosorum malitiosorum verborum diccon ' propalacon ' praetextu idem Lionellus non solum in bonis nomine reputacone fama suis praedict ' gravit ' laesus deteriorat ' est verum etiam diversas grandes denar ' sum ' pro sedacone quamplurimorun falsorum rumorum de ipso Lionello sparsor ' expendere diversos corporis sui labores subire coact ' compulsus fuit ad dampnum ipsius Lionelli ducent ' libr ' inde produc ' sectam c. Et praedict ' Johannes ꝓ Richardum Lee Attorn ' suum ven ' The Defendant pleads Not guilty defend ' vim injur ' quando c. Et dic ' quod ipse in nullo est culpabilis de praemissis superius ei imponit ' modo forma prout praedict ' Lionellus superius versus eum queritur de hoc pon ' se super patriam praedict ' Lionellus similitur Ideo Praecept ' est Vic' quod Venire fac ' hic à die Sanctae Trinitatis in tres Septiman ' duodecim c. per quos c. Et qui nec c. ad recogn ' c. quia tam c. Sir Lionell Walden versus Mitchell THe Plaintiff Declared in an Action for Words That he was a true professor of the Protestant Religion according to the Reformation and Laws of England and that he had been a Member of the Parliament begun the 8th of May 13 Car. 2. and that the Defendant premissor ' non ignarus 8 Decemb. Anno Domini 1688. having discourse of the Religion of the said Plaintiff and of his having served in the said Parliament said to T. W. Servant of the Plaintiff your Master is a Papist when he is at Home he goes to Church but when he is at London he goes to Mass Sir John Cotton and he were both Pensioners innuendo that the said Sir John Cotton and the Plaintiff received Pensions of King Charles the Second for giving their Votes in Parliament for Laws and Statutes in oppression of the People at the time of the long Parliament innuendo the Parliament in which the Plaintiff and Sir John Cotton served and upon not Guilty pleaded a Verdict was found for the Plaintiff It was moved in Arrest of Iudgment that none of these words were Actionable 1 Leon 336. To call a Man Papist said by Wray Chief Justice there that it is not Actionable unless spoken of a Bishop so in Savage and Cooks Case 1 Cro. 192. T is true where spoken of a Person in some eminent Office t is otherwise as Sir John Knightlies Case who was a Justice of Peace and Deputy Lieutenant Hill 33 34. Car. 2. in C. B. rot 1518. He had Iudgment in an Action for calling of him Papist and it was affirmed in a Writ of Error brought in B.R. And the Case of Peake and Tucker which was Trin. 1. Jac. 2. B. R. Rot. 838. Where the Plaintiff was a Merchant And the Defendant said of him he is a Rogue a Papist Dog never a Rogue in Town would have made a Bonfire but he Note those words were spoken the day

qm ' pro mis ' custag ' fuis per ipsos circa sectam suam in hac parte apposit ' Writ of Inquiry awarded sustinuer ' Ideo praecept ' est Vic' London ' praedict ' quod per Sacrum ' proborum legalium hominum de Balliva sua diligent ' inquir ' quae dampna iidem Stephanus Petrus tam occone praemissorum praedict ' qm ' pro mis ' custag ' suis per ipsos circa sectam in hac parte apposit ' sustinuer ' Inquisicon ' qm ' c domino Regi dominae Reginae apud Westm ' praedict ' die Veneris prox ' post Craftin ' sanctae Trinitatis sub Sigill ' c. Sigill ' c. mittant una cum Brevi dicti domini Regis dominae Reginae eis inde direct Idem dies est praefat ' Stephano Petro ibidem c. Ad quem diem coram domino Rege domina Regina apud Westm ' praedict ' ven ' praed ' Stephanus Petrus per Attorn ' suum praed ' Et Vic' London ' praed ' videlicet Johannes Fleet Mil ' Humfrid ' Edwin Mil ' retorn ' quandam Inquisicon ' The Inquisition retorned coram eis vicesimo quarto die Maij anno regni domini Willielmi dominae Mariae nunc Regis Reginae Angl ' c. primo apud Guild-Hall scituat ' in paroch ' sancti Laurencij in Veteri Judaismo in Warda de Cheape ejusdem Civitat ' Virtute Brevis praedict ' capt ' per Sacrum ' duodecim proborum legalium hominum de Balliva praefat ' Vic' per quam compert ' exist ' quod praedict ' Stephanus Petrus sustinuet ' dampna occasione praemissorum praed ' ultra mis ' custag ' sua per ipsos circa sectam suam in hac parte apposit ' ad sexcent libr ' Damages found Judgment for the Plaintiff pro mis ' custag ' ill ' ad vigint ' sex solid ' octo denar ' Ideo cons ' est quod praed ' Stephanus Petrus recuperent versus praefat ' Lancelot ' dampna praed ' per Inquisicon ' praed ' superius in forma praed ' compert ' necnon trigint ' sex libr ' tresdecim solid ' quatuor denar ' pro mis ' custag ' suis praed eisdem Stephano Petro per Cur ' dictorum domini Regis dominae Reginae nunc hic ex assensu suo de Incrō adjudicat ' Quae quidem dampna in toto se attingunt ad sexcent ' trigint ' octo libr ' Et praed ' Lancelot ' in misericordia c. Judic ' sign ' sexto die Junij MDCLXXXIX General Errors assigned Cramlington versus Evans and Percival IN a Writ of Error upon a Judgment in the Kings Bench where Evans and Percival declared against the Defendant in an Action upon the Case that in the Realm of England viz. in the Parish of St. Mary le Bow London there is and hath been time out of mind a Custom amongst Merchants and other persons viz. That if a Merchant or other person makes a Bill of Exchange according to the Vsage of the Merchants directed to a Merchant or other person resident in England requesting the person to whom directed to pay the Sum of Money in the Bill mentioned at the time therein limited to the person in the Bill named or his Order for the use of any other person in such Bill mentioned for the value received of the person mentioned in such Bill and to place it to account as by advice and if the person to whom such Bill is directed accepts it according to the Vsage of Merchants and if that person who in such Bill is appointed to receive such Money by an Indorsment upon the said Bill orders the payment of such Money to any other person or persons or their Order for the value in the Indorsment mentioned to have been received of the person named in such Indorsment if he that accepted such Bill doth afterwards refuse to pay it to him named in the said Indorsment then he which made and directed the Bill upon Notice of such Refusal is chargeable to pay the Money to the person or his Order to whom by the Indorsment it was appointed to be paid Then they say That Cramlington the 10th day of November Anno Domini 1685. at Newcastle directed a Bill of Exchange of the same Date to one William Ryder requesting him at 25 Days after the Date of the said Bill to pay to Thomas Price or his Order 500 l for the use of Felix Calvert Esq for the value received of Francis Clever and to place it to account prout per advisamentum and on the 14th of the said November it was shewn to the said Ryder who then according to the Vsage of Merchants accepted it and that the said Price upon the said 14th day of November for the value received of them the said Evans and Percival by an Indorsment upon the said Bill according to the Vsage of Merchants ordered the Contents thereof to be paid to the said Evans and Percival and that the said Ryder afterwards viz. the 5th day of December in the year aforesaid was requested by them the said Evans and Percival to pay to them the said Money according to the aforesaid Indorsment and the said Ryder refused to pay it Of all which the said Cramlington had Notice viz. upon the 1st day of January in the same year and by reason thereof and of the Custom aforesaid he became charged with the payment of the said Money to them the said Evans and Percival and thereupon the said Cramlington in consideratione praemissorum did promise to pay the said 500 l to the said Evans and Percival c. but not minding his Promise had not paid the said Money licet saepius requisitus c. To this the Defendant Cramlington puts in a Plea in Bar to the effect as followeth viz. Protestando that there was no such Custom as set forth in the Declaration pro placito dicit that long before the Action brought Felix Calvert in the Declaration mentioned was one of the Commissioners of Excise and upon the 10th of November Anno primo Domini Regis nunc by the hands of Clever in the Declaration mentioned did pay 500 l of the Money arising to his Majesty upon the Duty of Excise and at the Request of the said Calvert the Defendant upon the some 10th of November made and directed the aforesaid Bill of Exchange to the said William Ryder to pay to the said Price 500 l for the use of the said Calvert as in the Declaration is set forth And he further saith That the said Calvert upon the 24th day of the said November was indebted to the King upon the Account aforesaid in 5000 l and upwards prout per Recordum Scaccar ' c. superinde taliter processum fuit in Cur ' Scaccar '