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england_n	king_n	parliament_n	scot_n	5,191	5	9.5999	5	true

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

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

de gard in what County soever the Orphan was taken so they may punish an unlicensed Marriage Wallers Case 22 Jac. was the same with this which was resolved for the City It appears by the Return that Harwood was present in Court and Hale said they could not award Process into a Foreign County 3. It doth not appear by the Return that the Mayor and Aldermen are to have the Fine and then it shall not be so intended But in Eastwick and Langhams Case which Langham was fined for refusing the Office of a Sheriff being a Freeman it was held they might set the Fine tho' they were to have it themselves 4. It was held the Fine was not excessive But in regard there was no disparagement by the Marriage it was propounded by the Court that upon the submission of Harwood to the Court of Orphans that they should do well to remit the Fine St. Aubin versus Cox A Prohibition was prayed to the Court of the Compter in Woodstreet London to an Action of Debt there commenced for that the Defendant had pleaded before any Imparlance taken that the Cause of Action did arise at a place out of their Jurisdiction and offered to have Sworn his Plea and they refused to accept this Plea Vpon this Matter a Prohibition was granted for Inferiour Courts have not Cognizance of Transitory things which arise in places out of their Jurisdiction as F. N. B. 45. is But then 't is not sufficient to surmize such Matter for a Prohibition but a Plea to that effect must be tendred in the Inferiour Court and that before any Imparlance taken whereby the Jurisdiction would be admitted and it must be upon Oath and then if refused a Prohibition shall be granted or upon such Refusal a Bill of Exceptions may be made and Error assigned Fitz. N.B. 21. N. The King versus Serjeant and Annis THey were Indicted of Perjury committed in their Evidence given upon an Indictment of Barretry against Nurse the Record of which was recited in this Indictment and therein it appeared that the Venire was made Returnable coram J. S. J. N. Justiciariis praedictis and at a day certain and Judgment given and Error brought and assigned that the Venire being Returnable coram Justiciariis praedictis none but the same Justices could proceed and not those who late the next Assizes by virtue of a New Commission And therefore the Proceedings before them were coram non Judice and so no Perjury could be committed Secondly The Venire should not have been Returnable at a Day certain but ad proximas Assisas because 't is uncertain when the Assizes begin and if they should fall out to begin upon the very Day yet it would not help the Error in the first award of the Venire Sed non allocatur For the Statute of 1 2 E. 6. enables New Commissioners of Oyer and Terminer to proceed where the former left before whom the Matter commenced And for the other Exception it makes the Proceedings only Erronious and while the Record stands unreversed the Perjury may be well assigned It was said at the same Assizes that the Judges may Adjourn to a Day certain but if there be a Continuance over to the next Assizes there must be no day expressed But Inferiour Courts cannot make a Continuance ad proximam Curiam but always to a Day certain Stanlack's Case UPon an Inquisition super visum Corporis before the Coroner it was found that he died of a Meagrim at Greenwich Sir Edward Thurland moved for a Melius Inquirendum producing several Affidavits That Stanlack was Riding in the High-way and a Coach with six Horses rushing by him cast him from his Horse and killed him and that divers offered to prove this before the Coroner and he would not hear them And if this Enquest should stand the King would lose his Deodand and alledged that there were several Presidents of this Nature as in one Michael Bartholomew's Case and Toom's Case who Hanged himself at Hackney about 15 years since The Court said in those Cases it was proved that there was Practice with the Coroner to suppress the King's Evidence and so the Inquisition was set aside upon a Malê se gessit If a Coroner omits to enquire this Court as Supream Coroner throughout England may Enquire or may make Commissioners to Enquire or Commissioners of Oyer and Terminer may Enquire but then it is not Super visum corporis and therefore may be Traversed But Hale said Where a Coroner hath Enquired no Melius Inquirendum can go as upon an Office found after the Death of the King's Tenant For unless they could take some Exception to the Inquisition to quash it the Coroner could not Enquire again but if the Misdemeanour of the Coroner were somewhat more clearly made out the Court said they would set the Inquisition aside and cause a New one to be made Maynard's Case HE being produced as a Witness in an Action of Trover against Reynell Corey and others for 12000 l which the Defendants were charged to have conveyed away which was the Money of Mr. Luttrell lately deceased and belonged to Mrs. Luttrell now Plaintiff as Executrix He Swore that the Defendants had the Money and carried it out of the House wherein Mr. Luttrell died and upon his Evidence principally the Jury found the Defendants Guilty Now the last Easter Term which was about a year and an half since the Trial Maynard made an Affidavit in the Kings-Bench that Mrs. Luttrell had Arrested him amongst the rest for the Taking away of this Money and he being unable to put in Bail and apprehensive of the Ruin that lying in Prison would bring upon him he applied himself to Mrs. Luttrell who promised him Favour so that he would accuse Reynell and the other Defendants with the taking of the Money and be a Witness against them and that he was Examined before a Justice of the Peace one A. who did much urge him to depose against Reynell in this Matter And that by their Threats and Promises he was brought to give False Evidence and that what he said in his Testimony relating to the Defendants taking away the Money was untrue After this Affidavit made he was Indicted of Perjury in what he Witnessed in the Action of Trover and confessed the Indictment Mrs. Luttrell thinking this matter might disparage her Verdict brought an Information against him of Perjury committed in his Affidavit to which he pleaded Not Guilty but before the Trial made an Escape so that at the Day the Enquest was taken by Default The Court were at first in doubt whether they should proceed upon the Information the King having taken his Confession upon the first it seemed contradictory and repugnant to prosecute him upon this But in regard the Affidavit charged Mrs. Luttrell and others with having suborned him to per●ure himself he might be tryed upon that as another distinct Perjury if so be they should be

