5 Ed. 4. 6. Now for Authorities I confess there are great ones against me 2 Cro. fol. 335. Heath Ridley Moor. 838. Courtney versus Glanvill My Lord Coke in his Chapter of Praemunire 22 Ed. 4. fol. 37. But the greatest Authority against me is the case of Throgmorton Finch reported by my Lord Coke in his Treatise of Pleas of the Crown Chapter Praemunire But the practice has béen contrary not one person attainted of a Praemunire for that cause In King James his time the matter was referred to the Counsel who all agreed that the Chancery was not meant within the Statute which Opinions are inrolled in Chancery And the King upon the report of their Reasons ordered the Chancellor to proceed as he had done and from that time to this I do not find that this point ever came in question And so he prayed Iudgment for the Defendant Saunders As to that objection that at the time when this Statute was made there were no proceedings in Equity I answer that granting it to be true yet there is the same mischief The proceedings in one part of the Chancery are coram Domino Rege in Cancellaria but an English Bill is directed to the Lord Keeper and decreed so that there is a difference in the proceedings of the same Court But admit that Courts of Equity are the Kings Courts yet they are aliae Curiae if they hold plea of matters out of their Iurisdiction 16 Ri. 2. cap. 5. Rolls first part 381. There is a common objection that if there were no relief in Chancery a man might be ruined for the Common Law is rigorous and adheres strictly to its rules I cannot answer this Objection better then it is answered to my hand in Dr. Stud. lib. 1. cap. 18. he cited 13 Ri. 2. num 30. Sir Robert Cotton's Records It is to be considered what is understood by being impeached Now the words of another Act will explain that viz. 4 H. 4. cap. 23. by that Act it appears that it is to draw a Iudgment in question any other way then by Writ of Error or Attaint One would think this Statute so fully penned that there were no room for an evasion There was a temporary Statute which is at large in Rastall 31 H. 6. cap. 2. in which there is this clause viz. That no matter determinable at Common Law shall be heard elsewhere A fortiori no matter determined at Common Law shall be drawn in question elsewhere He cited 22 Ed. 4. 36. Sir Moyle Finch Throgmorton 2 Inst 335. and Glanvill Courtney's case He put them also in mind of the Article against Cardinal Woolsey in Coke's Jurisdiction of Courts tit Chancery So he prayed Iudgment for the Plaintiff Keeling It is fit that this cause be adjourned into the Exchequer-chamber for the Opinions of all the Iudges to be had in it We know what heats there were betwixt my Lord Coke Ellesmere which we ought to avoid Turner Benny A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Action upon the Case wherein the Plaintiff declared that it was agréeed betwéen himself and the Defendant that the Plaintiff should surrender to the use of the Defendant certain Copy-hold Lands and that the Defendant should pay for those Lands a certain sum of money and then he sets forth that he did surrender the said Lands into the hands of two Tenants of the Manor out of Court secundum consuetudinem c. Exception The promise is to surrender generally which must be understood of a surrender to the Lord or to his Steward and the Declaration sets forth a surrender to two Tenants which is an imperfect surrender 1 Cro. 299. Keeling But in that case there are not the words secundum consuetudinem as in this case Jones Hill 22 Car. 1. Rot. 1735. betwixt Treburn Purchas two points were adjudged 1. That when there is an agréement for a surrender generally then such a particular surrender is naught 2. That the alledging of a surrender secundum consuetudinem is not sufficient but it ought to be laid that there was such a Custom within the Manor and then that according to that Custom he surrendred into c. accordingly is 3 Cro. 385. Coleman contra We do say that we were to surrender generally and then we aver that actually we did surrender secundum consuetudinem and if we had said no more it had béen well enough Then the adding into the hands of two Tenants c. I take it that it shall not hurt Besides we need not to alledge a performance because it is a mutual promise and he cited Camphugh Brathwait's case Hob. Twisden I remember the case of Treborne he was my Clyent And the reason of the Iudgment is in Combe's case 9th Rep. because the Tenants are themselves but Attornies And they compared it to this case I am bound to levy a Fine it may be done either in Court or by Commission but I must go and know of the person to whom I am bound how he will have it and he must direct me