was found in the Office The Countess also was alive at that time and so could not be seised into the Kings hands And as to the Statute of 7 Jacobi it is plain that it means a Naturalization by Parliament here for it appoints the Lord Chancellor or Keeper to Administer the Oaths if the Bill begin in the House of Lords and the Speaker to do it if it begin in the House of Commons And of this Opinion was Vaughan in these three last things tho' in the Principal Matter he agreed with the other two Termino Sanctae Trinitatis Anno 22 Car. II. In Communi Banco Thoms Harrison Ux ' versus Dr. Burwell IN an Action for suing in the Spiritual Court after a Prohibition sued out and delivered the Plaintiff sets forth that by an Act of Parliament made in the 32 H. 8. c. 38. it was enacted c. That from the first day c. all and every such Marriages as within this Church of England should be contracted between lawful persons as by this Act they declared all persons to be lawful that be not prohibited by Gods Law to marry such Marriages being Contracted and Solemnized in the face of the Church and consummate with Bodily Knowledge c. should be c. deemed judged and taken to be lawful good just and indissoluble notwithstanding any precontract c. and notwithstanding any Dispensation Prescription Law or other thing granted or confirmed by Act or otherwise and that no Reservation or Prohibition Gods Law except should trouble or impeach any Marriage without the Levitical Degrees and that no person of what Estate Condition or Degree whatsoever he or she be should c. be admitted to any of the Spiritual Courts within this the Kings Realm or any his Graces other Lands and Dominions to any Process Plea or Allegation contrary to this foresaid Act. And sets forth further That one Abbot had Issue Robert and Bartholomew that Robert had Issue Mary who married Robert Harrison and by him had Issue Thomas the Plaintiff that Bartholomew took to Wife Jane Brown who is now the other Plaintiff and that Bartholomew died without Issue and that then the Plaintiffs intermarried they say that he and she were free from any Marriage or Contract with any other person and the Marriage was solemnized according to the Orders and Rules of the Church and that this is a good Marriage by the Laws of God and Man and that A. B. a Notary intending to dissolve this Marriage contrary to the said Act cited the Plaintiffs before Dr. Burwell and articled against them in this manner That within the Jurisdiction c. reciting the Alliance c. and that the said T. H. took the said Jane Abbot to Wife de facto cum de jure non potuit nec debuit and so they committed Incest c. Hereupon Dr. Burwell Demurs and prays a Consultation It had been divers tunes argued at the Bâ—r and now Vaughan Chief Iustice delivered the Opinion of the Court in this manner Vaughan 'T is the pleasure of my Brothers that I deliver their Opinion in this Case and what I do deliver I do not deliver as their Opinion only but as the Opinion of all the Iudges of England for they have met together by the Kings Command several times to debate and consider of this Case and they all agree that no Consultation be granted This is a Case of great expectation and perhaps the only Case which has been solemnly resolved since the Statute of 32 H. 8. was made there are but three Cases concerning it Man's Case 1 Cro. 228. Mo. 907. Parson's Case 1 Inst 235. and Remington's Case Hob. 181. I must in the first place premise that perhaps if we the Iudges had been makers of the Law this Question had not been but we are to proceed upon the Laws as made and cannot alter them This is not a thing of our promotion and this I speak to satisfie such as might object against us This Statute was made in a time when the Popes Power was warmly pursued and Laws were then made which in the circumstances of another time would not have been made I will first give the Reasons the Iudges went upon in their Resolution and then I will also give some Reasons to satisfie People abroad for I know the Case will meet with many censures First Of the former Antiently the Kings Temporal Courts had nothing to do with the lawfulness or unlawfulness of Marriage it was wholly of Ecclesiastical Conisance the Statute de Circumspecte agatis is that the Temporal Iudges should not punish the Spiritual Courts for holding Pleas of those things quae mere sunt spiritualia viz. pro Fornicatione Adulterio hujusmodi and Sir Ed. Coke 2 Inst 488. expounding those words Et hujusmodi he says and he says very right that these are to be taken for Offences of like nature as the two Offences here particularly expressed be viz. as sollicitation of any Womens Chastity which is lesser than these and for Incest which is greater Here is an undoubted evidence that the Temporal Courts used to prohibit c. and the ancientness of that is unquestioned but it seems they did border in their Prohibitions sometimes upon things which were Spiritual which they ought not to have done There was no time but in which some Marriages were lawful and some unlawful but if a man were formerly questioned about such a matter he had no relief from the Temporal Courts By the Ancient Common Law Marriages were unlawful as far as they had names of Kindred viz. to the fourth Degree from Cousin Germans inclusively and therein it irritated the Civil Law but in the Council of Lateran under Pope Innocent the 3d it was ordained thus Sancitum est prohibitionem copulationis conjugalis quartum gradum non excedere and so it stands in all places under the Common Law at this day in Popish Countries with us it has received alteration by this Statute in this matter there is a Reason very much sticks with many viz. That the Temporal Courts are not skilled in the Laws by which this is to be judged and therefore that it is not fit that they should determine concerning it 'T is true the word Cognitio signifies both but yet there is a great difference between Skill and Cognizance But I say further That the Temporal Iudges may well enough have both for though the knowledge of the Canon Law be not adequatum subjectum to a Common Lawyer yet 't is commune subjectum There are four Statutes which have made great alteration in the Cognisance of this matter 25 H. 8. 22. 28 H. 8. c. 7. 28 H. 8. c. 16. and this of 32 H. 8. c. 38. The first indeed is repeased because it was interwoven with matter of Succession of the Crown c. which was set aside But the Second viz. 28 H. 8. cap. 7. is syllabically the same as to this purpose the words are
Court for the proceedings are diverso respectu We proceed against Conventicles as being against the Peace and as being against the Laws of the Church and to prevent the broaching of Heterodor Opinions as in one Court we do agere civiliter by Action criminaliter by Information for the same matter Secondly The proceeding in this Case is according to the constant course of proceeding in their Court for when a Presentment is made they form Articles thereupon tibi articulamur objicimus c. but they never recite or mention the Presentment in the Articles and therefore it does not nor need it appear in them in this Case So that it cannot from hence he concluded to be a prosecution ex Officio mero Moreover 25 H. 8. when it was in force concerned Heresie only As to the Presentment made in this Case by the Curate 1. Those Canons are not to be questioned they have been always allowed having been confirmed by the King 2. The Rectors absence shall be intended 3. The Churchwardens themselves whose ancient and unquestioned Office it is to make Presentments don't take a particular Oath upon all the Presentments they make but they do it by vertue of their general Oath of Churchwardens and Ministers do the same as the Bishop of Sarum present in Court had asserted just before in verbo Sacerdotis or rather by vertue of their general Oath of Canonical Obedience 4. They are not bound to specifie the Presentment in their Articles and this is not so liable to the Objection of Mischief and Vnreasonableness as the Informations daily brought in the Kings-Bench in the Name of the Clerk of the Crown which Informations are approved and preserved by the very Statute of 18 Eliz. c. 5. And if there be no due Presentment 't is an Error which consists in not proceeding