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
the one took 70 l. and the other 30 l. damages shall be assessed severally It was admitted that regularly the damages ought to be entire especially where the Action is joint but where the Facts are several damages may likewise be so assessed but in this Case the Iury hath done what the Court would do had it béen in a Criminal Cause Curia This is all but one Fact which the Iury is to try 'T is true when several Persons are found Guilty criminally then the damages may be severed in proportion to their Guilt but here all are equally guilty of the same offence and it seems to be a contradiction to say that the Plaintiff is injured by one to the value of 50 l. and by the other to the value of 1000 l. when both are equally Guilty Every Defendant ought to answer full as much as the Plaintiff is damnified now how is it possible he should be damnified so much by one and so little by the other But notwithstanding this Opinion Iudgment was afterwards given for the Plaintiff Peak versus Meker IN an Action on the Case for Words the Plaintiff declared that he was a Merchant and bred up in the Church of England and that when the present King came to the Crown the said Plaintiff made a Bonfire at his Door in the City of London and that the Defendant then spoke of him these words for which he now brought this Action viz. He innuendo the Plaintiff is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his Door but he The Plaintiff had a Verdict and 500 l. Damages were given A Writ of Error was brought but it was adjudged without argument that the words were actionable Joyner versus Pritchard AN Action was brought upon the Statute of R. II. Admiralty for prosecuting of a Cause in the Admiralty Court which did arise upon the Land it was tried before the Chief Iustice in London and a Verdict for the Plaintiff Mr. Thompson moved in Arrest of Iudgment for that the Action was brought by Original in which it was set forth that the Defendant prosecut fuit adhuc prosequitur c. in Curia Admiralitat now the prosequitur is subsequent to the Original and so they have recovered Damages for that which was done after the Action brought Curia These words adhuc prosequitur must refer to the time of suing forth this Original like the Case of a Covenant for quiet Enjoyment and a breach assigned that the Defendant built a Shed whereby he hindred the Plaintiff that he could not enjoy it hucnsque which word must refer to the time of the Action brought and not afterwards Iudgment was given for the Plaintiff Dominus Rex versus ........ AN Information was brought against the Defendant for Forgery Forgery setting forth that the Defendant being a man of ill fame c. and contriving to cheat one A. did forge quoddam scriptum dated the 16th day of October in the year 1681. continens in se scriptum obligatorium per quod quidem scriptum obligatorium praed A. obligatus fuit praed Defend in quadraginta libris c. He was found Guilty and afterwards this Exception was taken in arrest of Iudgment Viz. That the Fact alledged in the Information was a contradiction of it self for how could A. be bound when the Bond was forged 2. It is not set forth what that scriptum obligatorium was whether it was scriptum sigillatum or not Curia The Defendant is found Guilty of the forging of a Writing in which was contained quoddam scriptum obligatorium and that may be a true Bond. Iudgment was arrested MEMORANDUM On Tuesday April the 27th Sir Thomas Powes of Lincolns-Inn was made Sollicitor General in the Place of Mr. Finch and was called within the Bar. Hanchet versus Thelwal IN Ejectment a special Verdict was found Devise What words in a Will make an Estate for Life and what in Tail in which the Case did arise upon the construction of the words in a Will Viz. The Testator being seised in Fee had Issue Two Sons and Four Daughters He made his Will and devised his Estate being in Houses by these words Viz. Irem I give and bequeath to my Son Nicholas Price my Houses in Westminster and if itplease God to take away my Son then I give my Estate to my four Daughters naming them share and share alike and if it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving And if all my Sons and Daughters dye without Issue then I give my said Houses to my Sister Anne Warner and her Heirs Nicholas Price entred and died without Issue then the four Sisters entred and Margaret the eldest married Thellwel and died leaving Issue a Son who was the Lessor of the Plaintiff who insisted upon his Title to a fourth part of the Houses The Question was what Estate the Daughters took by this Will whether joint Estates for Life or several Remainders in Tail If only joint Estates for Life then the Plaintiff as Heir to his Mother will not be entituled to a fourth part if several Remainders in Tail then the Father will have it during his Life as Tenant by the Curtesie This Case was argued this Term by Mr. Pollexfen for the Plaintiff And in Hillary Term following by Councel for the Defendant The Plaintiffs Council insisted that they took joint Estates for Life and this seemed to be the intent of the Testator by the words in his Will the first Clause whereof was Viz. I give and bequeath my Houses in W. to Nicholas Price Now by these words an Estate for Life only passed to him and not an Inheritance for there was nothing to be done or any thing to be paid out of it 2. The next Clause is Viz. If it please God to take away my Son then I give my Estate to my four Daughters share and share alike Now these words cannot give the Daughters a Fee-simple by any intendment whatsoever but if any word in this Clause seems to admit of such a Construction it must be the word Estate which sometimes signifies the Land it self and sometimes the Estate in the Land But here the word Estate cannot create a Fee-simple because the Testator gave his Daughters that Estate which he had given to his Son before and that was only for Lise Then follow the words share and share alike and that only makes them Tenants in Common 3. The next Clause is Viz. If it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving These words as they are penned can have no influence upon the Case 4. Then followeth the last Clause Viz. And if all my Sons and Daughters dye without Issue then I give c. These words create no Estate tail in the
being no where alledged that the Goods were weighed elsewhere or that they were such which are usually sold by Weight then there is no need of bringing of them to the Beam If one prescribes to a Common and doth not say for Cattle Levant and Couchant the Prescription is not good This being the consideration of the Duty it ought to be precisely alledged as in an Assumpsit where the Plaintiff declared that in consideration that the Defendant owed him 40 l. he promised to pay it ante inceptionem proximi itineris to London Yelv. 175. 2 Cro. 245. and alledged that such a day incepit iter suum ad London ' but for omitting the Word proxime Iudgment was arrested after Verdict because the Duty did arise upon the commencement of his next Iourney The true reason why any thing is helped by Verdict is for that the thing shall be presumed to be given in Evidence at the Trial. Mr. E contra Pollexfen contra Here is enough set forth in the Plea to shew that the Goods were not weighed and it must be given in Evidence at the Trial that they were sold contrary to the Custom which is the only Offence to be proved The want of Averment that the Goods sold by the Defendant were not weighed shall not vitiate this Declaration after a Verdict To prove this some Authorities were cited Cro. Eliz. 458. 2 Cro. 44. Siderfin 218. Palmer 360. Cro. Car. 497. as where in Trespass the Defendant justified for Common by Prescription for Beasts Levant and Couchant and that he put in his Beasts utendo Communia Issue was taken upon the Prescription and found for the Defendant now though he did not averr that the Cattle were Levant and Couchant yet it was held that it was cured by a Verdict And of this Opinion were three Iudges now but Iustice Allybon differed for says he if this Declaration should be good after a Verdict then a Verdict will cure any fault in Pleading Iudgment for the Plaintiff Prowse versus Wilcox AN Action on the Case for scandalous Words Words spoken of a Justice of the Peace where actionable The Plaintiff declared that he was a Justice of the Peace for the County of Somerset that there was a Rebellion in the West by the Duke of Monmouth and others that search was made for the Defendant being suspected to be concerned in that Rebellion and that the Defendant thereupon spoke these words of the Plaintiff viz. John Prowse is a Knave and a busie Knave for searching after me and other honest Men of my sort and I will make him give me satisfaction for plundering me There was a Verdict for the Plaintiff and the Iudgment being stayed till the Return of the Postea Mr. Pollexfen moved that the Plaintiff might have his Iudgment because the Words are actionable 1 Roll. Abr. 59. pl. 3. for they touched him in his Office of a Iustice of a Peace It was objected to stay the Iudgment that the Words were improper and therefore could not be actionable But admitting them so to be yet if they in any wise reflect upon a Man in a publick Office they will bear an Action Shore contra The Plaintiff doth not lay any Colloquium of him as a Justice of the Peace or that the words were spoken of him relating to his Office or the Execution thereof and therefore an Action will not lie though an * Vid. antea Rex versus Darby 2 Cro. 315. Information might have been proper against him If a Man should call another Lewd Fellow and that he set upon him in the High-way and took his Purse from him an Action will not lie because he doth not directly charge him with Felony or Robbery The Court were divided in Opinion two against two so the Plaintiff had his Iudgment Boyle versus Boyle A Libel was in the Spiritual Court against a Woman causa jactitationis Maritagii Prohibition granted The Woman suggests that this person was indicted at the Sessions in the Old-Bayly for marrying of her he then having a Wife living contra formam Statuti Godb. Rep. Can. 507. Hales 121. 1 Jac. cap. 11. Sid. 171. that he was thereupon convicted and had Iudgment to be burned in the Hand so that being tried by a Iury and a Court which had a Iurisdiction of the cause and the Marriage found a Prohibition was prayed Serjeant Levinz moved for a Consultation because no Court but the Ecclesiastical Court can examine a Marriage for in the Dower Writ is always directed to the Bishop to certifie the lawfulness of the Marriage and if this Woman should bury this Husband and bring a Writ of Dower and the Heir plead Ne unques accouple c. this Verdict and Conviction shall not be given in Evidence to prove the illegality of the Marriage but the Writ must go to the Bishop This is proved by the Case of Emerton and Hide in this Court The Man was married in fact and his Wife being detained from him she being in the Custody of Sir Robert Viner brought an Habeas Corpus she came into the Court but my Lord Hales would not deliver the Body but directed an Ejectment upon the Demise of John Emerton and Bridget his Wife that the Marriage might come in question It was found a Marriage and afterwards at an Hearing before the Delegates this Verdict was not allowed to be given in Evidence because in this Court one Iury may find a Marriage and another otherwise so that it cannot be tried whether they are legally married by a Temporal Court 'T is true this Court may controle the Ecclesiastical Courts but it must be eodem genere E contra E contra It was said that if a Prohibition should not go then the Authority of those two Courts would interfere which might be a thing of ill consequence If the lawfulness of this Marriage had been first tried in the Court Christian the other Court at the Old-Bayly would have given Credit to their Sentence But that Court hath been prohibited in a Case of the like nature 2 Cro. 535. for a Suit was there commenced for saying That he had a Bastard The Defendant alledged that the Plaintiff was adjudged the reputed Father of a Bastard by two Iustices of the Peace according to the Statute and so justified the speaking of the words and this being refused there a Prohibition was granted and so it was in this Case by the Opinion of three Iudges Dr. Hedges a Civilian being present in the Court said that Marriage or no Marriage never came in question in their Court upon a Libel for Jactitation unless the Party replies a lawful Marriage and that the Spiritual Court ought not to be silenced by a Proof of a Marriage de facto in a Temporal Court for all Marriages ought to be de jure of which their Courts had the proper Iurisdiction Sir John Newton versus Francis Creswick IN an Action on the
and Title set forth but no Iudgment was then given Boson versus Sandford THE Plaintiff declared that the Defendant and seven other persons were Proprietors of a Vessel Where there are several Proprietors of a Vessel and Goods are dampnified by carriage the Action must be brought against them all in which they used to carry Goods for a reasonable hire from Port to Port. That he had loaded the said Vessel with Boards which were agreed to be safely transported from London to Topsam and that the Defendant by neglect suffered them to be dampnified c. Vpon Not-Guilty pleaded a special Verdict was found the substance whereof was viz. That the Plaintiff did load the Ship with Boards of which Ship the Defendant and seven other persons were Proprietors that the said Ship did usually carry Goods for hire that the Plaintiff delivered the Goods to Daniel Hull who was Master of the Vessel and that they were loaded therein but that none of the Proprietors were present That there was no actual Contract between the Plaintiff and the Proprietors or any Negligence in them but the Boards were dampnified by the neglect of the said Master c. The Questions upon this special Verdict were two 1. Whether this Action would lie against the Defendant alone as one of the Proprietors or whether it must be brought against them all 2. If the Action ought to be brought against them all then Not-Guilty was not a proper Plea because the Defendant ought to have pleaded in Abatement that the rest of the Owners super se susceperunt simul cum the Defendant absque hoc quod he super se suscepit tantum It was argued for the Plaintiff that the Action may be well brought against any single person of the Proprietors because 't is grounded upon a Tort as well as upon a Contract which in this Case is only an Inducement to the Action and therefore the Plaintiff hath liberty to bring it either the one way or the other for 't is both joint and several So it is in Trover where a Man declares that he was possessed of such Goods that the Defendant found them and promised to deliver them but converted them to his own use the Contract is but Iuducement for the cause of Action arises upon the Conversion This is a remedy given by the construction of the Law and if so it must be certain and effectual to all intents and therefore it hath been ruled in an Action brought against a common Carrier upon the Assumpsit in Law Sid. 244. and likewise upon the Tort that the Declaration was ill and though the Plaintiff had a Verdict yet the Iudgment was arrested because he had declared both ways Agreeable to this was that Iudgment which was given upon the Statute of 2 Ed. Hutt 121 122. 3. for not setting out of Tythes in an Action of Debt brought against two Tenants in Common it happened that one of them set out the Tythes and the other carried them away and because the Action was brought against both it was held to be ill for it lies only against him which did the wrong 2. If the Action ought to be brought against all then the Defendant should have taken advantage of it by pleading and to have shewed who were the Proprietors with himself for 't is impossible for the Plaintiff to know who they are and for this reason the Plea is not good E contra E contra The Plaintiff ought to have brought his Action either against the Master alone or all the Proprietors 't is true if this had been only an Action of a simple Trespass he might have brought it against all or one but this sounds not only in a Wrong but 't is in Breach of a Covenant or Duty and so ought to be commenced against all of them as common Carriers Now the great reason why all are liable to an Action is because they all have a reward for the Hire of the Vessel and it seems very unreasonable that one should bear the burthen and the rest run away with the profit The principal Case in Hutton is an Authority directly to this purpose though it was otherwise quoted by the Plaintiffs Council it was Debt upon the Statute of Ed. 6. brought against one Lessee for not setting out of Tythes and it appeared upon the Evidence that two were jointly possessed of the Term and for that reason it was held that the Action would not lie against one alone 2. The Defendant ought not to have pleaded in Abatement that the rest of the Proprietors super se susceperunt simul cum the Defendant c. because such a Plea would not have been good here for he shall never be compelled to plead in Abatement either in Debt or Contract but in one single Case and that is where two are bound jointly and one is sued he may plead in Abatement 5 Co. 119. but cannot say Non est factum for the Bond is his Deed since each of them have sealed it Afterwards in Hillary-Term the Defendant had Iudgment Judicium that the Action ought to be brought against all the Partowners because they have all an equal benefit and the ground of the Action is upon a Trust reposed in all and every Trust supposeth a Contract 2 Cro. 202. Palm 523. and in all Cases grounded upon Contracts the Parties who are Privies must be joyned in the Action The Master of the Ship is no more than a Servant to the Owners he hath no Property either general or special but the Power he hath is given by the Civil Law There are many Cases where the act of the Servant shall charge the Master as for instance viz. King Ed. 6. sold a quantity of Lead to Renagre Dyer 161. and appointed the Lord North who was then Chancellor of his Court of Augmentations to take Bond for payment of the Mony The Lord North appointed one Benger who was his Clerk to take the Bond which was done who delivered it to the Lord and he delivered it back again to his Clerk in order to send it to the Clerk of the Court of Augmentations Benger suppressed this Bond and it was the Opinion of all the Iudges of England that the Lord North was chargeable to the King because the possession of the Bond by his Servant and by his Order was his own possession So where an Officer of the Customs made a Deputy Dyer 238. b. who concealed the Duties and the Master being ignorant of the Concealment certified the Customs of that part of the Revenue into the Exchequer upon Oath he was adjudged to be answerable for this Concealment of his Servant So where the Lessor was bound that the Lessee should quietly enjoy and it was found that his Servant by his command 4 Leon. 123. and he being present entred this was held to be a Breach of the Condition for the Master was the principal Trespasser Therefore though
Man from having any Office whatsoever who shall affirm the King to be a Papist 13 Car. 2. cap. 1. that is a person who endeavours to introduce Popery 2. But if the word Papist is not actionable of it self yet as coupled with his Offices 't is otherwise and the Plaintiff may well maintain this Action And of that Opinion was all the Court So the Iudgment was affirmed Malloon versus Fitzgerald ERror of a Iudgment in Ireland Where an Estate Tail shall not be determined for want of notice of a Proviso to determine it for Lands in the County of Waterford the Case upon the special Verdict was this John Fitzgerald was seized in Fee of the Lands in question who had Issue Katherine his only Daughter He by Lease and Release made a Settlement of those Lands upon the Earl of Ossory and other Trustees therein named and their Heirs to the use of himself for Life and after his Decease to the use of his Daughter Katherine in Tail Provided that she Married with the consent of the said Earl and the Trustees or the major part of them or their Heirs some worthy person of the Family and Name of Fitzgerald or who should take upon him that Name immediately after the Marriage but if not then the said Earl should appoint and raise a Portion out of the said Lands for the Maintenance of the said Katherine with a Remainder to Laetitia in Tail John Fitzgerald died his Daughter being then but two years old She afterwards at the Age of fourteen had Notice of this Settlement but not by the Direction of the Trustees That on the 20th of March in the 16th year of her Age she Married with the Plaintiff Edward Villiers Esq without the consent of the Trustees or the major part of them and that her Husband Mr. Villiers did not take upon him the Name of Fitzgerald after the said Marriage That Laetitia the Aunt was married to Franklyn who likewise did not take upon him the Name of Fitzgerald 1. The Questions were Whether the Estate limited to Katherine be forfeited without Notice given to her of the Settlement by the Trustees themselves 2. Whether her Estate be not determined by her marrying Mr. Villiers without their consent And it was argued That the Estate Tail was determined And first as to the point of Notice 't is not necessary to be given to the Daughter because the Father had not made it in the Settlement He might dispose of his Estate at his pleasure and having made particular Limitations of it there is no room now for the Law to interpose to supply the defect of Notice in the Deed. And to this purpose the Mayor of London 's Case was cited which was That George Monox Devised certain Houses to his Executors in Trust and their Heirs Cro Car. 576. Idem Jones 452. upon condition to pay mony to several Charitable uses which if not performed then he devised them over to his Heir in Tail upon the same Conditions and if not performed by him then to the * The Devise to him was void because it was a possibility upon a possibility Mayor and Commonalty of London The Trusts were not performed by the first Devisees A Stranger entered and levied a Fine with Proclamations and five Years passed Then the Mayor of London brought his Action supposing he had a right of Entry for the non performance of the Trusts but was barred by the Fine although it was argued for him that he had not notice of the Devise or breach of the Trust till after the Fine levied which shews that Notice was not necessary for if it had been so when his Title accrewed he could not have been barred by the Fine As Katherine the Daughter takes notice what Estate she hath in the Land so as to pursue a proper Remedy to recover it so she ought to take notice of the Limitations in the Settlement and hath the same means to acquaint her self with the one as with the other and the same likewise as her Aunt had to know the Remainder Suppose a Promise is made to indempnifie another from all Bonds which he should enter into for a third person 2 Cro. 432. Hob. 51. Jones 207. Pop. 164. and then an Action is brought against him wherein the Plaintiff declared that he was bound accordingly and not saved harmless but doth not shew that he gave notice of his being bound yet the Plaintiff shall recover As to the Case of a Copyholder having three Sons who surrendred to the use of his Will 2 Cro. 56. and then devised to his middle Son in Fée upon condition to pay Legacies to his Sisters at full age which were not paid Now tho' it was adjudged that his Estate was not determined upon the non-performance of this Condition without an actual demand and denial and that he was not bound to take notice of the full age of his Sisters yet this is not an Authority which can any wise prevail in this Case because 't is a * If the Devise had been to the eldest Son then it had been a Limitation annexed to his Estate and not a Condition because if it had been a Condition it would have descended upon the Heir who could not be sued for the breach 1 Ventr 199. Rep. Canc. 140. Sid. Poph. 104. Condition to pay Legacies which is a thing in its nature not to be paid without a demand which implies notice In all Cases where Conditions are annexed to Estates to pay Mony there notice is necessary but where Estates are limited upon the performance of collateral acts 't is not necessary And this has been held the constant difference So is Fry and Porter 's Case which was this The Earl of Newport had two Daughters and he devised Newport House to the Daughter of his eldest Daughter in Tail which she had by the Earl of Banbury Provided and upon condition that she marry with the consent of her Mother and two other Trustees or the major part of them if not or if she should dye without Issue then he devised the said House to George Porter in Fee who was the Son of his youngest Daughter and who had married one Thomas Porter without her Fathers consent The Lady Ann Knowles the first Devisee married Fry without the consent of her Grandmother or Trustees and it was adjudg'd against her upon point of Notice that it was not necessary because her Grandfather had not appointed any person to give notice he might have imposed any Terms or Conditions upon his own Estate and all Parties concerned had the same means to inform themselves of such Conditions The third Resolution in Frances Case 8 Co. comes nearest to this now in question it was in Replevin the Defendant avowed the taking Damage Fesant The Plaintiff pleaded in Barr to the Avowry that R. Frances was seized in Fee of the place where c. and devised it to John who was his
quam ad illud facere debet solet And it was the Opinion of a * Justice Doderidge in Surry and Piggots Case Pop. 171.27 Assise placito 8. Br. Prescription 49. Rast Entr. 441 Tit. Nusance learned Iudge that the words currere consuevit solebat did supply a Prescription or Custom Thus it was in an Assise of Nusance wherein the Plaintiff set forth that he had a Fountain of Water currentem usque ad rotam molendini c. and that the Defendant divertit cursum aquae and this was held good The Cases of stopping up of Lights and diverting of Water-courses are not parallel the Prescription to Lights must be ratione loci and therefore if a Man will erect a new House and a Stranger will stop the Lights 't is an injury done and the Action may be maintained upon the Possession Lutterel 's Case was grounded upon the Possession for upon the Plaintiff Cottell 's own shewing the Prescription was gone because he set forth that he had pulled down the old Mills and that the Defendant Lutterel diverted the Water from running to those Mills which the Plaintiff newly built All which prove that a Prescription goes to the Right but a possession is sufficient to support an Action against a Tort-fesor Lastly Slackman vers West Palmer 387. 2 Cro. 673. in the Case of a Common or a Rent which cannot pass without Deed if the Plaintiff shews a Que Estate he must produce the Deed by which it was granted but where he prescribes for a Way he may set forth his Estate without shewing how he came by it because 't is but a Conveyance to the Action which is grounded upon the disturbance done to the Possession Cur. The word solet implies Antiquity and will amount to a Prescription and solitus cursus aquae running to a Mill makes the Mill to be antient for if it be newly erected there cannot be solitus cursus aquae towards that Mill For which Reasons the Iudgment in the Original Action was affirmed in Hillary Term Primo Willielmi But the Chief Iustice was of Opinion that if the Cause had been tried upon such a Oeclaration that the Plaintiff ought to prove his Prescription or else he must be Nonsuit Anonymus ONE was Indicted for drinking of an Health to the Pious Memory of Stephen Colledge who was Executed at Oxford for High Treason He was Fined 1000 l. and had Sentence to stand in the Pillory and was ordered to find Sureties for his good Behaviour Rex versus Rosewel THE Defendant was a Non-conformist Minister and Indicted for High-Treason in Preaching of these words viz. Why do the People innuendo the People of England make a flocking to the King innuendo Carolum Secundum under pretence of curing the Kings Evil which the King cannot do but we are the Priests and Prophets to whom they ought to flock who by our Prayers can heal them We have had two Wicked Kings now together innuendo Carolum Primum Carolum Secundum who have suffered Popery to be introduced under their Noses whom I can liken to none but wicked Jeroboam and if they innuendo the People c. would stand to their Principles I make no doubt but to COnquer our Enemies innuendo the King and all his Loyal Subjects with Rams Horns broken Pitchers and a Stone in a Sling as in the time of old Vpon this Indictment he was arraigned and pleaded Not Guilty and was Tried at Bar and found Guilty of High Treason upon the Evidence of two Women And the Court having assigned Mr. Wallop Mr. Pollexfen and Mr. Bampfield to be his Council they moved in Arrest of Iudgment First That the Words discharged of the Innuendo's if taken seperate or altogether have no tendency to Treason The first Paragraph doth not import any Crime and to say that we have had two wicked Kings may be a Misdemeanor but 't is not Treason either by intendment of the Death of the King or by levying War against him The Crime seems to consist in the next Words which are if they would stand to their Principles c. This seems to stir up the People to Rebellion but as they are placed in the Indictment they will not admit of such a Construction neither as they have reference to the words precedent or as they stand by themselves The words which go before are viz. We have had two wicked Kings together 'T is not expressed what Kings or when they Reigned which is very uncertain Et si ipsi ad fundamentalia sua starent which word ipsi is relative and must refer ad proximum antecedens and then it must be ipsi Reges which is the proper and natural sense of the words But now if the Innuendo's must be incerted 4 Co. 17. it must be under some Authority of Law either to design the person or the thing which was not certain before that the intention of the Party speaking may be more easily collected and this is the most proper Office of an Innuendo It will not change the meaning of the words Hob. 45. 2 Cro. 126. for that is to make them still more incertain Now most of the Innuendo's in this Indictment are naught because they do not ascertain the subject matter First by the word People innuendo the People of England may be as well intended any other People because there was no previous Discourse of the People of England Then follow these words We have had two wicked Kings now together innuendo King Charles the First and Second which may be as well intended of King Ethelred and Alfred because the words denote a time past and therefore cannot possibly intend the King of whom there was no precedent Discourse And the Rule is De dubiis generalibus benignior Sententia recipienda est Besides those words are insensible and indeed impossible for we cannot have two wicked Kings together it ought to be successively Then to say we shall Conquer our Enemies cannot be intended the Enemies of the King because the word Enemies is of a large sense for Man by reason of his Sins and Infirmities hath many Enemies and possibly such might be intended If therefore it be doubtful what Enemies were meant if it shall not be in the power of a Clerk by an innuendo to make Words of another sense than what they will naturally bear nor to help where they are insensible as in this Case If there was no precedent Discourse either of Kings People or Enemies which must be proved by the Evidence then is this Indictment naught and therefore Iudgment ought to be arrested Mr. Attorney and Solliciter contra 'T is laid in this Indictment that the words were spoken to stir up Rebellion and to depose the King and 't is so found by the Verdict of twelve Men. That which aggravates the offence is That it was spoken in a publick Assembly to the People which must be intended the People of England
the Common Law for a false Oath made by any Witness and therefore an Action will not lye for a scandalous Affidavit Adjornatur Anonymus NOta An Action of Assault and Battery Release of one Def. shall not discharge the rest of a personal thing and false imprisonment was brought against four Defendants the Plaintiff had Iudgment and they brought a Writ of Error The Plaintiff in the Action pleaded the Release of one of them and to this Plea all four jointly demur The Opinion of the Court was that Iudgment might be given severally for they being compelled by Law to join in a Writ of Error the release of one shall not discharge the rest of a personal thing But where divers are to recover in the personalty 6 Co. Ruddock's Case the Release of one is a Bar to all but it is not so in point of discharge If two Coparceners make a Lease of a House and the Rent is in arrear and one of them brings the Action and recovers the Iudgment shall be arrested because one alone hath recovered in Debt for a moiety when both ought to join But it is agreed that if one Tenant in Common make a Lease rendring Rent which afterwards is in arrear Litt. Sect. 316. they must join in an Action of Debt because it savours of the Personalty But 't is otherwise in case of the Realty DE Term. Sanct. Trin. Anno 2 Jac. II. in Banco Regis 1686. Herbert Chief Justice Wythens Justices Holloway Justices Wright Justices Sawyer Attorny General Powis Sollicitor General Aldridge versus Duke ASsault Trespass continued many years and the Statute of Limitations pleaded the Jury gives Damages only for the last six years Battery Wounding and Imprisoning of him from the 10th of August 24 Car. 2. usque exhibitionem Billae The Defendant pleaded not Guilty infra sex infra Annos The Plaintiff replied that the Writ was sued out 2 Octobris 1 Jacobi 2. And that the Defendant was Guilty within six years next before the Writ brought Vpon this Issue was joyned and a Verdict was given for the Plaintiff and entire damages given Mr. Pollexfen moved two Exceptions in Arrest of Iudgment 1. That a Verdict cannot help what appears to be otherwise upon the face of the Record Now here the Plaintiff declared that he was imprisoned the 10th of August 24 Car. 2. which is 13 years since and being one entire Trespass the Issue is found as laid in the Declaration which cannot be for so many years between the cause of Action and bringing of the Writ for if a Trespass be continued several years the Plaintiff must sue only for the last six years for which he hath a compleat cause of Action but when those are expired he is barred by the Statute When the Plaintiff hath any cause of Action Sid. 25. then the Statute of Limitations begins as in an Action on the Case for words if they are actionable in themselves without alledging special damages the Plaintiff will recover Damages from the time of the speaking and not according to what loss may follow So in Trover and Conversion when there is a cause of Action vested and the Goods continue in the same possession for seven years afterwards in such case 't is the first conversion which entitles the Plaintiff to an Action So in the Case at Bar tho' this be a continued imprisonment yet so much as was before the Writ brought is barred by the Statute Thompson contra The Verdict is good for the Iury reject the beginning of the trespass and give Damages only for that which falls within the six years and this may be done because 't is laid usque exhibitionem Billae If the Defendant had pleaded not Guilty generally Cro. Car. 160 381 404. then Damages must be for the 13 years though the Plaintiff of his own shewing had brought his Action for a thing done beyond the time limited by the Statute but having pleaded not Guilty at any time within six years if the Verdict find him guilty within that time 't is against him As to the Objection that the Cause of Action ariseth beyond six years tho' it doth appear so in the Declaration yet that doth not exclude the Plaintiff for there might have been Process out before or he might be disabled by an Outlawry which may be now reversed or he might be in Prison and newly discharged from which time he hath six years to begin his Action for being under either of these circumstances the Statute doth not hurt him Curia If an Action of false Imprisonment be brought for seven years and the Jury find the Defendant guilty but for two days 't is a Trespass within the Declaration This Statute relates to a distinct and not to a continued Act for after six years it will be difficult to prove a Trespass many accidents may happen within that time as the death or removal of Witnesses c. Iudgment was given for the Plaintiff Dobson versus Thornistone THE Plaintiff was a Husbandman Words spoken of a Farmer actionable who brought an Action against the Defendant for these words He owes more mony than he is worth he is run away and is broke He had a Verdict and it was moved now in Arrest of Iudgment that the Words being spoken of a Farmer are not actionable To say that a Gentleman is a Cozener Hill 28 Eliz. B.R. Godb. 40. a Bankrupt and hath got an Occupation to deceive Men though he used to Buy and Sell yet being no Merchant 't was the better Opinion of the Court that the Words were not actionable So to say of a Farmer Stiles 420. that he is a Whoreson Bankrupt Rogue and it not appearing that he got his living by Buying and Selling or that the Words were spoken of him relating to his Occupation 't is not actionable For it must not only appear that the Plaintiff hath a Trade Sid. 299. Hutt 50. but that he gets his Living by it otherwise the Words spoken of him will not bear an Action But the Court held the Words to be actionable the like Iudgment was given in the Case of a Carpenter Mich. 3 Jac. for Words Viz. He is broke and run away Anonymus NOta Misentry of a Writ of Enquiry amendable without paying Costs Iudgment was given upon a Demurrer and a Writ of Enquiry was awarded and in the Entry thereof upon the Roll the Words per Sacramenum duodecim proborum legalium hominum were left out and now the Question was Whether it shall be amended It was said that a Capiatur for a Misericordia shall be amended upon the new Statute of Jeofails after a Verdict but whether upon a Demurrer it was doubted In a Quo Warranto Iudgment was entred by disclaimer Cro. Car. 184. by the consent of all Parties and the Words virtute praetextu literarum patentium geren dat 17 Jacobi were wrote in the Margin of the