In the principal case the Iudgment was affirm'd Nisi c. Turner Davies AUdita Querela The point was this viz. an Administrator recovers damages in an Action of Trover and Conversion for Goods of the Intestate taken out of the possession of the Administrator himself then his Administration is revoked and the question is whether he shall have Execution of the Iudgment notwithstanding the revocation of his Administration Saunders I conceive he cannot for the Administration being revoked his Authority is gone Doctor Druries case in the 8th Report is plain And there is a President in the new book of Entries 89. Barrell I conceive he may take our Execution for it is not in right of his Administration he lays the Conversion in his own time and he might in this case have declared in his own name and he cited and urged the reason of Pakman's case 6th Report 1 Cro. Keeling He might bring the Action in his own name but the Goods shall be Assets If Goods come to the possession of an Administrator and his Administration be repealed he shall be charged as Executor of his own wrong now in this case the Administration being repealed shall he sue Execution to subject himself to an Action when done Twisden I think it hath béen ruled that he cannot take out Execution because his Title is taken away Iudgment per Cur. versus Defendentem Jordan Martin EXception was taken to an Avowry for a Rent-charge that the Avowant having distrained the Beasts of a Stranger for his Rent does not say that they were levant couchant Coleman The Beasts of a Stranger are not liable to a Distress unless they be levant couchant Roll. Distress 668. 672. Reignold's case Twisd Where there is a Custom for the Lord to seize the best Beast for a Heriot and the Lord does seize the
in the Mannor 232 R. Recovery sc Common Recovery VIde Gardian Whether can an Infant that suffers a Common Recovery reverse it when he comes of age 49 What shall be bar'd by a Common Recovery and what not 108 109 c. A Common Recovery suffered of Lands in Shrewsbury and the Liberties thereof good to pass Lands in the Liberties of Shrewsbury though lying out of the Town of Shrewsbury 206 The pleading of a Common Recovery V. 218 219 There are two Parishes adjoyning Rippon and Kirby-Marstone and within those two Parishes are two Towns of the same names A man has Lands within the Parishes but not within those Towns and suffers a recovery of Lands in Rippon and Kirby-Marstone generally but the Deed to lead the Uses mentions the Lands as lying in the Parishes of Rippon and Kirby-Marstone 250 c. Recusance and Recusancy An Information for not coming to Church may be brought upon the Stat. of 23 Eliz. reciting the clause in it that refers to 1 Eliz. 191 To an Endictment for Recusancy Conformity is a good Plea but not to an Action of Debt 213 Reddendo singula singulis V. 33. Release A man makes a Release of all Demands and Titles quid operatur 99 100 Reparations of Churches Parishioners how compellable to repair their Parish-Church 194 236 237 The greater part of the Parish shall conclude the Lesser for enlarging the Church as well as repairing it 236 237 The Chancel of a Parish-Church whereof the Rectory is Impropriate is out of repair Whether can the Ordinary sequester the Tythes 258 259 c. Request An Action for keeping a passage stopt up so that the Plaintiff could not come to cleanse his gutter ought the Plaintiff to lay a Request 27 Reservation A Heriot or 40 s. reserved to the Lessor and his Assigns at the Election of the Lessor his Heirs and Assigns yet cannot the Devisee of the Lessor have either the Heriot or 40 s. 216 217 Return false Return Action upon the Case against a Sheriff for that he arrested such a one at the Plaintiffs Suit and suffered him to go at large and at the day of the return of the Writ returned that he had his body ready The Defendant demurs generally 57 In a like Action the Defendant pleads the Stat. of 23 H. 6. cap. 10. and adjudged against the Plaintiff 239 240 V. Action upon the Case Robbery An Action lies against the Hundred upon the Statute of Winchester though the Robbery were not committed in the High-way 221 S. Scandalum Magnatum MY Lord _____ is an unworthy person and does things against Law and Reason Actionable 232 233 c. Scire Facias Scire facias upon a Recognizance in Chancery there is a demurrer to part and issue upon part Judgment must be given in the Court of Kings Bench upon the whole Record 29 Scias facias against Executors to have execution of a Judgment obtained against their Testator they plead That a Ca. Sa. issued against him upon which he was taken and that he paid the money to the Warden of the Fleet who suffered him to go at large This held to be