according to their Rules i. e. the Canon Law and the proper remedy for that is by Appeal and our Courts will not take notice whether they observe their own Laws Prohibitions are only to be granted when the Common Law is invaded and interfered with Thirdly As to the examining of the Party upon Oath here is no cause to mention it and indeed it is not their course for they only ask him ore tenus whether he will confess or deny the Articles if he deny them then there is litis contestatio and they proceed to examine Witnesses to prove it and if it be not proved the Informer is condemned in Costs Justice Wyld I am of Opinion that there should go no Prohibition We must Iudge only upon the Suggestion Here 't is suggested that the Defendant proceeded against the Plaintiff ex Officio but that may be understood two ways either that he proceeded officiose on his own head or that he proceeded out of Duty according to his Duty and nothing appears to the contrary of this last and then he did as he ought If the Plaintiff had suggested that by the Law of the Land there ought to be a Presentment by such persons in such manner c. he might have brought that into question Archer of the same Opinion We must give faith and credit to their proceedings and presume that they are according to their Law 4 Co. 29 The King with the Convocation may make Orders and Constitutions for the Government of the Church Tyrrell of the same Opinion But if the Suggestion were that no Presentment by a Curate were sufficient nor unless it were upon Oath c. I should have been Opinion for a Prohibition I hold that the King and Convocation without the Parliament can't make any Canons which shall bind the Laity though they may the Clergy Vid. 35 H. 8. c. 19. Vaughan of the same Opinion If the Articles were exhibited meerly ex Officio i.e. out of the mind of the Chancellor himself they were not warrantable But there is no colour for this Suggestion for they appear to be the Information of a Publick Notary As to the Presentment which is thought requisite by the preamble of 25 H. 8. c. 14. declaratory of the Common Law or not it is sufficient Answer to say that the Act is repealed and therein the Preamble And for ought any man knows the Preamble was the Cause of the Repeal this has been the only specious Objection As to the Canons 3 Jacobi certainly they are of force tho' never confirmed by Act of Parliament Indeed no Canons of England stand confirmed by Act of Parliament yet they are the Laws which bind and govern in Ecclesiastick Affairs The Convocation with the License and assent of the King under the Great Seal may make Canons for regulation of the Church and that as well concerning Laicks as Ecclesiasticks and so is Linwood Indeed they cannot alter or infringe the Common Law Statute Law or Kings Prerogative but they may make alterations viz. in Eccleastical Matters or else they could make no new Canons All that is required of them in making of new Canons is that they confine themselves to Church Matters As no Human Law can be made which is contrary to the Divine Law and it is binding only in those things which are permissa by the Divine Law So no Canon Law can be made which is repugnant to the Law of the Land The Subject Matter is in the Case The permissa the things of Ecclesiastical Nature which are left indifferent by the Law of the Land in this Case we must presume there was a Presentment according to their Law if not the Remedy is by Appeal We ought not to assume the Iurisdiction of Iudging upon their Law but give way to their course of Proceedings Serjeant Ellis I only intended that Canons cannot be made to alter the Law without Parliament Curia We all agree as to the First Exception that the Spiritual Court may proceed against Conventicles as a Spiritual Offence tho' not as a Civil As to the Second That they have Conusans of all False Worshippers As to the Third That there is nocolour or occasion to make it Note The Course of the Spiritual Court is not to make a Significavit until forty days after the Excommunication General Citation is a cause of Prohibition for it ought to be expressed for what Cause But this is cured by Appearance or Appeal Termino Paschae Anno 1 Willielmi Mariae In Communi Banco Anonymus UPon a Suggestion of Devastavit of a Feme Executrix it was That the Baron and Feme devastaver ' converter ' ad usum ipsorum And upon the Issue it was found accordingly It was moved in Arrest of Judgment That they could not Convert to their own use And so in Trover and Conversion Quod converter ' ad usum ipsorum is not good Sed non allocatur For here the material part of the Issue was the Wasting which the Baron and Feme might do joyntly and the Conversion is nothing to the purpose Vid. 2. Sand. Issue upon a Devastavit Anonymus
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
1 W. M. After which Judgment for the Defendants 166 That the said Defendants shall go sine die and have their Costs 167 Averment that the said Judgment remains in full force That the Goods in the said Action of Trespass and this of Trover are the same That the Conversion in this Action and the Taking in the other is the same That the Cause of Action was the same in both And that the Plaintiffs and Defendants are the same Et hoc parati sunt verificare unde petunt Judicium si praedicti the Plaintiffs Actionem suam versus eos habere debeant c. Not guilty to the residue of the Goods The Plaintiffs demur The Defendants joyn 168 Vsury Pleaded Vid. Debt 7. Way Action for stopping it Vid. Action on the Case 5. WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Public approve of and allow the Printing and Publishing of this Book Intituled The Reports of Sir Peyton Ventris Kt. Late One of the Justices of the Court of Common-Pleas J. Som̄ers C.S. J. Holt Geo Treby Ed Nevill Joh. Powell W. Gregory N. Lechmere Tho. Rokeby G Eyre Jo Turton John Powell Sam. Eyre April the 20 th 1965. The Second Volume TERMINO SANCTI HILLARII Anno Vicesimo primo secundo Caroli Secundi IN COMMUNI BANCO Craw versus Ramsey IN an Ejectment of Lands and the Rectory of Kingston upon Thames in Surrey Vpon Not Guilty pleaded the Jury found a Special Verdict to this effect viz. That Robert Ramsey Born in Scotland before the Accession thereof to the Crown of England had Issue four Sons Robert Nicholas John and George Antenati Robert died they do not find when leaving Issue three Daughters Margaret Isabel and Jane who were also Aliens and alive 1 Octob. 14 Car. 1. Nicholas had Issue Patrick born in England 1 May 1618. They also find that at the Parliament holden 10 Car. 1. in Ireland it was Enacted That all Persons of the Scottish Nation should be reputed the Kings Natural Subjects to all intents constructions and purposes of that his Realm of Ireland as if Born there And they find the Act of Parliament at large Nicholas Ramsey was alive at the making of that Act. John the third Son afterwards Earl of Holderness was Naturalized by Act of Parliament in England 1 Jacobi and purchased the Lands and Rectory in question and being seised 22 Jac by Indenture Tripartite between him of the First part Sir William Cocke and Martha his Daughter of the Second part and Charles Lord Effingham of the Third part In Consideration of a Marriage to be had between him and Martha did Covenant to levy a Fine to the use of himself for Life and afterwards to Martha for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs And 29 Septemb. 