general as this Case There are many instances where Breaches have been generally assigned and held ill that in Croke is so but the later Opinions are otherwise Affirmetur Judicium Pye versus Brereton A Lease was made of Tythes for three years rendring Rent at Michaelmas and Lady-day and an Action of Debt was brought for Rent arrear for two years Vpon Nil debet pleaded the Plaintiff had a Verdict and it was now moved in Arrest of Iudgment that the Declaration was too general for the Rent being reserved at two Feasts 2 Cro. 668. the Plaintiff ought to have shewed at which of those Feasts it was due But the Council for the Plaintiff said That it appears by the Declaration that two years of the three were expired so there is but one to come which makes it certain enough Curia This is helped by the Verdict but it had not been good upon a Demurrer DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. MEmorandum That in Trinity-Vacation last died Sir Francis North Baron of Guilford and Lord Keeper of the Great Seal of England at his House in Oxfordshire being a Man of great Learning and Temperance And Sir George Jefferies Baron of Wem and Chief Justice of the Kings-Bench had the Seal delivered to him at Windsor and was thereupon made Lord High Chancellor of England And Sir Edward Herbert one of the Kings Council succeeded him in the Place of Chief Justice There died also this Vacation Sir Thomas Walcott one of the Justices of the Kings-Bench and he was succeeded by Sir Robert Wright one of the Barons of the Exchequer Sir John Newton al' versus Stubbs IN an Action on the Case for Words Words laid to be spoke ad tenorem effectmu sequen ' not good The Plaintiffs declared that they were Iustices of the Peace for the County of Gloucester c. and that the Defendant spake these scandalous Words of them Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie Men out of their Estates postea eodem die c. they spoke these words Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie me and Mr. Creswick out of our Estates And afterwards these words were laid in Latin without an Anglice ad tenorem effectum sequen ' c. There was a Verdict for the Plaintiffs and entire damages and now Mr. Trindar moved in Arrest of Iudgment 1. That the words in the Declaration are laid in Latin Roll. Abr. 74. pl. 2. without an Anglice and without an Averment that the hearers did understand Latin 2. 'T is not expressly alledged that the Defendant spoke those very words for being laid ad tenorem effectum sequen ' something may be omitted which may alter the sense and meaning of them Cro. Eliz. 857. and for this very reason Iudgment was staied though the Court held the words to be actionable Rex versus Ayloff al' THey were Outlawed for High-Treason Treason and on Tuesday the 27th day of October they were brought to the Bar and a Rule of Court was made for their Execution on Fryday following The Chief Iustice said that there was no hardship in this proceeding to a Sentence upon an Outlawry because those Malefactors who wilfully flie from Iustice and a new Crime to their former Offence and therefore ought to have no benefit of the Law for tho' a Man is Guilty yet if he put himself upon his Tryal he may by his submissive Behaviour and shew of Repentance incline the King to mercy In Felonies which are of a lower nature than the Crimes for which these persons are attainted flight even for an Hour is a forfeiture of the Goods of the Criminal so likewise a Challenge to three Iuries is a defiance to Iustice and if that be so then certainly flying from it is both despising the mercy of the King and contemning the Iustice of the Nation They were both Executed on Frday the 30th of October following Dominus Rex versus Colson al' AN Information was exhibited against the Defendants Information for a Riot not good setting forth that they with others did riotously assemble themselves together to divert a Watercourse and that they set up a Bank in a certain place by which the Water was hindred from running to an antient Mill in so plentifull a manner as formerly c. Vpon Not Guilty pleaded it came to a Tryal and the Iury found that Quoad factionem Ripae the Defendants were Guilty and quoad Riotum not Guilty And now Mr. Williams moved in arrest of Iudgment because that by this Verdict the Defendants were acquitted of the charge in the Information which was the Riot and as for the erecting of the Bank an Action on the Case would lie and the Iudgment was accordingly arrested Mason versus Beldham Trin. 1 Jac. Rot. 408. THE Plaintiff brings his Action against the Defendant Quantum meruit will lie for Rent and sets forth That in consideration that he would suffer the Defendant to enjoy a House and three Water-Mills c. he promised to pay so much yearly as they were reasonably worth and avers that they were worth so much And upon a Demurrer the Question was whether this Action would lie for Rent It was argued for the Defendant that it would not lie Cro. Eliz. 242. 