no plea. 194 Seal Whether does the Seals being broken off invalidate a Deed c. given in Evidence 11 Seisin of an Office What shall be a Seisin of an Office and what not 122 123 Serjeants at Law What Serjeants Rings ought to weigh 9 Priviledge of Serjeants 226 Statute-Merchant and Staple V. Administrators Summons V. 197. Supersedeas The very sealing a Writ of Error is a Supersedeas to the Execution 28 The Stat. of 13 Eliz. cap. 9. where it is said there shall be no Supersedeas c. hath no reference to the Court of Kings Bench but only to the Chancery 45 A Writ of Error in Parliament in what Cases is it a Supersedeas and in what Cases not 106 285 V. 112 Whether is a Sheriff obliged at his years end to deliver a Writ of Supersedeas over to the new Sheriff 222 Survivor The Condition of a Bond is That if the Obligor shall pay yearly a sum of money to two strangers during their two lives that then c. Resolved that the payment is to cease upon the death of either of them 187 T. Tenant in Common TEnant in Common sues without his Companion 102 Tender and Refusal Where ever Payment will do Tender and Refusal will do 77 78 Toll Toll-thorough 47 48 V. Prescription Toll-thorough and Toll-traverse 231 232 Trespass Justification in Trespass 75 Whether does an Action of Trespass lie for immoderately riding a lent Mare 210 In an Action of Trespass it appears upon Evidence that the Fact if true was Felony yet does not this Evidence destroy the Plaintiffs Action Otherwise if it had appear'd upon the Declaration 282 283 Trover and Conversion A Sheriff may have an Action of Trover and Conversion for Goods taken by himself in Execution upon a Fieri facias 30 31 Trover and Conversion decem paririum tegularum valorum Angl. of ten pair of Curtains and Vallance held good 46 47 V. 135 136 c. many Cases of Trover and Conversion and of pleading in that Action Trover and Conversion de tribus struibus foeni 289 290 Trial. Motion for a new Trial. 2 An Action of Covenant is laid at York issue is joyn'd upon a matter in Barwick where shall the Trial be 36 37 c. Tythes Turfe Gravel and Chalk not tythable 35 If the Endowment of the Vicarage be lost small Tythes must be paid according to Prescription 50 Tythes of Cattel feeding in a Common where the Parish is not certainly known 216 A modus to the Rector is a good Discharge against the Vicar ibid. A Parson shall not have Tythe both of Corn and of Sheep taken in pro melioratione agriculturae infra terras arabiles c. ibid. V. tit Custom V. Venire Facias A Venire Facias returnable coram nobis apud Westm held good 81 Venue A Venue refused to be changed because the Plaintiff was a Counsellor at Law 64 Verdict When a Declaration will bear two Constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense 42 43 Matters helpt after Verdict 70 74 75 V. tit Jeofails View A Jury never ordered to View before their appearance but in an Assize 41 Ville What makes a Ville in Law 78 117 118 Visitation of Churches What Ecclesiastical Persons are visitable and what not 11 12 Vniversity Indebitat assumpsit against a Colledge in Oxford the Chancellor of the University demands Conusance whether is his Cause within the Priviledge of the University or not 163 164 Voluntary Conveyance What shall be said to be a Voluntary Conveyance within the Statute of Bankrupts and what not 76 Voucher A Tenant in an Assize avoucheth out of the line is it peremptory or not 7 8 Vses V. Covenant to stand seised V. 175 176 c. A man granted a Rent to one to the use of another and Covenants with the Grantee to pay the Rent to him to the use of the Cestuy que use The Grantee brings an Action of Covenant 223 Whether is the reservation of a Pepper-Corn a sufficient Consideration to raise an Use or not 262 263 Vsury V. 69. W. Wages IF a Mariner or Ship-Carpenter run away he looseth his Wages due 93 Warrant of Attorney Judgment enter'd of another Term than is expressed in the Warrant of Atturney 1 Warranty Feme Tenant in tail remainder to her Sisters in Fee the Tenant in tail and her Husband levy a Fine to the use of them two and the Heirs of the body of the Wife the remainder to the right Heirs of the Husband with Warranty against them and the Heirs of the Wife The Wife dies without issue 181 He that comes to Land by the limitation of an Use may rebut 192 193 Waste What is Waste and what not 94 95 Will. A Will drawn in the form of a Deed. 117 Whether must the Will of a Feme Covert be proved 211 The pleading of a Will of Land 217 Witnesses Who are good Witnesses and who are not 21 73 74 107 283 FINIS