22 Jac. the Marriage was had and the Michaelmas Term after a Fine was Levied accordingly The 24 of Jan. 1 Car. 1. the Earl died without Issue Martha Entred and was seised for her Life and died 17 Car. Et eodem anno it was found by Office that the Earl of Holderness died seised of the Rectory as before and without an Heir and that King Charles anno decimo granted this Rectory to one Murray George the fourth Son of Robert was Naturalized by the Parliament here 7 Jac. He had Issue John the Defendant Nicholas died Patrick his Heir in 1651. bargained and sold to the Earl of Elgin and one Sydenham virtute cujus vigore Statuti c. they were seised prout Lex postulat and in 1662. bargained and sold for years to Amabel Countess of Kent and Jane Hart and afterwards Released to them and their Heirs in 1665. They being seised bargained and sold by Lease and Release also to Pullen and Neale who Entred and bargained and sold to Sir Lionel Talmash and West the Lessors of the Plaintiff upon whom John the Defendant Entred Vpon which the Action is brought and the great Question in the Case was Whether Patrick the Son of Nicholas might claim these Lands as Heir to the Earl of Holderness by virtue of the Act of Parliament in Ireland 10 Car. or that they should descend to the Defendant the Son of George Naturalized the 7 of Jac. in England Wyld and Archer who Argued first were of Opinion That however the Point was adjudged the Plaintiff could not have Judgment upon this Verdict for they do not find that Patrick entred or was seised but that he in 1651. did bargain and sell c. Virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold in 1662 and do not so much as find their Bargainees seised prout Lex postulat But they find the Defendant Entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it not being found that Patrick Entred Again If the Naturalization in Ireland will serve in England the Title appears for the Daughters the Heirs of Robert the eldest Son for 't is found that he died but not when so it might be after the Act of 10 Car. But Tyrrell and Vaughan Chief Justice differed in these two Points As to the First They said it would be intended Patrick entred for a Verdict that leaves all the Matter at large to the Iudgment of the Court will be taken sometimes by Intendment as well as where the Jury Conclude upon a Special Point 2 Cro. 64. find an Incumbent Resigned the Resignation shall be intended accepted So in 4 Co. Fullwood's Case it was found that one came before the Recorder of London and Mayor of the Staple recognovit se debere c. and did not say per scriptum suum Obligatorium nec per formam Statuti yet intended so Vid. Hob. 262. And where they find the Bargainees seised prout lex postulat that doth not leave it doubtful whether seised or no but whether by right or wrong for Seisin must be taken as found expresly Neither do they find any other in possession nor that the Defendant made any Claim in Twelve years after which enforces the Intendment as before And it is found expresly that Pullen and Neale Entred in 1665. so that the Defendant had not the primer Possession however or if he had he should not have Judgment if no other Title were found for him as is Resolved in 1 Cro. 42. Hern and Allen's Case As to the Second It shall be intended Robert died before 10 Car. For he is found an Alien and shall be presumed to have continued so during his Life unless found to the contrary then the Discent to the Daughters is obstructed by the Incapacity of their Father And tho' when the Title is found for the King the Court shall adjudge for him because the Kings Courts are intrusted with his Rights 't is not so of any other person but they shall take no
notice of any Title found for a Stranger Wherefore they held notwithstanding these Omissions in the Verdict that Judgment might be given for the Plaintiff And Tyrrell was of Opinion in the Principal Matter for the Plaintiff In his Argument he considered of divers kinds of Allegiance natural and acquired which was either local or legal As when a man is Sworn in the Leet Denizated by the Kings Letters Patents obtained by Conquest or Naturalized which Naturalization must be by Act of Parliament and cannot be limited 2 Cro. 539. 1 Inst 129. who is to all purposes a Natural born Subject An Indictment of Treason against such an one is contra naturalem ligeantiam Neither can it be confined to Place for 't is due to the Natural and not to the Politick person of the King Mo. 790. And the Plea of infra ligeantiam Regni sui Angliae was rejected in Calvin's Case in Co. and said to be never heard of before Idem est nasci idem naturalizari And he Argued That in regard Ireland hath the like Court of Parliament that England hath it hath also the same Power and conceived that the English Laws were introduced by Parliament in King John's time For in the Charter 11 H. 3. it is recited that Johannes quondam Rex Angliae duxit secum in Hiberniam Viros discretos legis peritos quorum Communi Concilio ad instantiam Hibernentium statuit c. ex diuturnitate temporis omnia praesumuntur solenniter esse acta In the 4 Inst 357. it appears that Parliaments were holden there before 17 E. 3. 2 R. 3. 12. Hibernia habet Parliamentum facium Leges And in 4 Inst 452. it is said they may Naturalize an Alien and if they do so he is all one with an Irish man born As one that purchaseth his Freedom in a Corporation hath all Immunities as amply as he that is born a Member of it Neither doth it follow from hence that an Act of Parliament in Ireland could bind England it is the Law of England Cooperating with the Act that gives the Naturalization an effect here The Act is but remotio Impedimenti As if one were Attainted by the Parliament there he should forfeit his Lands here and if that Act were Repealed he should be restored to them again yet neither Act were oligative to England The Act of Ireland is causa remota or sine qua non the Law of England is causa proxima and this of Naturalization was one of the Wonders of the Powers and Priviledges of Parliament As Legitimation of a Bastard and the like The other three Justices were of a contrary Opinion and Argued to this effect that Ireland was a Conquered Kingdom the Conquest compleated if not begun in K. Henry the Second's time in whose time there is no Record of any Establishment and being a Christian Kingdom they remained Governed by their own Laws until King John Anno 12 Regni sui by Charter for so they conceived it to be and not by Parliament for it appears that the Nobles were sworn which is not usual in Acts of Parliament neither is it Teste Rege in Parliamento introduced the English Laws yet it hath ever remained a distinct Kingdom viz. from the bringing in the Laws by King John M. Paris Hist 230. and Calvin's Case in 7 Co. 22 23. the Conquest brought it infra Dominium Regis sed non infra Regnum Angliae Oruke committed Treason in Ireland and it was held tryable by Commission by 33 H. 8. as a Treason out of the Realm 20 H 6. 8. the Judges here are not bound to take notice of the Laws of Ireland Fitzh tit Voucher 239. A man in Ireland cannot be Vouched Anders 262 263. 2 Inst 2. it is said Magna Charta nor the Statute Laws here did not extend to Ireland until Poinings Law 10 H. 7. tho' in truth it appears to be before by 8 E. 4. cap. 10. neither are they obliged by any Statute since unless named Dier 303. It is said of Lands holden in Capite in England and Ireland that there ought to be several Liverties and by several Seals 11 Ed. 4. 7. When the King went into Ireland it was held to be a Voyage Royal. And Wyld said Two Kingdoms could not be united but by Act of Parliament and there ought to be reciprocal Acts and so is my Lord Coke 4 Inst cap. Scotland But this the Chief Iustice said in his Argument was not requisite in case of a Conquered Nation which hereby had lost its Original Right of holding Parliaments but he agreed in case of Kingdoms independent one upon the other He said he had a Charter whereby Gascoigne Guyan and Callice were united to England in Ed. the 3ds time and recited to be by mutual pact upon a Peace concluded that Wales was fully conquered in Ed. 1st time whereupon they all submitted de alto basso to the King and it appears he abrogates some Laws makes some new and continues others and Wales was united and consolidated with England in H. 8 time by Act of Parliament here but there was no Act on their part neither is Ireland only a distinct Kingdom but also subordinate A Law enacted here to extend to all the Kings Dominions shall bind Ireland Writs of Error have been always brought here to reverse Iudgments in Ireland and they naturally lie as the Chief Iustice said into all subordinate Kingdoms Fitz. tit Ass 562. A Writ of Error to reverse a Iudgment given in an Assize in the County of Glamorgan and 21 H. 7. 31. B. it is said many Writs of Error have been brought to reverse Iudgments given in Callice tho' it was alledged the Civil Law there was in use So the Romans allowed Appeals out of every Province subordinate unto them as appears by the Case of St. Paul in the Acts and 't is against Nature that the Inferiour should have any influence upon the Superiour suppose a Bill of Naturalization were brought into Parliament here and rejected and after it should pass in Ireland should it have the same effect as if it had passed here If this might have been what needed the endeavours in the beginning of King James's Reign to obtain an Act for the Naturalization of all Scots and the Union of both Kingdoms when an Act in Ireland would have been as effectual and procured with much greater facility Neither is the Parliament of Ireland equal to that of England for that might be aliened by an Act of Parliament as Gascoigne and Guyan were by mutual Consent tho' the King cannot do it alone therefore King John's Grant to the Pope was held absolutely void but Ireland could not be transferred from the Sovereignty of England by any Act there for they cannot discharge themselves of their Subordination to England H. 3. granted to Ed. 1. Terrem Hibernicam and it was held to be void 40 Ed. 3. 4 Inst 357. And if they should make an Act