to Sir Edward Biggs against the Countess as Administratrix of the Earl of Plymouth wherein the Plaintiff sets forth a Writing by which the Earl had given power to Sir Edward to be the Collector and Receiver of his Mony and Rents and that he promised to allow him 100 l. per Annum for his pains and in default of payment thereof that Sir Edward should detein the same which Writing was in these Words following viz. I do direct and appoint Sir Edward Biggs to take and receive to his own use 100 l. of lawful Mony of England out of the first Mony which he shall receive of mine The Action was brought for 75 l. being his Salary for three quarters of a year and Iudgment by Nil dicit It was argued this Term and in Easter Term by Councel on both sides It was agreed on all sides that the Earl left sufficient Assets to satisfie all his Bond Creditors but not enough to pay Debts upon simple Contract First it was said for the Plaintiff in the Errors that no Action of Debt will lie against an Executor upon a Mutuatus 11 Co. Godfreys Case because the Testator might have waged his Law but this was not much insisted on 2. That admitting an Action would lye yet this is an erronious Iudgment because the Suit was for 75 l. for three quarters Salary when by the Writing Sir Edward was to serve the Earl a whole year and this being an entire Contract shall not be seperated Therefore he cannot be well entituled to the Actionn unless his Testator had served a year and he had averred it so in his Declaration As where a Covenant was to pay 2 s. Yelv. 133. 7 Co. 10. Allen 9. for copying every Quire of Paper and the Breach assigned that he copyed 4 Quire and 3 sheets for which 8 s. and 3 d. was due to the Plaintiff 't is true he had Iudgment but it was reversed because it was an entire Covenant of which no apportionment could be made pro rata 3. That which was chiefly insisted on was to make these words amount to an Obligation that so it might be satisfied amongst the Bond Creditors But those who argued for the Plaintiff in the Errors said that it cannot be an Obligation for it was only a bare Letter of Attorney and an Authority and no more for there were no words to oblige the Earl or which can make a Warranty and therefore if the Mony was not received the Party to whom the Note was given could not resort back to him who made it had they been both living neither shall the Plaintiff now to his Administratrix Like the common Cases of the assigning of Iudgment if the Assignee doth not receive the Mony he cannot have an Action against the Assignor who only directs and appoints him so to do But on the other side Ex parte Def. the second Objection was thus answered viz. That this being only an Executory thing the Plaintiff may now bring an Action for so long time as his Testator served and this may be apportioned secundum ratam if the Law should be otherwise the Case of all Servants would be bad for they are generally hired for a year and not usually serve so long In an Assumpsit to pay for a years board Sid. 225. and the Plaintiff had declared only for three quarters of a year but yet had Iudgment because as the Book saith if there be any variance in the Agreement 't is for the advantage of the Defendant The 3d. Vaughan 92 93. Pl. Com. 182. Dyer 21. Objection answered viz. When a Man is indebted to another by simple Contract which is aknowledged by Deed an Action of Debt will lie against his Executor for any thing which is under Hand and Seal will amount to an Obligation especially where the Debt is confessed Now there are words in this Deed to shew that Mony was due and that makes it a Bond. But the Court was of Opinion that this was an entire Agreement and therefore the Action not well brought for three quarters Salary and for this reason the Iudgment was reversed Nisi c. Chapman versus Lamphire AN Action on the Case was brought for scandalous words spoken of the Plaintiff Words spoken of a Carpenter where actionable who declared that he was a Carpenter and a Freeman of the City of London and that he got great Sums of Mony by buying of Timber and Materials and by building of Houses and that the Defendant having discourse of him and of his Trade spoke these words viz. He is broken and run away and will never return again There was a Verdict for the Plaintiff and a Motion was now made in arrest of Iudgment for that a Carpenter was not a Trade within the Statute of Bankrupts and a day being given to speak to it again Mr. Pollexfen argued that before the Statutes made against Bankrupts words spoken reflecting upon a man in his Trade were actionable even at the Common Law because it might be the occasion of the loss of his Livelyhood 1 Rol. Abr. 59. pl. 6. Hutton 60. and therefore it was actionable to say of a Scrivener that he is broken and run away and dares not shew his Face and yet a Scrivener was not within the Statutes of Bankrupcy before the Act of 21 Jac. therefore the Action must lie at the Common Law because words disparage him in his Trade But the Councel for the Defendant said that these words were not actionable for they do not tend to his disparagement he may be broke and yet as good a Carpenter as before The Case of one Hill in 2 Car. Latch 114. in this Court was much stronger than this the words spoken of him were viz. Hill is a base broken Rascal and hath broken twice already and I will make him break the third time the Plaintiff had Iudgment but it was arrested A Carpenter builds upon the Credit of other men and so long as the words do not touch him in the skill and knowledge of his Profession they cannot injure him Chief Iustice The Credit which the Defendant hath in the World may be a means to support his skill for he may not have an opportunity to shew his Workmanship without those Materials for which he is entrusted The Iudges were divided in Opinion two against two and so the Plaintiff had his Iudgment there being no Rule made to stay it so that he had his Iudgment upon his general Rule for Iudgment but if it had been upon a Demurrer or Special Verdict then it would have been adjourned to the Exchequer Chamber Goring versus Deering IN an Appeal for the Murder of Henry Goring Esq Auterfoits convict of Manslaughter no good Plea in an Appeal for Murder brought by his Widow The Defendant pleaded that he was indicted for the said Murder at the Sessions-house in the Old Bayly in Middlesex that he was found guilty of Manslaughter
a new Recovery Debt will not lie F.N.B. 122. E. and to prove this there is and Authority in Fitzherbert where a Prior had Iudgment for an Annuity and brought a Scire Fac. upon that Iudgment against the Successor of the parson who was to pay it and obtained a Iudgment upon that Scire Fac. to recover the arrearages and afterwards brought an Action of Debt upon the last Iudgment and the Book says fuit maintein There is another Case in 2 Leon. 2 Leon. 14. 4 Leon. 186. 15 H. 7.16 where 't is held that an Action of Debt will lye upon a Iudgment in a Scire Facias upon a Recognizance Which Objections may receive this Answer First As to the Case in Fitzherbert 't is admitted to be Law but 't is not an Authority to be objected to this purpose because the first Iudgment for the Annuity charges the Successor but the Original Iudgment in this Case doth not charge the Husband so the Cases are not parallel The like answer may be given to the Case in Leonard for a Recognizance is a Iudgment in it self and Debt will lie upon it without a Sci. Fa. upon that Iudgment But on the other side it was argued E contra that the award of execution is absolute against Husband and Wife for 't is a Recovery against both whereas before it was only the Debt of the Wife but now 't is joynt against the one as well as the other The Iudgment upon the Sci. Fa. is a distinct Action It cannot be denied but that if a Woman be indebted and marrieth the Husband is chargable during the Coverture Bro. Ab. tit Baron and Feme pl. 27. 49 E. 3.35 b. which shews that by the Marriage he is become the principal Creditor As to the Sci. Fa. t is true at the Common Law if a Man had recovered in Debt and did not sue forth Execution within a year and a day he must then bring a new Original 1 H. 5. 5. a 43 Ed. 3.2 b. and the Iudgment thereon had been a new Recovery but now a Sci. Fa. is given by the Statute instead of an Original and therefore a Iudgment thereon shall also be a new Iudgment for tho' t is a Iudicial Writ yet 't is in the nature of an Action because the Defendant may plead any matter in Bar of the Execution upon the first Iudgment 1 Inst 290. b. and 't is for this reason that a Release of all Actions is a good bar to it Besides Rast Ent. 193. 4 Leon. 186. Dyer 214. b. an Action of Debt will lie upon a Iudgment on a Sci. Fa. which shews that 't is an Action distinct from the Original and upon such a Iudgment the Defendant may be comitted to Prison several years afterwards without a new Sci. Fa. The Husband may have execution of a Iudgment recovered by him and his Wife after the death of his Wife without a Sci. Fa. 1 Mod. Rep. 179. for the Iudgment hath made it a proper Debt due to him and he alone may bring an Action of Debt upon that Iudgment and it seems to be very reasonable that he should have the benefit of such a Iudgment and yet not be charged after the death of his Wife when there hath been a Recovery against both in her life-time This is like the Case where a Devastavit is returned against Husband and Wife as Executrix Moor 299. 3 Cro. 216. Cro. Car. 603. Sid. 337. and a Iudgment thereon quod querens habeat executionem de bonis propriis the Wife dies yet the Husband shall be charged for the Debt is altered If it should be otherwise this inconvenience would follow that if the Wife should die F.N.B. 121. c. 1 Rol. Abr. 351. 10 H. 6.11 the Husband will possess himself of her Estate and defraud the Creditors so that he takes her but not cum onere But the Law is otherwise for if a Feme being Lessee for years doth marry and the Rent is behind and she dies the Husband shall be charged with the Rent arrear because he is entituled to the Profits of the Land by his marriage To which it was answered that if a Man should marry an Exerecutrix and then he and his Wife are sued and Iudgment obtained against them to recover de bonis testatoris and thereupon a Fi. Fa. is awarded to levie the Debt and Damages and the Sheriff returns a Devastavit and then the Wife dies the Husband is not chargeable because the Iudgment is not properly against him who is joyned only for conformity but if upon the return of the Devastavit there had been an award of execution De bonis propriis that would have been a new Iudgment and the old one De bonis testatoris had been discharged 1 Roll. Abr. 351. and then the Husband must be charged for the new wrong Adjornatur Afterwards in 1 Will. Mar. the Iudgment was affirmed Bowyer versus Lenthal INdebitatus Assumpsit quantum meruit ad insimul computasset Valerent for Valebant good after Verdict The Plaintiff had a Iudgment by default in the Court of Common-Pleas and a Writ of Enquiry was brought and entire Damages given and now the Defendant brought a Writ of Error and it was argued that if any of the Promises be ill Iudgment shall be reversed the Error now assigned was in the second Promise Viz. That in consideration that the Plaintiff would let the Defendant have Meat Drink and Lodging he promised to pay so much Quantum rationabiliter valerent it should have been valebant at the time of the Promise made Sed non allocatur So the Iudgment was affirmed DE Termino Paschae Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Powis Attorny General Wm. Williams Sollicitor General NOTA Wednesday May 2. being the first day of this Term Sir Bartholomew Shower Recorder of London was called within the Bar. Heyward versus Suppie IN an Action of Covenant which was to make such an Assignment to the Plaintiff Covenant to make an Assignment as Council should advise according to an Agreement made between him and the Defendant as Council should direct and advise and for non-performance thereof this Action was brought the Defendant pleaded non est factum and Iudgment was obtained against him Vpon which a Writ of Error was brought and the common Error assgned It was objected that the Plaintiffs Council should give the advice because he is the person interested This Objection was answered by Mr. Pollexfen who said that the Defendant had likewise an interest in this matter for 't is an advantage to him to make the Assignment that his Covenant might be saved 't is true it had been otherwise if the Covenant had been to make such a Conveyance as Council should advise for then the person to whom the Covenant is made may chuse whether he will have a Feoffment
the King may be seized in Fee of an Hundred and that he may grant Retorna Brevium the Statutes are plain in it 14 E. 3. c. 9. for otherwise how came any Lords to have Hundreds in Fee but by the Kings Grants And 't is as plain that Hundreds may be divided from the County 2 E. 3. c. 12. for else to what purpose was the Statute of Lincoln made which adjoins Hundreds and Wapentakes to the Counties and provides that they shall never be separated again this shews that they were divided at that time The Objections which have been made are viz. That the Defendant cannot have a Title to this Office by Grant and he hath not made any Prescription to it The Reasons given why he could not have it by Grant were because ancient Hundreds which were united to the Counties by the Statute of Ed. 3. could never afterwards be divided from them by any Grant of the King and those which were excepted in that Statute as being granted in Fee by the King or his Ancestors when they come again to the Crown cannot be regranted because they are merged in it In answer to which it was said that such ancient Liberties which were created by the Crown and did subsist by the King 's Grant before the Statute of Ed. 3. when afterwards they came to the King were not merged but remained a distinct Interest in him The Hundred of Gartree in the County of Leicester was such a Liberty it was an ancient Hundred and granted by Ed. 2. Cole versus Ireland Raym. 360. to John Sedington not in Fee but durante bene placito Regis this Grant was long before the making of the Statute of Ed. 3. and yet afterwards this very Hundred was granted to several other persons by the suceeding Kings of England which shews it was merged in the Crown when it came to the King The other Objection was that Retorna Brevium doth not lie in Prescription Now as to that though it be true that no Title by Prescription can be made to such Franchises and Liberties which cannot be seized as forfeited before the cause of Forfeiture appears on Record because Prescription being an Vsage in pais doth not extend to such things which cannot be had without matter of Record 1 Inst 114. b. Yet my Lord Coke is clear that a good Title may be made to hold Pleas Leets Hundreds c. by Prescripteon only without Matter of Record But notwithstanding what was said to maintain this Plea Iudgment was given against the Defendant Rex versus Griffith THE Defendant was convicted of Manslaughter at the Old-Bayly Indictment for Murder the Party was found guilty of Manslaughter and pleaded his Pardon and afterwards the Indictment was quashed to save the Forfeiture of his Goods and the Record being removed into this Court by Certiorari he pleaded his Pardon and had Iudgment Quod eat inde sine die But being once convicted the Dean and Chapter of Westminster did seize his Goods as forfeited by that Conviction who thereupon although he was out of the Court by that Iudgment yet he moved by his Council to quash the Indictment The Exceptions taken were viz. That the Indictment was Per Sacramentum duodecim proborum legalium hominum jurat ' onerat ' praesentat ' existit modo forma sequen ' Midd. ss Juratores pro Domino Rege praesentant c. That there was no President to warrant such an Indictment for this may be the Presentment of another Iury it being very incoherent to say that it was presented by the Oaths of twelve Men that the Iury do present It ought to be praesentat ' existit quod c. and so is the form of this Court as the Clerk of the Crown inform'd them 2. They present that Griffith and two others did make an Assault on the Body of the deceased and that quidam Johannes in nubibus did wound him with a Gun so that 't is uncertain who did shoot and what Gun was discharged which ought to be certainly laid in the Indictment Vaux 's Indictment for Poisoning Ridley was 4 Co. 44. b. that the said Ridley not knowing the Beer to be poyson'd but being perswaded by Vaux recepit bibit but did not say venenum praedictum and so it not appearing what thing he did drink which ought to have been expresly alledged the Indictment was held insufficient And the reason is plain for an Indictment for Felony being a Declaration for the King against the Life of a Subject ought to set forth a sufficient certainty of the Fact which shall not be supplied either by Argument or any intendment whatsoever And therefore in Long 's Case the Defendant was indicted for discharging a Gun upon Long 5 Co. 122. b. Dans eidem Henrico Long mortale vulnus and doth not say percufsit for which reason that Indictment was also held insufficient because in all Indictments for Murder they ought expresly to alledge a stroke given For these Reasons the Indictment was quashed and a new Roll was made on which this Indictment and Certiorari were both entred and Iudgment quod exoneretur and this was done to avoid the seizure And afterwards in Michaelmas Term primo Will. Mar. it was said by the Chief Iustice that it must be intended these were two persons for no Court would justifie such a Iudgment Anonymus IN Assault and Battery After a Traverse you must not conclude to the Country the Defendant pleaded a Release of all Actions c. The Plaintiff replied that the Release was gotten by duress c. The Defendant rejoyned and shewed cause why it was not gotten by duress but that he sued forth a Capias and did Arrest him c. and that the Release was voluntary c. The Plaintiff surrejoyns and saith that it was gotten by duress absque hoc that it was voluntary Et hoc petit quod inquiratur per patriam Vpon this Issue the Cause was tryed Dyer 353. a. 1 Inst 126. a. Cro. Car. 316. Sid. 341. 2 Cro. 588. 2 Rol. Rep. 186. and the Plaintiff had a Verdict and now it was moved in Arrest of Iudgment that he ought not to conclude to the Country after a Traverse because a Traverse it self is Negative and therefore the Defendant ought to have joyned issue in the Affirmative 't is true if issue had been joyned before the Traverse it might have been helped by the Statute of Ieofails but it was not so in this Case and therefore the Iudgment was Arrested Hitchins versus Basset Mil ' IN Ejectment upon the Demise of Mr. Nosworthy The Iury found a special Verdict A subsequent Will which doth not appear shall not be a Revocation of the former the substance of which was Viz. That Sir Henry Killigrew was seised in Fee of the Lands in question in the County of Cornwal and being so seised did in the year 1644. devise the
Indebitatus Ass will lye for a Fine upon an Admission c. That a Fine was due to him for an admission That upon the death of the said Lord the Manor descended to W. as his Son and Heir who died and the Plaintiff as Executor to the Heir brought an Indebitatus Assumpsit for this Fine He declared also that the Defendant was indebted to him in 25 l. for a reasonable Fine c. The Plaintiff had a Verdict and entire Damages and it was now moved in arrest of Iudgment that an Indebitatus will not lie for a Customary Fine because it doth not arise upon any Contract of the Parties but upon the Tenure of the Land for upon the death of the Lord there is a Relief paid for there must be some personal Contract to maintain an Action of Debt or an Indebitatus Assumpsit 2 Cro. 599. Jones 339. and therefore it was held that where the Plaintiff locasset a Ware-house to the Defendant he promised to pay 8 s. per Week An Assumpsit was brought for this Rent and a Verdict for the Plaintiff And a Motion was made in Arrest of Iudgment that this was a Lease at Will and the weekly payment was in the nature of a Rent and it was agreed that an Assumpsit would not lie for a Rent reserved because it sounds in the Realty but because it was only a Promise in consideration of the occupying of the Warehouse the Action was held to be well brought 2. Where the Cause of an Action is not grounded upon a Contract but upon some special Matter there an Indebitatus Assumpsit will not lie and therefore it will not lie upon a Bill of Exchange or upon an Award or for Rent though there is a Privity both of Contract and Estate without a special Assumpsit E contra E contra It was argued that the Action lies for though a Fine savours of the Realty yet 't is a certain Duty In all Cases where Debt will lie upon a simple Contract there an Assumpsit will lie likewise 't is true this doth concern the Inheritance but yet 't is a Contract that the Tenant shall be admitted paying the Fine It hath been also maintained for Mony had and received out of the Office of Register for the Plaintiffs use and for Scavage Mony due to the Mayor and Commonalty of London 3 Keb. 677. which is also an Inheritance 'T is a Contract implyed by Law and therefore the Action is well brought Afterwards in Michaelmas Term 1 Willielmi Mariae by the Opinion of Iustice Dolben 2 Leon. 79. Eyre and Gregory Iudgment was given for the Plaintiff But the Chief Iustice was of another Opinion for he held that if the Defendant had died indebted to another by Bond and had not Assets besides what would fatisfie this Fine if the Executor had paid it to the Plaintiff it would have been a Devastavit in him Suppose the Defendant promiseth that in consideration that the Plaintiff would demise to him certain Lands that then he would pay the Rent If the Defendant pleads Non Assumpsit Cro. Car. Acton versus Symonds the Plaintiff must prove an express Promise or be Non suit Also here is no Tenure or Custom set out Yet by the Opinion of the other three Iustices the Plaintiff had his Iudgment Rex versus Johnson INformation upon the Statute of 29 30 Car. 2. cap. 1. Pardon after a Verdict for the King excuseth the Forfeiture prohibiting the Importation of several French Commodities and amongst the rest Lace under the Penalty of 100 l. to be paid by the Importer and 50 l. by the Vendor and the Goods to be forfeited The Information sets forth that a Packet containing so many yards of Lace was imported by the Defendant from France and that he did conceal it to hinder the Seisure and that he did privately sell it contra formam Statuti Vpon Not-Guilty pleaded the King had a Verdict and on the 2d of October there came forth a general Pardon in which were these Words viz. That the Subjects shall not be sued or vexed c. in their Bodies Goods or Chattels Lands or Tenements for any Matter Cause or Contempt Misdemeanour Forfeiture Offence or any other thing heretofore done committed or omitted against us Except all Concealments Frauds Corruptions Misdemanours and Offences whereby we or our late Brother have been deceived in the Collection payment or answering of our Revenues or any part thereof or any other Mony due or to be due to us or received for us or him and all Forfeitures Penalties and Nomine Poena's thereupon arising and all Indictments and Informations or other Process and Proceedings now depending or to be depending thereupon The Question now was whether this Forfeiture was excused by this Pardon The Attorney General argued that it was not because an Interest is vested in the King by the Iudgment and that no particular or general Pardon shall divest it without words of Restitution So was Tooms's Case who had Iudgment against another 1 Sand. 361. and then became Felo de se his Administrator brought a Scire Facias quare Executionem non haberet The Debtor pleaded that after the Iudgment the Intestate hanged himself which was found by the Coroners Enquest returned into this Court. The Plaintiff replied the Act of Pardon But it was adjudged for the Defendant for when the Inquisition was returned then the Debt was vested in the King which could not be divested without particular words of Restitution and which were wanting in that Act of Pardon The most proper word in the Body of this Pardon which seems to excuse the Defendant is the word Offence but the same word is likewise in the Exception viz. Except all Offences c. in collecting or paying of Mony due to us and all Forfeitures c. Now the concealing of forfeited Goods from Seisure is an Offence excepted for 't is a remedy for the King's Duty of which he was hindred by the Concealment 'T is true the first part of the Pardon excuseth all Misdemeanours comitted against the King in his standing Revenue but this Exception takes in all Concealments and Frauds in answering of the Revenue and this Information is principally grounded upon Fraud 5 Co. 56. so that the Exception ought to be taken as largely for the King as the Pardon it self to discharge the Subject No Fraud tending to the diminution of the Revenue is pardoned for it excepts not only all Concealments in collecting the Revenue but other Mony due or to be due to the King If therefore when the King is entituled by Inquisition Office or Record there must be express and not general words to pardon it and since this Fact was committed before the Pardon came out and so found by the Iury whose Verdict is of more value than an Enquest of Office so that the King by this means is entituled to the Goods by Record
Cattle to be his own sciens the same to be the Goods of another or that he sold them to the Plaintiff fraudulenter deceptive or that there was any Warranty for this Action will not lie upon a bare Communication But notwithstanding these Exceptions the Plaintiff had his Iudgment it might have been good upon Demurrer but after Verdict 't is well enough Lea versus Libb IN Ejectione firmae for Lands in Hampshire Two Witnesses to a Will and two to a Codicil one whereof was a Witness to the Will these are not three Witnesses to the Will it self the Iury found a special Verdict the substance of which was this viz. That the Lessor of the Plaintiff was Heir at Law to one John Denham his Ancestor who being seised in Fee of the Lands in question did by Will bearing date the 28th day of January in the year 1678. devise the same to the Defendant which he subscribed and published in the presence of two Witnesses and they likewise attested it in his presence They find that on the 29th day of December 1679. he made another Will or Codicil in Writing reciting that he had made a former Will and confirming the same except what was excepted in the Codicil and declared his Will to be that the Codicil should be taken and adjudged as part of his Will They find that he published this Codicil in the presence likewise of two Winesses one of which was Witness to the first Will bue the other was a new Man They find that these were distinct Writings c. The Question was whether this was a good Will attested by three Witnesses since one of the Witnesses to the Codicil was likewise a Witness to the Will so that the new Man if any must make the third Witness Serjeant Thompson argued that it was not a good Will The Clause of the Statute is That all Devises of Lands shall be in Writing and signed by the Testator in the presence of three Witnesses and they to attest it in his presence But here are not three subscribing Witnesses in the presence of the Testator so that the first Will must be void for one of the Witnesses to the Codicil did never see that Will Besides the Codicil is not the same thing with the Will 't is a confirmation of it and this being in a Case wherein an Heir is to be disinherited ought not to have a favourable Construction Attorney General contra A Will may be contained in several Writings and yet but one entire Will 'T is true if it be attested only by two Witnesses 't is not good but if the Testator call in a third person and he attests that individual Witing in his presence this is a good Will though the Witnesses were not all present together and at the same time for there is the Credit of three persons to such a Will which is according to the intent of the Statute And therefore it cannot be objected that these are distinct Wills or that the Papers are not annexed for no such thing is required by Law for a Man may make his Will in several Sheets of Paper and if the Witnesses subscribe the last Sheet 't is well enough or if he doth put up all the Sheets in a blank piece of Paper and the Witnesses attest that Sheet 't is a good Will In these Cases the intent of the Law-makers must and ought to be chiefly regarded and for what reasons and purposes such Laws were made and what Iudgments have been given in parallel Cases If a Man grants a Rent-Charge to his youngest Son for Life 2 Cro. 144. Noy 117. and afterwards devises that he shall have the Rent as expressed in the Grant Now though the Writing was no part of the Will but of another nature yet the Will referring to the Deed is a good Devise of the Rent-charge within the Statute of Wills But in this Case the Codicil is part of the Will 't is of the same nature and being made animo restandi the end of the Statute is performed for both Will and Codicil joined together make a good Devise the first was a Will to all purposes it only wanted that circumstance of a third Witness to attest it which the Testator compleated after by calling in of a third person for that purpose Curia If a Man makes a Will in several pieces of Paper and there are three Witnesses to the last Paper and none of them did ever see the first this is not a good Will Afterwards in Hillary-Term Iudgment was given that this was not a good Will Tippet versus Hawkey TIppet the Elder and his Son covenant with John Hawkey to sell and convey Land to him free from all Incumbrances and that they will levy a Fine c. and deliver up Writings Where two covenant the Action may be brought in the name of one Item 'T is agreed between the Parties that the said Hawkey shall pay to Tippet the younger so much Mony c. The Action is brought in the name of both and upon a Demurrer to the Declaration it was held ill for the Duty is vested in Tipper the younger and he only ought to have brought this Action Iudgment for the Defendant Rees versus Phelps DEBT upon a Bond conditioned for performance of an Award Award where good Vpon nullum fecerunt arbitrium pleaded the Plaintiff replied and shewed an Award that the Defendant should pay 5 l. to the Plaintiff presently and give Bond for the payment of 10 l. more on the 29th day of November following and that this should be for and towards the Charges and Expences in and about certain differences then depending between the Parties and that they should now sign general Releases And upon a Demurrer it was argued to be a void Award because mutual Releases were then to be given which would discharge the Bond payable in November following 1 Roll. Abr. 259 260. But the Court held it to be good for the Releases shall discharge such Matters only which were depending at the time of the Submission Godfrey al' versus Eversden THere was a Parish Church and a Chappel of Ease in the Parish of Hitchen Prohibition denied upon Suggestion that there was a Chappel of Ease and so ought not to repair the Parish Church the Defendant was taxed towards the Repairs of the Church and a Livel was brought against him for the refusing of the payment of that Tax He now suggests that there was a Chappel of Ease in the same Parish to which the Inhabitants do go and that they have always repaired that Chappel and so prayed a Prohibition But Serjeant Tremain moved for a Consultation because the Parishioners of common right ought to repair the Church and though there is a Chappel of Ease in the same Parish yet that ought not to excuse them from repairing of the Mother Church He produced an Affidavit that there had been no Divine Service there for
ought to be left out and of that Opinion was the Court and therefore a Rule was made that he might discontinue this Action without Costs Mordant versus Thorold Hill 1 2 Gulielmi Rotulo 340. THE Plaintiff brought a Scire Fac. upon a Iudgment The Case was thus Viz. Ann Thorold recovered in Dower against Sir John Thorold in which Action Damages are given by the Statute of Merton 20 H. 3. c. 1. Sir John Thorold brought a Writ of Error in B. R. and the Iudgment was affirmed Then the Plaintiff in Dower brought a Writ of Enquiry for the Damages and married Mr. Mordant and died before that Writ was executed Mr. Mordant takes out Letters of Administration to his Wife and brought a Sci. Fa. upon the Iudgment and the question was whether it would lie This depended upon the construction of the Statute of King Charles the II. which enacts That in all personal Actions 17 Car. 2. c. 8. and real and mixt the death of either party between the Verdict and the Iudgment shall not hereafter be alledged for Error so as such Iudgment be entred within two Terms after such Verdict Serjeant Pemberton insisted that this was a judicial Writ and that the Administrator had a right to it though the Wife died before the Profits were ascertained by the Writ of Enquiry 't is no more than a plain Sci. Fa. upon a Iudgment which an Executor may have and which was never yet denied though this seems to be a Case of the first Impression The Council on the other side argued that 't is true an Executor may have a Scire Facias upon a Iudgment recovered in the life of the Testator by reason only of such Recovery but this Scire Facias is brought for what never was recovered because the Wife died before any thing was vested in her for the Iudgment will stand so as to effect the Lands but not for the Damages Curia When a Statute which gives a remedy for mean Profits is expounded it ought to be according to the Common Law Now where entire Damages are to be recovered and the Demandant dies before a Writ of Enquiry executed the Executor cannot have any remedy by a Scire Facias upon that Iudgment because Damages are no duty till they are assessed Sed adjornatur DE Term. Sanctae Trin. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Shotter versus Friend Vxor ' Hill 2 Willielmi Rot. 39. THE Plaintiff and his Wife declared upon a Prohibition setting forth Proof by one Witness good in the Spiritual Court that John Friend on the 13th of October 22 Car. 2. made his Will by which he bequeathed to Mary Friend 10 l. to be paid to her within two years after his decease and that he made Jane the Wife of the Plaintiff Shotter Executrix and dyed that the said Executrix whilst sole and unmarried paid the said Legacy to Mary Friend who is since dead that Thomas Friend the Husband of the said Mary did after her death demand this Legacy in the Consistory Court of the Bishop of Winton that the Plaintiff pleaded payment and offered to prove it by one single Witness which Proof that Court refused though the Witness was a person without Exception and thereupon Sentence was given there against the Plaintiff which Sentence was now pleaded and upon Demurrer to the Plea The Question was whether upon the whole matter the Defendant should have a Consultation or whether a Prohibition should be granted because the proof by one Witness was denied by that Court. It was argued that the Defendant should not have a Consultation because Matters Testamentary ought to have no more favour than things relating to Tythes in which Cases the Proof by one Witness hath been always held good So 't is in a Release to discharge a Debt which is well proved by a single Testimony and it would be very inconvenient if it should be otherwise for Feoffments and Leases may come in question which must not be rejected because proved by one Witness A Modus decimandi comes up to this Case upon the Suggestion whereof Prohibitions are never denied and the chief reason is because the Spiritual Court will not allow a Modus to be any discharge of Tythes of Kind The Courts of Equity in Westminster-Hall give Relief upon a Proof by one Witness so likewise do the Courts of the Common Law if the Witness is a good and credible person 'T is true a Prohibition shall not go upon a Suggestion that the Ecclesiastical Court will not receive the Testimony of a single Witness If the Question is upon Proof of a Legacy devised or Marriage or not or any other thing which originally doth lie in the Cognizance of that Court but payment or not payment is a matter of Fact triable at the Law and not determinable there if therefore they deny to take the Evidence of a single Witness a Prohibition ought to go 2 Inst 608. 2. The Sentence is no obstacle in this Case because the Plaintiff had no Right to a Prohibition until the Testimony of his Witness was denied and Sentence thereupon given and this is agreeable to what hath been often done in cases of like nature As for instance Cro. Eliz. 88. Moor 907. Prohibitions have been granted where the Proof of a Release of a Legacy by one Witness was denyed So where the Proof of payment of Cythes for Pidgeons was denied upon the like Testimony Cro. Eliz. 666. Moor 413. 2 Rol. Rep. 439. 2 Rol Abr. 300. pl. 9. 299 pl. 14 17. Yelv. 92. Latch 117. 3 Bulst 242. Hutt 22. So where a Suit was for Subtraction of Cythes and the Defendant pleaded that he set them out and offered to prove it by by one Witness but was denied a Prohibition was granted And generally the Books are that if the Spiritual Court refuse such Proof which is allowed at the Common Law they shall be prohibited There is one Case against this Opinion which is that of Roberts in 12 Co. 12 Co. 65. Rep. but it was only a bare Surmise and of little Authority Those who argued on the other side held that a Consultation shall go E contra and that for two Reasons 1. Because a Prohibition is prayed after Sentence 2. Because the Ecclesiastical Court have an original Iurisdiction over all Testamentary things As to the first Point 'T is plain that if that Court proceed contrary to those Rules which are used and practised at the Common Law yet no Prohibition ought to go after Sentence but the proper remedy is an Appeal 2. It cannot be denied but that that Court had Cognizance of the principal matter in this Case which was a Legacy and Payment or not is a thing collateral Now wherever they have a proper Iurisdiction of a Cause both that and all its dependences shall be tried according to their Law which rejects the Proof by a single Witness
the Neglect in this Case was in the Servant the Action may be brought against all the Owners for it is grounded quasi ex contractu though there was no actual Agreement between the Plaintiff and them And as to this purpose 2 Sand. 345. Hob. 206. Hutt 121. 1 Mod. 198. 't is like the Case where a Sheriff levies Goods upon an Execution which are rescued out of the hands of his Bailiffs this appearing upon the Retorn an Action of Debt will lie against him though there was no actual Contract between the Plaintiff and him for he having taken the Goods in Execution there is quasi a Contract in Law to answer them to the Plaintiff 2. As to the second Point it was ruled that Not-Guilty was a good Plea to any Mis-feazance whatsoever and that a Plea in Abatement viz. that the rest of the Owners super se susceperunt simul cum Defendente absque hoc quod Defendens super se suscepit tantum had been no more than the general Issue 3 Cro. 554. Vering versus More but he hath not pleaded thus Iustice Dolben agreed that the Action ought to be brought against all the Proprietors it being upon a Promise created by Law but he was Opinion that this Matter might have been pleaded in Abatement Gold versus Strode AN Action was brought in Somersetshire and the Plaintiff recovered and had Iudgment and died Intestate Gold the now Plaintiff took out Letters of Administration to the said Intestate in the Court of the Bishop of Bath and Wells and afterwards brought a Scire Facias upon that Iudgment against the Defendant to shew Cause quare Executionem habere non debeat He had Iudgment upon this Scire Facias and the Defendant was taken in Execution and escaped An Action of Debt was brought by the said Gold against this Defendant Strode who was then Sheriff for the Escape and the Plaintiff had a Verdict It was moved in arrest of Iudgment and for Cause shewen that if the Administration was void then all the dependencies upon it are void also and so the Plaintiff can have no Title to this Action Now the Administration is void because the entring upon Record of the first Iudgment recovered by the Intestate in the County of Middlesex where the Records are kept made him have bona notabilia in several Counties and then by the Law Administration ought not to be committed to the Plaintiff in an inferior Diocess but in the Prerogative Court Curia The Sheriff shall not take advantage of this since the Iudgment was given upon the Scire Fac. and the Capias ad satisfaciendum issuing out against the then Defendant directed to the Sheriff made him an Officer of this Court and the Iudgment shall not be questioned by him for admitting it to be a Recovery without a Title yet he shall take no advantage of it till the Iudgment is reversed 'T is not a void but an erronious Iudgment and when a person is in execution upon such a Iudgment and Escapes and then an Action is brought against the Goaler or Sheriff 8 Co. 141. and Iudgment and Execution thereon though the first Iudgment upon which the party was in execution should be afterwards reversed yet the Iudgment against the Goaler being upon a collateral thing executed shall still remain in force The Ca. Sa. 21 E. 4. 23. b. Cro. El. 164. Moor 274. 2 Cro. 3. 1 Rol. Abr. 809 God b. 403. 2 Leon. 84. was a sufficient authority to the Sheriff to take the Body though grounded upon an erronious Iudgment and that Execution shall be good till avoided by Error and no false Imprisonment will lie against the Goaler or Sheriff upon such an Arrest Coghil versus Freelove In the Common-Pleas DEBT for Rent was brought against the Defendant as Administratrix of Thomas Freelove her late Husband deceased Debt for Rent incurred after an assignment by an Administrator for the privity of Contract is not determined by the death of the intestate 2 Vent 209. in which Action the Plaintiff declared That on the 1st of May 21 Car. 2. he did by Indenture demise to the said Thomas Freelove one Messuage and certain Lands in Bushey in Hertfordshire Habendum from Lady day then last past for and during the term of 21 years under a yearly Rent that by virtue thereof he entred and was possessed That on the 7th of March 1685. the said Thomas Freelove died Intestate and that the next day Administration of his Goods and Chattels was granted to the Defendant and that 78 l. was in arrear for Rent due at such a time for which this Action was now brought in the Detinet The Defendant confessed the Lease prout c. and the death of the Intestate and that the Administration was granted to her but saith that before the Rent was due she by Articles made between her of the one part and Samuel Freelove of the other part did assign the said Indenture and all her right title and interest thereunto and which she had in the Premisses unto the said Samuel Freelove who entred and was possessed that the Plaintiff had notice of this Assignment before he brought this Action but nothing was said of his acceptance To this Plea the Plaintiff demurred and the Defendant joined in Demurrer And Iudgment was given by the Opinion of the whole Court for the Plaintiff against the Authorities following Viz. Cro. Eliz. 555. 'T is true in Overton and Sydal 's Case it was resolved that if an Executor of Lessee for years assign his Interest Debt for Rent will not lye against him after such Assignment the reason there given was because the personal privity of the Contract is determined by the death of the Lessee as to the Debt it self and for the same reason the Executor shall not be lyable to the Rent after the death of the Lessee if such Lessee doth make an assignment of his Term in his life-time My Lord Coke mentioning this Case 3 Co. 24. a. in his third Report affirms that it was resolved by Popham Chief Iustice and the whole Court that if an Executor of a Lessee for years assign his Interest Debt will not lye against him for Rent due after such an Assignment Pop. 120. but my Lord Popham himself in Reporting that very Case tells us he was of another Opinion which was that so long as the Covenant in the Lease hath the nature and essence of a Contract it shall bind the Executor of the Lessee who as well to that as to many other purposes represents the person of the Testator and is privy to his Contracts T is true my Lord Popham held in that Case that the Action did not lye but because it was brought by the Successor of a Prebendary upon a Lease made by him in his life-time who being a single Corporation the personal Contract was determined by his death But the same Case reported by others Moor 251.