to the second Twisd The Iury have found the Rent to be due for both years and we will now intend that he was in possession all the time for which the Rent is found to be due A Prohibition was prayed to the Ecclesiastical Court at Chester to stay procéedings upon a Libel against one William Bayles for teaching School without Licence but it was denied Redman Edolfe TRespass and Ejectment by Original in this Court Sanders moved in Arrest of Iudgment upon a fault in the Original for a bad Original is not help'd by Verdict But upon Mr. Livesey's certifying that there was no Original at all the Plaintiff had Iudgment though in his Declaration he recited the Original In an Action of Assault and Battery and Wounding the Evidence to prove a Provocation was That the Plaintiff put his hand upon his Sword and said If it were not Assize time I would not take such Language from you The question was if that were an Assault The Court agreed that it was not for he declared that he would not Assault him the Iudges being in Town and the intention as well as the act makes an Assault Therefore if one strike another upon the hand or arm or breast in discourse it s no Assault there being no intention to Assault But if one intending to Assault strike at another and miss him this is an Assault so if he hold up his hand against another and say nothing it is an Assault In the principal case the Plaintiff had Iudgment Medlicott Joyner EJectione firmae The Plaintiff at the Trial offer'd in Evidence a Copy of a Déed that was burnt by the Fire the Copy was taken by one Mr. Gardner of the Temple who said he did not examine it by the Original but he writ it and it always lay by him as a true Copy and the Court agréed to have it read the original Déed being proved to be burnt Twisd Feoffée upon Condition is disseised and a Fine levied and five years pass then the Condition is broken the Feoffor may enter for the Disseisor held the Estate subject to the Condition and so did the Conizee for he cannot be in of a better Estate then the Conizor himself was Dawe Swayne AN Action upon the Case was brought against one for suing the Plaintiff in placito debiti for 600 l. and falsly and maliciously affirming to the Bailiff of Westminster that he did owe him 600 l. whereby the Bailiff insisted upon extraordinary Bail to his Damage c. The Defendant traverses absque hoc that he did falsly and maliciously affirm to the Bailiff of Westminster that he did owe him so much Winnington moved in Arrest of Iudgment that the Action would not lie But the Plaintiff had Iudgment Keel If there had béen no cause of Action an Action upon the Case would not lie because he has a recompence by Law but here was a cause of Action If one should arrest you in an Action of 2000 l. to the intent that you should not find Bail and keep you from practice all this Term and this is found to be falsly and maliciously shall not you have an Action for this this Twisden said he knew to have been Serjeant Rolls his Opinion Morton Foxley's case is That if a man be outlaw'd in another County where he is not known an Action upon the Case will lye so an Action lies against the Sheriff if reasonable Bail be offered and refused Twisd If three men bring an Action and the Defendant put in Bail at the Suit of four they cannot declare but if he had put in Bail at the suit of one that one might declare against him Iudgment was entred as of Trinity Term for the Queen Mother and a Writ of Enquity of damages was taken out returnable this Term and she died in the Vacation-time Resolved that the first was but an interlocutory Iudgment and that the Action was abated by her death Twisd Some have questioned how you shall come to make the death of the party appear between the Verdict and the day in Bank and I have known it offer'd by Affidavit and by suggestion upon the Roll and by motion Troy an Attorney AN Information of Extortion against Troy an Attorney It was moved in arrest of Iudgment That Attorneys are not within any of the Statutes against Extortion and therefore the Information concluded ill the conclusion being contra formam Statuti Twisd The Statute of 3 Jac. cap. 7. is express against Attornies Keel I think as thus advised that Attornies are within all the Statutes of Extortion It was afterwards moved in arrest of Iudgment because the Information was insufficient in the Law for Sir Tho. Fanshawe informed that Mr. Troy being an Attorney of the Court of Common Pleas did at Maidstone cause one Collop to be impleaded for 9 s. 4 d. debt at the suit of one Dudley Sellinger c. and this was ad grave damnum of Collop c. but it is not expressed in what Court he caused him to be impleaded and that which the Defendant is charged with is not an offence for he saith that he did cause him to be impleaded and received the money the same day and perhaps he received the money