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

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

the case of Proxies Davis Rep. 4. It is said the King has power and that by the Antient Law of the Realm to Visit Reform and correct all Abuses and Enormities in the Iurisdiction Spiritual so that an Offence of this nature is a Violation of the Kings Justice and a Transgression of the Rules of his Administration This is indeed the case of all Crimes of a publick nature the King is most evidently injured by them the Indictments run contra coronam dignitatem c. Now who should have the Forfeiture but he that hath the greatest share in the Injury Again by giving of this Forfeiture to the King the end and design of the Statute is like to be best answered By the Preamble the Statute appeareth to be made that worthy persons might be advanced to places where Iustice was to be administred and who is best to be entrusted with this but the King The Court having given these Reasons they came to consider what had been insisted on at the Bar in the behalf of the Bishop It was said that all the Jurisdiction Ecclesiastical in the Diocess was originally placed in the Bishop and the case of Gastrill and Jones 2 Ro. Rep. 646 647. was cited where it is said That the Iudicial power of the Archdeacon was derived from the Bishop he is called Vicarius Episcopi and Oculus Episcopi T is true there are some Archdeacons that have Iurisdictions peculiar and exempt but that is by Prescription or Custom these are taken notice of by Godolphin But there is nothing found of that in the Verdict and so must be taken to be the common case of an Archdeacon and that was agreed It was said this offence was reckoned Simony in the Canon Law And the Bishop had the correction of it as in Smithes Case Owens Rep. 87. This was compared to the Cases of inferiour and subordinate Officers which when they are forfeited the superiour takes advantage as in the Earl of Pembrooks Case and Sir H. Bickly Popham 119. The Keeper of a Walke in a Forest forfeited this went to him that had the custody of the Forest so in Bridgman's Rep. 27. He that hath Liberty of a Park in a Forest when forfeited it goeth to the Lord of the Forest 39 H. 6. 32. The Keeper of the Marshalsey of the Kings Bench forfeited his Office the Duke of Norfolk Great Marshal of England took advantage of it To these Cases it was said by the Court That they differed much from the Case at the Bar. First In the Cases cited the Inferior Officer is put in by the Superior and in some Cases to answer for his miscarriage ubi respondeat Superior they are Offices incident as the County Clark to the Sheriff Mittons Case 4 Co. and Scroggs Case of the Exigenter to the Chief Justice of the Common Pleas Dyer 175. But here the Bishop doth not put in the Register of the Archdeacons Court He may make one to supply that place if it falls void when the Archdeaconry is vacant but then the next Archdeacon removeth him and puts in another Secondly The Forfeitures in the Cases cited were upon Breaches of Conditions in Law annexed to the Offices and t is a Rule in Law that the Grantor is to take advantage of the Breach of all Conditions but we are in case of a Forfeiture for offending against an Act of Parliament And the Court said tho' it might be supposed originally the Jurisdiction within the Diocess was lodged in the Bishop yet the Archdeacons Court hath time out of mind been settled as a distinct Court 4 Inst 339. and the Statute of 24 H. 8. cap. 12. takes notice of the Consistory Court which is the Bishops Court and the Archdeacons Court from which there lies an Appeal to the Bishops Court in 2 Ro. Rep. 150. Chivertons Case The Archdeacon is said to have a Court of himself and that the Courts of Westminster take notice thereof Th●s may be resembled to the Case of the Torn and Leet in the County the Leet is supposed to have been derived out of the Torn and yet upon the Forfeiture of a Leet it shall not go to the Sheriff As to the second Point it was resolved by the Court That the King might in this Case make a Register before Office found It was agreed That where an Estate of Freehold was forfeited to the King by Act of Parliament that an Office would be requisite to vest it in the King and that by the Statute of 5 Edw. 6. against the sale of Offices all the Estate and Interest c. of the Offender is forfeited But Pollexfen Chief Justice conceived this was not an Estate in the Archdeacon but only a Power to appoint a Register and in the nature of a chose en Action like the case of Offices in the King where the King may grant or nominate to the Office but hath not the Office in him to use or execute But he conceived and with that the rest of the Court agreed that however as to the present vacancy the right to supply that was a Chattel separate from the Inheritance and the King might supply the present avoidance before any Office found tho' it be admitted that the right of nomination in point of Estate should not vest in the King before Office found Where the Kings Tenant dies seised of an Advowson or in case of an Outlawry tho' the Estate is not in the King before Office yet if the Church becomes void the King shall present before Office 20 Edw. 4. 11. The case so put of an Advowson appendant Stamf. Prerog 54. B. T is a Transitory Chattel the present avoidance Lanes Rep. 43 64. 1 Ro. Rep. 326. and Jones Rep. 425. So the Body of the Ward is in the King before Office In Case of Simony the King shall present without Office Sed nota 31 Eliz. giveth the Presentation pro hac vice only And the Court said that the Verdict found that the Plaintiffs had a Grant from the Archdeacon also so that if nothing be in the King till Office it must remain in the Archdeacon so his Grant will be good till Office found There are no disabling words in the Statute but only shall Lose and Forfeite so quacunque via data the Plaintiffs ought to have Iudgment Harris versus Parker Ante ult ' Term. IN an Action of Debt for 99 l Rent the Plaintiff Declared upon two Demises which he laid at the Parish of St. Martin in the Fields in Middlesex of a Messuage and divers Lands quae praemissa sunt struat ' jacent ' existent in super acclivitatem de Hampstead Anglicè the rise of Hampstead Hill to hold for seven years reserving upon each Demise eighteen pounds yearly Rent The Defendant pleaded Actio non quia dicit quod praed ' Johannes Harris tempore dimiss ' praed ' nihil habuit in Tenementis praedict ' unde c. The Plaintiff Replied That long before the