Bradburn versus Kennerdale 318 Brason versus Deane 39 Brett versus Whitchott 96 Bridgham versus Frontee 94 Broad versus Piper 268 Burgh's Case 67 C. CAlthrop versus Axtel 168 Capel versus Saltonstal 249 Carter versus Dowrish 226 Chapman versus Lamphire 155 Clarke versus Hoskins 79 Claxton versus Swift 86 Coghil versus Freelove 325 Cole versus Knight 277 Cross versus Garnett 261 D. DAvies Case 246 Dawling versus Venman 108 Dixon versus Robinson 107 Dobson versus Thornigrove 112 Doe versus Dawson 274 Dorrington versus Edwyn 56 E. ECcleston versus Speke 258 Evans versus Crocker 198 F. FItzgerald versus Villiers 236 Fisher versus Wrenn 250 Franshaw versus Bradshaw 235 Friend versus Bouchier 81 G. GRandison Lord versus Countess of Dover 23 Grantham Mil ' his Case 120 Godfrey versus Eversden 264 Gold versus Strode 324 Goring versus Deering 156 H. HAcket versus Herne 134 Hall versus Wybank 311 Hamson Serjeant his Case 89 Hanchet versus Thelwell 104 Harman versus Harman 115 Harrison versus Austin 237 Harrison versus Heyward 295 Hebblethwait versus Palmes 48 Hexam versus Coniers 238 Heyward versus Guppee 191 Hicks versus Gore 84 Hyley versus Hyley 228 Hinton versus Roffey 35 Hitchins versus Bassett 203 Hobbs qui tam versus Young 313 Hoile versus Clerke 218 Holcomb versus Petit 113 Holloway's Case 42 Horner's Company versus Barlow 158 I. JAckson versus Warren 78 Jefferies Mil ' versus Watkyns 161 Jennings versus Hankeys 114 Joyner versus Pritchard 103 K. KEllow versus Rowden 253 King versus Dilliston 221 Knight versus Cole 277 Knight Mil ' Case 117 Kingston versus Herbert 119 The King against Ayloffe 72 The King against Armstrong Mil ' 47 The King against Atkyns Mil ' 3 The King against Barns 42 The King against Baxter 68 The King against Beale 124 The King against Bunny 238 The King against Cony al' 37 The King against Colson al' 72 The King against Dangerfield 68 The King against Darby 139 The King against Fairfax 269 The King against G l. 97 The King against Griffith 201 The King against Grimes al' 220 The King against Hethersel 80 The King against Hinton al' 122 The King against Hockenhal 167 The King against Inhabitants of Malden The King against Johnson 241 The King against Kingsmill 199 The King against Lenthal 143 The King against Marsh al' 66 The King against Plowright al' 94 The King against Rosewell 52 The King against Saloway 100 The King against Sellars 167 The King against Silcox 280 The King against Sparks 78 The King against Warden of the Fleet 335 L. LAngford versus Webber 132 Lambert versus Thurston 275 Lea versus Libb 262 Leigh's Case 332 Letchmere versus Thorowgood 236 Lidcott versus Willows 229 Lock versus Norborne 141 Lutwich versus Piggot 268 M. MAcklesfield Earl 41 Malloon versus Fitzgerald 28 Marsh versus Cutler 41 Mason versus Beldham 73 Mather versus Mills 252 Matthews versus Cary 137 Mayor and Cominalty of Norwich versus Johnson 90 Merchants Adventurers versus Rebow 126 Mordant versus Thorold 281 Moss versus Archer 135 N. NEwton al' versus Stubbs 71 Newton Mil ' versus Creswick 165 Newton versus Trigg 327 Norwich Mayor c. versus Johnson 90 O. OBrian versus Ram 170 Okel versus Hodgkinson 99 Osborn versus Steward 230 P. PAine versus Partrich 289 Palmer versus Allicock 58 Panton versus Earl of Bath 227 Parkinson's Case 265 Pawley versus Ludlow 87 Peak versus Mather 103 Perkins versus Titus 132 Pitt versus Brereton 70 Plimouth Countess versus Throgmorton 153 Pool versus Trumbull 56 Price versus Davies 152 Prince's Case 295 Proctor versus Burdet 69 Prodgers versus Frazier 43 Proud versus Piper 268 Prowse versus Wilcox 163 Putt versus Rawsterne 1 R. REves versus Phelpes 264 Reeves versus Winnington 45 Roberts versus Pain 67 Rodney versus Strode 101 Roe versus Clargis Mil ' 26 Rowsby versus Manning 330 S. SAvier versus Lenthall 273 Shipley versus Chappel 232 Shotter versus Friend 283 Shuttleworth versus Garnat 239 Smith versus Goodier 36 Smith versus Peirce 195 T. TAyler versus Brindley 136 Thirsby versus Helbott 272 Thompson versus Leach 296 Idem versus Eundem 301 Tippet versus Hawkey 263 U. UPton versus Dawkin 97 W. WHitehal versus Squire 276 Wytham Mil ' versus Dutton Mil ' 159 Woodward's Case 211 Y. YArmouth Earl versus Dorrell 75 Young versus Inhabitants of Tottenham 258 DE Term. Sancti Mich. Anno 34 Car. II. in Banco Regis 1682. Sir Francis Pemberton Chief Justice Sir Thomas Jones Justices Sir William Dolben Justices Sir Thomas Raymond Justices Putt versus Rawstern Mil ' AN Action of Trespass was formerly brought for taking of Goods c. and upon Not-guilty pleaded Trespass is no Barr to Trover for the same Goods Raymond 472 the Defendant had a Verdict The same Plaintiff now brought Trover against the same Defendant for those Goods The Defendant pleads in Barr the Iudgment in the former Action of Trespass and upon a Demurrer the Question was Whether a Iudgment in Trespass vi armis may be pleaded in Bar to an Action of Trover for the same Goods This Case was argued by Mr. Saunders for the Plaintiff and by Mr. Pollexfen for the Defendant And to prove that it was no Bar Lacon versus Bernard Cro. Car. 35. Hutt 81. Stiles 202. a Case was cited to be adjudged in the Common Pleas in the 20th year of King James which was an Action of Trover and Conversion of one hundred Sheep The Defendant pleaded a former Iudgment in Trespass brought against him quare cepit abduxit those Sheep and that the Plaintiff in that Action recovered 2 d. damages and that both Actions were for the same thing The Plaintiff replied that the two pence damages were recoverd for the chasing and not for the value of the Cattle and upon a Demurrer had Iudgment For the smalness of the damages implies it was for the chasing and it shall therefore be intended that he had his Cattle again and that the Conversion was afterwards My Lord Coke in Ferrer's Case tells us Ferrer 's Case 6 Co. 7. Cro. Eliz. 676. Co. Ent. 39. Cro. Jac. 15. that a Recovery by Verdict Confession or upon a Demurrer in a personal Action is a good Bar to an Action of the like nature and for the same thing but that must be understood where the same Evidence will maintain both the Actions Iustice Croke reports the same Case to be ended by Arbitration but that it was the Opinion of my Lord Anderson and Iustice Glanvil that Trover and Trespass are Actions of different natures and one may be brought where the other cannot be maintained as upon a demand and denial Trover will lie but not Trespass vi armis because the taking was not tortious And therefore it may be well intended that when the Plaintiff brought Trespass he was
mistaken in that Action and being in the wrong was barred but that will be no Bar where a right Action is brought as if I deliver a Bond to another for advice who refusing to redeliver it I bring an Action of Trespass and am barred either by Verdict or Demurrer yet I may bring Detinue Trespass and Detinue are not the same Actions Pro Def. and therefore a Iudgment in one shall be no bar to the other but where two Actions are brought for one thing to be recovered in such case a Recovery in one shall be a bar to the other There is no substantial difference between Trespass and Trover for the disposing of the Goods in the one case is the same with the Conversion in the other the taking vi armis and likewise the Conversion are both tortious and therefore either Action may be well brought But for the Reasons given by the Plaintiffs Council he had Iudgment by the Opinion of the Chief Iustice and the other two Iudges Jones and Raymond of which Iustice Dolben did very much doubt Dominus Rex versus Sir Robert Atkins Knight of the Bath al' AN Indictment was found at the Quarter Sessions held for the County of the City of Bristol 4 Octob. 33 Car. 2. The County of the City of Bristolâ— against Sir Robert Atkins Knight of the Bath and Recorder and Senior Alderman of the said City Sir John Knight Alderman John Lawford Alderman and Joseph Creswick Alderman setting forth 1. That King Henry the VII th by his Charter dated 17 Decemb 15 Regni sui granted to the Mayor and Commonalty of the Town of Bristol the now City of Bristol being then a Town and to their Successors That if any shall procure abett or maintain any Debate and Discord upon the Election of the Mayor or other Minister he shall be punished instantly by the Mayor and two Aldermen to be chosen and named by the Mayor after the quantity and quality of his offence according to the Laws and Custom of the Realm 2. That according to the Priviledges granted by Queen Elizabeth to the Mayor and Commonalty of the said City and their Successors by Charter dated 28 June 23d of her Reign After which time as the Indictment sets forth the said Town was made a City there have been or ought to have been from the time of the making the said Charter twelve Aldermen whereof the Recorder was to be and now is one 3. That according to the Priviledges so as aforesaid granted by all the time aforesaid which is from the time of the Charter after the death of every Alderman the Mayor and the rest of the surviving Aldermen eorum major pars ad summonitionem of the said Mayor being called together have accustomed to choose another person of the circumspect Citizens to be an Alderman in the place of him so deceased and the Mayor and Aldermen by the same Privileges so granted have been and ought to be Iustices of the Peace for the said City 4. That continually after the time of the said Charter of Queen Elizabeth the Recorder and the rest of the Aldermen were and ought to be of the Privy Council de privato Concilio of the Mayor in particular Cases concerning the Government of the City whensoever the Mayor shall call them together And such Privy Council by all the time aforesaid which still is from the said Charter of Queen Elizabeth have not accustomed nor ought not to be called together to transact any Business belonging to that Council unless by the Summons and in the presence of the Mayor That after the death of one Sir John Lloyd being at his death an Alderman of the said City the said Sir Robert Atkins then being Recorder Sir John Knight John Lawford Esquire and Joseph Creswick being all Aldermen then of the City and free Burgesses of the City to make debate and discord upon the Election of an Alderman in the place of the Alderman so dead 8 March 33 Car. 2. in the Parish and Ward of St. Andrew within the said City did conspire to hold a Privy Council of the Aldermen of the said City and therein to choose an Alderman sine summonitione in absentia contra voluntatem Richardi Hart Militis then being Mayor of the City And in pursuance of their said wicked Conspiracy the day and year aforesaid entred by force and arms into the Tolzey and in the Chamber of the Council of the Mayor and Commonalty of the said City commonly called The Council House and there riotously c. did assemble and the same day and year they the said four Aldermen una cum aliis Aldermannis which must be two more Aldermen at the least which makes six and there were but five more in all then in being taking the Mayor in the said rest of the Aldermen not knowing their purposes held a Privy Council of Aldermen and then and there as much as in them lay chose Thomas Day for an Alderman in the place of Sir John Lloyd sine aliqua summonitione per praedictum Richardum Hart then Mayor to meet and in his absence and against his Will And they farther caused to be entred in the Common Council-Book the said Election as an Order of the Privy Council in which Book the Acts of the Mayor and Aldermen in their Privy Council are commonly written from whence great Discord hath risen c. Which Indictment was tryed at the Assises at Bristol by Nisi Prius and the Defendants found guilty and thereupon Sir Robert Atkins one of the Defendants having then lately before this Case been one of the Judges of the Common Pleas but then discharged of his Place after eight years sitting there secure came into the Court of Kings Bench and in Arrest of Iudgment argued his own Case not as Council nor at the Bar but in the Court in his Cloak having a Chair set for him by the Order of the Lord Chief Iustice and said as followeth 1. The Indictment in the first place mentions the Letters Patents of King H. 7. made to the Mayor and Commonalty of Bristol that the Mayor with two Aldermen such as he should choose should by their discretions according to Law punish such as should make debate and discord at the Elections of Officers They have not pursued this course against us but gone the ordinary way of Indictment and therefore I shall not need to speak to it 2. The Indictment in the next place proceeds to mention Letters Patents of Queen Elizabeth granted to the Mayor and Commonalty in the 23d year of her Reign which provides that there shall be twelve Aldermen and how upon the death or removal of an Alderman a new one should be chosen that is by the Mayor and the surviving Aldermen and the greater number of them being call'd together as the Indictment suggests by the Summons of the Mayor The whole Indictment and the Offence we are charged with being
of Wills did not Originally belong to the Spiritual Courts de jure they had that Authority per consensum Regis Magnatum And as those Courts had not original Iurisdiction in such Cases so they had no power to grant Administration 'till enabled by the Statute of Edw. 31 Ed. 3. cap. 11. 3. For before that time the Kings of England by their proper Officers solebant capere bona intestatorum in manus suas 'T is plain that the Ordinary had no power by the Common Law over an Intestate's Estate for he could not maintain an Action to recover any part of it now if the Law had given him a power over the Goods it would likewise have given him an Authority or Remedy to recover them An Action would have lain against him at the Common Law 13 E. 1. cap. 19. and by the Statute of Edw. 1. which was made in affirmance thereof if he had possessed himself of such Goods and refused to pay the Debts Then since he hath no original Power in this Case and this being a special kind of Administration when he hath once executed that power he shall not repeal it and the Court enclined to that Opinion vid. 9 Rep. Henslow's Case DE Term. Sancti Mich. Anno 35 Car. II. in Banco Regis 1683. Roe versus Sir Thomas Clargis IN a Writ of Error Papist is actionable Raymond 482. upon a Iudgment in the Common-Pleas in an Action upon the Case wherein the Plaintiff declar'd That the King had made him one of his Privy Council in Ireland and that he was a Deputy Lieutenant of the County of Middlesex and had serv'd in several Parliaments for the Burrough of Christ-Church in Hampshire and that the King having summon'd a Parliament to meet at Westminster he did stand to be a Member of that Burrough and that the Defendant Roe did then speak these words of him Viz. He meaning the Plaintiff is a Papist Vpon a Tryal there was a Verdict and a Iudgment for the Plaintiff This Case was argued by Sir Francis Winnington for the Plaintiff in the Errors and by Mr. Roger North for the Defendant The Questions were these 1. Whether the words abstracted from the Offices set forth in this Declaration were actionable or not 2. Whether they are actionable as joined to those Capacities The Councel for the Plaintiff in the Errors held the Negative in both Points 1. The word Papist is not defin'd either by the Common Law or the Statutes of this Realm for from the first of the Queen to the 25 Car. 2. it is not to be found what a Papist is There are several Statutes between those times which provide against the Iurisdiction of the Pope and which inflict particular Punishments upon committing Offences therein prohibited but none of those Laws give any definition of a Papist If by a Papist is meant him who embraces the Doctrine of the Pope it was punishable before the Reformation to be of a contrary Opinion Now in the vulgar acceptation of the word a man may hold the same Opinion with the Church of Rome and yet not profess the Popish Religion so as to bring himself in danger of any of the Penalties in these Laws There was never yet an Indictment against a person for being a Papist but many have been indicted upon the breach of those Laws made against Recusants by which they incurred the Penalties thereby appointed In Michaelmas 27 H. 8. 27 H. 8. 14. B. an Action on the Case was brought in the Common-Pleas for calling of the Plaintiff Heretick and Willoughby the King's Serjeant argued That the Action would not lye because the word did import a Spiritual Matter of which the Temporal Courts had no knowledge and of that Opinion were the Chief Justice Fitzherbert and Justice Shelley The same may be said in this Case that the word Papist relates to something which is Spiritual of which this Court hath no cognizance Words which are actionable must immediately injure the person of whom they are spoken either in his Profession or bring him in danger of some Punishment Hob. 8. as to call an Attorney Bribing Knave which are adjectively spoken yet 't is an Injury done to him in his Profession It was said at the Trial in the Common-Pleas That 't is actionable to call a Man Papist at this time though it might not be so at another time This seems to be a very vain assertion for though the Times may alter the Law is still the same It would be a very great inconvenience if Men should be deterr'd by Actions to call another Man a Papist for this would be an encouragement to Popery and a check upon the Protestant Religion to punish the Professors thereof for saying a Man is a Papist who is really so both in his Iudgment and Profession But admitting the word to be actionable Not actionable to call a man Papist Cro. Eliz. 191. 't is not so before Conviction for 't is very improperly used and of no signification or discredit before that time 2. These words are not actionable as coupled with his Offices because he hath alledged no particular damage or Loss and his Offices are only Honorary and of no Profit and therefore he could receive no Damage by speaking these words if true when they in no sort relate to his Offices and are too remote to be applied to them 1. E contra The words are actionable in themselves for they scandalize the Plaintiff in his Reputation and may be a means to bring him to corporal Punishment for by several Acts of Parliament many Punishments are inflicted upon Popish Recusants which is the same thing with a Papist they are disabled from holding any Office or Imployment in the Kingdom they are not to come into the Kings presence or within five Miles of the City of London and the calling of him Papist subjects him to the danger of being Indicted for a Traytor for the words are Synonimous When H. 8. took upon him the Supremacy which the Pope had unlawfully Vsurped there were certain Papists in those days who called themselves Roman Catholicks that they might be distinguished from those who bore Allegiance to their lawful King which general appellation was afterwards changed into the word Papist so that both signifie the same thing The Objection that tho Times change the Law is still the same may receive this Answer That when the force of words is changed with the Times those words shall be actionable now which were not so at another time As for Example the proper and genuine signification of the word Knave is a Servant but now the Times have altered the sense of that word and made it to be a term of Reproach so that 't is actionable to call an Attorny Knave who is but a Servant to his Client 1. Then as to the Objection that the word Papist is not defin'd in our Law There is a Statute which disables a
which she had discontinued by joining in the Fine with her second Husband but yet it was adjudged no Forfeiture because it was not within the intent of the Statute to restrain Women to dispose of their own Estates but only such as came from the Husband So here Vses are in the nature of private Laws and must be governed by the like intention of the Parties now 't is not to be supposed that the Father did intend to disinherit his only Daughter and Heir without notice of this Settlement therefore though he had not appointed any person in particular to give her notice yet it must of necessity be presumed that his intention was that she should have the Estate unless she had refused upon notice to comply with those Conditions imposed upon her Now the Daughter being Heir at Law and so having a good Title by descent if there be any Conveiance made by her Ancestor to defeat that Title and to which she is a Stranger she ought by the Rules of Law and Reason to have notice of it and so is the express Resolution in Frances's Case where the Devise and the Feoffment were both made to the Heir at Law And the reason why in Fry and Porter's Case notice was not held necessary was because the Devise was to a Grandaughter who was not Heir at Law for the Earl of Newport had three Sons then living and therefore the Parties whom it concerned had the same means to inform themselves upon what Conditions they were to have the Estate 3. The notice here given was not sufficient for as the Ordinary himself in Green's Case ought to have given the Patron notice of the Deprivation before a Lapse should incurr so the Trustees here ought to give the Daughter notice of this Proviso before she shall lose her Estate for Non-performance of the Conditions on which she should take it especially since the notice she had of this Proviso was not certain for 't is said she had notice not to marry without the consent of the Trustees but 't is not shewed who they are or how she should apply her self to them Besides there is something in this Proviso which the finding in the Verdict will not supply for it may be literally true that the Daughter married without the consent of the Trustees and yet no breach of the Condition because the Proviso is to restrain her from marrying without the consent of them or their Heirs now it was not found that the Feoffees were then living and if they were dead their Consent cannot be required and she might have the consent of their Heirs Mr. Franklyn who was the Husband of Laetitia the Aunt in Remainder hath likewise forfeited that Estate which he hath or may have in right of his Wife if she had any right by not taking upon him the name of Fitzgerald for if the Father would have disinherited his Daughter for Non-performance of this Proviso a fortiori he shall be intended to disinherit his Sister for making frustrate his desire in the settlement of his Estate In Easter-Term following Iudgment was given That the Estate Tail was not determined for want of notice according to the resolution in Frances's Case Hinton versus Roffey AN Action of Debt was brought against the Defendant In pleading the Statute of Usury the Agreement and the Sum taken must be set out 12 Car. 2. c. 13. who pleaded the Statute of Usury but did not shew any particular Agreement only in general that he was indebted to the Plaintiff in a Sum not exceeding 180 l. neither did he seth forth when the Interest of the Mony did commence and on what day it became due And upon a Demurrer it was objected that this Plea was too general because the Defendant ought to shew in particular what the Sum was in which he was indebted and how much the Plaintiff took above 6 l. per Cent. for if the certainty thereof did not appear there could be no Fact applied to it But on the other side it was alledged that it was not material to shew the certain Sum which the Plaintiff took above 6 l. E contra per Cent. and therefore not necessary to set forth the particular Agreement between them for having pleaded and made a substantial Averment to bring his Case within it 't is well enough without shewing how much he took above six in the hundred And this Case was compared to Debt against an Administrator Moon versus Andrews Hob. 133. who pleaded in Bar a Iudgment c. and that he had fully administred and had not Assets praeterquam bona c. non attingen to 5 l. and upon Demurrer this was held a good Plea for though in strictness of Pleading the Defendant ought to have shewed the certain value of the Goods and not to have said non attingen to 5 l. yet the substance sufficiently appears that he had not more than 5 l. to satisfie a Debt of an 100 l. for which that Action was brought Jefferies Chief Iustice and the Court gave Iudgment for the Plaintiff because the Defendant ought to have set forth the Agreement and to apply it to the Sum in the Declaration Smith versus Goodier IN Ejectment for the Mannor of Heythorpe Attornment must be proved where an Ejectment is brought for a Mannor parcel in Rent and Services c. Vpon Not-guilty pleaded there was a Trial at Bar by an Oxfordshire Iury. The Title of the Lessor of the Plaintiff was That Edmund Goodier Esquire was seized in Fee of the said Mannor part in Demesnes some part in Leases for years with Rent reserved and some part in Services and being so seized made a Feoffment in Fee to Sir John Robinson and Sir William Rider and their Heirs in Trust for Sir Robert Masham This Deed was dated in 1647. and the consideration was 5000 l. paid to Goodier there was a Letter of Attorny of the same date with the Deed and Livery and Seisin endorsed Serjeant Maynard who was of Council for the Defendant put the Plaintiff to prove an Attornment of the Tenants for having declared for a Mannor Lit. Sect. 553. 1 Roll. Abr. 293. parcel in Rents and Services those would not pass without an Attornment and of this Opinion was the whole Court but the Plaintiff would not prove an Attornment The Defendant made a Title under the Marriage Settlement of the said Goodier who in 17 Jacobi married Elizabeth Mees and then he setled the said Mannor upon himself for life and upon his Issue in Tail Male and that the Defendant was the Heir in Tail But on the other side it was insisted that this Settlement was fraudulent against the Purchasor Evidence of a Fraudulent Settlement and that it could not be thought otherwise because both the Original and Counterpart were found in Mr. Goodiers Study after his death and because he had made Oath before a Master in Chancery that there was no incumberance
upon the Estate which Affidavit was produced in Court but not suffered to be read but as a Note or Letter unless the Plaintiff would produce a Witness to swear that he was present when the Oath was taken before the Master And an Objection was made to the Settlement it self which recited That whereas a Marriage was intended to be had between the said Edmund Goodier and Elizabeth Mees now in consideration thereof and of a Portion he conveyed the said Mannor to the Feoffees to the use of himself for life and after his decease to the use of the said Elizabeth for life but doth not say from and after the Solemnization of the said Marriage so that if she had not married Mr. Goodier yet after his decease she would have enjoyed the Estate for life Vpon the whole matter the Iury found for the Defendant Dominus Rex versus Coney and Obrian THE Defendants were convicted for the Murder of Mr. Murder was pardoned by the name Felonica interfectio and held good 10 E. 3. c. 3. 13 R. 2. c. 1. Tyrrwhite and Mr. Forster in a Duel and now pleaded their Pardon in which there was a Clause Non obstante the Statute of Ed. 3. which appoints him that hath a Pardon of Felony to find Sureties for his Good Behaviour before it shall be allowed and another Non obstante to the Statute of R. 2. which enacts that if the Offence be not specified in the Pardon it shall not be allowed Now the Word Murdrum was not in this Pardon the Offence was expressed by these general Words Felonica interfectione and whether it did extend to pardon Murder was the Question Mr. Astry the Clerk of the Crown informed the Court that one Alexander Montgomery of Eglington pleaded the like Pardon for Murder but it was held insufficient and the Court gave him time to get his Pardon amended which was done likewise in this Case The Defendants came again on another day and Councel being allowed to plead for them insisted that the Pardon was good and that the Murder was sufficiently pardoned by these Words that it is in the power of the King to pardon by general Words and his intent did plainly appear to pardon the Defendants That the murther of a person is rightly expressed by felonious killing though not so properly as by the word Murdrum it self the omission of which word will not make the Pardon void And to prove this he cited the Sheriff of Norfolk's Case 2 R. 3. 7. a. who was indebted to the King during the time he was Sheriff and was pardoned by the Name of J. W. Esquire who was the same person de omnibus debitis computis c. Afterwards he was charged in the Exchequer for 100 l. where he pleaded this Pardon and it was held good though he was not named Sheriff and so not pardoned by the name of his Office yet the Kings intention appearing in his Charter and having pardoned him by his right Name that was sufficient and in that Case the King himself was concerned in point of interest The Books all agree More 752. Lucas's Case 8 Co. 18. 3 Inst 234. that before the Statute of R. 2. the King might pardon Murder by the word Felony now this Prerogative being incident to the Crown and inseparable from the person of the King was not designed to be wholly restrained by that Act for the Parliament only intended that by specifying the Offence in the Pardon the King should be rightly informed of the nature of it and when he understands it to be Murder he would not grant a Pardon But admitting his power to be restrained by that Statute Stamf. 101. yet a Non obstante is a dispensation of it and therefore this Pardon ought to be allowed The Pardon was held good by the whole Court And Jefferies the Chief Justice said that he had proposed this Case to all the Judges of England Sid. 366. and they were all of the same Opinion and that he remembred Dudley's Case where a Pardon in general words was allowed DE Term. Sancti Hill Anno 35 Car. II. in Banco Regis 1683 4. Brason versus Dean A Covenant upon a Charter Party for the Freight of a Ship A thing lawful to be done when the party did covenant to do it and afterwards prohibited the Covenant is binding The Defendant pleaded that the Ship was loaded with French Goods prohibited by Law to be imported and upon Demurrer Judgment was given for the Plaintiff for the Court were all of Opinion That if the thing to be done was lawful at the time when the Defendant did enter into the Covenant though it was afterwards prohibited by Act of Parliament yet the Covenant is binding Barnes versus Edgard TRespass for breaking his Close and impounding of his Cattle Where Damages are under 40 s. the Plaintiff must have ordinary Costs Vpon Not Guilty pleaded the Plaintiff had a Verdict but Damages under 40 s. Whereupon Mr. Livesay the Secondary refused to tar full Costs alledging it to be within the Statute of 22 23 Car. 2. by which 't is Enacted 22 23 Car. 2. cap. 9. That in all Actions of Trespass Assault and Battery and other personal Actions wherein the Judge shall not certifie upon the back of the Record that a Battery was proved or the Freehold or Title of the Land chiefly in question if the Jury find the Damages under 40 s. the Plaintiff shall recover no more Costs than Damages Mr. Pollexfen moved for Costs alledging that this Act doth not extend to all trespasses but only to such where the Freehold of the Land is in question If the Action had been for a Trespass in breaking his Close and Damages given under 40 s. there might not have been full Costs but here is another Count for impounding the Cattle of which the Defendant is found guilty and therefore must have his Costs The like Case was adjudged in this Court in Hillary Term last Smith versus Batterton Raym. 487. Jones 232. which was Trespass for breaking and flinging down Stalls in the Market place The Plaintiff had a Verdict and 2 d. damages and upon a debate whether he should have full Costs the Court were of Opinion that it was not within that Statute because the Title could not come in question upon the destruction of a Chattle In the principal Case the Plaintiff had ordinary Costs DE Termino Paschae Anno 36 Car. II. in Banco Regis 1684. Marsh versus Cutler THE Plaintiff obtained a Iudgment in an Hundred Court for 58 s. and 4 d. If Debt be brought upon a Specialty for part of the Sum the Plaintiff must shew how the other is discharged 2 Cro. 498 499 529 530. and brought an Action of Debt upon that Iudgment in this Court for 58 s. only and did not shew that the 4 d. was discharged and upon Nultiel Record pleaded and a Demurrer to that Plea the