after he had caused him to be impleaded Then it is not sufficiently alledged that he did illicite receive so much and Extortion ought to be particularly alledged Nor is there any Statute that an Attorney shall receive no more than his just Fées The profession of an Attorney is at Common Law and allowed by the Statute of Westm 1. cap. 26. and the Statute of 3 Jac. does not extend to this matter Non constat in this case if what he received was for Fees or no besides the suit for an offence against that Statute must be brought by the party not by Sir Tho. Fanshawe Keel If the party grieved will not sue for the penalty of treble damages given by that Statute yet the King may prosecute to turn him out of the Roll. Twisd I doubt that nor is it clear whether an Information will lie at all upon that Statute or not for the Statute does not speak of an Information Keel Whenever a Statute makes a thing criminal an Information will lie upon the Statute though not given by express words Twisd It appears here that this money was not received of his Client for he was against Collop But he ought to shew in what Court the impleading was for otherwise it might be before Mr. Major in his Chamber To which the Court agreéd So the Information was quash'd Burnet Holden THere were these two points in the case 1. If the Defendant dye after the day of Nisi prius and before the day in Bank whether the Iudgment shall be said to be given in the life of the Defendant 2. Admit it shall yet whether the Executor shall have the advantage taken from him of retaining to satisfie his own debt To the first
_____ shall bring in Alice and John Coats when they shall come to their Ages of Twenty one years to give such a Release to the Executors of Francis Gibbs as they shall require then c. one of the Legatees comes of age and during the minority of the other the Bond is put in Suit and this whole matter is disclosed in the Pleading And the question was whether the Defendant was obliged to bring him in to give a Release that was of Age before the Action brought or might stay till both were of Age before he procured a Release from either The Court was of Opinion that it must be taken respectively and because it appears that the Legacies were several that several Releases ought to be given upon the reason of Iustice Wyndham's case 5th Report And Twisden said if there were no more in it then this sc when they shall come to their Ages of c. it were enough to have the Condition understood respectively for they cannot come to their Ages at one and the same time And Iudgment was given accordingly Twisden If an Executor plead several Iudgments you may reply to every one of them obtent per fraudem or you may plead separalia Judicia c. obtent per fraudem but in pleading separalia Judicia obtent per fraudem if one be found to be a true debt you are gone Keeling Twisden Notwithstanding the Stat. of 23 H. 6. which obliges the Sheriff to take Bail yet he can make no other Return of a Capias then either cepi corpus or non est inventus for at the Common Law he could return nothing else and the Statute though it compels him to take Bail does not alter the Return and so in a case betwéen Franklin Andrews it has been adjudged here Crofton OFfley moved for a Certiorari to the Iustices of Peace for Middlesex to remove an Indictment against one Crofton upon the late Statute made against Non-conformist Ministers coming within five miles of a Corporation the Indictment was traversed He urged that by the Statute no Indictment will lie for such Offence For where an Act of Parliament enacts that the Penalty shall be recovered by Bill Plaint or Information as the Statute upon which this Indictment is grounded does there an Indictment will not lie 2 Cro. 643. Twisd If the Statute appoint that the penalty shall be recovered by Bill Plaint c. and not otherwise there I confess an Indictment will not lie but without negative words I conceive it will though the Statute be Introductive of a new Law and create an Offence which was none at the Common Law For whenever a thing is prohibited by a Statute if it be a publick concern an Indictment lies upon it and the giving other remedies as by Bill Plaint c. in affirmative words shall not take away the general way of proceeding which the Law appoints for all Offences Keeling differed in Opinion and thought that where a Statute created a new Offence and appointed other remedies there could be no proceeding by way of Indictment Afterward Offley moved it again and cited 2 Cro. 643. 3 Cro. 544. Mag. Chart. 201. 