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

Mesuages Lands and Premisses And to the intent that the Contingent Remainder by the said Will limited to the Heirs Males and Females of the Body of the said Robert Durdant might be extinguished and destroyed he the said John Higden by the appointment of the said Robert Durdant did surrender his Estate in the Premisses to the said Gideon Durdant and by the said Deed it was Covenanted That the said Robert Durdant John Higden and Gideon Durdant should levy a Fine of the Premisses which should be to the use of the said John Higden and his Heirs They find that a Fine was levied accordingly in Easter Term 15 Car. 2. They find That Robert Durdant died on the 19th of August 20 Car. 2. and that John Higden after in 20 Car. 2. upon a valuable Consideration in money enfeoffed John Burchet of the Premisses and that the said Burchet died the 1st day of October in the same year and that the Premisses from him came to the Defendant Burchet who entred into the Premisses and became seised prout lex postulat And they find That Robert Durdant as well at the time of the said Will making as at the death of the said Henry Wicks had an only Son called George Durdant who was also Godson to the Testator and that the said George Durdant died and that William Durdant Lessor of the Plaintiff was his Son and Heir and entred and made the Demise prout c. si super totam materiam c. Vpon his Special Verdict Iudgment was given in the Kings-Bench for the Plaintiff And the Court here afterwards having heard the Case thrice Argued did affirm the Iudgment And the first Point spoken to was Whether the Estate did not execute in Robert Durdant by the Statute of 27 H. 8. of Uses For if so he would be seised of an Estate tail and then Burchet would have a good Title It is clear Lands may be Devised to the use of another as in Popham 4. 'T is true a Devise implies a Consideration and will lodge the Estate in the Devisee if no Vse be limited upon it Here it is Devised to John Higden and his Heirs upon trust and confidence that he should permit and suffer c. The word Trust is proper for the Limitation of an Use and the Estate shall Execute unless it be first limited to the use of a man and his Heirs in Trust for another there the Intention is that it should be only a Trust and here Robert Durdant is restrained only from doing waste which shews that he intended he should take an Estate or else he could not commit waste But Lands may be Devised to an Use tho' the Statute of Wills is since the Statute of Uses Mo. 107. 1 Cro. 343. The Court over-ruled this Point and Resolved it to be only a Trust in Robert Durdant for the words are That Higden should permit him to take the profits which shews that the Estate was to remain in Higden And for the restraint of waste it was proper for Higden was to permit Robert Durdant to have the possession but the Testator would not have him to commit waste or spoil The second and principal Point was Whether the Remainder to the Heirs of Robert Durdant now living did vest in George Durdant or was a Contingent Remainder It was much urged That one could not take in the Life of his Ancestor by the name of Heir for nemo est haeres viventis in the 1 Co. Archer's Case A Devise to Robert Remainder to the next heir Male of Robert and to the heirs Males of the Body of that heir Male this is Resolved to be a Contingent Remainder during the Life of Robert and it was said in that Case that the next heir Male is as much a designation of a person as an Heir now living He that will take by purchase by the name of Heir must be a compleat Heir to all intents Co. Littl. 