of a person dying intestate and tells what share his Relations shall have and 't is probable that the Custom of London might guide the Parliament in the making of this Law which Custom distributes the Estate of a Freeman amongst his Wife and Children This shews that an Interest is vested in them which goes to the Administrator the consequence whereof is very considerable for if such Children should marry they have a Security by this Act that a Portion shall be paid and if the Wife should take another Husband he will be entituled to her share and this may be a means of giving credit in the World when the certainty of their Portions are so well known and secured 'T is such an Interest which is known in the Law and may be compared to that in Sir Thomas Palmer's Case 5 Co. 24. who sold 1600 Cord of Wood to a Man who assigned it to another and afterwards the Vendor sold 2000 Cord to one Maynard to be taken at his Election the Assignee of the first person cutt 600 Cord and Maynard carried it away thereupon an Action was brought and the Plaintiff had Iudgment because the first Vendee had an Interest vested in him which he might well assign This Case is a plain proof that a Man may have an Interest in a Chattle without a Property and such an Interest which gives the person a remedy to recover and where there is a remedy there must be a Right for they are convertibles 'T is not a new thing in the Law that a contingent Interest in the Ancestor shall survive to the Heir Wood's Case cited in Shelleys Case 1 Co. 99. as if a Man be seized of the Mannor of S. and covenants that when B. shall make a Feoffment to him of the Mannor of D. then he will stand seized of the said Mannor of S. to the use of the Covenantee and his Heirs who dyed leaving Issue an Heir who was then an Infant B. made a Feoffment to the Covenantor accordingly it was held that no Right descended to the Heir of the Covenantee but only a possibility of an Vse which might have vested in the Ancestor and therefore the Heir shall claim it by descent 'T is like a Debt to be paid at a day to come Lit. Sect. 512. which is debitum in praesenti though solvendum in futuro and though the Obligee cannot have an Action before the day is come yet such an Interest is vested in him that he may release it before that day and so bar himself for ever Now if this Act makes a Will it ought to be construed as such and it cannot be denied that if this Case had happened upon a Will the Executor of the Son would have a very good Title 'T is a weak Objection to affirm that this Law was made to establish the practice of the Ecclesiastical Courts and that 't is only explanatory of the Statutes of Ed. 3. and H. 8. because 't is plainly introductory of a new Law for Distribution is now made otherwise than it was before 2. An Interest is vested where there is but one Child For the better understanding of this Point the Clause in the Act ought to be considered which is viz. If there be no Wife then to be distributed amongst the Children if no Child then to the next of Kin of the Intestate upon which Clause these Objections have been made Object 1. That 't is insignificant because the Statute of H. 8. gives the right of Administration to the Child 2. That Distribution cannot be made where there is but one 3. That this Clause ought to be construed according to the Law in the Spiritual Courts Answ Now as to the first Objection 't is true that before this Act the Child had a Right of Administration but that Right was only personal so that if he had died before he had administred his Executor or Administrator could not have it Besides many inconveniences did attend this personal Right of Administration which are now prevented by the vesting of an Interest For when the Right was personal and the Administrator gave Bond with Sureties to administer truly and the Ordinary had appointed Distribution to be made the Administrator was bound to perform it though not in equal degree and if he died before the Estate was got in it was lost for ever But now by this Clause Distribution must be made equally viz. one third part of the Surplus to the Wife the rest by equal portions to the Children so that what was very incertain before and almost at the Will of the Ordinary is now reduced to a certainty and therefore an Interest must vest in such persons to whom such equal Distributions of filial Portions are given 2. Object That Distribution cannot be made where there is but one Child Answ This also is true in propriety of Speech and taking the Word distribute in the strict sense But this was never intended by the Statute as may plainly appear upon the construction of the whole for the Word Children doth comprehend a Child and more and the form of the Bond directed by this Statute is that the Administrator shall deliver the Goods to such person and persons c. which shews that one is comprehended and therefore Distribuere in this Case is no more than Tribuere and must be so taken The Parliament never intended that Distribution should not be made where there is but one Child as may be easily collected from the reason of the thing and the inconveniences which would ensue 1st If a Man should die leaving a Wife and one Child the Wife would be entituled to one third and the Child to the other two thirds of the personal Estate now if the Child shall have two thirds being comprehended under the Word Children what reason can be given why he should not have the whole where there is no Wife which he could not have if the Word Children did not comprehend Child in this Case 2dly If a Man hath a personal Estate to the value of 2000 l. and dieth leaving Issue three Sons but hath in his life time made provision for the second Son to the value of 1000 l. the eldest Son dies intestate shall the youngest be totally excluded from the remaining 1000 l. because there is none left to have distribution his second Brother being preferred in the life time of his Father by an equal portion with what remains 3dly If the Father hath a Son married and two Brothers and dies intestate now if his Estate should not be vested in the Son then if he should also die intestate his Wife could have nothing but it would go to the Vncles and this would be a very hard construction of this Law to carry the Estate to the Vncles and their Executors from the Son and his Administrator But there is a Case which proves that a Child is intended by the Word Children 8 Co 96. 't is between Amner
it because the words were an entire Sentence and spoken altogether at the same time and therefore if a Prohibition should not go it would be a double vexation DE Termino Paschae Anno 1 Jac. II. in Banco Regis 1685. Earl of Yarmouth versus Darrel THE Plaintiff brought an Action on the Case Grant of the King of sole Printing not good setting forth Letters Patents of King Charles the II. by which the Sole Printing of Blank Writs Bonds and Indentures were granted to him excepting such Forms which belonged to the Custom-House and which were formerly granted to Sir Roger L'Estrange that this Grant was to continue for the space of 30 Years and that the Defendant had notice thereof and had printed 500 Blank Bonds which he laid to his damage of the sum of 40 l. Vpon Not Guilty pleaded the Iury found a special Verdict the substance of which was that the Defendant was a Stationer and that the Company of Stationers for the space of 40 years last past before the granting of these Letters Patents had constantly printed Blank Bonds and so made a general conclusion Mr. Trindar argued for the Plaintiff and the only Question was Whether this Patent did vest a sole Interest in the Plaintiff exclusive to all others In his Argument he insisted on these Points 1. That the King hath a Prerogative in Printing and may grant it Exclusive to others 2. That this Prerogative extends to the Case at the Bar. That he hath such a Prerogative 't is confirm'd by constant Vsage for such Grants have been made by the Kings of England ever since Printing was invented But to instance in a few Viz. The Patent for Printing of Law-Books was granted to one More on the 19th day of January in the 15th year of King James the I. And when that Patent was expired another was granted to Atkyns and others on the 15th day of November in the 12th year of King Charles the II. In 23. Eliz. a Patent was granted to the Company of Stationers for the sole Printing of Psalm-Books and Psalters for the space of 30 years And on the 8th of August 31 Eliz. the like Patent was granted to Christopher Barker for Life Another Patent to the Company of Stationers for printing of Corderius c. These and many more of the like nature shew what the constant usage hath been Now the Statute of Monopolies doth not reach to this Case because of the Proviso therein to exempt all such Grants of sole Printing and by the Statute of King Charles the II. for regulating of the Press 14 Car. 2. cap. 33. 't is Enacted That no person shall Print any Copy which any other hath or shall be granted to him by Letters Patents and whereof he hath the sole Right and Priviledge to Print And upon the breaches of these Statutes several Iudgments have been given Between Streater and Roper in this Court Mich. 24 Car. 2. Rot. 237. 't is true the Iudgment was against the Plaintiff but upon a Writ of Error brought in Parliament that Iudgment was reversed The same Term there was a Iudgment given upon a special Verdict in the Common-Pleas for the Plaintiffs Hill 35 Car. 2. B. R. Rot. 99. who were the Company of Stationers against Seymour for Printing of Almanacks And they obtained the like Iudgment against Wright for Printing of Psalters and Psalm-Books Now to apply this to the principal Case 't is to be considered that these Books for which the sole Printing was so claimed were of a publick nature and importance relating to the good and benefit of the Subjects and so likewise are Blank Bonds for there may be false and vitious Impressions to the ruin and destruction of many innocent people And as a farther Argument that the King hath this Prerogative 't is likewise to be considered that where no individual person can claim a Property in a thing there the King hath a Right vested in him by Law and it cannot be pretended that any particular person hath a Right to Print those Bonds therefore the finding that such were printed by the Company for above 40 years is immaterial because there being an inherent Prerogative in the King whenever he exerts it all other persons are bound up who were at liberty before To prove which the Iudgment in the Case of the East-India Company is express in point for before that Patent the subject had liberty to Trade to those places prohibited by that Grant but afterwards they were restrained by that Grant Neither is this in the nature of a Monopoly 11 Co. 84. 't is not like that of the sole Grant of making Cards which hath been adjudged void and with great reason because that Grant reached to prohibit a whole Trade and therefore differs from this Case for the Defendant may print other Instruments or Books and exercise his Trade in some other lawful and profitable Commodities and so might the Merchants in the Case of the East-India Company for they were restrained by the Patent as to particular places but might Trade to any other part of the World Neither will the Subjects in general receive any prejudice by this or such like Grants for if the Patentees make ill use of their Priviledges tho' it cannot be properly called an Office yet 't is a Trust and a Scire Facias will lie to repeal their Grants It was argued by the Councel for the Defendant E contra That the Verdict having found that the Company of Stationers had used to print those Bonds for above 40 years before the making of this Grant the Question will be Whether they are now divested of a Right so long enjoyed And as to that 't is not a new thing to object That notwithstanding such Grants yet other persons have insisted on a Right to Print and have printed accordingly Thus the sole Printing of Law-Books was granted to one Atkyns yet the Reports of Iustice Jones and my Lord Chief Iustice Vaughan were printed without the direction of the Patentees Printing as 't is a manual Occupation makes no alteration in this Case for the King hath as great a Prerogative in Writing any thing that is of a publick Nature as he hath in Printing of it Now considering Printing as an Art exclusive from the thing printed this Patent is not good For if a Man invent a new Art and another should learn it before the Inventor can obtain a Patent if afterwards granted 't is void Then consider it in relation to the thing printed 1 Roll. 4. 11 Co. 53. id which in this Case are Blank-Bonds 't is not a new Invention because the Company of Stationers have printed such above 40 years and for that reason this Patent is void for where the Invention is not New there Trade shall not be restrained No Man can receive any prejudice by the printing of such Bonds for they are of no Vse till filled up 't is only a bare Manufacture
fearing that this Daughter might be stoln from her applies her self to my Lady Gore and entreats her to take this Daughter into her House which she did accordingly My Lady had a Son then in France she sent for him and married him to this Ruth she being then under the Age of sixteen years without the Consent of her Mother who was her Guardian The Question was whether this was a Forfeiture of her Estate during Life It was proved at the Trial that the Mother had made a Bargain with the Lessor of the Plaintiff that in case he recovered she should have 1000 l. and the Chirds of the Estate and therefore she was not admitted to be a Witness The Plaintiff could not prove any thing to make a Forfeiture and therefore was nonsuited The Chief Iustice said that the Statute was made to prevent Children from being seduced from their Parents or Guardians by flattering or enticing Words Promises or Gifts and married in a secret way to their disparagement but that no such thing appeared in this Case for Dr. Hascard proved the Marriage to be at St. Clements Church in a Canonical Hour and that many People were present and that the Church Doors were open whilst he married them Anonymus BY the Statute of 21 Jacobi 't is Enacted 21 Jac. c. 23. That no Writ to remove a Suit out of an Inferior Court shall be obeyed unless it be delivered to the Steward of the same Court before Issue or Demurrer joined so as the Issue or Demurrer be not joined within six Weeks next after the Arrest or Appearance of the Defendant In this Case Issue was joined and the Steward refused to allow the Habeas Corpus and the Cause was tried but not before an Utter Barrister as is directed by the Statute Curia The Steward ought to return the Habeas Corpus and they having proceeded to try the Cause no Utter Barister being Steward let an Attachment go Claxton versus Swift Hill 1 Jac. 2. Rot. 1163. THE Plaintiff being a Merchant brought an Action upon a Bill of Exchange If the Plaintiff recover against the Drawer of a Bill he shall not afterwards recover against any of Endorsers setting forth the Custom of Merchants c. and that London and Worcester were ancient Cities and that there was a Custom amongst Merchants that if any person living in Worcester draw a Bill upon another in London and if this Bill be accepted and endorsed the first Endorser is liable to the payment That one Hughes drew a Bill of 100 l. upon Mr. Pardoe paiable to the Defendant or Order Mr. Swift endorsed this Bill to Allen or Order and Allen endorsed it to Claxton The Mony not being paid Claxton brings his Action against Hughes and recovers but did not take out Execution Afterwards he sued Mr. Swift who was the first Endorser and he pleads the first Recovery against Hughes in barr to this Action and avers that it was for the same Bill and that they were the same Parties To this Plea the Plaintiff demurred and the Defendant joyned in the Demurrer Mr. Pollexfen argued that it was a good Barr because the Plaintiff had his Election to bring his Action against either of the Endorsers or against the Drawer but not against all and that he had now determined his Election by suing the Drawer and shall not go back again though he never have Execution for this is not in the nature of a joint Action which may be brought against all 'T is true that it may he made joint or several by the Plaintiff but when he has made his choice by suing of one he shall never sue the rest because the Action sounds in Damages which are uncertain before the Iudgment but afterwards are made certain transeunt in rem judicatam and is as effectual in Law as a Release As in Trover the Defendant pleaded that at another time the Plaintiff had recovered against another person for the same Goods so much Damages 2 Cro. 73. Yelv. 65. Brown versus Wootton and had the Defendant in Execution and upon a Demurrer this was held a good Plea for though in that Case it was objected that a Iudgment and Execution was no satisfaction unless the Mony was paid yet it was adjudged that the cause of Action being against several for which Damages were to be recovered and because a Sum certain was recovered against one that is a good discharge against all the other but 't is otherwise in Debt because each is liable to the entire Sum. Chief Iustice If the Plaintiff had accepted of a Bond from the first Drawer in satisfaction of this Mony it had been a good Barr to any Action which might have been brought against the other Indorsers for the same and as this Case is the Drawer is still liable and if he fail in payment the first Endorser is chargeable because if he make Endorsement upon a bad Bill 't is Equity and good Conscience that the Endorsee may resort to him to make it good But the other Iustices being against the Opinion of the Chief Iustice Iudgment was given for the Defendant Pawley versus Ludlow DEBT upon a Bond. The Condition was That if John Fletcher shall appear such a day coram Justitiariis apud Westm c. that then c. The Defendant pleaded that after the 25th day of November and before the day of the appearance he did render himself to the Officer in discharge of this Bond and to this the Plaintiff demurred Darnel for the Defendant admitted that if a Scire Facias be brought against the Bail upon a Writ of Error 3 Bulstr 191. 2 Cro. 402. who plead that after the Recognizance and before the Iudgment against the Principal affirmed he rendred himself to the Marshal in discharge of his Bail that this is not a good Plea but that the Sureties are still liable 3 Jac. cap. 8. because by the Statute they are not only liable to render his Body but to pay the Debt recovered But if a Iudgment be had in this Court 1 Rol. Abr. 334. pl. 11. and a Writ of Error brought in the Exchequer-Chamber and pending that Writ of Error the Principal is rendred the Bail in the Action are thereby discharged It was argued on the other side E contra that this is not the like Case of Bail upon a Writ of Error for the Condition of a Recognizance and that of a Bond for Appearance are different in their nature the one is barely that the Party shall appear on such a day the other is that he shall not only appear and render his Body to Prison but the Bail likewise do undertake to pay the Debt if Iudgment should be against the Principal Now where the Condition is only for an Appearance at a day if the Party render himself either before or after the day 't is not good Chief Iustice If the Party render himself to the Officer before the
that is to make them Iudges whether this Duty is payable or not and so the Courts of Westminster who are the proper Iudges of the Revenue of the King who by this means will be without an Appeal will be excluded Curia This Court may take Cognizance of this Matter as well as in Cases of Bastardy 't is frequent to remove those Orders into this Court though the Act says That the two next Justices may take order as well for the punishment of the Mother as also for the relief of the Parish where it was born except he give Security to appear the next Quarter Sessions The Statute doth not mention any Certiorari which shews that the intention of the Law-makers was that a Certiorari might he brought otherwise they would have enacted as they have done by several other Statutes that no Certiorari shall lie Therefore the meaning of the Act must be that the determination of the Iustices of the Peace shall be final in Matters of Fact only as if a Collector should affirm that a person hath four Chimnies when he hath but two or when the Goods distrained are sold under the value and the Overplus not returned but the Right of the Duty arising by virtue of this Act was never intended to be determined by them Then the Order was filed and Mr. Pollexfen moved that it might be quashed for that by the Statute of 14 Car. 2. 14 Car. 2. c. 10. the Occupier was only chargeable and the Land-Lord exempted Now by the Proviso in that Act such a Cottage as is expressed in this Order is likewise exempted because 't is not of greater value than 20 s. by the year and 't is not expressed that the person inhabiting the same hath any Lands of his own of the value of 20 s. per annum nor any Lands or Goods to the value of 10 l. Now there having been several abuses made of this Law to deceive the King of this Duty occasioned the making of this subsequent Act. The abuses were these viz. The taking a great House and dividing it into several Tenements and then letting them to Tenants who by reason of their poverty might pretend to be exempted from this Duty The dividing Lands from Houses so that the King was by these Practices deceived and therefore in such Cases the charge was laid upon the Land-Lord but nothing of this appearing upon the Order it was therefore quashed Brett versus Whitchot IN Replevin Lands not exempted from repairing of the High-ways by grant of the King The Defendant avowed the taking of a Cup as a Fine for a Distress towards the repairing of the High-way The Plaintiff replyed and set forth a Grant from the King by which the Lands which were chargeable to send Men for the repairing c. were exempted from that Duty And upon a Demurrer the Question was Whether the Kings Letters Patents are sufficient to exempt Lands from the Charge of the repairing of the High-ways 2 3 Ph. Mar. c. 8. which by the Statute of Philip and Mary and other subsequent Statutes are chargeable to send Men for that purpose And it was argued that such Letters Patents were not sufficient because they were granted in this Case before the making of the Statute and so by consequence before any cause of Action and to prove this a Case was cited to this purpose In 2 E. 2 Inst 569. 3. an Action was brought against an Hundred for a Robbery upon the Statute of 13 E. 1. The Bishop of Litchfield pleaded a Charter of R. 1. by which that Hundred which was held in Right of his Church was exempted c. But it was held that this Charter could not discharge the Action because no such Action was given when the Letters Patents were made but long afterwards Iudgment was given for the Avowant Upton versus Dawkin TRespass quare vi armis liberam piscariam he did break and enter and one hundred Trouts ipsius Quer. Trespass for taking Fish ipsius querentis in libera piscaria not good in the Fishery aforesaid did take and carry away Vpon Not guilty pleaded there was a Verdict for the Plaintiff and this Exception was taken in arrest of Iudgment viz. For that the Plaintiff declared in Trespass for taking so many Fish ipsius Quer. in libera piscaria which cannot be because he hath not such a property in libera piscaria to call the Fish his own Pollexfen contra If there had not been a Verdict such a Construction might have been made of this Declaration upon a Demurrer but now 't is helped and the rather because a Man may call them pisces ipsius in a free Fishery for they may be in a Trunk so a Man may have a property though not in himself as in the Case of Iointenants where 't is not in one but in both yet if one declare against the other unless he plead the Iointenancy in Abatement the Plaintiff shall recover But notwithstanding the Iudgment was reversed Dominus Rex versus ...... THE Defendant was indicted for Barretry Barretry the Evidence against him was that one G. was arrested at the Suit of C. in an Action of 4000 l. and was brought before a Iudge to give Bail to the Action and that the Defendant who was a Barrister at Law was then present and did sollicite this Suit when in truth at the same time C. was indebted to G. in 200 l. and that he did not owe the said C. one farthing The Chief Iustice was first of Opinion that this might be Maintenance but that it was not Barretry unless it appeared that the Defendant did know that C. had no cause of Action after it was brought If a Man should be arrested for a trifling Cause or for no Cause this is no Barretry though 't is a sign of a very ill Christian it being against the express Word of God But a Man may arrest another thinking he hath a just cause so to do when as in truth he hath none for he may be mistaken especially where there hath been great dealings between the Parties But if the design was not to recover his own Right but only to ruine and oppress his Neighbour that is Barretry A Man may lay out mony in behalf of another in Suits at Law to recover a just Right and this may be done in respect of the Poverty of the Party but if he lend mony to promote and stirr up Suits then he is a Barretor Now it appearing upon the Evidence that the Defendant did entertain C. in his House and brought several Actions in his Name where nothing was due that he was therefore guilty of that Crime But if an Action be first brought and then profecuted by another he is no Barretor though there is no cause of Action The Defendant was found guilty DE Termino Paschae Anno 2 Jac. II. in Banco Regis 1686. Coram Edwardo Herbert Mil ' Capital ' Justic
' Francisco Wythens Mil ' Justiciariis Richardo Holloway Mil ' Justiciariis Thoma Walcot Mil ' Justiciariis MEmorandum That the First day of this Term Sir Thomas Jones Chief Justice of the Common-Pleas had his Quietus and Sir Henry Beddingfield one of the Justices of the same Court succeeded him in that Office Likewise the Honourable William Mountagu Esq Lord Chief Baron of the Exchequer had his Quietus and Sir Edward Atkyns one of the Barons of the same Court succeeded him Sir Job Charleton one of the Justices of the Common-Pleas had his Quietus but was made Chief Justice of Chester and Sir Edward Lutwich the King's Serjeant was made one of the Justices of the Common-Pleas and Serjeant Heath was made one of the Barons of the Exchequer Okel versus Hodgkinson THE Father and Son join in a Fine in order to make a Settlement upon the second Wife of the Father who was only Tenant by the Curtesie the Remainder in Tail to his said Son One of the Cognizors died after the Caption and before the Return of the Writ of Covenant and now a Writ of Error was brought to Reverse it and this was assigned for Error Curia If it had been in the Case of a Purchasor for a valuable Consideration the Court would have shewed him some favour but it being to do a wrong to a young Man they would leave it open to the Law THE first day of this Term being the 22th day of April there was a Call of Serjeants viz. Sir John Holt of Grays-Inn Recorder of London who was made Kings Serjeant Sir Ambrose Phillips made also Kings Serjeant Christopher Milton John Powell John Tate William Rawlinson George Hutchins William Killingworth Hugh Hodges and Thomas Geers They all appeared that day at the Chancery-Bar where having taken the Oaths the Lord Chancellor Jefferies made a short Speech to them after which they delivered a Ring to him praying him to deliver it to the King They went from the Inner-Temple-Hall to Westminster and Counted at the Common-Pleas and gave Rings the Motto whereof was DEUS REX LEX Dominus Rex versus Saloway SAloway drowned himself in a Pond and the Coroners Enquest found him Non Compos Mentis because 't is more generally supposed that a Man in his Senses will not be Felo de se The Kings Councel moved for a Melius Inquirendum and that the Inquisition might be quashed for that it sets forth Quod pred Defend circa horam octavam ante meridiem in quoddam stagnum se projecit per abundantiam aquae ibidem statim suffocat emergit ' erat which is insensible Pemberton Serjeant contra Here is no Exception taken to the substance of the Inquisition and the word suffocat had been sufficient if the word emergit ' had been left out The Court were of Opinion that there being another word in this Inquisition which carries the sense 't is therefore sufficient but if it had stood singly upon this word Emergit ' it had not been good And this Fact happening about the time of the general Pardon the Court was of Opinion that where an Interest is vested in the King a Pardon of all Forfeitures will not divest it but that nothing was vested here before Inquisition found 2. It was objected that this Inquisition ought to set forth that Saloway came by his death by this means Et nullo alio modo quocunque To which it was answered by Pemberton that in matters of Form only the Iudges have sent for the Coroner into Court and ordered him to amend it Rodney versus Strode AN Action on the Case was brought against three Defendants one of them suffered Iudgment to go by default In a joynt Action the Jury may sever the Damages and the other two pleaded Not Guilty The Cause was tryed the last Assises at Exeter and it was for imposing the Crime of Treason upon the Plaintiff and for assaulting and imprisoning of him there was a Verdict for the Plaintiff and 1000 l. damages against Mr. Strode and 50 l. against the other Defendant who pleaded The Plaintiff entred a nolle prosequi against him who let the Iudgment go by default and against the other Defendant for the 50 l. damages and took judgment only against Mr. Strode Serjeant Pemberton moved for a new Trial by reason of the excessive Damages which were not proportioned to the quality of the Plaintiff he being a Man of mean Fortune But it was opposed by the Plaintiff for that the Defendant pursued him as a Traytor and when he was apprehended for that Crime he caused him to be arrested for 1000 l. at the Suit of another person to whom he was not indebted so that upon consideration of the Circumstances of the Case the Court refused to grant a new Tryal Then Serjeant Pemberton for the Defendants moved in arrest of Iudgment and for cause shewed that the Iury have found both guilty and assessed several Damages which they cannot do because this is a joynt Action to which the Defendants have pleaded jointly and being found guilty modo forma the Iury cannot assess the damages severally for the damage is the same by the one as the other Cro. Eliz. 860. Austen vers Millard al' and therefore it hath been adjudged that where an Action of Battery was brought against three and one pleaded not guilty and the other two Son Assault demesne and several damages found against them it was held ill for that very reason because it was a joint offence 'T is true where there are divers Defendants and damages assessed severally the Plaintiff hath his election to take execution de melioribus damnis but this is when the Trials are at several times So 't is where they plead several Pleas Cro. Car. 239. Walsh versus Bishop as in an Action of Battery one pleads not guiity and the other justifies and both Issues are found for the Plaintiff in such case he may enter a non pros against one and take Iudgment against the other because their Pleas are several but where they plead jointly the Iury cannot sever the Damages But Mr. 1 Bulst 157. Sampson vers Cramfield al' Rast Entr. 677. b. Pollexfen for the Plaintiff insisted that even in this case damages may be assessed severally for where two Defendants are sued for the same Battery and they plead the same Plea yet damages may be assessed severally So was Trebarefoot and Greenway 's Case in this Court which was an Action for an Assault and Battery and false Imprisonment one of the Defendants pleaded not Guilty and the other justified Issue was joined and there was a Verdict for the Plaintiff and damages assessed severally the Plaintiff entred a nolle prosequi as to one and took judgment against the other and upon this a Writ of Error was brought in this Court and the Iudgment was affirmed So if an Action of Trespass be brought against two for taking of 100 l.