228. Vpon the second motion Keeling came over to Twisden's Opinion But it was objected That upon an Indictment the Poor of the Parish would lose their part of the penalty to which Twisden said that he knew it to have been adjudged otherwise at Serjeants-Inn and that where a Statute appoints the Penalty to be divided into thrée parts one to the Informer another to the King and the third to the Poor that in such case where there is no Informer as upon an Indictment there the King shall have two parts and the Poor a third The King versus Baker AN Indictment in Hull for saying these words viz. That whenever a Burgess of Hull comes to put on his Gown Sathan enters into him Levings moved that these words would not bear an Indictment Keeling The words are a Scandal to Government Levings The Indictment concludes in malum exemplum inhabitantium whereas it should be quamplurimorum subditorum Domini Regis in tali casu delinquentium And for this adjudged naught Twisden If the Defendant in an Action of Debt for Rent plead nil debet he may give in Evidence a suspension of the Rent A Parson Libels in the Spiritual Court against several of his Parishioners for Tythe-Turfe They pray a Prohibition Keeling Turfe Gravel and Chalke are part of the Fréehold and not Tythable They granted one Prohibition to all the Libels but ordered the Plaintiffs to declare severally Maleverer versus Redshaw DEbt upon a Bond of 40 l. the Condition was for appearing at a certain day and concluded if the party appeared then the Condition to be void The Defendant pleaded the Statute of 23 H. 6. Coleman The Bond is void by the express words of the Statute being taken in other form then the Statute prescribes Keeling If the Condition of a Bond be That if the Obligor pay so much money then the Condition to be void in that case the Bond is absolute Twisden I have heard my Lord Hobart say upon this occasion that because the Statute would make sure work and not leave it to Exposition what Bonds should be taken therefore it was added that Bonds taken in any other form should be void For said he the Statute is like a Tyrant where he comes he makes all void but the Common Law is like a Nursing Father makes void only that part where the fault is and preserves the rest Keeling If the Condition had béen that the party should appear and had gone no further it would then have been well enough Twisd Then why may not that which follows be rejected as idle and surplusage Cur. Advisare vult Jones versus Tresilian AN Action of Trespass of Assault and Battery Defendant pleads de son assault demesne The Plaintiff replies That the Defendant would have forced his Horse from him whereby he did molliter insultum facere upon the Defendant in defence of his possession To this the Defendant demurred Morton Molliter insultum facere is a contradiction Suppose you had said that molliter you struck him down Twisden You cannot justifie the beating of a man in defence of your possession but you may say that you did molliter manus imponere c. Keeling You ought to have replyed that you did molliter manus imponere quae est eadem transgressio Cur. Quer ' nil capiat per billam unless better cause be shown this Term. Rich Morris IN an Action of Debt for not performing an Award The Plaintiff declares that inter alia Arbitratum fuit c. Twisd That is naught Crisp versus the Mayor of Berwick AN Action of Covenant is brought against the Mayor Burgesses and Corporation of Berwick upon an Indenture of Demise wherein the Plaintiffs declare that the Defendants did demise to them a House in Berwick with a Covenant
question it had béen well enough now why may not a pair be understood of Sets or Suits or so many as will serve for a bed if it shall not be taken for a couple They quoted some cases in which it had béen adjudged that in Trover and Conversion for several things though it did not appear how many of each sort there were yet it had been held good Twisden acknowledged that there had been such Resolutions but said he knew not what to think of such cases considering the uncertainty of the Declarations And the word pair in our case is as uncertain as may be there a pair of Gloves a pair of Cards a pair of Tongs The word applyed to some things signifies more to others less and what shall it signifie here but by thrée Iudges against Twisden the Plaintiff had Iudgment Fox alii Exec ' of Pinsent versus Tremain THe Plaintiffs being Executors and some of them under age all appeared by Attorney and thereupon it was prayed that Iudgment might be stayed for 1. An Infant cannot make a Warrant of Attorney 2. An Infant appearing by Attorney may be amerced pro falso clamore and the reason is because it does not appear that he is under age but if he appear by guardian or prochein amy he shall not be amerced 3. The Infant may be much prejudiced For these reasons and because they said the practice had gone accordingly Iudgment was stayed The cases cited pro con were 3 Cro. 424. 