there that no Writ of Error should lie into England the Chief Iustice said it would be void for their Power is merely precarious as to the Parliament of England though not to the King in regard of his Charter Wherefore he said it might be questioned whether they could Naturalize at all for the King cannot alone and their Power is wholly derived from this Charter neither hath it been attempted by them until 10 Car. 1. when the Earl of Strafford was Lieutenant there Whereas it was said on the other side that to be Naturalized in Ireland was the same thing as to be born in Ireland he denied it unless they added by the Laws of Ireland i. e. the Law gives him there all the Priviledges a Native hath but this was not ligeantia nata sed data and therefore can extend no further than the Power of them that gave it and tho' it be said an Act of Parliament can do any thing that must be understood as to civil things which are but the Creatures of Men therefore may be altered and disposed at the will of the Supream Authority but natural things are not within its Power For an Act of Parliament cannot make a Man a Woman or a Man to be born in any other place than where he was really born tho' it may give him such priviledges as one hath that is born there viz. such as are within their Power and none else and 7 Co. 18. B. The time of the Birth is of the essence of a Subject born and after in Calvins Case 27. it is said natural Ligeance respecteth the time of the Birth and he cannot be a Natural Subject who was born under the Allegiance of another King for a Natural Subject is the correlative to a Natural Prince and one naturalized there might in all respects be compared to an antenatus who differed from a postnatus in these two things First He was another Princes Subject before a Subject to the King of England Secondly Such an one might have been an Enemy whereas a born Subject may be Traitor but can never be an Enemy Now the Subjects of a Prince that conquers another Kingdom become immediately Denizens of that Kingdom But not è converso as was held in Calvins Case of the antenati in Scotland But the Subjects of a King who is Homager to that King shall not be Aliens in any of his Dominions as in Wales before the Conquest of it in Edw. the 1st Time the like in Scotland as appears Dier 304. Pl. 57. A Scot was indicted of a Rape who pleaded not guilty and prayed a Tryal per medietat ' Linguae and it was denied for that a Scot was never accounted an Alien sed potius Subject ' tho' the Chief Iustice was of Opinion they ought not to have judged so there because the Homage of Scotland had been lost so long before The Statute of 5 Eliz. is that none shall set up a Trade unless he hath been an Apprentice to it by the space of seven years Suppose an Act were made in Ireland that it should be lawful for J. S. to set up a Trade tho' he had never been an Apprentice this would enable him there but no man would say that thereby he should have liberty to set up here No tho' the words of the Act were as if he had served seven years So the Law is that no man can be naturalized here but by Act of Parliament here Naturalization is a great point of State-interest therefore the King cannot do it by his Charter And the inconvenience would be very great if naturalization in Ireland should extend hither for tho' it was objected we might obviate it if found to be so by disallowing their Acts which before they pass there are sent hither and remitted under the Great Seal and so we may repeal their Acts yet it was said the like Power by consequence must be yielded to Scotland and we cannot disannul their Acts so they shall introduce what Aliens they please amongst us without controll And tho' it was said a naturalization there would do us no harm for it could never be made appear because no Certiorari could be awarded from hence thither yet it is manifest there are ways of making it appear In 42 Ed. 3 2. Lord Beaumonts Case Vide 2 Cro. 484. a Certiorari to remove a Record taken at Callis it is said that part of Scotland was within the Kings Ligeance and part without and that the King kept a Roll of such Places as he had under his Subjection and the Party was directed to petition the King to certifie whether Rosse were so or no so the King must be Party to their Acts there and therefore may certifie them or they may be given in Evidence as Foreign Laws or the Sentences in the Ecclesiastical or Civil Law Courts Now we must not always conclude a thing not to be Law because it is inconvenient but that for which there is neither Practical Custom Judicial Precedent or Act of Parliament to warrant may be well judged to be so Wyld and Archer in their Arguments did much insist upon the particular penning of this Act where the Makers did seem to intend that the effect of this Naturalization should be confined to Ireland for the Preamble recites this Your Majesties Realm of Ireland will be much impaired for want of Scottish Planters and that 100000 were planted in the Province of Vlster there it enacts That they and all Scottish shall be deemed Your Majesty's liege Subjects of this Your Realm of Ireland and this your Realm repeated almost in every Clause which would lose its force if the naturalization should be construed to have a larger extent They also took notice of the Proviso of the Act That it should not extend unto any Lands whereof any Office was found for the King and seised into his hands And here was an Office found 17 Jacobi they also mentioned the Statute of 7 Jacobi c. 2. which Enacts That the Bill of Naturalization shall be twiced read unless the Person hath received the Sacrament within a Month before and also taken the Oaths of Allegience and Supremacy To the first Tyril answered First That Naturalization could not be restrained at least not by affirmative words for it doth not say Your Realm of England and not elsewhere the Act hath also these words as born of Irish Parents as natural born Subjects and other words as full as may be also the Act of Naturalization of John and George in England hath the same words mutatis mutandis viz. of this Your Realm and in others they are more restrictive viz. from henceforth shall be deemed c. the Irish Act is that they shall be deemed Natural Subjects that they shall inherit such Lands as have descended after the first day of King Jame's coming to the Crown of England this hath no such restraint As to the Second he answered it was the Rectory only which
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 ê“ debita ExecucÌ„one 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 pÌ„d ' 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 ê“testan ' 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 ê“x ' 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 ' pÌ„d ' 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 pÌ„d ' Major ' ê“bos homines Villae de Guldeford ' praed ' ab accone sua praedict ' versus ipmÌ„ 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 ' pÌ„d ' 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 ê“ bono Regim ' GubernacÌ„one Vill ' pÌ„d ' 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