24. b. 2 Leon 70. Chaloner and Bowyer 's Case upon a Devise But it was Resolved that this was a Remainder vested in George Durdant for the Remainder being limited to the Heirs of the Body of Robert Durdant now living and George being found to be then the only Son it was a sufficient designation of the person and as much as if it had been said to his Heir apparent and such an one is called Heir sometimes in proceedings in Law where the greatest strictness of phrase is used as in Writs of Ravishment of Ward Quare filium haeredem rapuit 2 Inst 439. Westm 2. cap. 35. 25 Ed. 3. the Statute of Treasons Treason to kill the Heir of the King The third Point was Whether George Durdant took an Estate Tail or only an Estate for Life for it was Objected that if the words Heirs of the Body were taken for the description only of the person who should take then he must take only for Life But the Court held that they would make an Estate Tail for Heirs is nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number A Devise to one for life Remainder to the heir Males of his Body for ever this is an Estate Tail in the Devisee Pawsey and Lowther in Rol. Abr. 2. Part 253. But in case the first words viz. Heirs of the Body now living would carry but an Estate for Life to George Durdant yet the subsequent words would make an Entail in him viz. and to such other Heirs Male and Female as he should hereafter happen to have of his Body this would clearly vest an Entail in George he being Heir of the Body of Robert and surviving Robert So the Judgment was affirmed Sed Nota as to the second Point the Lord Chief Baron Atkyns and Justice Powell seemed to be an Opinion that the Remainder was Contingent But in regard the Point had been upon a Writ of Error brought in the House of Lords upon a Judgment given in the Kings-Bench in another Case upon the same Will adjudged to be a Remainder vested they conceived themselves bound by that Judgment in the House of Lords Paschae Anno 2 Willielmi Mariae Memorandum BY an Order of the King and Council 1 Willielmi Mariae the Judges were Ordered to meet and all of them except Gregory Eyre and Turton were assembled at the Lord Chief Justice's Chamber to give their Opinion concerning Colonel Lundy who was appointed Governour of London Derry in Ireland by the King and Queen and had endeavoured to betray it and afterwards he escaped into Scotland where he was taken and brought Prisoner into England and Committed to the Tower Whether admitting he were guilty of a Capital Crime by Martial Law committed in Ireland he might be sent thither from hence to be Tryed there in regard of the Act of Habeas Corpus made Anno 31 Car. 2. which Enacts That no Subject of this Realm shall be sent over Prisoner to any Foreign parts But

83 W Wager of Law WHere a Man shall be admitted to Wage his Law in an Action of Debt and the manner of doing it 171 Waver An Executor cannot Wave a Term unless he renounce the whole Executorship 209 Way How a man may Intitle himself to a Foot Way 186 Wills See Devise Where there is a Custom to pass Lands by a Parol or Nuncupative Will yet they shall not pass without express and plain Words to shew the Intention 286 A Cumulative Provision in a Will shall not double a Portion unless plainly proved that the Testator intended to do so 347 348 Writs Where a Writ shall be amended according to the Instructions given to the Cursitor 46 49 152 Where an Original Writ shall be new made according to the Instructions first given to the Cursitor 130 Usual for a Plaintiff to take out his Original after Judgment entred 154 ERRATA in the Second Part. PAg. 8. lin 4. read Ireland p. 10. l. ult r. Canon Law p. 16. in fine r. Judaical p. 21. l. 23. r. Lands Freehold c. p. 50. l. 15. r. 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