2 Cro. 441. 1 Roll 288. Hutton Askew's case A Scire facias brought by two Executors reciting that there was a third but within age resolved that all must joyn Colt Sherwood's case resolved that an Infant Executor cannot defend by Attorney Twisden Where there are several Executors and one or more under age and the rest of full age all must joyn in an Action and Administration durante minore aetate cannot be granted if any of them be of full age Vid. infr Haspurt Wills A Special Action brought upon the Custom of Wharfage and Cranage in the City of Norwich The Declaration sets forth that they have a common Wharfe and a Crane to it and then they set forth a Custom that all Goods brought down the River and passing by shall pay such a Duty Obj. That the Custom is not good for that it is Toll-thorough which is malum Tolnetum Twisd There is a case in Hob. 175. of a bad Custom of paying the Charges of a Funeral though the Plaintiff were a Stranger and not buried in the Parish So here if they had unladed at the Key they should have paid the whole Duty nay if they had unladed at any other place in the City there would have béen some reason for it or if the Declaration had set forth that they had cleansed the River At Gravesend they claimed a Toll of Boats lying in the River of Thames and it was adjudged in Parliament to be malum Tolnetum To stay Heskett Lee. A Writ of Error was brought to reverse a Iudgment given in a common Recovery in the County Palatine of Lancaster Weston The Tenant in the common Recovery is an Infant and appears by his Guardian but there is a fault in the admittance for whereas he ought to have been admitted as Defendant in this form scil A. B. admittitur per C. D. Gardianum suum ad comparendum defendendum he is admitted in the Record ad sequendum The second Error is in the appearance which is entred in this manner sc qui admissus est ad sequendum c. following the Error of the admittance ut Gardianus ipsius Thomae in propria persona sua venit defendit c. so that he is admitted ad sequendum which is the act of the Plaintiff And as Guardian he defends which is the act of the Defendant and further it is said that the Guardian appears in propria persona which cannot be Now I conceive that the Assignment of the Guardian and the appearance of the Guardian is triable by the Record and if the Infant should bring an Action against his Guardian he must declare that he was admitted to appear and defend his right Now whether will this admittance ad sequendum warrant such a Declaration I conceive it will not and that therefore the Recovery is erroneous Winnington I am for them that claim under the Recovery And I conceive this whole Record is not only good in substance but according to the form used in all common Recoveries If an Infant Tenant appear per Gardianum either as Defendant or Vouchée he shall be bound as well as one of full age And if the Guardian faint-pleads or mispleads the Infant hath an Action against him 9 Ed. 4. 34 35. Dyer 104. b. In our case there is a common Recovery wherein the Tenant is an Infant who ought to appear by his Guardian whether the admittance of him here by his Guardian be well entred or no is the question the word sequi signifies only to follow the cause and the Defendant doth prosecute and act a Venire by Proviso may be taken out at the Defendants Suit 35 H. 8. 7. so in a Replevin the Defendant is the prosecutor and the Tenant doth sue in common Recoveries and is the only person that doth prosecute and act so that I think the word is proper It is true one book is cited where prosequendum is void in an Ejectment 2 Cro. 640 641. Sympson's case but that Iudgment is upon the point of prochein amy There is a President for me in 6 Car. 1. which I believe was the president of this case And Sir Francis Englefield's case where the Infant came in as Vouchée is the same with ours As for the second Error assigned viz. that the Guardian is said to come in propria persona In the Earl of Newport's Case and in Englefield's Case propria persona is in the same manner as here Now the Law doth not regard so much the manner of the admittance as that a good Guardian be admitted Twisden This is a Recovery suffered upon a Privy Seal from the King and upon a marriage settlement upon good consideration and therefore ought to be favoured The word sequatur is as proper for the Defendant as for the Plaintiff And for the second the words propria persona are well enough being applyed to the Guardian who does in proper person appear for the Infant For an Infant to suffer a common Recovery if it were res integra it would hardly be admitted But if an Infant will reverse a common Recovery he ought to do it whilest he is under age as it was adjudged here about two years ago according to my Lord Coke's Opinion Weston If you stand upon that whether an Infant having suffered a common Recovery may reverse it after he is come of full age I desire to be heard to it Cur. advisare vult Tildell Walter A Vicar Libelled in