Sir Thomas claimed a Property whereupon he was ordered to amend his Return and then the Court of Common-Pleas bailed him Banson versus Offley AN Appeal of Murder was tried in Cambridgshire against three persons An Appeal of a Murder was tried not where the Stroak was given but where the Party died and the Count was that Offley did assault the Husband of the Appellant and wounded him in Huntingtonshire of which Wound he did languish and dye in Cambridgeshire and that Lippon and Martin were assisting The Iury found a special Verdict in which the Fact appeared to be that Lippon gave the Wound and that Martin and Offley were assisting The first Exception to this Verdict was that the Count and the Matter therein alledged must be certain and so likewise must the Verdict otherwise no Iudgment can be given but here the Verdict finding that another person gave the Stroak and not that person against whom the Appellant had declared 't is directly against her own shewing 2. This Fact was tried by a Iury of Cambridgshire when it ought to have been tried by a Iury of both Counties The Court answered to the first Exception that it was of no force and that the same Objection may be made to an Indictment where in an Indictment if one gives the Stroak and another is abetting they are both principally and equally guilty and an Indictment ought to be as certain as a Count in an Appeal As to the second Exception 't is a good Trial by a Iury of Cambridgshire alone and this upon the Statute of 2 3 Ed. 6. 2 3 Ed. 6. cap. 24. the Words of which Statute are viz. Where any person c. shall hereafter be feloniously striken in one County and dye of the same Stroak in another County that then an Indictment thereof found by the Jurors of the County where the death shall happen whether it be found before the Coroner upon the sight of the Body or before the Justices of the Peace or other Justices or Commissioners who shall have Authority to enquire of such Offences shall be as good and effectual in the Law as if the Stroak had been in the same County where the Party shall dye or where such Indictment shall be found 'T is true 4 Inst 49 that at the Common Law if a Man had received a mortal Wound in one County and died in another the Wife or next Heir had their Election to bring an Appeal in either County but the Trial must be by a Iury of both Counties But now that mischief is remedied by this Statute which doth not only provide that an Appeal shall be brought in the County where the Party dyed but that it shall be prosecuted which must be to the end of the Suit Adjornatur Dominus Rex versus Hinton and Brown AN Indictment was brought against the Defendants setting forth Subornation of Perjury that a Conventicle was held at a certain place and that they movebant persuadebant subornaverunt a certain person to swear that several Men were then present who really were at that time at another place They were found guilty and a Writ of Error was brought to reverse the Iudgment the Error assigned was that the Indictment doth not set forth that any Oath was made so it could not be Subornation There is a difference between the persuading of a man to swear falsly and Subornation it self for an Indictment for Subornation always concludes contra formam Statuti Curia 'T is not enough to say a Man suborned another to commit a Perjury but he must shew what Perjury it is which cannot be without an Oath for an Indictment cannot be framed for such an Offence unless it appear that the thing was false which he was perswaded to swear The Question therefore is If the person had sworn what the Defendants had persuaded him to do whether that had been Perjury There is a difference when a Man swears a thing which is true in Fact and yet he doth not know it to be so and to swear a thing to be true which is really false the first is Perjury before God and the other is an Offence of which the Law takes notice But the Indictment was quashed because the Words Per Sacramentum duodecim proborum legalium hominum were left out They held that if the Return had been right upon the File the Record should be amended by it Blaxton versus Stone THE Case was this viz. A Man seised in Fee c. What words make an Estate Tail in a Will had Issue two Sons he devised all his Land to his eldest Son and if he die without Heirs Males then to his other Son in like manner The Question was Whether this was an Estate Tail in the eldest Son Curia 'T is plain the Word Body which properly creates an Estate Tail is left out but the intent of the Testator may be collected out of his Will that he designed an Estate Tail for without this Devise it would have gone to his second Son if the first had died without Issue 'T is therefore an Estate Tail DE Termino Paschae Anno 3 Jac. II. in Banco Regis 1687. Herbert Chief Justice Wythens Justices Holloway Justices Powel Justices Dominus Rex versus William Beal MEmorandum A Souldier executed not in the County where he wes condemned That on Saturday April 15. Mr. Attorny moved that this Court would award Execution upon the Defendant who was a Souldier for deserting of his Colours and was condemned for the same at the Affizes at Reading in Berks and reprieved and that he might be executed at Plymouth where the Garrison then was The Chief Iustice in some heat said that the Motion was irregular for the Prisoner was never before the Court. Mr. Attorny then moved for a Habeas Corpus and on Tuesday April the 18th the Souldier was brought to the Barr and Mr. Attorny moved it again But it was affirmed by the Chief Iustice and Iustice Wythens that it could not be done by Law for the Prisoner being condemned in Berks and reprieved by the Iudge to know the Kings Pleasure and now brought hither cannot be sent into another County to be executed it may be done in Middlesex by the Prerogative of this Court which sits in that County but no where else but in the proper County where the Trial and Conviction was so the Prisoner was committed to the Kings Bench and the Record of his Conviction was not filed But it was the King's Will that this Man should be executed at Plymouth where the Garrison was that by this Example other Souldiers might be deterred from running from their Colours SIR Robert Wright who was made Chief Justice of the Common Pleas in the room of Sir Henry Beddingfield who died the last Term as he was receiving of the Sacrament was on Friday following being the 21st of April made Chief Justice of this Court in the place of
and that Aliens might bring Wines into this Realm and that all Merchandizes might be carried into Ireland and exported from thence which shews that without such leave persons could not trade thither and Denizens could not import Wines from those parts The Case of sole Printing is a Manufacture and so not in the power of the King to restrain for 't is a piece of Art and Skill but when once it becomes of publick concernment then the Prerogative interposeth 'T is a vain Objection to say that every Subject hath a Right to trade which Right is grounded upon the Common Law for that Law can give no such Authority against any King's Prohibition For suppose a foreign Prince should forbid the Subjects of England to trade within his Dominions what Right can the Common Law give them so to do Or suppose any Foreign Prince should restrain Trade to a peculiar number of Men exclusive from the rest how would the Common Law help them So that if this Trade depend upon the Will of a Foreign Prince why may not the King of England prohibit his Subjects from using of it He who hath the sole power of making Leagues and Treaties is the foundation of Trade and can that Right which the Subject hath at the Common Law be independent on this The Question now is about the Regulation of a Trade by Letters Patents which the King hath power to do 1. By his Prerogative 27 E. 3. c. 1. 43 E. 3. c. 1. 47 E. 3. 1 H. 5. num 40. for the appointment of the Staple is not by vertue of any Act of Parliament but 't is the effect of Leagues and Treaties 2. By Acts of Parliament which have allowed such Grants and from other Acts which take notice of the Kings Prerogative In 12 H. 7. 12 H. 7. c. 6. a Fellowship of Merchant Adventurers in London made an Order to restrain all persons to sell at such a Mart without their consent The Statute of 3 Jacobi recites Letters Patents of the Incorporation to certain Merchants to trade into Spain and 4 Jac. 3 Jac. c. 6. Cap. 9. recites the like Letters Patents granted to the Merchants of Exeter by the Queen The next thing to be considered is what Acts of Parliament have either taken away or abridged the King's Prerogative The first is Magna Charta viz. That all Merchants shall stay here nisi publice antea prohibiti the meaning of which hath been already explained The second Statute is that which the Defendant hath pleaded In answer to which 't is to be observed that a Preamble of any Statute Law is the best Expositor of it because it usually mentions the occasion of its making and this Act amongst other Things and Petitions recites that the King had granted to the Men of Flanders that the Staple of Wool should be at Bruges which Town had ordered that no Wool should be sold to Strangers which was much to the damage of trading Merchants Now what is the Remedy in this Case Why the King grants that they may buy Wool at such prizes as they can agree and carry it where they please let the Seas be open c. So that this Act had only a prospect to remedy the abuse of the Staple which hath in no sort abridged the King's Prerogative If there should be no Regulation of Trade by the Power and Prerogative of the King what would become of the Turkey Company when it might be in the power of one Man to ruine all the Effects of our English Merchants there by a Misdemeanour Therefore it ought to be looked after very strictly All Arguments which may be deduced from Monopolies will have no influence upon this Case because this Grant doth not barr the Subject of any precedent Right 2. As to the second Point 't is not to be doubted but that since they are abridged in Interest an Action on the Case will lie Mr. E contra Pollexfen contra These Letters Patents extend to a great part of Europe and the consequence of this Iudgment if for the Plaintiffs must be that all Merchants trading thither must be of this Company or excluded from Trade in those Parts Now supposing that several Men may be of this Company 't is impossible that all Merchants who trade into those parts of Europe should be Members thereof for where should they meet to make By-Laws Neither is it probable that other Merchants who live remote from London will adventure their Stock and Estates with the Citizens What will become of the Clothiers must they sell their Cloth at the Rate imposed by this Company The Question is not whether the King may restrain his Subjects from trading to particular places or that the Trade of the People is not under the Government of the King nor whether he may make Leagues and Treaties for 't is certainly his Prerogative nor how the Staple was formerly which hath been long since discontinued and not easie to find out nothing will follow from either of these considerations which may be of any use in this Case But the Question is whether the King can make such a Grant excluding all others from trading for 't is expresly provided by the Statute of H. 7. 12 H. 7. c 6. that no Englishman shall take of another any Fine or Imposition for his Liberty to buy and sell The Case of the East-India Company is not like this for they who argued then did admit that if the Grant to that Company had restrained the Subjects from trading to Christian Countries it had been void but it only prohibiting a Trade with Infidels with whom we should have no Communication without the King's Licence lest we should forsake the Catholick Faith and turn Infidels for that reason it was held good And such a Licence was seen by my Lord Coke 2 Brownl 296. as he tells us in Michelburn's Case which was granted in the Reign of Ed. 3. But a Patent to exclude all others is void both by the Common Law and the Statute Law As to the Argument that the Common Law gives no Priviledge to Trade against the King's Prohibition because Foreign Princes may restrain the Trade to a particular number of Men can any Inference be made from thence that the Kings of England may therefore restrain Trade to a like number of Men All Patents prohibiting Trade are void 1 Rol. Rep. 4. 13 H. 4.14 If a Man would give give Lands in Mortmain or would have a new Way by taking in the Common High-way this may be done with the King's Licence and the Escheator or Sheriff is to examine the Fact and if it be ad dampnum alterius such a Licence is void as being prejudicial to the Subject F. N. B. 222. and if 't is void a fortiori a Grant to restrain Trade must be so All Engrossing and Monopolizing are void by the Common Law the one is a Species of the other 't is defined by
Finch contra The chief Objection is the incertainty of this Custom now if a Custom as incertain as this hath been held good in this Court 't is a good Authority to support this Custom And as to that it was said that a Custom for a person whom a Copy holder should name to have his Land after his death and that he should pay a Fine for his admitance And if the Lord and Tenant cannot agree about the Fine that then the rest of the Tenants should assess it 1 Rol. Rep. 48. 2 Cro. 368. 4 Leon. 238. Noy 3. 2 Brownl 85. this was adjudged a good Custom by the Court of Common-Pleas and affirmed upon a Writ of Error in this Court It was the Case of Crab and Bevis cited in Warne and Sawyers Case Adjornatur Afterwards the first Iudgment was affirmed and all the Court held the Custom to be a good Custom Hacket versus Herne JVdgment was had in Debt upon a Bond against Father and Son Where the Defendants in the Action must joyn in a Writ of Error and afterwards the Father alone brought a Writ of Error and the Error assingned was that his Son was under Age but because the Son did not join in the Errors the Court ordered the Writ to be abated If a Quare impedit be brought against a Bishop and others and Iudgment be against them all they must likewise all join in a Writ of Error unless it be where the Bishop claims only as Ordinary 'T is true Rol. Abr. 929. pl. 30. this is against the Opinion of my Lord Rolls in his Abridgment who puts the Case that where a Scire Facias was brought against four Executors who pleaded plene administraverunt the Iury find Assets in the Hands of two of them and that the other eant inde sine die two bring a Writ of Error and altho' at the opening of the Case it was held that the Writ should abate for that reason because brought only by two yet he says the Iudgment was afterwards affirmed and the Writ held good But there is a difference where a Writ of Error is brought by the Plaintiffs in the original Action 5 Co. 25. a Ruddock's Case and when by the Defendants for if two Plaintiffs are barred by an erronious Iudgment and afterwards bring a Writ of Error the Release of one shall bar the other because they are both actors in a personal thing to charge another and it shall be presumed a Folly in him to join with another who might release all But where the Defendants bring a Writ of Error 't is otherwise for it being brought to discharge themselves of a Iudgment the Release of one cannot barr the other because they have not a joint Interest but a joint burthen and by Law are compelled to join in Errors Mosse versus Archer COvenant by an Assignee of an Assignee of Lands which were exchanged the Breach assigned was Breach not well assigned that a Stranger habens jus titulum did enter c. There was a Uerdict for the Plaintiff and it was now moved in Arrest of Iudgment that the Plaintiff had not shewed a sufficient breach for he sets forth the Entry of a Stranger habens jus titulum but doth not shew what Title and it may be he had a Title under the Plaintiff himself 2 Cro. 315. Hob. 35. after the Exchange made and to prove this the Case of Kirby and Hansaker was cited in point and of that Opinion was all the Court. Nota It was said in this Case that an Exchange ought to be executed by either Party in their Life-time or else it is void Taylor versus Brindley THE Original in Trespass was quare Clausum fregit Variance between the Original and Declaration where 't is no Error and the Plaintiff declared quare Clausum Domum fregit and had Iudgment in the Common-Pleas and a Writ of Error was brought in this Court and the variance between the Original and Declaration was assigned for Error and that one was not warranted by the other But Serjeant Levinz argued that because the Original was certified three Terms since 2 Cro. 674. 1 Rol. Abr. 790. n. 7. Cro. Car. 272. 18 Eliz. cap. and no Continuances between it and the Declaration therefore that could not be the Original to this Action and that the Court might for that reason intend a Verdict without an Original which is helped by the Statute of Jeofails But he argued that where the Original varies from the Declaration and is not warranted by it 't is not aided by this Statute Iudgment was affrmed DE Term. Sancti Mich. Anno 3 Jac. II. in Banco Regis 1687. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Sawyer Attorny General Powis Sollicitor General Mathews versus Cary Pasch 3 Jac. Rot. 320. TRespass for entring of his House and taking of a Silver Tankard Where the Defendant justifies by way of excuse he must set forth the Warrant and that he took the Goods virtute Warranti The Defendant made conusance as Bayliff of the Dean and Chapter of Westminster for that the place where c. was within the Iurisdiction of the Leet of the said Dean who was seised of a Court Leet which was held there such a day c. And that the Iury did present the Plaintiff being a Tallow-Chandler for melting of stinking Tallow to the annoyance of the Neighbours for which he was amerced and that the Amerciament was affered to 5 l. which not being paid the Defendant by a Mandate of the said Dean and Chapter distreined the Tankard c. The Plaintiff replied de injuria sua propria absque hoc that he did melt Tallow to the annoyance of the Neighbours c. And upon a Demurrer to this Replication it was argued this Term by Mr. Pollexfen for the Defendant and Tremaine for the Plaintiff and afterwards in Michaelmas Term 1 Will. Mariae by Mr. Bonithan and Serjeant Thompson for the Defendant It was said for the Defendant that a Presentment in a Court Leet which concerns the person as in this Case and not the Free hold 5 H. 7.3 Fitz. Bar. 271. Bro. Abr. tit Travers sans ceo pl. 183. Presentment in Court pl. 15. was not traversable and that the Amerciament was a Duty vested in the Lord for which he may distrain or bring an Action of Debt Co. Entr. 572. But on the other side it was said that if such a Presentment is not traversable the party hath no remedy 't is contrary to the Opinion of Fitzherbert in Dyer Dyer 13. b. who affimed the Law to be that it was traversable and that if upon such a Presentment a Fine should be imposed erroniously 11 Co. 42. 1 Rol. Rep. 79. it may be avoided by Plea and this agrees with the second Resolution in Godfrey 's Case 2. It was objected to the Plea that it was not good for it sets
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
and not of Murder prout patet per Recordum that he was Clericus paratus fuit legere ut Clericus if the Court would have admitted him and that he is the same person c. To this Plea the Appellant demurred The truth of this Case was that after the Conviction and before the Sentence an Appeal was brought so that the Defendant had not an opportunity to pray his Book It was argued by Mr. Pollexfen for the Appellant and by Sir George Treby for the Appellee If the Statute of 3 H. 3 H. 7. c. 1. 7. was not in the way this Plea might be a good Barr to the Appeal because before the making of that Law Auterfoits convict c. had been a good Plea but now that Statute deprives the Defendant of that benefit for 't is enacted That if any man be acquitted of Murder at the King's Suit or the Principal attainted the Wife or next Heir to him so slain may take and have their Appeal of the Murder within a year and a day after the said Murder done against the said persons so acquitted or attainted if they be alive and the Benefit of * Nota At this time Clergy was allowed for Murder but now taken away by the Statute of 23 H. 8. c. 1. Hales Pl. Cor. 232. Clergy before not had Now though the Party be neither acquitted or attainted but is only convicted of Manslaughter yet the word Attaint in this Statute signifies the same with Convict and this appears by the penning of the Act in that Clause which mentions the benefit of Clergy viz. That if any man be attainted of Murder the Heir shall have an Appeal if the benefit of Clergy be not had Now an Attainder supposeth a Conviction for one is the consequence of the other and if it should not signifie the same thing in this place then that Clause would be in vain because if it should be taken for the Iudgment given upon the Conviction then 't is too late for the Party to have any benefit of his Clergy Thus it was held in the second Resolution of Wrot and Wigg's Case that the word Attaint in this very Act shall not be intended only of a person who hath Iudgment of Life 4 Co. 46. a. but also of one Convict by Confession or Verdict 'T is true 2 Anders 68. 't is said in that case and so likewise in Holecroft's Case that Auterfoits convict of Manslaughter upon an Indictment of Murder is a good Bar to an Appeal at the Common Law as well as if the Clergy had been allowed the reason may be because in both those Cases the Iudgments were by Confession so that the Court ought to have granted the Clergy but this is a Conviction by Verdict which alters the Case E contra Auterfoits convict is a good Plea at the Common Law in all other Cases Treason only excepted at this day it appears by the Statute of H. 7. that the year and day which was the time allowed for the Appeal and in which time the Kings Indictment could not be tried was an usage but not a Law therefore that Act provides that the King shall proceed upon the Indictment within the year and a day and not stay for the Appeal of the Party If the Party be attainted or acquitted the Wife or next Heir shall have an Appeal but not if he be convicted But now admitting that the word Attaint hath the same signification with the word Convict yet this is a good Plea both within the Words and the Equity of the Statute This appears upon the Construction of that Law which must be expounded according to the vulgar Sense and signification of the words and therefore where the Statute saith That an Appeal lies where the benefit of Clergy is not had is that it is not had de Jure but the Clergy in this Case was de Jure and the Defendant was ready to read if he had been admitted thereunto by the Court. Thus is the Statute of Malbridge about the taking away of Wards viz. Si parentes conqueruntur that is if they had cause to complain 2. This Statute hath been expounded according to Equity for though it gives an Appeal to the Wife or next Heir of him slain yet if a Woman be killed her next of Kin shall bring an Appeal Therefore by the same Equity these words viz. The benefit of Clergy not had shall be construed had by the Grant of the Court Co. Ent. 355. for if a Man be indicted without the addition of Clerk he cannot demand his Clergy unless the Court ask him but if he be indicted with that addition then he may demand it because 't is supposed by the Court that he can read That this Appeal was not well brought these Exceptions were taken grounded upon the Statute of Gloucester by which seven things are required in an Appeal of Murder 6 E. 1. ca. 9. That the Appellor declare the Fact the Year the Day the Hour the Year of the King the Town where the Fact was done and with what Weapon the Party was slain Now in this Case there is a defect in two of the things required by that Statute 1. That of the Hour which is laid too general for 't is circa horam octavam which is not certain enough 2. They have laid no Vill for 't is that the Defendant did assault the Husband of the Appellant in Parochia Sancti Martini in Campis now though that word Parochia has crept into Fines and Recoveries and likewise into Indictments it must not be allowed in Appeals There may be several Vills in one Parish and though this is ruled good in Indictments it ought not to be so here because of the difference between an Indictment and an Appeal Stamf. 80. b. Doct. Stud. 48. for in Indictments you need not mention the Hour but it must be done in Appeals A Parish is an Ecclesiastical Division and though such may be a Vill 't is not necessary Ex vi termini that it should be so But afterwards in Trinity-Term 4 Jac. the Chief Iustice delivered the Opinion of all the Iudges except Iustice Street who were assembled for that purpose at Serjeants-Inn that this was no good Plea and that the Court ought not to ask the Prisoner what he had to say and so to let him into the benefit of his Clergy Tamen quaere for 't is otherwise resolved The Company of Horners versus Barlow DEBT upon a By-Law wherein the Company set forth A By-Law restrained to London and not to extend farther that they were incorporated by Letters Patents of King Charles I. and were thereby empowred to make By-Laws for the better Government of their Corporation and that the Master Warden and Assistants of the Company made a Law viz. That two Men appointed by them should buy rough Horns for the Company and bring them to the Hall there to be distributed every Month by
the said Master c. for the use of the Company and that no Member of the Company should buy rough Horn within four and twenty miles of London but of those two Men so appointed under a Penalty to be imposed by the said Master Warden c. That the Defendant did buy a quantity of rough Horn contrary to the said Law c. There was Iudgment in this Case by default And for the Defendant it was argued that this was not a good By-Law 1. Because it doth restrain Trade 11 Co. 54. Hob. 210. for the Company are to use no Horns but such as those two Men shall buy and if they should have occasion for more than those Men should buy then 't is plain that Trade is thereby restrained 2. The Master c. hath reserved a power which they may use to oppress the Poor because they may make what Agreements they will amongst themselves and set unreasonable prices upon those Commodities and let the younger sort of Tradesmen have what quantity and at what rates they please To which it was answered by Serjeant Thompson First This By-Law is for the encouragement of Trade because the Horns are equally to be distributed when brought to the Hall for the benefit of the whole Company But the material Objection was that this being a Company incorporated within the City of London they have not Iurisdiction elsewhere but are restrained to the City and by consequence cannot make a By-Law which shall bind at the distance of four and twenty miles for if they could make a Law so extensive they might by the same reason enlarge it all over England and so make it as binding as an Act of Parliament and for this reason it was adjudged no good By-Law Sir John Wytham versus Sir Richard Dutton ASsault and False Imprisonment 14 Octob. 36 Car. 2. c. The Defendant as to the Assault before the 6th day of November pleads Not-Guilty and as to the False Imprisonment on the said 6th day of November in the same year he made a special Iustification viz. That 28 Octob. 32 Car. 2. c. the King by his Letters Patents did appoint the Defendant to be Captain general and Chief Governour of Barbadoes and so sets forth the Grant at large by which he appoints twelve Men to be of the King's Council during pleasure of which the Plaintiff Wytham was one that the Defendant had also power by the advice of that Council to appoint and establish Courts Iudges and Iustices and that the Copies of such Establishments must be sent hither for the King's Assent with power also to establish a Deputy-Governour that by vertue of these Letters Patents the Defendant had appointed Sir John Wytham to be Deputy-Governour of the said Island in his absence and that he being so constituted did male arbitrarie execute the said Office That when the Defendant returned to Barbadoes viz. 6 Novemb 35 Car. 2. he called a Council before whom the Plaintiff was charged with male Administration in the absence of the Defendant viz. That he did not take the usual Oath for observing of Trade and Navigation that he assumed the Title of Lieutenant Governour and that Decrees made in Court were altered by him in his Chamber Vpon which it was then ordered that he should be committed to the Provost Marshal until discharged by Law which was done accordingly in whose Custody he remained from the 6th day of November to the 20th of December following which is the same Imprisonment c. To this Plea the Plaintiff demurred and the Defendant joyned in Demurrer Mr. Pollexfen argued for the Plaintiff and Serjeant Thompson for the Defendant 1. It was said for the Plaintiff that the Causes of his Commitment if any yet were such which they ought not meddle withal because they relate to his Mis-behaviour in his Government for which he is answerable to the King alone But supposing they might have some cause for the committing of him this ought to be set forth in the Plea that the Plaintiff might answer it for to say he did not take the Oath of Deputy Governour in what concerned Trade and Navigation is no cause of Commitment because there was no Body to administer that Oath to him for he was Governour himself Then to alledge that he did alter in his Chamber some Decrees made in the Court of Chancery that can be no cause of Commitment for the Governour is Chancellor there Besides the Defendant doth not shew that any Body was injured by such alterations neither doth he mention any particular Order but only in general so 't is impossible to give an Answer to it 2. He doth not alledge that the Plaintiff had made or done any of these things but that he was charged to have done it and non constat whether upon Oath or not The Governour hath a large power given by these Letters Patents to make Laws such as he by consent of a general Council shall enact Ex parte Def. The Fact is set forth in the Plea the Plaintiff was committed by vertue of an Order of Council until he was brought to a general Court of Oyer and Terminer by which Court he was again committed That the Court had power to commit him is not denied for the King is not restrained by the Laws of England to govern that Island by any particular Law whatsoever and therefore not by the Common Law but by what Law he pleaseth For those Islands were gotten by Conquest or by some of his Subjects going in search of some prize and planting themselves there Calvin 's Case The Plaintiff being then committed by an Order of Council till he should be discharged by due course of Law this Court will presume that his Commitment was legal The Court were all of Opinion that the Plea was not good so Iudgment was given for the Plaintiff but afterwards 5 Willielmi Mariae this Iudgment was reversed by the House of Peers Sir Robert Jefferies versus Watkins THIS was an Action brought for a Duty to be paid for weighing of Goods at the Common Beam of London Verdict cures a defective Declaration setting forth that the Lord Mayor c. time out of mind kept a common Beam and Weights and Servants to attend the weighing of Goods That the Defendant bought Goods c. but did not bring them to the Beam to be weighed per quod proficuum amisit Vpon Not-Guilty pleaded there was a Verdict for the Plaintiff and it was moved in arrest of Iudgment that the Plaintiff had not brought himself within the Prescription for he doth not say that the Defendant sold the Goods by Weight and this is a fault which is not helped by a Verdict This had been certainly naught upon a Demurrer and being substance is not aided by this Verdict This is Substance for the Duty appears to be wholly in respect of the Weights which are kept now Weighing being the Principal and it
' ac qd ' Record ' ill ' in nullo vitiosum aut defectivum existit Ideo considerat ' est qd ' Judicium praed ' adjudication ' executionis superinde in omnibus affirmetur ac in omni suo robore stet effectu dict' causis materiis superius pro Error ' assign ' in aliquo non obstante Et ulterius per Cur. Judgment affirmed Domini Regis Dominae Reginae nunc hic cons est qd ' praedict ' Abel Ram recuperet versus praefatum Donatum Obrian octodecim libras eidem Abel per Curiam Domini Regis Dominae Reginae nunc hic secundum formam Statuti in hujusmodi casu edit ' provis adjudicat ' pro mis custag ' dampn ' suis quae sustin ' occasione dilationis executionis Judicij praedict ' praetextu prosecutionis praedict ' Brevis de Errore Et qd ' praedictus Abel habeat inde executionem c. Obrian versus Ram. ERror to reverse a Iudgment given in Ireland Whether a Sci. fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her dum sola upon a Scire Fac. brought against the Plaintiff in the Errors setting forth that Debt was brought upon a Bond against Elizabeth Grey and a Iudgment was thereupon obtained for 800 l. dum sola That the said Elizabeth afterwards intermarried with Mr. Obrian That a Scire Facias was brought upon that Iudgment against Husband and Wife to shew cause why the Plaintiff should not have execution That upon this Scire Facias there were two Nichils returned and thereupon Iudgment was had against Husband and Wife It rested for a year and a day and then the Wife died and the Plaintiff brought a new Scire Fac. against the Husband alone to shew cause why he should not have Execution upon the first Iudgmont The Defendant pleaded that there was another Scire Fac. brought against him and his Wife for the same Cause c. And upon a Demurrer to this Plea Iudgment was given in Ireland against him The Question now was whether this Scire Fa. will lye against the Husband alone after the death of his Wife This Case was argued by Mr. Finch and Mr. Pollexfen that the Husband was not chargable It was admitted on all sides that if a Feme sole is indebted and marries that an Action will lye against the Husband and Wife and he is lyable to the payment of her Debts It was agreed also that if a Iudgment be had against a Feme sole and she marries and afterwards dies that the Husband is not chargable because her Debts before Coverture shall not charge him unless recovered in her Life-time In like manner no Debts which are due to her dum sola shall go to the Husband by virtue of the inter-marriage if she dye before those are recovered but her Administrator will be entituled to them which may be the Husband but then he hath a Right only as Administrator 1 Roll Abr. 351. and the reason is because such Debts before they are recoverd are only choses in Action And from hence the Council did inferr that the Iudgment in this Case against the Wife dum sola did not charge the Husband Then the Question will be if the Husband is not chargeable by the Original Iudgment whether the Iudgment on the Scire Fac. had not made an alteration and charged him after the death of his Wife And as to that it was said that this Iudgment upon the Scire Fac. made no new charge for 't is only quod habeat executionem c. and carries the first Iudgment no farther than it was before for 't is introduced by the Sci. Fac. At the Common Law no Execution could be had upon a Iudgment after a year and a day and there was then no remedy but to bring an Action of Debt upon that Iudgment This Inconvenience was remedied by the Statute of Westm W. 2. cap. 45. the 2. which gives a Scire Fac. upon the Iudgment to shew cause why Execution should not be had which can be no more than a liberty to take Execution upon the Original Iudgment which cannot charge the Husband in this case because 't is only a consequence of that Iudgment and creates no new charge for a Release of all Actions will discharge this award of Execution But the Reasons why the original Iudgment shall not be carried farther by the Iudgment in the Scire Fac. are as follow 1. By considering the nature of a Scire Fac. which lay not at the Common Law but is given by the Statute in all persosonal Actions the words whereof are these Viz. 2 Inst 469. Sid. 351. Observandum est de caetero quod ea quae inveniuntur irrotulat c. Vpon which words it is evident that the execution of the first Iudgment on Record is all which is given by this Act after the year and day and it takes off that bar which was incurred by the lapse of time and gives a speedy Execution of the Iudgment recorded 2. The Proceedings upon a Scire Facias shew the same thing for the Writ recites the first Iudgment and then demands the Defendant to shew cause why the Plaintiff should not have Execution thereon juxta vim formam effectum recuperationis praed but prays no new thing 3. A Scire Facias is not an Original but a Iudicial Writ which depends purely upon the first Iudgment 1 Roll. Abr. 777. pl. 6. 8 Co. 143 Dr. Drurie's Case and a Writ of Error suspends the execution of both so likewise if the Original Iudgment be reversed even a Iudgment obtained upon a Scire Facias will be reversed in like manner 4. The Law doth not charge a Man without an Appearance but here is none and the Statute can never operate upon this Case because that extends only to such Iudgments upon which there has been a Recovery and here is nothing recovered upon this Scire Facias for 't is only to have Execution upon the first Iudgment If the Law should be otherwise this absurdity would follow Viz. There would be a Recovery without a Record for the purport of the Scire Facias is only to have Execution according to the form and effect of the Record and the very Record it self doth not charge the Husband Besides the first Iudgment did charge the Lands of the Wife which are still liable to satisfie the Debt why therefore must the Lands of the Husband be charged Cannot the Administrator of the Wife bring a Writ of Error to reverse this Iudgment and if it should be reversed shall the Husband pay the Debt and the Administrator of the Wife be restored The Objections made by the Council on the other side against this Opinion were viz. That if an Action of Debt will lie upon a Iudgment in a Scire Facias the Original Iudgment is by this means carried farther for without
Release or Confirmation and then his Council should advise what sort of Conveyance is proper But here it is to make an Assignment and such as the Parties had agreed on If a Man should be bound to give another such a Release as the Iudge of the Prerogative Court shall think fit 5 Co. 23. Lambs Case 1 Rol. Abr. 424. pl. 8. the person who is so bound must procure the Iudge to direct what Release shall be given because the Condition is for his benefit and he hath taken upon him to perform it at his Peril 'T is usual for Men to have Council on both sides to put their Agreements into method but in this Case it being left generally as Council shall direct what reason can be given why the Defendants Council shall not be intended especially when it seems by the penning of the Covenant he shall For an Assignment is to be made as Council shall direct and here being a Verdict for the Plaintiff it must now be presumed that the Defendants Council was first to give the advice and then he was to make the Assignment E contra E contra It was argued that first as to the Verdict 't is not materially objected in this Case because the Plea is non est factum so that nothing of the special matter could come in Evidence Now admitting this Covenant to be general yet one of the Parties must make his choice of Council before he can entitle himself to an Action All Deeds are taken according to the general intendment and therefore by this Covenant his Council is to advise to whom the Assignment is to be made 3 Bulstr 168. for if the Council of the Defendant should advise an insufficient Deed that would not have saved his Covenant Befides the Plaintiff hath not averred that Council did not advise and therefore the Defendant could not plead any thing but non est factum Adjornatur Anonymus A Pleint was removed out of the Lord Mayors Court by Habeas Corpus the Return whereof was Exceptions to a By-Law that the City of London was an ancient City Incorporate and that time out of mind there was a Custom that the Portage and unlading of all Coals and Grain coming thither should belong to the Mayor and Aldermen c. That there was a Custom for them to regulate any Custom within the City c. Then they set forth an Act of Common-Council by which the Porters of Billingsgate were made a Fellowship and that the Meeters of Corn should from time to time give notice to the Porters to unlade such Corn as should arrive there and that no Bargeman not being Free of the said Fellowship shall unlade any Corn upon the Forfeiture of 20 s. to be recovered in an Action brought in the Name of the Chamberlain and that the Party offending shall have no Essoign or Wager of Law Then they set forth the Iudgment in the Quo Warranto and the re-grant and that the Defendant not being of the said Fellowship did unlade one hundred Quarters of Malt c. Serjeant Thompson took many Exceptions to this By Law but the most material were 1. It appears upon the Return that the City of London hath assumed an Authority to create a Fellowship by Act of Common Council which they cannot for 't is a Prerogative of the Crown so to do and they have not averred or shewed any special Custom to warrant such an Authority 2. They have made this By-Law too general for if a Man should carry and unlade his own Goods there he is lyable to the Forfeiture in which Case he ought to be excepted 3. This Act of Common Council prohibits Bargemen not being Free of the Fellowship of Porters to unlade any Coals or Grain arriving there and they have not averred that the Malt unladed did arrive c. so they have not pursued the words of the By-Law 4. They say in this Law Godb. 107. that the person offending shall have no Essoign or Wager of Law which is a Parliamentary Power and such as an inferiour Iurisdiction ought not to assume Adjornatur Beak versus Thyrwhit THere was a Sentence in the Court of Admiralty Whether Trover will lie for a Ship after Sentence in Admiralty for the same Ship concerning the Taking of a Ship and afterwards an Executrix brought an Action of Trover and Conversion for the same The Defendant after an Imparlance pleads that at the time of the Conversion he was a Servant to King Charles the Second and a Captain of a Man of War called the Phoenix and that he did seize the said Ship for the Governour of the East-India Company she going in a trading Voiage to the Indies contrary to the King's Prohibition c. And upon a Demurrer these Exceptions were taken to this Plea 1. The Defendant sets forth that he was a Servant to the King but hath not shewed his Commission to be a Captain of a Man of War 2. That he seized the Ship going to the Indies contrary to the King's Prohibition and hath not set forth the Prohibition it self It was Argued by the Council contra That it may be a Question whether this was the Conversion for which this Action is brought for it was upon the Sea and the Defendant might plead to the Iuisdiction of this Court the Matter being then under the Cognizance of the Admiralty But as to the Substance of this Plea 't is not material for the Defendant either to set forth his Commission or the King's Prohibition he hath shewed enough to entitle the Court of Admiralty to a Iurisdiction of this Cause and therefore this Court cannot meddle with it for he expresly affirmeth that he was a Captain of a Man of War and did seize this Ship c. which must be intended upon the Sea so that the Conversion might afterwards be upon the Land Cro. Eliz. 685. yet the original cause arising upon the Sea shall and must be tried in the Admiralty and it having already received a determination there shall not again be controverted in an Action of Trover The Case of Mr. 3 Keb. 785. Hutchinson was cited to this purpose who killed Mr. Colson in Portugal and was acquitted there of the Murder the Exemplification of which Acquittal he woduced under the great Seal of that Kingdom being brought from Newgate by an Habeas Corpus to this Court notwithstanding the King was very willing to have him tried here for that Fact the consideration whereof he referred to the Iudges who all agreed that he being already acquitted by their Law could not be tryed again here Adjornatur Smith versus Pierce A Special Verdict was found in Ejectment A Term for years was devised for payment of Debts the Remainder over in Tail he in Remainder enters and levies a Fine and settles the Land upon his Wife for life and dies the Wife surviving and the Debts not paid whether this Term is barred by