whom the King shall have it unless there be a particular person grieved 188 189 267 268 A Forfeiture shall not bind in Equity where a thing may be done afterwards or Composition made for it 352 G Gaming See Assumpsit DIce Play not unlawful in it self tho' prohibited by several Statutes to certain persons and in certain places 175 Grant A Deed having no Execution to make it work as a Grant shall operate as a Covenant to stand seized 261. and by the Statute of Vses 266 Where Land is granted by Deed-Pool in Consideration of Natural Affection without Enrolment or Attornment whether it shall operate as a Covenant to stand seized or be void 318 H Habeas Corpus NO Habeas Corpus to be moved for in the Common Pleas unless it concerns a Civil Cause yet the contrary permitted in the case of an Attorney of that Court 24 Half-Blood The Half-Blood shall have equal Share with the Whole-Blood in Distribution upon the Statute of 22 23 Car. 2. c. 10. 317 Heir See Mortgage Heirs is Nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number 313 Heir and not Executor shall have the Surplusage of Lands leased for payment of Debts 359 I Infant INfants not foreclosed in Chancery till they come of Age 351 Intent No Exception to Vnum Vasum Vini Hispanici that is not said what the Vessel was made of for it is intended to be made of Wood 67 The Name of a Grantor omitted in an Indenrure supplied by Intendment 142 Racks in a Stable shall be intended to be fixt and need not to be shewn to be so in Pleading 214 Every Agreement must have some reasonable Construction that may may be consistent with the Intent of the Parties and therefore if a man agrees with another that he shall make a Drain through his Ground he shall not make it through the parties Stables or Buildings in case there are other places proper 278 In a Special Verdict nothing shall be intended that is not found 330 Imprisonment See Pleading Impropriation Whether a Rectory Impropriate being made a Lay-Fee can be sequestred by the Court Christian for not Repairing the Chancel 35 Ireland See Naturalization Of its Conquest and the Introducing the Laws of England there 4 The Power of an Act of Parliament in Ireland 5 K King See Forfeiture ALlegiance due to the Natural and not the Politick Person of the King 3 In case of things which are Nullius in Bonis where no visible Right appears the Law gives them to the King as Derelict Lands Treasure Trove Extra-parochial Tythes c. So where the Right is equal between the King and the Subject the Kings Title hath the Preference 268 The King is the Fountain of Justice and that as well Ecclesiastical as Civil and may by the Ancient Law of the Realm visit reform and correct Abuses in the Jurisdiction Spiritual 268 In what Cases Forfeitures are vested in the King before Office found and where not 270 L Law A Thing for which there is neither Practical Custom Judicial Precedent or Act of Parliament to warrant may well be judged to be against Law 7 The clearest way how to understand any Law is to consider what was the Judgment of those People among whom and the Times in which it was practical 17 To excite the People to the disobedience of a Law of a Publick Nature is the highest Offence under High Treason 23 Lease What Lease capable of a Release to work a Bargain and Sale 35 For 99 years if two Persons shall so long live determines upon the death of either 74 Legacy See Executor Legatees are to have their Proportion where the Assets fall short 358 Legatees shall refund against Creditors and if the Ecclesiastical Court give Sentence for a Legacy a Prohibition lies unless they take Security to refund 358 360 Licence See Distress Limitation See Original Mortgage Suit to recover a Depositum in Trust for a Feme Covert not barr'd by the Statute of Limitations 345 London Of the Custom of London relating to Orphans Money 340 341 M Market WHere a Market is granted to the Damage of another the Patent may be repeal'd in a Scire facias notwithstanding a Writ of Ad quod Damnum had been executed for the Return of that Writ was not conclusive 344 Marriage Whether a Man may marry his Great Uncle's Widow 9. He may 18 20 The four Statutes relating to Marriage expounded 11 infr Tho' the Stat. 32 H. 8. c. 38. allows all persons to Marry that are without the Levitical Degrees yet persons Pre-contracted or under a perpetual Impotence are prohibited to Marry 15 To Marry his Brother's Wife prohibited by the Statute tho' not by the Levitical Law 17. So of his Wives Sister ibid. Marriages in the ascending and descending Line prohibited without limit not so between Collaterals and the Reasons 18 The Ecclesiastical Courts have Conizance to punish persons Marrying within the Levitical Degrees but not to determine what is within the Levitical Degrees and what not 22 Agreements to settle in Consideration of Marriage favoured in Chancery 353 354 357 Marriage restrictions how to be observed 365 Mine If a Man opens a Mine in his own Land he may dig and follow the Vein under another Man's Ground 342 But if the Owner did there also he may stop his further progress ibid. Mortgage Where Lands are Mortgaged thrice over the third Mortgagee may buy in the first Incumbrance to protect his own Mortgage and he hath both Law and Equity for him 338 He shall hold the Land against the second Mortgagee until be be satisfied both the Money he paid the first Mortgagee and also his own which he lent upon the last Mortgage ibid. But where only Part of the Lands are mortgaged to the first and the whole to the second and after to the third here if the third buys in the first Title it shall protect only that part that is in the first Mortgage 339 A Purchaser or Mortgagee coming in upon a Valuable Consideration without Notice and purchasing in a precedent Incumbrance it shall protect his Estate tho' he purchased in the Incumbrance after Notice of a second Mortgage ibid. Mortgages not relievable in Chancery after 20 years for the Stat. 21 Jac. 1. c. 16. limits the time of Entry to that number of years and 't is best to square the Rules of Equity as near the Rules of Reason and Law as may be 340 Upon a Mortgage in Fee the Redemption Money shall be paid to the Executor and not to the Heir 348 351 Where by a Devise of all his Lands Lands in Mortgage pass 351 Where a man 's own Covenant shall restrain him from his Equity of Redemption and where it shall not 365 Murder Husband kills a Man in the act of Adultery with his Wife Manslaughter and not Murder the Provocation being exceeding great Vide the First Part of these Reports 158 N Naturalization WHether
remedied either by the words or intention of the Act. Vid. Ante. Nokes and Stokes versus .... THey two brought an Action of Debt upon a Bond. The Defendant pleads the Release of one of the Plaintiffs They pray Oyer of the Release which was of all Actions Suits c. that he had against the Defendant upon his own account and pleads that this Bond was not upon his own account and upon this Issue is taken and found for the Plaintiff Now it was moved in Arrest of Judgment That this Issue was frivolous And upon the whole matter it appears that the Plaintiffs have no cause of Action for the Release of one Obligée dischargeth the Bond and it must be upon his own account But the Court Seriatim delivered their Opinions for the Plaintiffs for he might take this Bond as a security of a Debt with which he was intrusted for another And the truth of the case upon the Evidence was That the Defendant being charged with the payment of divers Legacies to Strangers was requested by one of the Plaintiffs to enter into Bond to him and the other Plaintiff who afterwards made the Release that should be Conditioned for the payment of the Money Bequeathed to the Obligees to the use of the Strangers which not being done the Defendant was Arrested at the Suit of the Plaintiffs this being made known to the Plaintiff who was absent at the taking of the Bond and knowing nothing of the Suit was contented to Release all Actions he had against the Defendant upon his own account King versus Atkins DEbt upon a Bond of 2000 l The Defendant demands Oyer of the Condition which was That whereas the Plaintiff was bound with the Defendant to the King that the Defendant should give a true account of such Moneys as he should receive for the Excise and Chimney Money And that the Defendant