786 859. 2 Cro. 668. because it was a real Contract 'T is true there is a Case which seems to be otherwise 't is between Acton and Symonds Cro. Car. 414. which was in consideration that the Plaintiff would demise to the Defendant certain Lands for three years at the Rent of 25 l. by the year he promised to pay it this was held to be a personal Promise grounded upon a real Contract and by the Opinion of three Iudges the Action did lie because there was an express promise alledged which must also be proved But Iustice Croke was of a contrary Opinion Mr. Pollexfen contra If a Lease be made for years reserving a Sum in gross for Rent and which is made certain by the Lease in such case an Action of Debt will lie for the Rent in arrear But if where no Sum certain is reserved as in this Case a Quantum meruit will lie and no reason can be given why a Man may not have such an Action for the Rent of his Land as well as for his Horse or Chamber And Iudgment was given for the Plaintiff Anonymus THere was a Libel in the Spiritual Court for scandalous Words Prohibition for words where some are actionable and others not Viz. She is Bitch a Whore an old Bawd And a Prohibition was now prayed by Mr. Pollexfen because some of the words were actionable at Law and some punishable in the Spiritual Court and therefore prayed that it might go Quoad those words which were actionable at Law The Chief Iustice granted
forth that the Plaintiff was amerced and that it was affered at the Court and so he hath confounded the Office of the Iurors and Affearers together which he ought not to do for he should be amerced to a certain Sum Hob. 129. Rol. Abr. 542. and not in general which Sum may be mitigated or affered by others If it had been a Fine 8 Co. 38. 1 Leon. 142. it need not be affered because that is imposed by the Court but this is an Amerciament which is the act of the Jury and therefore it must be affered 3. The chiefest Exception was to the matter of the Warrant viz. the Defendant sets forth that he seised by virtue of a Precept from the Dean and Chapter whereas he ought to shew it was directed to him from the Steward of the Court and then to set forth the Warrant without which he cannot justifie to distrain for an Amerciament And of this Opinion was the whole Court and therefore Iudgment was given for the Plaintiff in Michaelmas Term Primo Will. Mariae If it had been in Replevin where the Defendant made cognizance in the right of the Lord it might be well enough as here pleaded but where 't is to justifie by way of excuse there you must averr the Fact and alledge it to be done and set forth the Warrant it self 3 Cro. 698.748 1 Leon. 242. and the taking virtute Warranti for a Bayliff of a Liberty cannot distrain for an Amerciament by virtue of his Office but he must have a Warrant from the Steward or Lord of the Leét for so doing The other Exception that the Amerciament ought to be to a Sum Rast Ent. 606. Co. Ent. 665. the Presidents are otherwise for an Amerciament per duodecim probos legales homines adtunc ibidem jurat ad 40 s. afferat ' is well enough but the Warrant is always set forth Dominus Rex versus Darby THE Defendant was indicted for speaking of scandalous words of Sir J.K. a Justice of the Peace Viz. Sir J.K. Indictment for Scandalous words is a buffle-headed Fellow and doth not understand Law he is not fit to talk Law with me I have bafled him and he hath not done my Clyent Justice Mr. Pollexfen for the Defendant said that an Indictment would not lye for these words because not spoken to the Party in the exceution of his Office but behind his back it will not lye for irreverent words but for Libels and Writings because such are publick but words are private offences But the Court being of Opinion that an Indictment would lye where an Action would not because it respects the publick Peace and that an Action would not lye in this Case unless the party had a particular loss Sid. 65. 2 Cio 5 8. and therefore it hath been held not to be actionable to call a Iustice of Peace Fool Ass Coxcomb He then took Exceptions to the Form of the Indictment 1. There is no place of Abode laid where the Defendant did inhabit which is expresly required by the Statute of H. 5. Viz. 1 H. 5. cap. 5 That in Indictments there shall be addition of the Estate Degree c. and of the Towns Hamlets Places and Counties where the Defendants dwell And by the Statute of H. 6. 