which he claims he ought to shew the other Will by which it must appear that nothing is contradictory to it or that it doth confirm the first but if Presumptions shall be admitted it must be in favour of the Heir for nothing shall be presumed to disinherit him Afterwards in Trinity-Term 5 Willielmi Iudgment was given for the Plaintiff and a Writ of Error was brought in the House of Peers to reverse that Iudgment but it was affirmed Anonymus A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Ejectment for Lands in the County of Essex in which a Special Verdict was found viz. That R. F. What Words in a Will make Tenants in Common was seized in Fee of the Lands in question who had Issue two Daughters Frances Jane Frances had Issue Philp Frances Anne R. F. the Father devised unto Philip Frances and Anne the Children of his Daughter Frances and to Jane his other Daughter the Rents and Profits of his Mannor of Spain for thirty years to hold by equal parts viz. the three Grandchildren to have one Moiety and his Daughter Jane the other Moiety And if it happen that either of them should die before the thirty years expired then the said Term should be for the benefit of the Survivor and if they all die then the same was devised over to other Relations Afterwards he made a Codicil in these words viz. I give Power and Authority to my Executors to let my whole Lands for the Term of thirty years for the benefit and behalf of my Children Anne one of the Granchildren died without Issue Frances another of the Grandchildren died but left Issue The first Question was whether the Power given to the Executors by the Codicil will take away that Interest which was vested in the Grandchildren by the Will Mr. Appleton argued that it would not because the Executors had only a bare Authority to let it or improve it for the benefit of the Children there was no Devise of the Land to them If Power be given to Executors to sell Lands 't is only an Authority and not an Interest in them but a bare Authority only to let is of much less importance 2. After the Testator had devised the Profits of these Lands to his Grandchildren and Daughter equally to be divided during the term and had provided that if any dye without Issue that then it should survive and if all dye then to remain over to collateral Relations c. Whether Frances being dead but leaving Issue her Interest shall survive to Philip or go to such her Issue As to that he held that the Testator made them Tenants in Common by equal parts and therefore he devised it by Moieties in which there can be no Survivorship 'T is like a Devise to the Wife for life 2 Cro. 448. 1 Roll. Abr. 833. King versus Rumbal Cro. Car. 185. and after her decease to his three Daughters equally to be divided and if any of them die before the other then the Survivors to be her Heirs equally to be divided and if they all die without Issue then to others c. the Daughters had an Estate Tail and there was no Survivorship So in this Case it shall never go to the third Grandchild as long as any Issue of the second are living On the other side it was argued that they are Ioyntenants and not Tenants in Common E contra for the Testator having devised one Moiety to his three Grandchildren joyntly by equal parts that will make them Ioyntenants But the Court were all of Opinion that the words in the Will shew them to be Tenants in Common for equally to be divided runs to the Moieties So the Iudgment was affirmed Woodward 's Case THE Statute of 23 H. 8. c. 9. Church Ornaments are a personal Charge upon the Inhabitants and not upon those who live else where though they occupy Lands in that Parish Godb. 134. pl. 4. 152. pl. 29. 154. pl. prohibites a Citation out of the Diocess wherein the Party dwelleth except in certain Cases therein mentioned one whereof is viz. Except for any Spiritual Cause neglected to be done within the Diocess whereunto the Party shall be lawfully cited One Woodward and others who lived in the Diocess of Litchfield and Coventry but occupied Lands in the Diocess of Peterborough were taxed by the Parishioners where they used those Lands for the Bells of the Church and they refusing to pay this Tax a Suit was commenced against them in the Bishop of Peterborough's Court who thereupon suggested this Matter and prayed a Prohibition because they were not to be charged with this Tax it being only for Church Ornaments And a Prohibition was granted the reason given was because 't is a personal charge to which the Inhabitants only are liable and not those who only occupy in that Parish and live in another but the repairing of the Church is a real Charge upon the Land let the Owner live where he will DE Term. Sanct. Trin. Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices The Bishop 's Case Friday June 15th THE King having set forth a Declaration for Liberty of Conscience did on the 4th day of May last by Order of Council enjoyn that the same should be read twice in all Churches c. and that the Bishops should distribute it through their respective Diocesses that it might be read accordingly The Archbishop of Canterbury who then was together with six other Bishops petitioned the King setting forth that this Declaration was founded upon a dispensing Power which had been declared illegal in Parliament and therefore they could not in Honour or Conscience make themselves Parties to the Distribution and Publication of this Declaration who thereupon were summoned before the King in Council and refusing there to give Recognizance to appear before the Court of Kings Bench they were committed to the Tower by Warrant of the Council-Board The Attorney General moved for a Habeas Corpus retornable immediate and the same Morning in which that Motion was made Sir Edward Hales Lieutenant of the Tower returned the same and they were all brought into the Court. The Substance of the Return was viz. That they were committed to his Custody by Warrant under the Hands and Seals of the Lord Chanchellor Jefferies and also naming more of the Lords of the Privy-Council Dominos Concilij for contriving making and publishing a Seditious Libel against the King c. Then it was prayed that the Return might be filed and that the Information which was then exhibited against them for this Crime might be read and that they might all plead instanter Serjeant Pemberton Mr. Finch and Mr. Pollexfen oppsed the reading of it and moved that the Bishops might be discharged because they were not legally before the Court for it appears upon the Return that there is no lawful cause of
Where an Averment may be made of another person so as it consists with the Condition of a Bond. in which Bond the said A. B. the elder and A. B. the younger were joyntly and severally bound in the penal Sum of 1000 l. conditioned that if the above bounden A. B. omitting the word younger do and shall forbear knowingly and wittingly to come to or write Letters unto C. the Wife of D. that then the Obligation to be void The Defendant pleaded that he did not come to or write Letters to the said C. knowingly c. The Plaintiff replied that he exhibited an Information against A. B. the younger shewing in what Term and that it was agreed between them that in consideration that he would forbear to prosecute the same the said A. B. the elder together with A. B. the younger should become bound to the Plaintiff in 1000 l. that the said A. B. the younger should not knowingly or wittingly come into the Company c. then sets forth the Bond and the Condition thereof at large and avers that A. B. in the Condition mentioned is A. B. the younger and farther that the said A. B. the younger did afterwards knowingly come into the Company c. The Defendant re-joyned and said that the Plaintiff ought not to averr that the aforesaid A. B. the younger is the person in the Condition of the said Bond c. And upon a Demurrer the Question was whether the Plaintiff was estopped by the words in the Condition to make such an Averment It was argued for the Plaintiff that he might make such an Averment which is to reduce a thing to a certainty which was very incertain before if it be not repugnant in it self nay sometimes an Averment doth reduce contradictory things to a certainty 'T is plain that A. B. the younger is bound in this Bond the Objection is that A. B. the elder being of the Name and being likewise bound that the Condition might referr to either 'T is agreed there are many Cases where a Man shall be estopped to averr against a Record but this Averment is not contradictory to any thing in the Record for it appears by the Pleadings that the Information was prosecuted against A. B. the younger and therefore he must be intended to be bound not to come to the said C. knowingly c. If an Estate should be devised to A. and the Name of the Testator omitted in the Will 2 Leon. 35. yet the Devise is good by averring of the Name and by proof that it was his intention to give it him by his Will So if the Plaintiff should claim a Title under the Grant of such a person Knight and the Iury find he was an Esquire Lit. Rep. 181 223. but that the Knight and the Esquire are both the same person this is a good Declaration 'T is usual to make an Allegation even against the express words of a Condition to shew the truth of an Agreement Cro. Car. 501. as if Debt be brought upon a Bond of 100 l. conditioned to pay 50 l. within six Months the Defendant pleaded the Statute of Vsury the Plaintiff replied that he lent the Mony for a year and alledged that by the mistake of the Scrivener the Bond was made paiable in six Months The Defendant rejoyned that it was lent for six Months only And upon a Demurrer this was adjudged to be a good Allegation though it was against the very words of the Condition which is a stronger Case than this at the Barr because the Averment consists with the Condition of the Bond. If a Man should levy a Fine and declare the Vses thereof to his Son William and he hath two Sons of that Name 4 Co. 71. 8 Co. 155. a. Dyer 146. then an Averment is made that he intended to declare the Vses to his youngest Son of that Name this Averment out of the Fine hath been adjudged good for the same reason given already which is because it standeth with the words thereof and 't is a good Issue to be tried It cannot be objected that the Bond is illegal being entred into for the not prosecuting of an Information because a Nolle prosequi was entred as to that Matter so 't is the Act of the Court. Lastly It was said that every Estoppel must be certain to every intent which cannot be in this Case for by the words of this Condition 't is incertain which of the Obligors shall be intended E contra It was argued that an Estoppel is as well intended by Law as expressed by Words that if an Averment can be taken yet this is not well because the Plaintiff hath absolutely averred that A. B. in the Condition is A. B. the younger he should have said that A. B. in the Condition is intended A. B. the younger which might have been traversed and Issue taken thereon No Iudgment was given for this Case was ended by Compromise Hoil versus Clerk In the Common-Pleas THIS was a special Verdict in Ejectment for Lands in Wetherfield A subsequent Will though not made pursuant to the Statute is a Revocation of a former in the County of Essex upon the demise of Abigail Pheasant The Iury find that one John Clark was seised in Fee of the Lands in question who by his last Will in writing bearing date the 14th day of September in the year 1666. devised the same to Benjamin Clark for Life so to his first and second Sons c. in Tayl Male and for default of such Issue then to his two Sisters for Life Remainder over c. This Will was attested by one Witness only They find that the said John Clark made another dated the sixth day of February 1672. which was 13 years after the making of his first Will and that by this last Will he revoked all former Wills and Testaments by him made They find an Endorsement on this Will written by the Testator himself in these words Viz. My Will and Testament dated the 6th of February 1679. and then published by me in the presence of three Witnesses They find that this last Will was so published and attested by three Witnesses in his presence but that it was not signed by the Testator in their presence They find that Benjamin Clark entred and devised the Lands to Mary Micklethwaite who made a Lease thereof to the Plaintiff for three years upon whom the Defendant entred This Case was argued at the Bar and in this Term at the Bench Seriatim The single Question was 29 Car. 2. cap. 3. whether this last Will not being duly executed according to the Statute is a Revocation of the first Will or not It was admitted by all that it was a good Will to pass the personal Estate but as to the point of Revocation the Court was divided Iustice Lutwitch argued that it was not a Revocation He agreed that if the last Will hath any respect to the first it must be as a
Revocation or not at all which revocation must depend upon the construction and exposition of the sixth Paragraph in the Statute of Frauds c. the words whereof are Viz. That no Devise of Lands c. or any clause thereof shall be Revoked otherwise than by some Codicil in Writing or other Writing declaring the same or by burning cancelling tearing or obliterating the same by the Testator himself or in his presence and by his direction or consent But all devises of Lands c. shall be good until burnt cancell'd torn c. by the Testator c. or unless the same be altered by some other Will or Codicil in Writing or other Writing of the Devisor signed in the presence of three Witnesses declaring the same So that the Question will be whether a Will which revokes a former Will ought to be signed by the Testator in the presence of three Witnesses 'T is clear that a Will by which Lands are devised ought to be so signed and why should not a Will which revokes another Will have the same formality The Statute seems to be plain that it should for it saies that a Will shall not be revoked but by some Will or Codicil in writing or other writing of the Devisor signed by him in the presence of three or four Witnesses declaring the same which last Clause is an entire sentence in the disjunctive and appoints that the Writing which revokes a Will must be signed in the presence of three Witnesses c. Before the making of this Act it was sufficient that the Testator gave directions to make his Will tho' he did never see it when made which mischief is now remedied not in writing the Will but that the Party himself should sign it in the presence of three Witnesses and this not being so signed but only published by the Testator in their presence 't is therefore no good Revocation Iustice Street was of a contrary Opinion that this was a good Revocation That the words in the fifth Paragraph of this Statute which altered the Law were Viz. That all Devises of Lands c. shall be in Writing and signed by the Party so devising or by some other person in his presence and by his express Directions and shall be attested and subscribed in the presence of the Devisor by three or four credible Witnesses In which Paragraph there are two parts 1. The act of the Devisor which is to sign the Will but not a word that he shall subscribe his Name in the presence of three Witnesses 2. The act of the Witnesses viz. that they shall attest and subscribe the Will in the presence of the Devisor or else the Will to be void But the sixth Paragraph is penn'd after another manner as to the Revocation of a Will which must be by some Codicil in writing or other Writing declaring the same signed in the presence of three Witnesses Now here is a Writing declaring that it shall be revoked not expresly but by implication and though that Clause in the disjunctive which says that the revocation must be by some Writing of the Devisor signed in the presence of three Witnesses c. yet in the same Paragraph 't is said that it may be revoked by a Codicil or Will in Writing and therefore an exposition ought to be made upon the whole Paragraph that the intention of the Law may more fully appear Such a construction hath been made upon a whole Sentence Sid. 328. 1 Sand. 58. where part thereof was in the disjunctive as for instance viz. A Man was possessed of a Lease by disseisin who assigned it to another and covenanted that at the time of the assignment it was a good true and indefeasable Lease and that the Plaintiff should enjoy it without interruption of the Disseisor Or any claiming under him in this Case the Diffeisee re-entred and though the Covenant was in the disjunctive to defend the Assignee from the Disseisor or any claiming under him yet he having undertaken for quiet enjoyment and that it was an indefeasable Lease it was adjudged that an exposition ought to be made upon the whole Sentence and so the Plaintiff had Iudgment The Chief Iustice Herbert was of the same Opinion with Iustice Street Rex versus Grimes and Thompson THE Defendants were indicted for being Common Pawn-Brokers Two are indicted for a Confederacy one is acquitted and that is the acquittal of the other and that Grimes had unlawfully obtained Goods of the Countess of c. and that he together with one Thompson per confoederationem astutiam did detain the said Goods until the Countess had paid him 12 Guineas Thompson was acquitted and Grimes was found Guilty which must be of the first part of the Indictment only for it could not be per confoederationem with Thompsom and therefore it was moved in arrest of Iudgment that to obtain Goods unlawfully was only a private injury for which the party ought not to be indicted To which it was answered that a plain Fraud was laid in this Indictment which was sufficient to maintain it and that tho one was acquitted yet the Iury had found the other guilty of the whole But the Court were of Opinion that the acquittal of one is the acquittal of both upon this Indictment and therefore it was quash'd King versus Dilliston Hill 2 3 Jacobi Rot. 494. A Writ of Error was brought to reverse a Iudgment in Ejectment given in the Common-Pleas Infant not bound by a Custom for one Messuage and twenty Acres of Land held of the Manor of Swafling There was a special Verdict found the substance of which was viz. That the Land in question was Copy-hold held of the said Manor of Swafling in the County of Suffolk and that Henry Warner and Elizabeth his Wife in right of the said Elizabeth were seized thereof for Life Remainder to John Ballat in Fee That the Custom of the said Manor was that if any Customary Tenant doth surrender his Estate out of Court that such Surrender shall be presented at the next Court of the said Manor and publick Proclamation shall be made three Court days afterwards for the Party to whose use the Surrender was made to come and be admitted Tenant and if he refuseth then after three Proclamations made in each of the said Courts the Steward of the said Manor issueth forth a Precept to the Bailiff thereof to seise the Copyhold as forfeited They find that Henry Warner and his Wife and John Ballat made this Surrender out of Court to the use of Robert Freeman and his Heirs who died before the next Court and that John Freeman an Infant was his Son and Heir That after the said Surrender three Proclamations were made at three several Courts held for the said Manor but that the said John Freeman did not come to be admitted Tenant thereupon the Steward of the said Manor made a Precept to the Bayliff who seized the Lands in
question as forfeited to the Lady who entred and made a Lease to the Plaintiff upon whom the Defendant re-entred The single Question upon this special Verdict was whether this was a Forfeiture and so a good seisure to bind the right of an Infant It was argued for the Plaintiff in the Action that it was a good Seisure and a Forfeiture till the Infant should come of Age for as a Copyhold is established by Custom so likewise 't is Custom which obligeth the Infant to the Conditions thereof and therefore where one under Age hath an Estate upon a Condition to be performed by him 8 Co. 44. b. Whittingham 's Case Latch 199. Jones 157. and that Condition is broken during his Minority the Estate is lost for ever In this Case the Custom obligeth the Heir to be admitted that the Lord may be entituled to a Fine which if he should lose because his Tenant is an Infant then that priviledge of Infancy works a wrong which the Law will not permit 'T is true an Infant shall not be prejudiced by the Laches of another but shall be answerable for himself and therefore if he is Tenant of Lands and the Rent should be unpaid for two years and no Distress can be found a Cessavit lies against him and the Lord shall recover the Land because of the Non-performance which arises by his own default So if one under Age be a Keeper of a Gaol and suffer a Prisoner to escape out of Execution 2 Inst 382. an Action of Debt will lie against him upon the Statute of W. 2. It was agreed that such a Custom and Non-claim will not foreclose an Heir 8 Co. 100. Sir Rich. Letchford 's Case who is an Infant and beyond Sea at the time of his Ancestors Death though he is bound by the Custom to claim it at the next Court but that if he will come over and tender himself though after a Seisure he shall be admitted and so shall the person in this Case if after his Minority he offer himself to be admitted But it cannot be denied 2 Cro. 226. but that the Lord may seize when the Heir is beyond Sea till he return and tender himself to be admitted and by the same reason he may also seize in this case during the Minority A Temporary Forfeiture is no new thing in the Law Cro. Car. 7. for if a Feme Covert be a Copyholder and marrieth and her Husband makes a Lease for years without License of the Lord 't is a Forfeiture and shall bind her during the Coverture So the Law is Cro. El. 351. that the Lord may seize the Land till a Fine is paid for 't is a reasonable Custom so to do It hath been a good Custom for the Lord to assign a person to take the Profits of a Copyhold Estate descended to the Infant during his Minority without rendring an Accompt when he came of Age. 1 Leon. 266. 2 Leon. 239. So that all taht is to be done in this Case is to enforce the Infant to be admitted that the Lord may be entituled to a Fine The Inheritance is not bound but the Land is only seized quousque E contra It was argued that here is a general Seizure E contra which cannot extend to an Infant for he is not bound in a Writ of Right much less in an inferior Court after three Proclamations but if this had been a Temporary Seisure the Iury ought to have found it so which is not done There are many Authorities in the Books which affirm that an Infant is not obliged to be admitted during his Non-age 1 Leon. 100. 3 Leon. 221. or to tender the Fine in order to an Admittance that the Law was settled in this Point and therefore without any further Argument he prayed Iudgment for the Defendant Afterwards in Hillary-Term 1 Willielmi Mariae this Case was argued seriatim at the Bench three Iudges being of a contrary Opinion to the Chief Iustice for the affirming of the Iudgment Iustice Eyre premised two things 1. That he could not intend but that this Verdict had found an absolute Forfeiture the Iury having no way qualified it as to a certain time and therefore he would give a Iudgment upon the whole Record 2. He agreed that a Feoffment of an Infant was no Forfeiture at the Common Law and that as a particular Custom may bind an Infant for a time so it may barr him for ever but whether this Custom as 't is found in general words shall bind an Infant after three Proclamations is now the Question he not coming then to be admitted And he held that it shall not and that for these reasons 1. The Right of Infants is much favoured in the Law and their Laches shall not be prejudicial to them as to Entry or Claim upon a Presumption that they understand not their Right 1 Inst 380. 2 Inst 401. and therefore in a Cessavit per biennium which is a remedy given by the Statute of W. 2. and which extends to Infants Westm 2. c. 31. who have not the Land by descent for if a Cesser be in that Case the Infant shall have his Age because the Law intends that he doth not know what Arrerages to tender 'T is admitted that if an Infant doth not present to a Church within six Months or doth not appear within a year that his Right is bound but this is because the Law is more tender of the Church and the life of a Man than of the Priviledges of Infancy So if an Office of Parkship be given or descends to an Infant if the Condition in Law annexed to such an Office which is skill be not observed the Office is forfeited But that a Proclamation in a base Court should bind an Infant when he is not within the reason of the Custom is not agreeable either to Law or Reason 2. Cro. Jac. 80. Cro. El. 879. Noy 42. 1 Rol. Abr. 568. All Customs are to be taken strictly when they go to the destruction of an Estate and therefore a Custom was that if a Copyholder in Fee surrender out of Court and the Surrendree doth not come in after three Proclamations the Lord shall seize it A Copyholder in Fee surrendred to another for Life the Remainder over in Fee if the Tenant for Life will not come in he in the Remainder shall not be barred for the Custom shall be intended to extend only to those in possession But the Infant in this Case is not within the Letter of the Custom for 't is found that the Surrender was made to one Freeman who died before the next Court-day and that John Freeman the Infant was his Son and Heir so they have found a Title in him for the word Heir is not here a word of Purchase but of Limitation 3. Jones 157. Noy 92. Infants are not bound by other Customs like this as a Custom that every Copyholder
the benefit of the Obligor and shall be taken most beneficially for him who had election either to perform the one or the other to save the penalty of the Bond. But the Council for the Plaintiff said that the whole intent of the Condition in that Case was to provide a Security for G. who died before her Husband so that no body could be hurt for the non-performance of that Condition there being no manner of necessity that any thing should be done in order to it after her decease 'T is quite otherwise in the Case at Bar for Hannah Goddard paid Mony for the House and certainly it was never intended that Chappel the Father to whom the Mony was paid should have both House and Mony If she had lived the House ought to have been conveyed to her now she is dead the Mony ought to be paid for 't is not lost by her death In Laughter's Case the person who was to do the thing was the Obligor himself but here the Father undertakes for his Son that he should convey when he came of Age or to repay the Mony so that 't is not properly a Condition in the disjunctive for 't is no more than if it had been penn'd after this manner Viz. The Father undertakes for his Son that he shall convey at the Age of 21 years if he refuse then the Father is to repay what mony he received Besides Cro. Eliz. 399. Laughter's Case is Reported by Iustice Croke and therein he cites two other Cases of Chew and Baker That of Chew was viz. A. promised B. that if C. did not appear at Westminster such a day he would pay him 20 l. The Defendant pleaded that C. died before the day and ruled to be no Plea for he ought to pay the Mony which Case is parallel to this for 't is the same in Reason and Sense That of Baker was viz. A Man was bound that A. should appear the first day in the next Term at the Star-Chamber or he would pay 20 l. A. died before the day so as by the act of God he could not appear yet it was adjudged that the Mony must be paid The like Case was adjudged between Huntley and Allen in the Common-Pleas in my Lord Hale 's time 't is entred Pasch 1658. Rot. 1277. The Rule in Laughter's Case cannot be denied viz. where the Condition is in the disjunctive consisting of two parts and one becomes impossible by the act of God the Obligor is not bound to perform the other but then it must be governed by the subsequent matter As in Greningham's Case Cro. Eliz. 396. Moor 395. viz. Debt upon Bond conditioned that if the Defendant delivered three Bonds to the Plaintiff wherein he was bound to the Defendant or a Release of them as should be advised by the Plaintiff's Council before such a day then c. The Defendant pleaded that neither the Plaintiff or his Council did advise a Release before the day c. and upon Demurrer it was adjudged that the Plea was good for the Defendant had an election to deliver or release as the Plaintiff should devise which if he will not do the Defendant is discharged by the neglect of the Plaintiff for the Defendant being at his choice to perform the one thing or the other 't is not reason that the Plaintiff should compel him to perform one thing only It was argued on the other side E contra that this is a disjunctive condition and not only an undertaking of the Father for the Son Where a Condition is to perform two things and if either be done no Action will lye such Condition is in the disjunctive as in this Case if the Son had conveyed or the Father repaid the Mony By the Condition of this Bond the Father did as much undertake for his Son as Laughter did for Rainsford viz. to convey the House or pay the Mony to Hannah Goddard now the last part of the Condition being discharged by the Act of God he is acquitted of the other Suppose the Condition had been single to convey to Hannah Goddard if she die the Bond is void There is an Authority to this purpose Cro. Eliz. 380. Reported by Iustice Croke which was an Action of Debt was brought by the Plaintiff as Executor c. The Condition of the Bond was for the yearly payment of a Sum of Mony twice in a year viz. at Michaelmas and Lady day during the Life of a Lady or within 30 days after either of the said Feasts the Lady died after one of the Feasts but within the 30 days it was adjudged that by her death that payment which was due at the Feast preceding was discharged In the Case at Bar the Condition is that if the Son should not convey when of Age or otherwise if the Defendant re-pay c. Now certainly these words or otherwise make the Condition disjunctive 'T is like the common Case of Bail entred into in this Court whereby the Parties undertake that the Defendant shall render himself to Prison if condemned in the Action or they shall pay the condemnation mony this is a disjunctive condition and if the Defendant dye before the return of the second Sci. Fa. the Bail are discharged Iustice Allibon said Roll. Abr. tit condition 450. pl. 4. that if a condition be to make an Assurance of Land to the Obligee and his Heirs and the Obligee dies before the Assurance made yet it shall be made to the Heir for this copulative is a disjunctive Sed Adjornatur Franshaw versus Bradshaw Mich. 1 Jac. Rot. 45. DEbt upon a Iudgment obtained in this Court 34 Car. 2. Matter of Form not amendable upon Demurrer setting forth the said Iudgment c. Sicut per Recordum processum inde remanen ' in eadem Curia nuper Domini Regis coram ipso Rege apud Westmonast plenius liquet apparet And upon a Demurrer to the Declaration this Objection was made viz. It doth not appear that the Iudgment was in force or where the Reeord was at the time of this Action brought he should have declared Coram ipso nuper Rege apud Westm sed jam coram Domino Rege nunc residen ' c. plenius liquet c. The Court held it was but matter of form but being upon a Demurrer it was not amendable Letchmere versus Thorowgood al' Vic. London TRespass by the Assignees of Commissioners of Bankrupcy for taking of their Goods When a Judgment is once executed the Goods are in Custodia Legis and shall not be taken away by an Exchequer Process or Assignment of Commissioners of Bankrupts upon not Guilty pleaded the Iury find a special Verdict the substance of which was viz. one Toplady a Vintner on the 28th of April became a Bankrupt against whom a Iudgment was formerly obtained the Iudgment Creditor sued out a Fi. Fa. and the Sheriffs of London by virtue thereof did
Executors one of them of Age 2 Sand. 212. and the other not one may make an Attorney for the other There is no difference between Executors and Infants in this Case for Executors recover in the right of the Testator and the Bayliffs in the Right of him who hath the Inheritance Besides the Avowants are in the nature of Plaintiffs and whereever a Plaintiff recovers the Defendant shall not assign Infancy for Error Adjornatur Capel versus Saltonstal INdebitatus assumpsit in the Common Pleas Where there are several Plaintiffs in a personal thing and one dyeth before Judgment the Action is abated in which Action there were four Plaintiffs one of them died before Iudgment the others recover and now the Defendant brought a Writ of Error in this Court to reverse that Iudgment and the Question was whether the Action was abated by the death of this person Those who argued for the Plaintiffs in the Action held that the Debt will survive and so will the Action for 't is not altered by the death of the party for where Damages only are to be recovered in an Action well commenced by several Plaintiffs and part of that Action is determined by the Act of God or by the Law and the like Action remaineth for the residue the Writ shall not abate As in Ejectment if the Term should expire pending the Suit 1 Inst 285. the Plaintiff shall go on to recover Damages for though the Action is at end quoad the possession yet it continues for the Damages after the Term ended So if the Lessor bring Waste against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for Damages but the Survivor So where Trover was brought by two 2 Bulst 262. 1 Inst 198. and after the Verdict one of them died the Iudgment shall not be arrested because the Action survives to the other Mr. Pollexfen contra He admitted the Law to be that where two Iointenants are Defendants the death of one would not abate the Writ because the Action is joint and several against them But in all Cases where two or more are to recover a personal thing there the Death or Release of one shall abate the Action as to the rest though 't is otherwise when they are Defendants and are to discharge themselves of a personalty 6 Co. 25. b. Ruddock's Case 2 Cro. 19. And therefore in an Audita Querela by two the death of one shall not abate the Writ because 't is in discharge Now in this Case Iudgment must be entred for a dead Man which cannot be for 't is not consistent with reason The Case of Wedgewood and Bayly is express in it which was this Trover was brought by six and Iudgment for them one of them died the Iudgment could not be entred 'T is true where so many are Defendants and one dies the Action is not abated but then it must be suggested on the Roll. Curia Actions grounded upon Torts will survive but those upon Contracts will not The Iudgment was reversed Fisher versus Wren In the Common-Pleas THE Plaintiff brought an Action of Trespass on the Case Prescription and Custom alledged together and declared that he was seized of an ancient Mesuage and of a Meadow and an Acre of Land parcel of the Demesnes of the Mannor of Crosthwait and sets forth a Custom to grant the same by Copy of Court Roll and that there are several Freehold Tenements parcel of the said Mannor and likewise several Customary Tenements parcel also thereof grantable ad voluntatem Domini and that all the Freeholders c. time out of Mind c. together with the Copyholders according to the Custom of the said Mannor have enjoyed solam seperalem Pasturam of the Ground called Garths parcel of the said Mannor for their Cattle Levant and Couchant c. and had liberty to cut the Willows growing there for the mending of their Houses and the Defendant put some Cattle into the said Ground called Garths which did eat the Willows by reason whereof the Plaintiff could have no benefit of them c. Vpon Not Guilty pleaded there was a Verdict for the Plaintiff And now Serjeant Pemberton moved in arrest of Iudgment and took these Exceptions 1. As to the manner of the Prescription which the Plaintiff had laid to be in the Freeholders and then alledged a Custom for the Copyholders c. and so made a joint Title in both which cannot be done in the same Declaration because a Prescription is always alledged to be in a person and a Custom must be limited to a place and therefore an entire thing cannot be claimed both by a Prescription and Custom Vaughan 215. Carter 200. 1 Sand. 351. because the Grant to the Freeholders and this Vsage amongst the Copiholders could not begin together 2. As to the Custom 't is not good as pleaded to exclude the Lord for it can never have a good Commencement because Copyholders have Common in the Lords Soil only by permission to improve their Estates which Common being spared by the Lord and used by the Tenant becomes a Custom but no Vsage amongst the Tenants or permission of the Lord can wholly divest him of his Soil and vest an Interest in them who in the beginning were only his Tenants at Will 2 Sand. 325. 3. The third Exception and which he chiefly relyed on was viz. That this is a Profit apprender in alieno Solo to which all the Tenants of the Mannor are entituled and that makes them Tenants in Common and therefore in this Action where Damages are to be recovered they ought all to join 'T is true in real Actions Tenants in Common always sever 1 Inst 197 198. Godb. 347. but in Trespasses quare Clasum fregit and in personal Actions they always join and the reason is plain because in those Actions though their Estates are several yet the Damages survive to all and it would be unreasonable to bring several Actions for one single Trespass E contra It was argued that it cannot be denied E contra but that there may be a Custom or Prescription to have solam seperalem pasturam but whether both Prescription and Custom can be joyned together is the doubt now before the Court and as to that he held it was well enough pleaded 1 Sand. 351. for where there is an unusual Right there must be the like remedy to recover that Right it was thus pleaded in North's Case But admitting it not to be well pleaded 't is then but a double Plea to which the Plaintiff ought to have demurred and this may serve for an Answer to the first Exceptions Then as to the last Objection that 't is a Profit apprender in alieno solo for which all the Tenants ought to join 't is true a Common is no more than a Profit apprender
c. yet one Commoner may bring an Action against his Fellow besides in this Case they are not Tenants in Common for every Man is seized severally of his Freehold Adjornatur Ayres versus Huntington AScire Facias was brought upon a Recognizance of 1000 l. Amendment of the word Recuperatio for Recognitio after a Demurrer to shew cause quare the Plaintiff should not have Execution de praedictis mille libris recognitis juxta formam Recuperationis where it should have been Recognitionis praed And upon a Demurrer it was held that the words juxta formam Recuperationis were Surplusage The Record was amended and a Rule that the Defendant should plead over Mather and others versus Mills THE Defendant entred into a Bond to acquir Non damnificatus generally where 't is a good Plea discharge and save harmless a Parish from a Bastard Child Debt was brought upon this Bond and upon Non damnificatus generally pleaded the Plaintiff demurred and Tremain held the Demurrer to be good for if the Condition had been only to save harmless c. then the Plea had been good but 't is likewise to acquit and discharge c. and in such Case Non damnificatus generally is no good Plea 1 Leon. 71. because he should have shewed how he did acquit and discharge the Parish and not answer the Damnification only E contra E contra 2 Co. 3. 2 Cro. 363 364 2 Sand. 83 84. It was argued that if the Defendnat had pleaded that he kept harmless and discharged the Parish such Plea had not been good unless he had shewed how c. because 't is in the affirmative but here 't is in the negative viz. that the Parish was not dampnified and they should have shewed a Breach for though in strictness this Plea doth not answer the Condition of the Bond yet it doth not appear upon the whole Record that the Plaintiff was dampnified and if so then he hath no cause of Action Iudgment for the Defendant DE Term. Sanctae Trin. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Memorandum That on the 4th day of November last past the Prince of Orange landed here with an Army and by reason of the Abdication of the Government by King James and the Posture of Affairs there was no Hillary-Term kept Coram Johanne Holt Mil ' Capital ' Justic Gulielmo Dolben Mil ' Justiciar Gulielmo Gregory Mil ' Justiciar Egidio Eyre Mil ' Justiciar Kellow versus Rowden Trin. 1 Willielmi Mariae Rotulo 796. IN Debt by Walter Kellow Where the Reversion in Fee is expectant upon an Estate Tail and that being spent it descends upon a collateral Heir he must be sued as Heir to him who was last actually seized of the Fee without naming the intermediate Remainders Executor of Edward Kellow against Richard Rowden The Case was this viz. John Rowden had Issue two Sons John and Richard John the Father being seized in Fee of Lands c. made a Settlement to the use of himself for Life the Remainder to John his eldest Son in Tail Male the Remainder to his own right Heirs The Father died the Reversion descended to John the Son who also died leaving Issue John his Son who died without Issue so that the Estate Tail was spent Richard the second Son of John the elder entred and an Action of Debt was brought against him as Son and Heir of John the Father upon a Bond of 120 l. entred into by his Father and this Action was brought against him without naming the intermediate Heirs viz. his Brother and Nephew The Defendant pleaded Quod ipse de debito praed ut filius haeres praed Johannis Rowden Patris sui virtute scripti obligatorii praed onerari non debet quia protestando quod scriptum obligatorium praed non est factum praed Johannis Rowden pro placito idem Richardus dicit quod ipse non habet aliquas terras seu tenementa per discensum haereditarium de praed Johanne Rowden patre suo in feodo simplici nec habuit die exhibitionis billae praed Walteri praed nec unquam postea hoc parat est ' verificare unde pet judicium si ipse ut filius haeres praed Johannis Rowden patris sui virtute scripti praed onerari debeat c. The Plaintiff replied that the Defendant die Exhibitionis billae praed habuit diversas terras tenementa per discensum haereditarium a praed Johanne Rowden patre suo in feodo simplici c. Vpon this pleading they were at Issue at the Assises in Wiltshire and the Iury found a special Verdict viz. that John Rowden the Father of Richard now the Defendant was seized in Fee of a Messuage and 20 Acres of Land in Bramshaw in the said County and being so seised had Issue John Rowden his eldest Son and the Defendant Richard that on the 22th of Januarii 18 Car. I. John the elder did settle the Premisses upon himself for Life Remainder ut supra c. That after the death of the Father John his eldest Son entred and was possessed in Fee-Tail and was likewise entituled to the Reversion in Fee and died in the 14th year of King Charles the II. that the Lands did descend to another John his only Son who died 35th Car. II. without Issue whereupon the Lands descended to the Defendant as Heir of the last mentionted John who entred before this Action brought and was seised in Fee c. But whether upon the whole matter the Defendant hath any Lands by by descent from John Rowden in Fee-simple the Iury do not know c. The Council on both sides did agree that this Land was chargable with the Debt but the Question was whether the Issue was found for the Defendant in regard the Plaintiff did not name the intermediate Heirs It was argued that the Defendant ought to be sued as immediate Heir to his Father and not to his Nephew for whoever claims by descent must claim from him who was last actually seised of the Freehold and Inheritance this is the express Doctrine of my Lord Coke in his first Institutes and if so Co. Lit. 11. the Defendant must be charged as he claims Seisin is a material thing in our Law for if I am to make a Title in a real Action I must lay an actual seisin in every Man 8 E. 3.13 Bro. Assise 6. F.N. B. 212. F. 't is so in Formedons in Descender and Remainder in both which you are to run through the whole Pedegree But none can be Filius Haeres but to him who was last actually seised of the Fee-simple and therefore the Brother being Tenant in Tail and his Son the Issue in Tail in this Case they were never seised of the Fee 1 Inst 14. b. for that was expectant upon the Estate Tail which being spent then John the Father was last seised thereof and
so his Son is justly and rightly sued as Son and Heir In some Cases the persons are to be named not by way of a Title but as a Pedigree as if there be Tenant for Life the Reversion in Fee to an Ideot and an Vncle who is right Heir to the Ideot levied a Fine and died living the Ideot leaving Issue a Son named John who had Issue William who entred the Question was whether the Issue of the Vncle shall be barred by this Fine It was the Opinion of two Iudges that they were not barred because the Vncle died in the life-time of the Ideot and nothing attached in him March 94. Cro. Car. 524. and because the Issue claim in a collateral Line and do not name the Father by way of Title but by way of Pedigree But Iustice Jones who hath truly Reported the Case Jones 456. was of Opinion that the Issue of the Vncle were barred because the Son must make his Conveyance from the Father by way of Title The Iury have found that the Reversion did descend to the Defendant as Heir to the last John 't is true it descends as a Reversion but that shall not charge him as Heir to the Father Jenk's Case 1 Cro. for the other was seised of the Estate Tail which is now spent and the last who was seised of the Fee was the Father and so the Defendant must be charged as his Heir 'T is likewise true that where there is an actual Seisin you must charge all but in this Case there was nothing but a Reversion Tremaine Serjeant for the Defendant In this Case the Plaintiff should have made a special Declaration for the Estate-Tail and the Reversion in Fee are distinct and seperate Estates John the Nephew might have sold the Reversion and kept the Estate Tail if he had acknowledged a Statute or Iudgment it might have been extended and if so then he had such a Seisin that he ought to have been named A Man becomes bound in a Bond and died Debt is brought against the Heir it is not common to say that he had nothing by descent but only a Reversion expectant upon an Estate Tayl. In the Case of Chappel and Lee Covenant was brought in the Common-Pleas against Judith Daughter and Heir of Robert Rudge She pleaded Riens per descent Issue was joyned before Sir Francis North then Chief Iustice and it appearing upon Evidence that Robert had a Son named Robert who died without Issue a Case was made of it and Iudgment was given for the Defendant the Plaintiff took out a new Original and then the Land was sold so the Plaintiff lost his Debt Adjornatur Afterwards in Hillary Term a Gulielmi Mariae Iudgment was given for the Plaintiff by the Opinion of three Iustices against Iustice Eyre who argued that the Defendant cannot be charged as immediate Heir to his Father 't is true the Lands are Assets in his Hands and he may be charged by a special Declaration Dyer 368. pl. 460. In this Case the intermediate Heirs had a Reversion in Fee which they might have charged either by Statute Iudgment or Recognizance they were so seised that if a Writ of Right had been brought against them they might have joyned the Mise upon the Mere right which proves they had a Fee and though it was expectant on an Estate Tail 3 Co. 42. Ratcliff's Case yet the Defendant claiming the Reversion as Heir ought to make himself so to him who made the Gift The person who brings a Formeden in Descender must name every one to whom any Right did descend 8 Co. 88. F.N.B. 220. c. Rast Ent. 375. otherwise the Writ will abate A Man who is sued as Heir or who entitles himself as such must shew how Heir The Case of Duke and Spring is much stronger than this 2 Rol. Abr. 709. 2 Cro. 161. for there Debt was brought against the Daughter as Heir of B. She pleaded Riens per descent and the Iury found that B. died seised in Fee leaving Issue the Defendant and his Wife then with Child who was afterwards delivered of a Son who died within an hour and it was adjudged against the Plaintiff because he declared against the Defendant as Daughter and Heir of the Father when she was Sister and Heir of the Brother who was last seised But the other three Iudges were of a contrary Opinion The Question is not whether the Defendant is lyable to this Debt but whether he is properly charged as Heir to his Father or whether he should have been charged as Heir to his Nephew who was last seised It must be admitted that if the Lands had descended to the Brother and Nephew of the Defendant in Fee that then they ought to have been named but they had only a Reversion in Fee expectant upon an Estate Tail which was incertain and therefore of little value now though John the Father and Son had this Reversion in them yet the Estate Tail was known only to those who were Parties to the Settlement 'T is not the Reversion in Fee Bro. Fit Descent pl. 30.37 Ass pl. 4. but the Possession which makes the party inheritable and therefore if Lands are given to Husband and Wife in Tail the Remainder to the right Heirs of the Husband then they have a Son and the Wife dies and the Husband hath a Son by a second Venter and dies the eldest Son enters and dies without Issue and his Vncle claimed the Land against the second Son but was barred because he had not the Remainder in Fee in possession and yet he might have sold or forfeited it But here the Reversion in Fee is now come into possession and the Defendant hath the Land as Heir to his Father t is Assets only in him and was not so either in his Brother or Nephew who were neither of them chargeable because a Reversion expectant upon an Estate Tail is not Assets Iudgment was given for the Plaintiff DE Term. Sancti Mich. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Young versus Inhabitants de Totnam AN Action was brought against the Hundred for a Robbery in which the Plaintiff declared that he was Robbed apud quendam locum prope Faire Mile Gate in such a Parish He had a Verdict And now Serjeant Tremaine moved in arrest of Iudgment and the Exceptions taken were these viz. 1. That it doth not appear that the Parish mentioned in the Declaration was in the Hundred 2. Neither doth it appear that the Robbery was committed in the High-way 3. The Plaintiff hath not alledged that it was done in the day time for if it was not the Hundred is not lyable by Law But these Exceptions were all disallowed because it being after a Verdict the Court will suppose that there was Evidence given of these Matters at the Trial so the Plaintiff had his Iudgment Eggleston al' versus Speke alias Petit.