should save him harmless from all Payments or Suits upon that Bond and pleads that no Suits Process or Execution was against the Plaintiff upon that Bond issint he saved him harmless The Plaintiff replies a Scire facias issued against him out of the Exchequer upon the Bond and that he was forced to retain an Attorney and that he paid 1 s for his Appearance To this the Defendant Demurrs Because he did not alledge that he gave him notice And this was said not to be like Broughtons Case 5 Co. For there the Defendant knew the Money was to be paid at the day and it was to save him harmless from the single thing but here from a great many so that it was requisite he should have notice Where the Mesne is bound to acquit the Tenant the Tenant shall not recover Damages unless he gives the Mesne notice that he is distrained so that he may Replevy the Beasts But it was said That no notice ought to be given where the thing is an Act of a third person as to pay Money when J. S. comes into England To which it was answered That did not lie in the Conusance of either Party but this was in the notice of the Obligée But that which séemed most against the Demurrer in this case was That the Defendant having pleaded no Process c. he takes upon him the knowledge of it Vid. 1 Cro. 54. And if in the Replication the Plaintiff had alledged notice and the Defendant had Traversed it it would have been a departure and the Court advised until the next Term. Postea Welsh versus Bell. TRespass quare clausum fregit and taking of two Horses out of his Cart The Defendant justifies the taking of them as a Distress for Rent due to him And to this the Plaintiff Demurrs First He could not sever the Horses but ought to have distreined Cart and all according to the Book of 20 Edw. 4. 3. Distress of a Cart loaden with Corn Rolls 270. 3 Cro. 783. and four Horses in it adjudged not excessive because he could not sever the Horses And in 3 Cro. 7. a Difference is taken between Distress for Rent and Damage Feasant to this purpose And the common ground is that a Distress must be taken so as it may be returned in the same plight 1 Inst 47. a. Secondly It appeared also in the Declaration That there was a Servant of the Plaintiffs in the Cart by reason of which it was alledged that the Cart and Horses were priviledged for a Horse cannot be distrained upon which a Man is Riding 3 Cro. 549 596. Ed Adjornatur Twisden cited a Case adjudged before Rolls Chief Justice in Trespass for taking of his Trunk The Case was the Defendant distrained it for Rent and being Informed that there were things of Value in it he caused it to be Corded to prevent damage And for that he was adjudged a Trespasser ab initio Anonymus AN Action on the Case was brought against the Defendant for taking and keeping of the Plaintiffs Wife from him And upon Issue joyned the Court was moved to defer the Trial the Case being that the Wife was Daughter of the Defendant and taken from him by the Plaintiff without his Consent and as the Plaintiff affirmed Married to him Now this Marriage was questioned in the Court Christian And the Court thought it reasonable that the Trial should be delayed until the Marriage was determined there But they were Informed on the other side that the Court were ready to give Sentence That the Marriage was good and the Defendant had Appealed Wherefore they thought fit that the Trial of the Cause should proceed The King versus Nelson AN Order for the keeping of a Bastard Child being removed by Certiorari it was moved to have it quashed because it was ad Sessionem pacis in Com' praed ' and doth not say Tent ' pro ' Com' praedict ' Sed non allocatur For such strictness is not required in an Order But Twisden said it ought to be so in an Indictment It was further alledged that it ought to appear That the Child was likely to be chargeable to the Parish which was agreed But that was sufficiently set forth in the Order for upon Reading of it it appeared that he was ordered to pay such Charges as the Parish had been at Wherefore the Court confirmed the Order and awarded that he should pay such Costs as the Parish had been at for Contesting of it as was done formerly in one Haslefoot's Case And besides the Court Committed Nelson Anonymus DEbt upon a Bond Conditioned to perform Covenants If the Defendant pleads performance without demanding Oyer of the Indenture it is a good cause of Demurrer Anonymus IN Covenant the Plaintiff declares That he let the Defendant a House and that he Covenanted to Repair it The Defendant pleads That it was sufficiently Repaired before the Action brought The Plaintiff Demurs because he doth not plead That he Repaired it for it may be the Plaintiff himself did it Keeling and Raynsford inclined against the Demurrer because
And Doderidge gives the Reason That the Party by his words hath abridged what otherwise the Law would make and so it is held in Bland and Inmans Case 3 Cro. 288. where a Man possessed of a Term for a 100 years did joyn in a Lease with his Wife solvendo so much Rent during the Term to him and his Wife and the Survivor of them that the Executors should not have this Rent Hunt contra In the Reservation of a Rent there is no need of words of Limitation If the words are Yeilding and Paying Generally without saying to whom it is a good Reservation to all those to whom the Reversion shall come so if two Joynt-tenants reserve a Rent generally it is good to both Here are sufficient words to declare the intent that the Rent should continue and then they shall not be restrained by any affirmative words after and where Executors Administrators and Assigns are named that shall be taken as an Enumeration of some particulars without any intent to exclude others as where a man made one his Executor of all his Corn and moveable Goods this gave him an Interest as Executor in all his Chattels as well as in those which were named 3 Cro. 292. Rose and Barlett's Case 8 Co. Whitlock's Case If the Reservation be to such persons to whom the Reversion shall come this is good to the Heir and all others If a Lease be made excepting a Chamber to the Lessor this remains excepted after the death of the Lessor 7 H. 8. 19. Hale If this were res integra it might be a strong Case for the Plaintiff but the Authorities go the other way Sed Adjornatur Vide postea Termino Sancti Michaelis Anno 23 Car. II. In Banco Regis Dorrel versus Jay THe Plaintiff declared that Communication being between J.S. and the Defendant of the last Will of John Rowe Esquire deceased that the Defendant said of the Plaintiff He hath forged his Uncle Rowes Will. After Verdict for the Plaintiff it was moved by Serjeant Ellis in Arrest of Judgment that it is not averred that John Rowe was dead at the time of the speaking of the words Sed non allocatur For it is said there was a discourse of the Will of John Row Esquire defuncti and there defuncti goeth to the description of his person and expresseth that he was then dead and not only when the Action was brought Besides the words imply it for if he were not dead he could not forge his Will Vid. ante Phillips and Kingston's Case Pasch 23 Car. The Case of St. Katherines Hospital THe Case as it appeared upon the Evidence at a Trial at Bar in Ejectment for part of the Lands of the Hospital between the Lessee of Sir Robert Atkins the Queens Solicitor and George Mountague Esquire was this Elianor Queen Dowager of Henry the Third in the year 1273. Founded or at least amply Endowed this Hospital reserving to her self during her Life Reginis Angliae nobis succedentibus the Nomination of the Master to this Hospital which was Incorporated and her Grants to it confirmed by the King's Letters Patents In the Year 1660 Henrietta Maria Queen Mother granted the Mastership of this Hospital to H. Mountague for Life and the King in the same year reciting his Mothers Grant and that the Right of it belonged unto her Confirmed it by his Letters Patents and did further by the same Letters Patents grant unto the said H.M. the said Mastership Afterwards the King married Katherine the now Queen Consort and she granted the Mastership to Sir Robert Atkyns for his Life It was urged on the part of the Plaintiff that the Right of appointing the Master was only in the Queen Consort for Queen