8 H. 6. cap. 12 which gives the Iudges power to amend Records in affirmations of Iudgments such defects which are named in the Statute of H. 5. are excepted and therefore where a Writ of Error was brought to reverse an Outlawry upon the Statute of 5 Eliz. for Perjury 2 Cro. 167. the Defendant was Indicted by the Name of Nicholas Leech de Parochia de Aldgate and did not shew in what County Aldgate was and for this cause it was reversed 2. The Caption is coram Justiciariis ad pacem dicti Domini Regis conservand ' and the word nunc is left out It was the Opinion of Iustice Twisden that it ought to be nunc conservand ' Sid. 422. for otherwise it may be the Peace of King Stephen The Councel on the other side said that it was a new Doctrine that the King shall not have the same Remedy by an Indictment which the Subject may have by an Action What is the meaning of the words of all Commissions de propalationibus verborum As to the first Exception they said that the Indictment was certain enough for the Defendant is laid to be de Almondbury in the West-Riding of Yorkshire To the second Exception they said that ad pacem conservand ' without nunc is well enough for it cannot be intended upon this Indictment that they were Iustices to preserve the Peace in any other Kings Reign and what was quoted out of Siderfin is but the Opinion of one single Iudge This is a Scandal upon the Government and 't is as much as to say that the King hath appointed an ignorant Man to be a Iustice of Peace for which an Indictment will lye And of that Opinion was the whole Court and gave Iudgment accordingly Ball versus Cock A Writ of Covenant did bear Teste the first day of Trinity Term Error to reverse a Fine where the Cognisor died after the Caption and before it passed the King's Silver retornable tres Trinitatis and it was taken by Dedimus 30 Julii A Writ of Error was brought to reverse this Fine and the Error assigned was that the Cognizor died after the Caption and before the Enrolment at the King's Silver Office It was argued by the Councel for the Plaintiff in the Writ of Error that a Fine Sur Cognizance de droit c. is said to be levied when the Writ of Covenant is returned and the Concord and King's Silver which is an antient Revenue of the Crown pro licencia concordandi duly entred for though the Cognisor dieth afterwards Dyer 220. b. 5 Co. 37. Cro. Eliz. 469. the Fine is good and the Land passeth but if the King's Silver be not entred the Fine may be reversed by Writ of Error for it is an Action and Iudgment and the death of either Party abates it If it should be objected that this cannot be assigned for Error because 't is against the Record which is Placita terrae irrotulat de Termino Sanctae Trinitatis anno primo Jacobi c. 'T is true an Error cannot be assigned against the very essence of a Record but in the matter of time it may and so 't is in this Case 'T is like Syer's Case 32 Eliz. 3 Inst 230. 4 Co. Hind's Case 10 H. 7.24 who was indicted for a Burglary supposed to be done primo Augusti and upon the Evidence it appeared to be done primo Septembris and though he was acquitted of the Indictment for that reason viz. because the Iudgment relates to the day of the Indictment yet it was resolved by all the Iudges of England that the very day needs not be set down in
As the Statute of Westm W. 2. c. 11. 2. which gives an Action of Debt against a Goaler for an Escape and that per breve yet by the Equity thereof it hath been adjudged that a Bill of Debt will lie For the Statute of R. 1 R. 2. c. 12. 2. gives the like Action against the Warden of the Fleet for the Escape of a Prisoner in Execution which by Construction hath been adjudged to extend to all Goalers and Sheriffs 1 Sand. 38. If this Statute should not be expounded according to Equity then if the Plaintiff himself should be beyond Sea six years after the cause of Action and die there his Executor or Administrator cannot sue for a Debt Curia This Case is out of the Equity of the Statute which provides a remedy when the Plaintiff is beyond Sea but not when the Defendant is there it was never intended to make any Provision for him since the Plaintiff might file an Original and sue him to the Outlawry But Iustice Dolben making some doubt Adjornarur DE Term. Sancti Mich. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Hobbs qui tam c. versus Young AN Information was brought upon the Statute of the 5th of Eliz. for exercising the Trade of a Cloth-Worker Employing Workmen in a Man 's own House he being not Apprentice to the Trade is an exercising that Trade within the Statute 5 Eliz. 4. not being an Apprentice to the same and likewise for setting people to work at that Trade not having served an Apprentiship to it Vpon Not Guilty pleaded the Iury found a special Verdict to this purpose Viz. That the Defendant was a Merchant who Exported Cloath to Turkey and that for the space of a Month he had emploied Men in his House in the Trade of a Cloath-Worker which Men had been educated in the said Mystery for the space of 7 years that he provided Materials for them and paid them weekly Wages but that he himself was not an Apprentice to the said Trade That it was a Trade at the time of the making of the Statute c. The Question was Whether this should be accounted exercising of a Trade within the meaning of the Statute or no Those who argued for the Plaintiff said that true it is any Man might exercise what Trade he thought fit at the Common Law but this confusion had been remedied by several Statutes The first is the Statute of Edw. 3. 