and now he brought a Scire Fac. against the Bail who pleaded that no Declaration was delivered or filed against the Principal within two Terms after the Action commenced and the Bail entred and upon a Demurrer the Plaintiff had Iudgment against them for the Bail are liable so as the Principal in the Action declare soon after the Injunction dissolved and it s no fault in the Plaintiff that he did not declare sooner for if he had he would have been in contempt of the Court of Chancery for a Breach of the Injunction Anonymus A Writ of Error was brought to reverse a Recovery suffered in the grand Sessions of Wales Error to reverse a Recovery there must be a Scire Fac. against the Heir and Tertenants Dyer 321. The Question now was whether there ought to be a Scire Fac. against the Tertenants and the Heir It was said that t is discretionary in the Court and that the first Case of this nature was in my Lord Dyer where a Writ of Error was brought in B. R. to reverse a Fine levyed in the County Palatine of Chester and a Scire Facias was brought against the Heir but not against the Tertenants But the Heir in this Case is an Infant so that if he be admitted to be a Defendant he ought not to appear during his Minority and there is no remedy till his full Age. Curia 'T is not necessary in point of Law but it seems to be the course of the Court and that must be followed and 't is reasonable it should be so because the Errors upon a Recovery should not be examined before all the Parties are in Court therefore there should be a Scire Facias against the Heir and the Tertenants Sid. 213. Lambert versus Thurston TRespass Quare vi armis clausum fregit c. Trespass Quare vi Armis lies for small Damages which the Plaintiff had laid to his Damage of 20 s. The Defendant demurred to the Declaration and for cause shewed that B. R. hath not cognizance either by the Common Law or by the Statute of Gloucester to hold Plea in such an Action where the Damages are laid to be under 40 s. But the Court were of another Opinion That an Action of Trespass Quare vi armis will lie here let the Damage be what it will So the Plaintiff had Iugment DE Termino Paschae Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Whitehal versus Squire TRover for a Horse What shall be a Conversion what not the Defendant pleaded Not Guilty and a special Verdict was found viz. That John Mathers was possessed of this Horse who on the 4th day of December in the first year of King James the II. put him to Grass to the Defendant who kept him till the first day of May following That John Mathers died Intestate and before Administration was granted the Plaintiff desired the Defendant to Bury the said Mathers and that he would see him satisfied for his Expences and accordingly the Defendant did Bury him Then the Plaintiff gave this Horse to the Defendant in part of satisfaction for the Charges of the Funeral and a Note under his Hand to pay him 23 l. more The Plaintiff afterwards took out Administration and brought his Action against the Defendant for this Horse and whether this was a conversion or not was the Question Iustice Dolben and Eyre held that it was not but the Chief Iustice was of another Opinion Cole versus Knight Hill 1 2. Rot. 810. SCire Fac. upon a Iudgment of 6000 l. Release by one Executor of a Legacy is not a good bar to a Sci. Fa. upon a Judgment brought by the Plaintiffs Knight and Donning as surviving Executors of John Knight against the Defendant Cole and his Wife as Executrix of John Lawford setting forth That Sir John Knight Mr. Eyre and John Knight had recover'd a Iudgment of 6000 l. against John Lawford That John Knight survived who made his Will and appointed John Kent Thomas Knight and William Donning to be his Executors that he died the Debt and Damages not being satisfied that they the said Knight and Donning proved the Will that John Kent died and that John Lawford made his Will and appointed his Daughter Mary now the Wife of Thomas Cole to be sole Executrix and soon after departed this Life that Cole proved Lawford's Will and that the Debt was not yet paid The Defendant Cole and his Wife pleaded a Release from Donning one of the Plaintiffs by which he acknowledged to have received of the said Cole and his Wife as Exetutrix of the last Will and Testament of John Lawford the Sum of 5 l. being a Legacy given to him by Lawford and then in general words he released the said Cole and his Wife of the Legacy and of all Actions Suits and Demands whatsoever which he had or might have against the Defendants Cole and his Wife as Executrix of John Lawford or may or can have for any matter or thing whatsoever To this Plea the Plaintiff demurred and the Question was whether the Release is a good Bar or not It was argued to be no Bar for it being given upon the receipt of the Legacy is tied up to that only and shall not be taken to release any other thing If a Man should receive 10 l. and give a Receipt for it and doth thereby acquit and release the person of all Actions Debts 2 Roll. Abr. 409. Duties and Demands nothing is released but the 10 l. because the last words must be limited to those foregoing 'T is no new thing in the Law for general words to be restrained by those which follow as for instance if a Release be of all Errors Actions Suits and Writs of Error whatsoever Het 15. it hath been held that an Action of Debt upon a Bond was not released but only Writs of Error And this seems to be the intent of the Parties here that nothing but the Legacies should be released and therefore those general words which follow must be confined to the true meaning and intention of him who gave the Release So 't is if a Man promise to pay 40 s. Yelv. 156. to another during Life a Release of all Quarrels Controversies and Demands which he had or may have will not discharge this Annuity because the Execution of the Promise was not to be 'till the Rent should be due So likewise a Release of all Demands will not discharge a growing Rent 1 Sid. 141. 2. If this should be a good Release it discharges only such Actions which he hath in his own Right for by the words all Actions which he had are released Cro. Eliz. 6. 1 Leon. 263. now if an Executor grant omnia bona sua the Goods which he hath as Executor do not pass E contra E contra It was argued that this is a good Bar for by
the first words the Legacy is released then the subsequent words viz. all Actions Suits and demands whatsoever which he had against the Defendant as Executor of Lawford must mean something 'T is true where general words are at the beginning of a Release and particular words follow if the general words agree with those which are particular the Deed shall be construed according to the special words But where there are such words at first and the conclusion is with general words as 't is in this Case both shall stand for the Rule is Generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa 8 Co. 154. b. These words do also Release not only such Actions which he had in his own Right but also as Executor to Mr. Lawford If a Man hath a Lease in right of his Wife as Executrix to her former Husband and he grants all his Right and Title therein by this Grant the Right which he had by his Wife doth pass for the word His doth imply a propriety in possession But per totam Curiam Curia Iudgment was given for the Plaintiff If an Executor hath Goods of the Testators and also other Goods in his own Right and then grants omnia bona sua in strictness the Goods which he hath as Executor do not pass because they are not bona sua but so called because of the Possession which he hath and therefore it must be a great strein to make general words which are properly applicable to things which a Man hath in his own Right to extend to things which he hath as Executor It was never the intent of the Party to release more than what he had in his own Right and that appears by the Recital of the Legacy of 5 l. and therefore the words which follow must have a construction according to the intent of Donning at the time of the making the Release and shall be tied up to the foregoing words and then nothing will be discharged but the Legacy As if a Lease for years be made Dyer 255. and the Lessor enters into a Bond that he will suffer the Lessee quietly to enjoy during the Term without trouble of the Lessor or any other person if an Entry should be made upon the Lessee without the procurement or knowledge of the Lessor the Condition is not broken for the last words are tied up to the word suffer If the Legacy had not been released by particular words it would not have been discharged by a Release of all Actions and Demands whatsoever and therefore there would be a great inconvenience if these general words should be construed to Release any thing besides this Legacy for suppose there are two Executors and one refuseth to Administer but meeting with a Debtor of the Testator gives him a Release of all Actions will this amount to an acceptance of the Administration Certainly it will not The words in this Case are not of that extent as to Release Actions as an Execuror for 't is a Release which goeth to the right 'T is like the Case where one of the Avowants released the Plaintiff after the taking of the Cattel 1 Roll. Rep. 246. which was adjudged void upon a Demurrer because he had not then any Suit or Demand against the Plaintiff but had distreined the Beasts as Bayliff and in right of another Iustice Dolben cited a Case adjudged in B. R. in the year 1669. it was between Stokes and Stokes The Plaintiff released all which he had in his own Right there was a Bond in which his Name was used in Trust for another and afterwards he brought an Action of Debt upon that Bond to which the Release was pleaded The Plaintiff replied that the Release was only of all such Actions which he had in his own right and not such which he had in the right of another upon this they were at Issue and the Plaintiff had a Verdict and Mr. Sympson moved in Arrest of Iudgment that this Bond must be in his own Right But the Court affirmed the Iudgment Anonymus AN Action on the Case was brought for these words Words where actionable without a Colloquium viz. He stole the Colonel's Cupboard-Cloth It was made a Question whether these words were actionable there being no precedent discourse laid in the Declaration either of the Colonel or his Cupboard-Cloath But the Court held the words actionable for 't is a charge of Felony and if such words as now laid in this Declaration are not actionable any person may be scandalized for 't is and must be actionable to say of a Man that he stole my Lord's Horses or the Parson's Sheep tho' it doth not appear to what Lord or Parson they did belong Rex versus Silcot THE Defendant was convicted before a Iustice of the Peace Conviction for keeping a Gun not having a 100 l. per Annum and doth not say when 33 H. 8. c. 6. upon the Statute of H. 8. for keeping of a Gun and upon proof it did appear that he had not 100 l. per Annum The Record of the Conviction was removed into B. R. and this Exception was taken to it viz. non habuisset 100 l. per Annum but doth not say when for it may be that he had one hundred pound per Annum at the time when he kept a Gun but not when he was Convicted It was answered that the words non habuisset shall relate to all times past and is as much as to say nunquam habuit and the conclusion being contra formam Statuti must explain such words which seem to be doubtful This was compared to the Case where Debt was brought upon the Statute of R. 1 R. 3. c. 3. 3. for taking away of Goods before the Plaintiff was convicted of the Felony laid to his charge contra formam Statuti he being only committed upon suspicion now though he did not alledge that the Goods were taken Cro. Eliz. 749. for this cause it shall be intended they were so taken when no other cause is shewed Curia This is a conviction before a Iustice of the Peace and therefore the time when the Offence was committed should be certainly alledged viz. that the Defendant praedict Anno die had not 100 l. per Annum for which reason it was quashed Bisse versus Harcourt Hill 1 Gulielmi Rot. 217. THE Plaintiff brought an Action for 400l Replication not well concluded for so much Mony had and received of him by the Defendant The Defendant pleaded an Attainder of High Treason in Abatement and therefore ought not to answer the Declaration The Plaintiff replied that after he was Attainted and before this Action brought he was pardoned and concludes thus Unde petit Judicium dampna sua The Defendant demurs and for cause shewed Rast Ent. 663. b. 681. Co. Ent. 160. that the Replication is not well concluded for dampna sua
be in his possession and not of the Servant the Master being then present which is all the difference between that Case and this at the Barr so that the Master is the person robbed within the meaning of the Statute of Winton although the Mony be in the hands of the Servant Suppose the Servant had received 1000 l. and not being able to carry it himself had employed ten Men each to carry 100 l. and they had been all robbed the Owner may have an Action against the Hundred upon the Affidavit of one of the persons robbed the reason is because the possession shall follow the property and the possession of the whole will follow every part There are Authorities to prove that if the Servant is robbed the Master may give Evidence what Mony was delivered to him 2 Roll. Abr. 685. though that might be as well proved by another Witness Now though all this be admitted yet an Action will not lie against the Hundred by the Master in the Case at the Barr for the Statute of Queen Elizabeth being made so much in favour of the Hundred ought to be pursued The Reasons why an Oath is injoyned by that Statute are 1. That the person robbed should enter into a Recognizance to prosecute the Robbers if he knew them or any of them 2. That the Hundred might be excused upon the Conviction of such person or persons 3. To prevent a Robbery by Fraud Now suppose the Servant is entrusted with Mony and robbed by Confederacy shall the Hundred be answerable because the Servant hath broke his Trust Cro. Eliz. 142. 1 Leon. 323. No the Servant ought to be sworn for the purposes mentioned in that Act which if he refuse the Master hath lost his Action But if the Servant is robbed in the Company or presence of his Master the Mony is still in Iudgment of the Law in the possession of the Master Stiles 156 319 and that was the reason of the Iudgment in Jones's Case This is not like the Case of a common Carrier who though he may be said to be a Servant yet he is entrusted by this Law Curia This Action might have been well brought for the whole by Coxhead alone but 't is now too late the year being expired for where a Servant is robbed of part of his Master's Goods and part of his own he may have an Action Brownl 155. and recover Iudgment for the whole and therefore at another day the Plaintiff had Iudgment for 26 s. only Pain versus Patrick and others Pasch 2 Gulielmi Rot. 43. THIS was a Special Action on the Case brought by Isaac Pain against Edward Patrick and William Boulter for hindring the Plaintiff to go over a Ferry Action on the Case will not lie for disturbing or hindring a passage in a Common High-way but it must be by Indictment The Declaration sets forth that the Vill of Littleport in the Isle of Ely is an ancient Vill within which there is a River called Wilner River over which there was an ancient passage in a Ferry-Boat from the North East part of the said Vill to the end of Ferry-Lane and from thence to another place called Adventurers Bank that this passage was for all People at a certain price c. excepting the Inhabitants of Littleport living in ancient Houses there who by reason of an ancient Custom in the said Vill were to pass ad libitum suum with paying Coll c. That the Plaintiff was an Inhabitant in an ancient Mesuage in the said Vill and that there was an ancient Ferry-Boat kept there by the Owners thereof till the first day of May in such a year after which day the Defendants did not keep the same per quod the Plaintiff lost his Passage c. The Defendants protestando that the Passage was not in a Ferry-Boat protestando etiam that there was no such Custom c. and that the Plaintiff was not an Inhabitant in an ancient Mesuage in Littleport Pro Placito dicunt that before the exhibiting of the Bill they did erect a Bridge over the said River where the Passage was anciently and this was done and maintained at their own Costs and that the Plaintiff melius celerius could pass over the said Bridge c. This was pleaded in Barr. The Plaintiff replied that he per aliquem Pontem libertatem passagii trans ultra Rivum praedict ' secundum consuetudinem praed in narratione mentionat ' habere non permissus fuit contra consuetudinem praed Et hoc paratus est verificare c. The Defendants demurred and the Plaintiff joined in Demurrer The Questions were 1. Whether this was a good Custom as laid in the Declaration for the Inhabitants of a Vill to claim to be discharged of Coll ratione comorantiae 2. If the Custom is good then whether the Defendants Plea in Barr is also good to discharge themselves from keeping of the Boat 3. Whether the Plaintiff can maintain this Action This Case was argued now and in Easter-Term following by Council for the Defendants and in the same Term by Council for the Plaintiff Those who argued for the Defendants said that as to the first Point though this is set forth by way of Custom yet 't is in the nature of a Prescription which is always alledged in the person but here 't is for the Inhabitants of a Vill c. Now this cannot be good by way of Prescription because in such Case there must be a certain and permanent Interest abiding in some person which cannot be here for a meer Habitation or dwelling in an House will not give a Man such an Interest That which makes a Prescription good is Vsage and reasonableness 1 Leon. 142. 3 Leon. 41. but it cannot be ex rationabili causa to prescribe ad libitum suum for the Ferry-Man hath neither any consideration or recompence for the keeping of his Boat when the Inhabitants may pass over at their pleasure without paying Toll 'T is true a Man may prescribe to have Common sans nombre which in strictness is to put in as many Cattle as he will but if he lays his prescription ad libitum suum 't is not good If therefore this is not good by way of Prescription it cannot be supported by Custom because that also must extend to what hath some certainty and which must likewise have a reasonable beginning Now there can be no certainty in this Custom Hob. 86. 6 Co. 60. because the Plaintiff claimeth it only during his Comorancy in a Mesuage in which he had neither a certain time or Estate and this is such a transitory interest which is not allowed in the Law And therefore it hath been adjudged that a Custom for an Infant to sell his Lands when he can measure an Ell of Cloth is void 1 Rol. Rep. 32. because 't is incertain of what Age he may then be and 't is equally as incertain how
3 Willielmi Judicium Iudgment was given for the Defendant absente Dolbin Iustice who was also of the same Opinion It was held that the Custom was well alledged both as to the manner and matter 't is true all Customs must have reasonable beginnings but it would be very difficult to assign a lawful commencement for such a Custom as this is so it would be for the Custom of Gavelkind or Burrough English which are circumscribed to particular places and since 't is sufficient to alledge a Custom by reason of the place where t is used it may be as reasonable in this Case to say that there hath been an ancient Ferry-Boat kept in this place 't is but only an inducement to the Custom which did not consist so much in having a Right to the Passage as to be discharged of Toll This might have a lawful beginning either by a Grant of the Lord to the Ancestors of the Defendant or by the agreement of the Inhabitants A Custom alledged for all the Occupiers of a Close in such a Parish to have a Foot-way Cro. Car. 419. Co. Lit. 110. b. Cro. Eliz. 746. 1 Roll. Rep. 216. c. is not good the reason is because the Plaintiff ought to prescribe in him who hath the Inheritance but where a thing is of necessity and no manner of profit or charge in the Soil of another but only a thing in discharge or for a Way to a Market or to be quit of Toll in such cases not only a particular person but the Inhabitaints of a Vill may alledge a Prescription This may be as well alledged as a Custom to turn a Plow upon another mans Land or for a Fisherman to mend his Nets there 'T is good as to the matter for 't is only an easment 't is like a Custom alledged for a Gateway or Watercourse and for such things Inhabitants of a Vill Cro. Eliz. 441. or all the Parishioners of a Parish may alledge a Custom or Vsage in the place 2. Point But as to the Plea in Bar 't is not good because the execting of a Bridge is but laying out a Way t is a voluntary act and no man by reason of his own act can be discharged of what he is to do upon the interest he hath in the Ferry If the Defendant had petitioned the King to destroy the Ferry and got a Patent to erect a Bridge and had brought a Writ ad quod dampnum and it had been found by inquisition to be no damage to the People then he might safely have built this Bridge 3. But notwithstanding the Plea is not good yet the Plaintiff can have no advantage of it because he cannot have an Action on the Case for this matter for by his own shewing 't is a common Passage Cro. Car. 132 167. 1 Inst 56. a. Cro. Eliz. 664. 13 Co. 33. Davis 57. which is no more than a common High-way now for disturbing him in such a Passage no Action on the Case will lie unless he had alledged some particular damage done to himself for if he could maintain such an Action any other person is entituled to the like and this would be to multiply Suits which the Law will not allow but hath provided a more apt and convenient remedy which is by presentment in the Leet If Toll had been extorted from him F. N. B. 94. 22 H. 6.12 then an Action on the Case had been the proper remedy but no such thing appeared upon this Declaration Prince 's Case THE Suggestion in a Prohibition was that Prince was seized of the Rectory of Shrewsby ut de feodo jure and that he being so seised de jure ought to present a Vicar to the said place but that the Bishop of the Diocess had of his own accord appointed a person thereunto This Exception was taken to it viz. He doth not say that he was Impropriator but only that he was seised of the Rectory in Fee so it not appearing that he had it Impropriate he ought no to present the Vicar Iustice Dolben replied That in several places in Middlesex the Abbots of Westminster did send Monks to say Mass and so the Vicaridges were not endowed but he put in and displaced whom he pleased That he had heard my Lord Chief Iustice Hales often say that the Abbot had as much reason to displace such Men as he had his Butler or other Servant Curia Declare upon the Prohibition and try the Cause Harrison versus Hayward Pasch 2 Gulielmi Rot. 187. AN Agreement was made to assign a Stock upon Request When a thing is to be done upon request the performance must be when the person requires it and the Defendant cannot plead that he was ready to assign after the promise made and for non-performance an Action was now brought setting forth the Agreement and that the Plaintiff did request the Defendant at such a time c. The Defendant pleaded that he was ready to assign the Stock after the promise made c. and upon a Demurrer it was ruled if the thing was not to be done upon Request then the Defendant was bound to do it in a convenient time after the promise but it being to be done upon request the time when the Plaintiff will require the performance of the Agreement is the time when the Defendant must do it Iudgment pro Quer. Thompson versus Leach WRit of Error upon a Iudgment in Ejectment given in the Common-Pleas Surrender not good without acceptance of the Surrendree 2 Vent 198. the Case upon the special Verdict was thus Viz. Simon Leach was Tenant for Life of the Lands in question with Remainder in contingency to his first second and third Son in Tail Male Remainder to Sir Simon Leach in Tail c. This Settlement was made by the Will of Nicholas Leach who was seised in Fee The Tenant for Life two months before he had a Son born did in the absence of Sir Simon Leach the Remainder man in Tail seal and deliver a Writing by which he did Grant Surrender and Release the Lands which he had for Life to the use of Sir Simon Leach and his Heirs and continued in possession five years afterwards and then and not before Sir Simon Leach did accept and agree to this Surrender and entred upon the Premisses But that about four years before he thus agreed to it Simon Leach the Tenant for Life had a Son born named Charles Lessor of the Plaintiff to whom the Remainder in contingency was thus limited The Tenant for Life died then Sir Simon Leach suffered a Common Recovery in order to bar those Remainders 1. The Question was whether this was a legal and good Surrender of the Premisses to vest the Freehold immediately in Sir Simon Leach without his Assent before Charles Leach the Son of Simon Leach the Surrenderor was born so as to make him a good Tenant to the Precipe upon which the Recovery was
Latch 262. is said not to be adjudged for the Court was divided in Opinion The Case of Marwood and Turpin is the same Moor 600. Cro. Eliz. 715. but there the Defendant pleaded the acceptance of the Rent after the assignment which was not done here Now if both those Cases should be admitted to be Law Sid. 240 266. Allen 34 42. Palm 118. Latch 260. Noy 97. 2 Cro. 334. Mooo 392. and parallel with this yet the later Resolutions have been quite contrary for 't is now held and with great reason that the privity of Contract of the Testator is not determined by his death but that his Executor shall be charged with all his Contracts so long as he hath Assets and therefore such Executor shall not discharge himself by making of an Assignment but shall still be liable for what Rent shall incur after he hath assigned his Interest nay if the Testator himself had assigned the term in his life-time yet his Executor shall be charged in the Detinet so long as he hath Assets Newton versus Trigg Mich. 1. Jac. Rot. 226. TRespass for breaking and entring of his Close Statute of Bankrupts do not extend to an Inn-kepeer treading down of his Grass c. and taking away of his Goods Vpon not Guilty pleaded a special Verdict was found That the Plaintiff was an Inn-Keeper and a Freeman of the City of London that he bought Oates Hay c. which he sold in his Inu by which he got his Living that he with others built a Ship and he had a Share therein and a Stock of 50 l. to Trade withal that he was indebted to several persons and departed from his House and absconded from his Creditors that thereupon a Commission of Bankrupcy was taken out against him at the Petition of the Creditors that the Plaintiff was indebted to Trigg and that the Commissioners found him to be a Bankrupt and by Indenture bearing date the 25th day of June made a Bargain and Sale of the Goods of Trigg who did take and carry them away c. The Question was whether upon the whole matter the Plaintiff was a Bankrupt or not Serjeant Thomson argued that he was not within any of the Statutes of Bankrupcy for an Inn-Keeper is under many obligations and circumstances different from all other Trades-men for he is to take care of the Goods of Travellers and if he set any unreasonable Price upon his Goods 't is an Offence which the Iustices of Peace and Stewards in their Leets have power to hear and determine 2. He doth not buy and sell by way of Contract for most of his Gains arise by the entertaining and lodging of his Guests by the attendance of his Servants and by the Furniture of his Rooms and by uttering of Commodities as in other Trades Cro. Car. 548. And therefore by the Opinion of three Iudges in the Case of Crisp and Prat it was held that an Inn-holder doth not get his Living by Buying and Selling for though he buyeth Provision he doth not sell it by way of Contract but utters it at what gain he thinks reasonable which his Guests may refuse to give Iustice Berkley in the arguing of that Case agreed that he who getteth his Living by Buying and Selling and not by both is not within the Statutes but the Iury having found that he got a livelyhood by both and using the Trade of an Inholder therefore he was a Bankrupt But the other three Iudges were of a contrary Opinion because an Inn-Keeper cannot properly be said to sell his Goods As to his having a Share in a Ship 't is no more than a Stock to Trade which may go to an Infant or to an Executor after his decease and if either of these persons should Trade with it they cannot be made Bankrupts because 't is in auter droit E Contra. E contra It was argued that he who keepeth an Inn is a Trades-man and may be properly said to get his Living by Buying and Selling. The Goods of a Traveller are not distrainable for the Rent of an Inn-Keeper the reason is because he is more immediately concern'd as a Trades-man for the benefit of Comerce It was the Opinion of my Lord Rolls 2 Roll. Abr. 84. that an Inn-Keeper was a Trades-man therefore any Man might build a New Inn for it was no Franchise but a particular Trade to keep an Inn. And as a Trades-man he selleth his Goods to his Guests by way of Contract 39 H. 6.18 19. for he is not bound to provide Hay and Dates for the Horses of his Guests without being paid in hand as soon as the Horses come into the Stable for the Law doth not oblige him to trust for the payment The Case of Crisp and Prat as Reported by Iustice Croke seems to be against this Opinion Jones 437. March 34. but 't is mis-reported for Jones who mentions the same Case says that it being found that the Inn-Keeper got his Living by Buying and Selling it was the Opinion of two Iudges that he was within the Statute but the other two Iudges as to this Point were of a contrary Opinion for they held that an Inn-Keeper could be no more a Bankrupt than a Farmer who often Buys and Sells Cattel and other Goods Tho' a Man is of a particular Trade yet if it doth not appear that he got his Livelyhood by Buying and Selling 't is not actionable to call such a person Bankrupt Now certainly if the Plaintiff had declared that he was an Inn-Keeper Stiles 420. Sid. 299. and got his living after that manner and that the Defendant to scandalize him said He was a Bankrupt the Action would lie as well as for a Dyer Farmer Carpenter or such like Trades of manual Occupation Most of the Inn-Keepers are Farmers and if it had been so found in this Case it would not have been denied but that he had been within the Statute of Bankrupts Afterwards in Trinity Term 3 Willielmi Judgment Iudgment was given for the Plaintiff for taking the whole matter as found by this Verdict 't is not sufficient to make him a Bankrupt 1. That he had a Ship which he let to Freight this was not much insisted on at the Bar to make him a Bankrupt for 't is no more than for a Man to have a Share in a Barge Hackney-Coach or Wagon all which are let for Hire Besides in this Case 't is found that the Plaintiff was but a Partner with another And as to the 50 l. which he had in this Trade that is not sufficient to make him a Bankrupt Cro. Car. 282. Sid. 411. for he must be actually a Trader at the time that the Debt was contracted which is not found so it must be to make the word Bankrupt actionable for it must be found that he was a Trader at the time of the words spoken All the Question of difficulty is that the Plaintiff was
Demise and the Word Assignes is in the Deed yet they are not bound if they have no Estate so that 't is not the naming of them but by reason of the Estate in the Land they are made chargeable No Iudgment is entred upon the Roll. FINIS ERRATA FOlio 88. Line 13. for Defendant read Plaintiff f. 106. l. 26. for no r. an f. 119. l. 7. after must be r. Error f. 147. l. 13 18 38. for coram r. quorum f. 189. l. 23. for reasonable r. unreasonable f. 196. l. 28. for devises r. demises f. 199. l. 1. for 23. r. 13. f. 201. l. 14. before merged r. not f. 218. l. 17. for 1672. r. 1679. f. 203. l. 31. after Berkley r. and Mr. Killigrew f. 222. l. 31. leave out and marrieth f. 226. l. 21. leave out she marrieth f. 237. l. 29. for devise r. demise f. 255. l. 31. for Father r. Nephew f. 256. l. 12. for joyned r. tryed f. 287. l. 6. after delivered r. tied f. 303. l. 16. for Grantee r. Guarantee f. 307. l. 36. for voidable r. void A TABLE to the Third Part of Modern Reports A. Abatement See Ioint Action 8. 1. DEBT was brought by four Plaintiffs one of them died before Judgment the Action is abated as to the rest 249 2. Waste is brought against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for the Damages ibid. 3. Two Jointenants are Defendants the death of one shall not abate the Writ for the Action is joint and several ibid. 4. Where two or more are to recover in a personal thing the death of one shall abate the Action as to the rest ibid. 5. But in Audita Querela the death of one shall not abate the Writ because it is in discharge ibid. Abeiance See Acceptance 1. Resignation of a Benefice passes nothing to the Ordinary but putteth the Freehold in Abeiance till his acceptance 297 See Acceptance Resignation Surrender Acts of Parliament See Iustice of Peace 2 Pardon 2 Ought to be construed according to the intention of the Law-makers and ought to be expounded according to the Rules of the Common Law 63 2. Where a particular punishment is directed by a Statute Law it must be pursued and no other can be inflicted upon the Offender 78 118 3. When an Act is penal it ought to be construed according to Equity 90 157 312 4. Preamble is the best Expositor of the Law 129 169 Action upon the Ease Assumpsit A Feoffment was made upon Trust that the Feoffee should convey the Estate to another the Cestuy que Trust may have an Action if the Feoffee refuseth to convey 149 2. In consideration that the Plaintiff would let the Defendant have Meat Drink c. he promised to pay as much as it was reasonably worth the word valerent was in the Declaration it should have been quantum valebant at the time of the Promise but held good after Verdict 190 3. Where a personal promise is grounded upon a real Contract the Action will lie 73 4. It will not lie for Rent reserved upon a Demise but where a Promise is made to pay Rent in consideration of occupying a House it will lie 240 Action on the Case See Bankrupts 2 Indictment 2 Slander where it lieth 1. He is a Papist spoken of a Deputy Lieutenant 26 2. Where the words injure a person in his Profession or bring him in danger of punishment 27 3. He stole the Colonel's Cupboard Cloth there being no precedent Discourse either of the Colonel or his Cloth 280 4. He is broken and run away and never will return again spoken of a Carpenter 155 5. He is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his door but he spoken of a Merchant who made a Bonefire at the Coronation of King James 103 6. He owes more Mony than he is worth he is run away and is broak spoken of an Husbandman 112 7. The Wife was called Whore and that she was the Defendant's Whore the Husband and she brought the Action and concluded ad dampnum ipsorum it lies without allegding special Damages 120 8. Sir J. K. is a buffle headed Fellow and doth not understand Law he is not fit to talk Law with me I have baffled him and he hath not done my Client Justice spoken of a Justice of Peace 139 9. J. P. is a Knave and a busie Knave for searching after me and other honest men of my sort and I will make him give satisfaction for plundering me spoken of a Justice of Peace no Colloquium was laid the Court was divided 163 Where it doth not lie Words were laid to be spoken ad tenorem effectum sequen ' which is not an express allegation that they were spoken 71 72 Action on the Case against a Common Carrier Where it was brought against him upon an Assumpsit in Law and likewise upon a Tort the Declaration is not good 322 Action on the Case for a wrong See Pleading For diverting of a Water-course the Antiquity of the Mill must be set forth 49 2. It lies against a wrong doer upon the bare possession only and the Plaintiff need not set forth whether he hath a Title by Grant or Prescription for that goes to the right 51 52 132 3. If the Declaratien is for the diverting of the Water ab antiquo solito cursu this amounts to a Prescription which must be proved at the Trial or the Plaintiff will be non-suited 52 4. Whether it lieth for the making of a scandalous Affidavit in Chancery 108 5. For selling of Oxen affirming them to be his own ubi revera they were not but doth not say sciens the same to be the Goods of another or that he sold them fraudulenter or deceptive 't is naught upon a Demurrer but good after Verdict 261 6. Where several are guilty of a wrong the Action may be brought against either 321 7. Debt upon the Statute of Ed. 6. for not setting out Tithes brought against two Tenants in Common one of them did set out the Tithes and the other carried them away it ought to be brought only against the wrong doer 322 8. For disturbing of a Man in a Common Passage or Common High-way no Action on the Case lieth without a particular damage done to himself for the proper remedy is a Presentment in the Leet 294 Administrator Vide Infant 18 Ordinary Interest 2 Pleading 2 Administrator durante minore aetate hath no power over the Estate 24 2. Administration could not be granted by the Spiritual Court before the Statute of Ed. 3. 24 3. Where 't is once granted whether it ought to be repealed 25 4. Administrator had the whole Estate in him before the Statute of Distributions 60 5. He then gave Bond to distribute as the Ordinary should direct ibid. 6. The Father died