Elianor reserved it to her self and her Successors Queens of England and Queen of England is not Queen Dowager but Queen Consort And tho' Land cannot be limited to discend in such manner without Act of Parliament as is Resolved in the Prince's Case in 8 Co. yet such a Desultory Inheritance as this was called may be created of a thing de novo As a Rent may be granted and appointed to cease during the Minority of the Heir or upon the first Foundation of a Church the Patronage may be reserved to A. and if he Presents not within four Months then to B. So in the Book of E. 3. it was limited that the Chapter should present while the Deanry was vacant And to prove that this Clause had been construed only to intend the Queen Consort a Record was shewn of a Case between Luttishall and Basse in 4 E. 3. Where Luttishall exhibited a Petition to the King which was Intituled To our Lord the King and his Counsel Which Petition was sent into the Kings-Bench under the Great Seal in which Luttishall sets forth That Queen Isabel Mother to Edward the Third had granted him the Mastership of the Hospital for his Life and that he was disturbed by Basse and Process was issued out against Basse who appeared and pleaded a Grant from Queen Philip. Wife to Edward the Third and a Writ came from the King reciting That the Nomination of the Master did belong to Queen Isabel And so three Writs more came after to the same purpose and expressing that the Matter was delayed ad inestimabile damnum Consortis nostrae And in that Record Isabel tho' living is styled nuper Regina and Luttishall that claimed under her was barred On the other side Divers Grants were produced during the time that there were no Queens by the King and sometimes by a Queen Dowager during the time that there was a Queen Consort And these Points following were agreed by all the Court First That an Inheritance might be limited in this manner in a thing de novo Secondly That this Reservation being to Queen Elianor and her Successors Queens of England did not exclude Queen Dowagers and extend only to Queen Consorts For 1. A Dowager Queen is Queen of England and as Hale said hath the Prerogative to Sue in the Exchequer 2. When once she is so qualified to have the Estate vest in her it shall continue tho' she doth not remain in the same Capacity As where one hath power to Limit an Estate to his Wife it may very well continue in her after the Coverture Thirdly It was much observed and relyed upon that Queen Elianor was only Dowager at the time of the Foundation and so could never be intended to exclude such Queens as should succeed her in that Capacity Fourthly During such time that there should be no Queen it was held that the King was to constitute the Master for he is Heir to Queen Eleanor And whereas it was urged for the Plaintiff That the King had not power to dispose of the place but only by way of provision till such time as a Queen should be so as to commit the Care of the Poor to one but not the Interest of the Mastership It was
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
inherit If the Father a Natural Subject hath Issue a Son an Alien who is Naturalized the Father dies the Son shall inherit Co. Lit. 129. Touching the retrospect of a Naturalization and whether the Son being an Alien Naturalized after the death of the Father shall direct the Discent to the youngest depends upon the words of the Naturalization which being by Act of Parliament may by a strange retrospect direct it But as the Naturalization in the Case in question is Penned it would not do it the Naturalization hath only respect to what shall be hereafter The Clause of taking by Discent after the Commencement of the Session of Parliament is sufficient to check that Retrospect And this brings me to the Consideration of the Naturalization in the Case in question and the Effect thereof which I shall not Argue as a Point because I take the Point of the Case to be single But I shall deliver my Opinion of it by way of Conveyance to the Case Read the Naturalization First In this Naturalization I shall set down what Effect it hath And Secondly What Effect it hath not First What Effect it hath It doth doubtless remove that Inability and Incapacity that is in John the Earl and George in respect of themselves being Aliens and so put them in the Condition as if they had been Born in England But if there be a Consequential Impediment or Incapacity derived upon them by Robert their Fathers being an Alien which might hinder their Successions one to another which at the present I suppose or admit I say if there be any such Consequential Impediment this I take is not removed by this Naturalization My Reasons are briefly these First Because this Act of Naturalization hath a proper Subject upon which it may work and with which it is satisfied viz. the Personal defects of the Parties Naturalized because this Defect arising from the Incapacity of the Father is not in any measure taken notice of by the Act nor so much as mentioned that the Father was an Alien By the whole scope of the Act and every Clause of it and those Relative Terms As if Born in England is only to supply the Personal defect of the Parties Naturalized arising from their Birth out of England and therefore shall never be carried to a Collateral purpose Touching the Objection Tho' this Remedy will not Cure a Disease of another nature as Illegitimation Half-Blood c. yet it Cures all the defects of Foreign Births whether in the Parties themselves or resulting from the Ancestors And the Act might have been so Penned as it might have done it but it is not The Plaister is applied only to defects in the arising from their own Birth not defects arising from the Father or that Consequential disability arising thereby Second Objection But we find in Curteen's Case Placita Coronae 241. that where the Father was Attainted the Restitution in Blood granted by the Act to the Son cures that disability that results from the Fathers Attainder and this not only to the Son but also to the Collateral Heirs of the Father And I have before observed the Corruption of the Blood by Attainder is only of the Blood of the Father for the Son's Blood was not at all Corrupted By this Act of Restitution 1. Notice is taken of the Father's Attainder 2. It doth Intentionally provide against it and it was the only business of that Act to remove it 3. Had it not removed that Corruption of Blood it had been useless for there had been nothing else for it to provide against and so the Restitution had been idle had it not had that Effect But in our Case the Naturalization as it takes no notice of the defect in the Father nor provides against it so it hath another business to satisfie it doth remedy the Foreign Birth of the Son And let us examine the several Clauses in this Act of Naturalization we shall find the whole scope of it was no other than to put them in the same and no better Condition than as if they were Born in England This is the Governing Clause both in the first and last Sentence and hath an influence upon all the Clauses that intervene It hath been endeavoured to break the Context and to make the Clause As if Born in England to be cumulative and superabundant But this were by a Nicety to alter the scope and intent of the Act. If it were omitted yet the first Clause making him but a Natural Born Subject to all intents and purposes surely makes him no more and meddles not with the disability of his Father or the Consequence thereof There hath been some stress laid upon the Clause which enables him to make his resort and Pedigree to Ancestors Lineal or Collateral as if that should Entitle George at least to some more advantage by Naturalization than if he had been Born here But to this I say First That is a General Clause and cannot make a Legal Ancestor Secondly Vpon the same Reason it may make John or George inheritable to Patrick and not adjudge the disability of Nicholas his Father which no man pretends It makes him as much inheritable to Ancestors Lineal as well as Collateral and yet it makes no Ancestors Lineal The Words are General and create no new Ancestor that the Law doth not enable It is true that in the Argument of Godfrey and Dixon's Case especially Mountague laid some stress upon these