37 E. 3. c. 5. that Merchants shall not engross Goods to enhance the Prices nor use but one sort of Merchandise Afterwards in the 38th of Edw. 3. 38 E. 3. c. 2. the former Statute was repealed and liberty given to Merchants only to use what Merchandise they would Then comes the Statute of Queen Elizabeth and the Remedies intended by that and the former Acts were Viz. 1. The restraining of ignorant pretenders to Trade 2. To make a distinction of Trades and to fit them to different ranks of Men. 3. To encourage those who had undergone an Apprentiship by prohibiting others to exercise their Trades The words of this latter Statute are That no person other than such who do now lawfully use or exercise any Art or Mystery or Manual Occupation shall exercise any Craft Mystery or Manual Occupation now used within this Realm except he shall be brought up therein seven years at the least as an Apprentice nor set any person on work in such Mystery c. being not a Workman at the time of making the Statute except he shall have been an Apprentice as aforesaid or else having served as an Apprentice shall become a Journy-Man or hired by the Year under the pain of 40 s. per Month. 'T is plain by this Law that he who cannot use a Mystery himself is prohibited to employ other Men in that Trade for if this should be allowed then the care which hath been taken to keep up Mysteries by erecting Guilds and Fraternities would signifie little In the Case of Morstyn and Nightingale 3 Jac. 2. upon this Statute it was proved that the Defendant emploied none but Pinmakers in that Trade yet not having served an Apprentiship himself the Plaintiff had a Verdict It was insisted on the Defendants behalf that as this Offence is laid in the Information E contra it was not within the first branch of that Clause in the Statute for no Man will say that when the Defendant sets other persons to work such employing them was an exercising the Trade within the first branch of that Paragraph Neither is it within the second Branch the meaning whereof is that no person shall be employed but such as have served an Apprenticeship c. Now the person who sets such People to work is not punishable by this Law but the Men themselves who do work not being qualified and those are not punishable in this Case because the Verdict hath found that they were Apprentices and had served seven years to the Trade 'T is not material to say that the Men thus employed by the Defendant in this Trade are his Servants and that by their working the Company of Clothworkers may be damnified for the Act is not restrained to particular Companies but taketh care in general that the work should be well done No Man will say that a Merchant is within this Statute for the Preamble it self shews 'tis for the Reformation of Trades and Manual Occupations so that as a Merchant is not within the Letter neither is he within the meaning of the Law because he is of a superiour Order and Degree of Men. The chief design therefore of this Law being that unskilful Men should not employ themselves in Trades and the Defendant having set none to work but such who were of that Trade and Artists in it the meaning of the Act is fully pursued and no injury is done to any person Besides it doth not appear by this Verdict that any thing was done by the Defendant but in his own Family and probably it might be for their use and then 't is no offence But if it is a Crime in the Defendant then all the Petty-Chapmen in England are within this Statute for they use several goods belonging to particular Trades and few of them have been Apprentices to any Trade It was said by some of the Council who now argued this Case that they had formerly attended my Lord Hales upon the like matter whose Opinion was that such Petty Chapmen were not within the Statute but that they were warranted by the Custom of those places where they lived Afterwards in Trinity-Term 3 Gulielmi Mariae Iudgment was given for the Plaintiff by the Opinion of three Iudges The Questions are two 1. Whether this is a setting up of a Trade within the express words of the Statute 2. Whether the working of these Cloths in the Defendant's House will be using a Trade c. It cannot be denied but