Mony for putting them out which must be to such who are willing to to take them for Mony 270 Arbitrament To pay 5 l. presently and give Bond to pay 10 l. more on a day following and now to sign general Releases it shall only discharge such matters which were then depending at the time of the submission and not the Bond 264 2. A person who was a Stranger to the Submission was awarded to be a Surety 't is void 272 3. Submission was so as the Award be made c. ready to be delivered to the Parties or to such of them who shall desire it the Defendant must desire the Award and plead the matter specially and the Plaintiff need not aver that it was ready to be delivered 330 Assent See Agreement Assets Reversion in Fee Expectant upon an Estate Tail is not Assets but when it comes into possession then and not before 't is Assets 257 Assignment See Privity of Contract 2. Executor of a Lessee for years shall be liable to an Action of Debt for Rent incurr'd after an assignment of the Term for the privity of Contract of the Testator is not determined by his Death but his Executor shall be charged with his Contracts so long as he hath Assets 326 Assizes The Method of arraigning an Assize the Title must be set forth in it 273 Attornment See Bargain and Sale Ejectment of a Manor parcel in Rents and parcel in Services the Attornment of the Tenants must be proved 36 Averment See Devise 4 The consideration of a Duty ought to be precisely alledged as in an Action on the Case for a Duty to be paid for weighing Goods it must be averred that the Goods were such which are usually sold by weight 162 2. The nature of an Averment is to reduce a thing to a certainty which was incertain before 216 3. Where it may be made against the express words of a Condition 217 4. Not allowed to be made against a Record 305 B. Bail IT was demised in a Scandalum Magnatum 4 2. Writ of Error pending in the Exchequer-Chamber the principal in the Action rendred himself the Bail are discharged 87 3. Scire Facias against Bail upon a Writ of Error who plead that the Principal rendred himself before Judgment 't is not good for the Bail are liable not only to render the Body but to pay the Debt ibid. 4. Proceedings were staied by Injunction above two Terms after the Bail was put in and before the Declaration delivered which was pleaded to a Scire Facias brought against them but held not good 274 Bankrupts An Inn-keeper is not within the Statutes of Bankrupcy 327 2. 'T is not actionable to call a Man Bankrupt unless it be laid that he was a Trader at the time of the words spoken 329 3. Inn-keeper buys and sells under a Restraint of Justices and Stewards of Leets which though for a Livelihood yet cannot be a Bankrupt 329 4. Whether a Farmer or Master of a Boarding-School be within the Statutes 330 Baretry Difference between Baretry and Maintenance 97 2. 'T is not Baretry to arrest a Man without a cause ibid. 4. If one design to oppress and to recover his own right 't is Baretry 98 5. Mony may be laid out to recover the just right of a poor man and no Baretry ibid. 6. But mony may not be expended to promote and stir up Suits ibid. Barbadoes It was gotten by Conquest and therefore to be governed by what Law the King willeth 161 Bargain and Sale What words by construction of Law shall amount to a Bargain and Sale to make the Reversion pass with the Rent without Attornment 237 Baron and Feme See Slander 7 Administrator 9 11 Sci. Fa. 7 1. Whether Sci. Fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her Dum sola 186 2. If a Judgment is recovered against her while sole then she marries and dies the Husband is not chargeable unless had likewise against him during the Coverture ibid. 3. A Debt is due to her whilst sole she marries and dies before 't is recovered it shall not go to the Husband by virtue of the marriage but he may have it as Administrator to his Wife ibid. 4. Judgment is obtained against her whilst sole she marries and a Sci. Fa. is brought against Husband and Wife and Judgment quod habeat executionem the Wife dies a Scire Fa. may be brought against the Husband alone 189 5. The Recovery upon a Sci. fa. is against both and is therefore joynt against both 188 6. Husband may have Execution of a Judgment recovered by him and his Wife after the Death of his Wife without a Sci. fa. 189 7. Devastavit against both the Wife being an Executrix and Judgment that the Plaintiff have Execution de bonis propriis the Wife dies the Goods of the Husband are liable ibid. 8. A Woman who had a Term for years married the Rent is arrear she died the Husband shall be liable because by the Marriage he is entituled to the Profits of the Land ibid. 9. Feme Covert Copy-holder her Husband made a Lease for years without Licence of the Lord 't is a Forfeiture during the Coverture 222 9. Feme Covert Heir to a Copyhold Estate her Husband after three Proclamations will not be admitted 't is a Forfeiture during Coverture 226 10. The Husband hath a Lease in Right of his Wife who was an Executrix and he grnats all his Right and title therein the Right which he had by his Wife passeth 278 12. A. Feme Sole had a Lease and Married then Husband and Wife Surrender in consideration of a new Lease to be granted to the Wife and to her Sons the Estate vests immediately in her without the assent of her Husband for the Law intends it her Estate till he dissassent 300 13. Feme Covert and another joint-Tenant for Life she and the Husband Lease their Moiety reserving a Rent during Life and the Life of her Partner the Wife died 't is a good Lease against the Surviving joint-Tenant till disagreement 300 14. The Husband made a Feoffment in Fee to the use of himself and Wife and to the Heirs of the Survivor he afterwards made another Feoffment of the same Lands and died the Wife entred but the Fee was not vested in her by the first Conveyance because the contingent right was destroyed by the last 310 Barr. Recovery in a personal Action is a Barr to an Action of the like nature where the same Evidence supporteth both Actions 2 Judgment in Trespass is no Barr to an Action of Detinue 2 Bill of Exchange The Drawer and Endorsers are all liable to payment but if Recovery be against one 't is a good Bar to an Action which may be brought against the rest 86 By-Law See Corporation 12. Trade 8. Where 't is too general and where not 193 C. Carrier See Pleading 11. Certainty See Custom Grants Certiorari
certain or 't is not good 134 4. Must be taken strictly when it goes to the destruction of an Estate 224 5. A Custom that every Copyholder who leases his Land shall forfeit it doth not bind an Infant 229 6. Amongst Merchants where it must be particularly set forth 226 7. It must be certain and therefore where it was laid for an Infant to sell his Land when he can measure an Ell of Cloth 't is void for the incertainty 290 8. To have solam separalem pasturam hath been held good 291 9. Prescription must have a lawful commencement but 't is sufficient for a Custom to be certain and reasonable 292 10. Whether a Custom likewise ought to have a lawful commencement 293 D. Damages See Ejectment 3. Ioint Action 2. Trespass 2. Baron and Feme brought an Action for words spoken of the Wife and concluded ad damnum ipsorum 't is good for if she survive the Damages will go to her 120 Det See Admittance 5. Assignment 1. Iudgment 1. Quantum meruit Where 't is brought upon a Specialty for less than the whole Sum it must be shewed how the other was discharged 41 2. Whether it lies for a Fine upon an admission to a Copyhold Estate for it doth not arise upon any Contract 240 3. There must be a personal Contract or a Contract implyed by Law to maintain an Action of Debt ibid. Deceit See Action on the Case Deputy See Office 6 7 9. Devise See Tail Where it shall not be extended by implication 82 2. Where the word Estate passeth a Fee where not 45 105. 3. I give All to my Mother passeth only an Estate for Life for the Particle All is a Relative without a Substantive 32 4. To A. and the Testator's Name is omitted in the Will yet 't is good by averring his Name and proving his Intention to devise it 217 5. The Testator after several Specifick Legacies and Devises of Lands gave all the rest and remaining part of his Estate c. by those Words the Reversion in Fee passed 228 6. By the Devise of an Hereditament the Reversion in Fee passeth 229 Disseisin See Election 1. Interest 2. The Son Purchased in Fee and was disseised by his Father who made a Feoffment with Warranty the Son is bound for ever 91 2. Lessor made a Lease for Life and died his Son suffered a Common Recovery this is a Disseisin ibid. 3. Where an Estate for Life or years cannot be gained by a Disseisin ibid. 4. A wrongful Entry is never satisfied with any particular Estate nor can gain any thing but a Fee-simple 92 Distribution Before the Statute if there was but one Child he had a right of Administration but it was only personal so that if he died before Administration his Executor could not have it 62 E. Ejectment THE Demise was laid to be the 12th of Junii habendum a praed duodecimo die Junii which must be the 13th day by vertue whereof he entred and that the Defendant Postea eod 12 die Junii did Eject him which must be before the Plaintiff had any Title for his Lease commenced on the 13th day not good 199 2. De uno Messuagio sive Tenemento not good because the word Tenementum is of an incertain signification but with this addition vocat ' the Black Swan 't is good 238 3. If the Term should expire pending the Suit the Plaintiff may proceed for his Damages for though the Action is expired quoad the possession yet it continues for the Damages 249 Election Where the Cause of Action ariseth in two places the Plaintiff may choose to try it where he pleases 165 2. Tenant at Will made a Lease for years the Lessee entreth this is no disseisin but at the Election of him who had the Interest in it 197 Entry In Feoffments Partitions and Exchanges which are Conveyances at the Common Law no Estate is changed until actual Entry 297 2. Lease for years not good without Entry 297 3. Tenant for Life Remainder in Tail Male levied a Fine and made a Feoffment having but one Son then born and afterwards had another Son the eldest died without Issue the Contingent Remainder to the second was not destroy'd by this Feoffment for it was preserved by the right of Entry which his elder Brother had at the time of the Feoffment made 305 Escape Debt upon an Escape would not lie at the Common Law against the Goaler it was given by the Statute of W. 2. 145 2. The superior Officer is liable to the voluntary Escapes suffered by his Deputy unless the Deputation is for life 146 3. If an Escape is by negligence it must be particularly found 151 4. A person was in Execution upon an erroneous Judgment and escaped and Judgment and Execution was had against the Gaoler and then the first Judgment was reversed yet that against the Gaoler shall stand 325 Evidence See Witness An Affidavit made in Chancery shall not be read as Evidence but only as a Letter unless Oath is made by a Witness that he was present when it was taken before the Master 36 2. What shall be Evidence of a fraudulent Settlement ibid. 3. An Answer of a Guardian in Chancery shall not be read as Evidence to conclude an Infant 259 4. Whether the return of the Commissioners in a Chancery Cause that the person made Oath before them is sufficient Evidence to convict of Perjury 116 5. Whether a true Copy of an Affidavit made before the Chief Justice is sufficient to convict the person for the like Offence 117 6. A Verdict may be given in Evidence between the same Parties but not where there are different persons unless they are all united in the same interest 142 7. Conviction for having two Wives shall not be given in Evidence to prove the unlawfulness of a Marriage but the Writ must go to the Bishop because at Law one Jury may find it no Marriage and another otherwise 164 Exchange Ought to be executed by each Party in their Life time otherwise 't is void 135 Excommunication Stat. 5 Eliz. For not coming to the Parish Church the Penalties shall not incurr if the person hears Divine Service in any other Church 42 2. The Causes are enumerated in the Statute which must be contained in the Significavit otherwise the Penalties are not to incurr 89 Executor See Grants Notice 5. Whether an Executor de son tort can have any interest in a Term for years 91 93 2. An Executor may sell the Goods before Probate 92 3. May pay Debt upon a simple Contract before a Bond of which he had no notice 115 4. Whether an Action of Debt will lie against an Executor upon a Mutuatus 5. By what words he hath an Authority only without an Interest in the thing devised 209 210 6. He had both Goods of his Testator and of his own and granted omnia bona sua that which he hath as Executor will not pass for
before a Coroner the person having drowned himself it was suffocat ' emergit fuit if it had stood singly upon the word emergit it had been insensible but the word suffocat ' expressing the sense it was held good 100 4. Where nothing is vested in the King before Office found ibid. 5. It must always be found that there is an Estate in the person offending and a cause of Forfeiture of that Estate to vest it in the King 336 Interest in a thing See Pardon 4. Where a Man may have an interest in a Chattel without a Property 61 2. Devise to a Wife and Children after Debts and Legacies paid an interest vests in the Devisees but 't is otherwise in case of Administration for there no Interest vests till actual distribution 65 3. A Man may have a Property tho' not in himself as in the Case of Joyntenancy 97 Intestate See Administration Innuendo The proper office of it is to make the subject matter certain 53 2. It will not help insensible words 54 Joyntenancy and Tenancy in Common See Abatement 3. Baron and Feme 12. Interest 3. If one Joyntenant bring an Action against the other unless he pleads the Jointenancy in abatement the Plaintiff will recover 97 2. If two Coparceners lease a House and the Rent is arrear and one brings an Action and recovers Judgment shall be arrested because both ought to joyn 109 3. Tenants in Common must join in the personalty but 't is otherwise in real Actions for though their Estates are several yet the Damages to be recovered survive to all 109 251 4. Where one Commoner may bring an Action against his Fellow 251 Joint Action See Action for a wrong 6. Ioyntenancy 2 3. Where an Action may be joint or several at the Election of the Plaintiff 86 2. Where 't is brought against three Defendants who plead jointly the Jury may sever the Damages and the Plaintiff may take Execution de melioribus damnis as well as where their Pleas are several and Tryals at several times 101 102 3. Judgment against two and one brought a Writ of Error and assigned the Infancy of the other for Error the Writ was abated because both did not joyn 134 4. The Defendants in the original Action must joyn in a Writ of Error but it seems otherwise where the Plaintiffs bring Error 135 5. Two covenant to sell Lands and the Purchasor agreed to pay the Mony to one of them he alone ought to bring the Action 263 6 Where there are several Proprietors of a Vessel for carriage of Goods which are damaged by carrying the Action must be brought against all or against the Master alone 321 322 7 Where two Tenants in Common were sued for not setting out of Tythes the Action ought to be brought not against him who set them out but against the other who carried them away 322 8. Two are bound joyntly one is sued he may plead in Abatement that he was bound with another but cannot plead Non est factum 323 9 In all Cases which are grounded upon Contracts the Parties who are Privies must be joyned in the Action ibid. 10 Action must be brought against all where a promise is created by Law 324 Issue Must be joyned upon an affirmative and a negative by concluding to the Country 80 Iudges The making altering and displacing of several Judges Serjeants at Law and King's Council 71 99 100 104 125 143 191 239 Iustices of Peace Offences against the Statute of 23 Eliz c. 1. for not coming to Church may be enquired of by them in their Sessions 79 2. Where a Statute appoints a thing finally to be done by them yet the Court of King's Bench may take Cognizance of it 95 3. Conviction for keeping of a Gun before a Justice of Peace the time when he had not 100 l. per Annum must be precisely alledged 280 Iustification See Pleading 4 5. Where 't is pleaded by way of Excuse to an Action of Trespass for the taking of any thing the Defendant must averr the Fact to be done and set forth the Warrant to him directed and the taking virtute Warranti and not generally that he took it by a Mandate c. 138 2. In Replevin where the Defendant made Conusance in right of the Lord he may Justifie the taking generally ibid. Iudgment 1. At the Common Law no Execution could be of a Judgment after a year and a day but the remedy was to bring an Action of Debt upon Judgment 187 189 2. Now a Scire Fac. is given upon a Judgment after the year by the Statue of W. 2. 189 3. When a Judgment is once execucuted the Goods are in custodia legis and shall not be taken away by an Exchequer Process or by the Commissioners of Bankrupts 236 L. Lapse See Notice Lease A Covenant in a Lease for years that the Lessee should pay the Rent without obliging his Executors or Administrators 't is determined by his Death 231 2. For 99 yeas if three persons or any of them so long live reserving a Rent and an Herriot upon the death of either the Beast of the Assignee shall not be taken for a Herriot for the Lessee is to pay his best Beast and that shall not be carried further than to the person named 231 Libel Where a Fine and Corporal punishment was imposed upon the Offender after Conviction 68 Limitation An Estate was setled upon Trustees to the use of A. and her Heirs provided she marry with the consent of Trustees remainder over to B. This is a Limitation and not a Condition 32 Limitation of Action See 21 Jac. 16. Where a Trespass is laid with a continuando for more than six years and the Statute pleaded and entire Damages it must be intended only for that which falls within the six years and that the Jury rejected the beginning of the Trespass 111 2. This Statute relates to a distinct and not to a continued Account 112 3. It provides a Remedy when the Plaintiff is beyond Sea at the time when his Right accrews and saves it till he returns whether it may be extended in a Case where the Defendant is beyond Sea longer than six years from the time the Plaintiff was entituled to the Action 311 312 Local Actions Whether Covenant will lie by an Assignee of a Reversion against an Assignee of a Lessee in any other place than where the Land lieth 337 2. Debitum contractus sunt nullius loci ibid. 3. Debt for Rent upon a Lease for years brought upon the Contract and Covenant between the same Parties are transitory ibid. 4. If Privity of Contract is gone by making an Assignment and only a privity in Law remains the Action must be brought in the County where the Land lieth ibid. M. Mayor See Corporation Marriage See Condition 3. Evidence 7. Limitation Notice A Maid above 12 and under 16 taken from Parents or Guardian and Married forfeits her Estate to the next in
An Administrator pleaded a Judgment in Bar to an Action of Debt for 100 l. brought against him and that he had not Assets praeterquam bona non attingen to 5 l. but did not shew the certain value of the Goods and yet held good ibid. 3. A Judgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond 115 4. A Possession where 't is only an Inducement to a Plea and not Substance the Defendant may justifie upon such a possession against a Wrong-doer 132 5. Where a special Justification is to an Action of Assault and false Imprisonment the cause of Commitment must be set forth in the Plea 160 6. Where the defence consists in matter of Law the Defendant may plead specially but when 't is Fact he must plead the geneal Issue 166 7. Where special matter which might be given in Evidence at the Trial and which amounts to no more than the general Issue may be pleaded ibid. 8. When a Man is brought into Court by Capias he ought to plead instanter because he hath given delay to the Court 215 9. So where he appears upon Recognizance or in propria persona or is in Custody for any Misdemeanour he ought to plead instanter ibid. 10. In Covenant to pay so much Mony to the Plaintiff or his Assigns as should be drawn upon the Defendant by Bill of Exchange he pleaded that the Plaintiff secundum legem mercatoriam did assign the Mony to be paid c. it ought to have been secundum consuetudinem mercatoriam 226 227 11. If an Action is brought against an Inn-keeper or Common Carrier the Declaration must be secundum legem consuetudinem Angliae 227 12. In Trespass the Plaintiff prescribed as to the Freehold and alledged a Custom in the Copyholders to have solam separalem pasturam c. whether he could make a joynt Title in the same Declaration by virtue of a prescription and Custom 250 13. If the Plea is double the Plaintiff ought to demurr 251 14. The Condition of a Bond was to acquit discharge and save harmless Non damnificatus generally is not a good Plea without shewing how acquitted and discharged 252 15. Mutuatus for 400 l. the Defendant pleaded an Attainder of Treason in Abatement the Plaintiff replied that after the Attainder and before the Action he was pardoned c. and concludes unde petit Judicium dampna sua for this cause Replication was held ill 281 Pledges See Replevin Replevin in an inferior Court by Pleint removed in B. R. the Plaintiff was nonsuited and a Sci. Fac. brought against his Pledges and held good 58 2. There are no Pledges of Returno Habend ' at the Common Law the Sheriff was not obliged to take Pledges in a Replevin by Plaint 75 Poor A Man had 5 l. to remove out of one Parish into another who gave Bond to repay it if he returned within forty days he stayed there so long and it was held a good Settlement 67 2. A Note in writing must now be left pursuant to the Statute to make a Settlement 247 Possession 'T is sufficient to maintain an Action against a Wrong-doer 48 Prerogative Whether a Lease was made pursuant to a Power in a Proviso to make Leases for three Lives or 21 years or for any Term upon three Lives the Lease made was for 99 years determinable upon three Lives 268 269 Power In granting of Letters Patents of the sole printing exclusive of all others 76 129 2. Where no individual person can claim a Right or Property it must be vested in the King by Law 76 3. Whether the King hath a Prerogative to restrain Trade to a particular number of Men in particular places 127 4. He may command his Subjects to return out of a Foreign Nation ibid. 5. He may regulate Trade by Letters Patents Prescription See Common 2. Pleading 12. For a way he may set forth his Estate without shewing how he came by it 52 2. Where it cannot be by a Que Estate to have Retorna Brevium 200 3. Where it may be to hold Pleas Leets and Hundreds without matter of Record 201 4. For all the Tenants of a Mannor to fowl in a Free Warren this Prescription is not too large it might not be good upon a Demurrer but 't is otherwise after a Verdict 246 5. For a Profit apprender in alieno solo the Tenants of a Mannor may prescribe by a Que estate exclusive of the Lord ibid. 6. There must be a certain and permanent Interest abiding in some person to maintain a Prescription and therefore it will not lie ratione commorantiae 290 7. To have Common sans numbre is good but ad libitum suum which is almost the same thing is void ibid. 8. It may be joyned with a Custom in the same Declaration 251 9. Where 't is laid in a discharge as to be exempted from Toll or for an easment as for a Way to a Church not only a particular person but the Inhabitants of a whole Vill may prescribe but where it relates to the Profit or Interest in the Land it self 't is not so 292 Presentment In a Court Leet which concerns the person and not the Freehold whether traversable 137 138 Privity of Contract See Local Action 4. Action against an Administratrix of a Term for Rent incurred after the Assignment of the Lease the Privity of Contract of the Intestate was not determined by his death but Administratrix shall be charged with his Contracts as long as she hath Assets 326 'T is not gone either by an Assignment of the Term or death of the Lessor neither is it transferred to the Assignee by the Statute of H. 8. for that Statute only annexeth such Covenants which concern the Land with the Reversion 337 338 Proof See Prohibition Prohibition Not to be granted because a Temporal Loss may ensue 67 2. Where some words are actionable at Law and some punishable in the Spiritual Court a Prohibition shall be granted for otherwise it would be a double vexation 74 3. Libel causa jactationis maritagii the Suggestion for a Prohibition was that he was indicted at the Old Bayly for marrying two Wives that he was convicted in a Court of that Offence which had a proper Jurisdiction c. and a Prohibition was granted 164 4. A person lived in one Diocess and occupied Lands in another where he was taxed towards the finding of Bells for that Church for which a Suit was commenced in the Bishop's Court where the Lands were and he suggested the Statute of H. 8. that no Man shall be cited out of his Diocess except for some Spiritual Cause neglected to be done there and a Prohibition was granted for this was not a Spiritual Cause neglected to be done because Church Ornaments are a personal Charge upon the Inhabitants and not upon the Land Owners who dwell else where but the repairing of the Church is a real Charge upon
the Land 211 5. Not granted for Mariners Wages 244 6. Libel for a Tax upon the Parishioners for not repairing of their Church who suggest that they had a Chappel of Ease in the same Parish the Prohibition was denied for of common right they ought to repair the Mother Church 264 7. Proof of Matter of Fact by one Witness denied to be allowed in the Spiritual Court is a good cause for a Prohibition 284 8. Where the Release of a Legacy offered to be proved by one Witness was denied in the Spiritual Court ibid. 9. Proof of Payment or Subtraction of Tythes denied and a Prohibition granted ibid. 10. Whether a Prohibition ought to be allowed after Sentence an Appeal being then the more proper remedy 284 Property See Interest Q. Quorum MUst be one Justice of the Peace of the Quorum otherwise cannot be a Sessions 14 152 Quantum meruit Will lie for Rent reserved upon a real Contract where the Sum is not certain but if a Sum in gross is reserved then Debt must be brought 73 R. Record ERror shall not be assigned against the Essence of a Record 141 Recovery Common Reversed without a Scire Facias to the Tertenants but it seems not to be good 119 2. For there must be a Scire Facias against the Heir and Tertenants when a Writ of Error is brought to reverse it 274 Relation Where an Estate shall pass by Relation where not 299 300 Release Of a Legacy by one Executor and also of all Actions Suits and Demands whatsoever those general words which follow are tied up to the Legacy and release nothing else 277 2. Of a Demand will not discharge a growing Rent 278 3. A Receipt was given for 10 l. in which there was a Release of all Actions Debts Duties and Demands nothing is released but the 10 l. 277 4. Judgment against four Defendants who all joyned in a Writ of Error and the Plaintiff pleaded a Release of Errors by one it shall not discharge the rest of a personal thing but if there had been four Plaintiffs to recover the Release or death of one is a Barr to all 109 135 249 5. A Release of all Actions will discharge an Award of Execution upon a Scieri Facias 185 187 6. Of all Actions and Demands doth not discharge a Legacy it must be by particular words 279 7. One of the Defendants who made Conusance released the Plaintiff after the taking of the Cattle this was held void upon a Demurrer for he had no Demand or Suit against the Plaintiff having distrained in the right of another ibid. Remainder See Entry 3. Fines levied 4. Must take place eo instanti the particular Estate is determined or else it can never arise 309 2. By the Conveyance of the Reversion in Fee to him who had the Estate for Life before the Birth of a Son the particular Estate is merged and all contingent Remainders are thereby destroyed 311 Replevin Where 't is brought by Writ the Sheriff cannot make deliverance without the taking of Pledges de prosequendo retorn ' Habend ' 35 Replication Where the Plaintiff confesseth and avoideth he ought not to traverse for that would make his Replication double 318 Request When a thing is to be done upon Request the time when the person requires it to be done is the time of the performance 295 Reservation Of a Rent upon a Lease for three years payable at Michaelmas and Lady-Day Debt was brought for 2 years without shewing at which of the Feasts it was due 't is good after Verdict but ill upon a Demurrer 70 Resignation See Abeiance To the Ordinary and Patron presented 'ts void if the Ordinary did not accept the Resignation 297 Reversion See Bargain and Sale Surrender 2. Tenant in Tail who had likewise the Reversion in Fee if he acknowledge a Judgment the Reversion may be extended 256 2. But a Reversion in Fee expectant upon an Estate Tail is not Assets until it comes into possession 257 3. By what words a Reversion in Fee passeth in a Will 228 Revocation A Will shall not be revoked by doubtful words 206 2. It might be revoked by Word without Writing before the Statute of Frauds 207 3. Before that Statute a Will might be revoked by a subsequent Will which was void in it self yet good to revoke the former 207 218 4. A subsequent Will which doth not appear shall not be any Revocation of a written Will which doth appear 204 205 206 5. Whether a subsequent Will which is void in it self may revoke another since the Statute of Frauds 218 6. Such a Will must be good in all circumstances to revoke a former 260 261 Riot See Information Robbery The Hundred was sued and it did not appear that the Parish where the Fact was laid to be done was in the Hundred or that it was done upon the High way or in the day time this was helped after Verdict 258 2. A Servant delivered Mony to a Quaker to carry home for his Master they were both robbed viz. the Servant of 26 s. and the Quaker of 106 l. the Servant made Oath of the Robbery and the Quaker refused the Master brought the Action it doth not lie for him 287 288 S. Scire Facias See Bail 3 4. Baron and Feme 1 4 5. Iudgment 2. Pledges 1. Recovery MUst be to the Tertenants before the Common Recovery shall be reversed by Writ of Error 119 2. Scieri Facias quare Executionem non habet recites the first Judgment but prays no new thing only to have Execution upon that Judgment 187 3. 'T is not an original but a judicial Writ and depends upon the first Judgment 187 4. 'T is suspended by Writ of Error and if the original Judgment is reversed that is so also ibid. 5. Debt will lie upon a Judgment had on a Scire Facias 188 189 6. A Judgment upon a Scire Facias is a distinct Action from the original cause 189 7. Judgment in Dower and a Writ of Enquiry of Damages the Woman marries and dies before the Writ of Enquiry executed the Husband administred and brought a Scire Facias upon the Judgment whether it lieth or not 281 Serjeants at Law See Iudges Surplusage See Inquisition Steward See Court Supersedeas See Parliament Surrender See Assent 1 2. Where it may be pleaded without an acceptance 297 2. No man can take it but he who hath the immediate Reversion 299 3. If pleaded without an Acceptance 't is aided after Verdict which shews 'tis no Substance 301 4. By one Non compos mentis 't is void ab initio 303 T. Tail DEvise to D. for Life the Remainder to her first Son and the Heirs of the Body of such first Son endorsed thus viz. Memorandum that D. shall not alien from the Heirs Males of her Body she had a Son who had Issue a Daughter 't is not an Estate Tail Male for the Memorandum shall not alter the Limitation in the Will