Ancillary Clauses but the rest rather rested upon the very Matter that the party Naturalized was become thereby a Natural born Subject And thus I have done with the Naturalization which doth not Cure any disability of Transmission Hereditary between the Brothers resulting from the disability of the Father if any such be But it doth cure the Personal disability in John and George and makes them to all intents as Natural Subjects as if they had been born in England So that now the Case made is no more than this An Alien hath Issue two Sons born in England and one purchaseth Lands and dies without Issue whether the other shall inherit For as I have before observed the Case of John the Son of George is all one with the Case of George himself whom he represents as to the Point of the Discent from John the Earl Before I come to the Argument of the Question the Verdict had need be delivered from a Question which possibly would make an end of the Dispute It hath been said that if the Wife of Robert were an English Woman there would be no question but the Land might discend between the Brothers John and George tho' Robert the Father were an Alien and that it shall be so intended because nothing appears to the contrary To this I say It is true that if the Mother were an English Woman the Discent from John to George his Son would be unquestionable For notwithstanding the Incapacity of Robert the Father by being an
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 ê“ublice 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 ipmÌ„ Johan ' Cotton Lionellum pencÌ„ones 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 ê“ 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
a Scotishman Antenate being Naturalized by Act of Parliament in Ireland can Inherit Lands in England 2 Ne exeat Regnum Granted in Chancery to stop one from going beyond Sea to avoid a Sentence in the Ecclesiastical Court 345 Nonsuit The Plaintiff Nonsuited in Ejectment after Evidence where two Defendants and one appears to confess Lease Entry c. and the other not the Plaintiff shall pay Costs but quaere how to be divided 195 Notice See Chancery Conveyance Mortgage If a Man pleads a Valuable Consideration in Chancery to save his Estate from a Judgment he must also set forth That he had no Notice of the Judgment 361 O Obligation A Penalty may be recovered in an Action of Debt upon a Bill Obligatory tho' it be not drawn properly as a Penal Bill 106 Occupant Occupancy favoured in Chancery 364 Office Where the Archdeacon forfeits his Right to grant the Office of his Register by the Stat. 5 E. 6 c. 16. against the Sale of Offices whether the King or Bishop shall take advantage of the Forfeiture 188 213 267 A Dissenter that hath not received the Sacrament of 12 Months before may plead the Stat. 13 Car. 2. Stat. 2. cap. 1. to excuse him from serving Offices in Corporations 247 248 Original See Writs What Original Filing within time shall be sufficient to prevent the pleading the Statute of Limitations 193 259 Whether in the Common Pleas an Original in a Clausum fregit be sufficient to warrant a Declaration in an Assumpsit 259 Outlawry A Man in Prison ought not to be Outlawed by him who Imprisoned him 46 Action on the Case will not lye for the Party who hath an Outlawry agaist a Sheriff who neglects to extend the Goods of the Outlaw upon the delivery of a Writ of Capias Vtlagatum for that it is the King's loss 90 Whether Outlawry may be pleaded in Bar to an Assumpsit upon a Quantum meruit 282 Oxford See By-Law The Priviledge of the University not allow'd to a Townsman so as to excuse him from Office who keeps a Shop and follows a Trade tho' he be Matriculated and Servant to a Doctor 106 Priviledge not allow'd to a Member of this University in a Suit in Chancery 362 P Pardon SUits by Successor against Executor for Dilapidations not pardon'd by the General Pardon otherwise of Suits ex Officio against the Dilapidator 216 Parliament No Action lies against the Chief Officer of a Corporation for a Double-Return of a Burgess the Common Pleas having no Jurisdiction of this Matter 37 Peace The King cannot discharge a Recognizance taken for Surety of the Peace but after it is broken he may 131 A Gentleman said to be a Member of the House of Commons bound to the Peace for Challenging one of the King's Witnesses to Fight 317 Plantation Tho' a Plantation be an Inheritance yet being in a Foreign Country 't is look'd upon as a Chattel to pay Debts and a Testamentary thing 358 Pleading See Baron and Feme Covenant Intent Scire facias Copyhold What shal be held a Double Plea and what not 68 198 Trespass for carrying away diversa onera equina of Gravel naught for incertainty 73 Want of the Word alio or aliis in a Declaration where several mention is made of things of the same nature yet good enough 78 For the Defendant to traverse Matter not alledged good Cause for the Plaintiff to demur 79 If a Judgment and Execution be pleaded in an Inferiour Court not of Record the Proceedings ought to be set forth at large and not sufficient to say taliter processum fuit also it ought to be set forth That the Cause of Action did arise within the Jurisdiction 100 In a Prescription for Priviledge tempore quo non exstat memoria good enough tho' the Course be to say à tempore cujus contrarium memoria hominum non existit 130 Tho' by Course of the Court if a Defendant lye in Prison two whole Terms without any Declaration put in he may get a Rule to be discharged yet if a Declaration be afterwards delivered and Judgment thereupon 't is a good Judgment and the Bail formerly given will be liable 143 Where Freehold Lands were pleaded to pass by Surrender according to Custom the Special Custom must be set forth 144 Where the Writ contains more than is Declared for this is a Variance not aided by the Verdict and Judgment arrested 153 Debt upon Bond Condition'd That the Husband shall permit the Wife to dispose of her Personal Estate c. it is not sufficient for the Defendant to plead quod Conditio nunquam infracta fuit and put the Plaintiff to assign a Breach but the Defendant must shew forth That he hath perform'd the Condition 156 Where an Action of Trespass brought for the same Matter in another Court may be pleaded in Bar to an Action of Trover 169 170 In Trespass quod duas acras terrae fod subvert asportavit Judgment stayed because the Declaration doth not express the quantity of Earth carried away for the two Acres relate only to the Ground digged 174 The Plaintiff Declares for Assault Battery Wounding and Imprisonment the Defendant in his Plea takes no notice of the Battery naught 193 Plea in Abatement That the Plaintiff was dead before the Action brought where good 196 Where preadict is necessary and where not 197 Where a Traverse that might have been omitted is Cause of Demurrer 212 Doubleness in a Declaration cured by Answering 222 Day of the Week where material ought to be set forth in Pleading for the Court are not obliged to consult the Almanack 248 Tempore dimissionum where it should be temporibus dimissionum naught 253 254 271 Super Acclivitatem de Hampsted which is a description of a Scituation whether it be a Vill or Lieu conus sufficient for a Jury 254 272 Diversas petias Maheremij cepit c. naught for the Incertainty 262 Where the Defendant pleads an Insufficient Plea the Plaintiff shall make no Advantage of that upon Demurrer if his own Declaration be naught but Judgment will be against the Plaintiff 262. As where an Executor sues for Rent and does not sufficiently Intitle his Testator to the Estate demised ibid. Plenam potestatem Jus Titulum ad Praemissa dimittend ' and does not set forth what Estate he had whether in Fee or other Estate not good upon a Demurrer 271 Houses are set forth in Pleading to lye in Parochia praedicta and two Parishes are named before naught for the Incertainty 278 Traverse impertinent where the Matter is confest and avoided 283 No General Rule That a Matter cannot be pleaded specially which may be given in Evidence upon a General Issue and in what Cases it may 295 Vid. infra Statut. 1 W. M. cap. 4. Presumption Presumptions of Law stand as strong till the contrary appears as an express Declaration of the Party 208 Priviledge Whether the Warden of the Fleet shall have a Writ