the Spiritual Court for Tyth-wood Barrell prayed a Prohibition suggesting that time out of mind they paid no small Tythe to the Vicar but that small Tythes by the Custom of the Parish were paid to the Parson Twisden If the Endowment of the Vicarage be lost small Tythes must be paid according to prescription Jordan versus Fawcett ERror of a Iudgment in the Common Pleas. An Action was brought against an Executor who pleaded several Iudgments but for the last Iudgment that he pleads he doth not express where it was entred nor when obtained Coleman held it well enough upon a general demurrer Twisden It is not good for by this plea he is tyed up to plead nothing but nul tiel record He might if the Iudgment had been pleaded as it ought to have been have pleaded perhaps obtent per fraudem And Iudgment was given accordingly Love versus Wyndham Wyndham UPon an issue out of Chancery the Iury find a special Verdict viz. That one Gilbert Thirle was seized of the Lands in question for three lives and did demise the same to Nicholas Love the Father if he should so long live that he being so possessed made his Will and devised them in this manner viz. to his Wife for her life and after her decease to Nicholas his Son for his life and if Nicholas his Son should dye without Issue of his body begotten then he deviseth them to Barnaby the Plaintiff Then they find that the Wife was Executrix and that she did agree to this Devise And whether this be a good Limitation to Barnaby or not is the question Jones I conceive it is a good Limitation to Barnaby I shall enquire whether a Termor having devised to one for life and after his death to another for life may go any further And secondly admitting that he may go further whether the Limitation in our case which is to begin after the death of the second without Issue of his body be good or no For the first point he said the reason given in Plo. Com. 519. in 8. Co. 94. why an Executory Devise of a term is good in Law is because the Law takes it as devised to the last man first and then afterwards to the first man without which transposition it is not good for if it should be a Devise to the first man first there would be nothing left for the last but a possibility which is not grantable over Now then if a man may devise a term after the death of another then he may devise it after the death of two other It is true this cannot be in Grants for they are founded upon Contracts and there must be a certainty in them according to the Rector of Chedington's case Now if a Devise may be good after the death of one or two it is all one if it be limited after the death of five or six Now that a contingency may be devised upon a Contingency I take it that the Authorities are clear 14 Car. 1. Cotton Herle 1 Roll 612. resolved by three Iustices Et Hill 9 Jac. Rot. 889. 2 Cr. 461. And for the case of Child and Bayly reported in 2 Cro. 459. and in Roll 613. I conceive it is not against our case for they held the Devise to be void not because it was a Contingency upon a Contingency but in respect of the remoteness of the possibility and because the term was wholly devised to a man and his Assigns So that by the express Authority of the two first cases and by the implication of this case I do think that a Devise to a man after such a manner is good provided that it do not introduce a perpetuity so that where there is not the inconvenience of a perpetuity though there are many Contingencies they are no impediment to the Devise Therefore where a Devise is upon a Contingency that may happen upon the expiration of one or more mens lives and where it is upon a Contingency that may endure for ever there is a great difference The reason of the Rector of Chedington's case was because of the uncertainty for in case of a grant of a term there is a great uncertainty but ours is in case of a Devise which is not taken in the Law by way of remainder 12 Ass 5. so that I conceive a Contingency may be limited upon a Contingency provided that it be not remote The second point is whether this Devise thus limited be a good Devise Now I conceive the limitation is as good as if it had been to his Wife for her life and after her death to Nicholas for life and after his death to Barnaby I agree that if these words if Nicholas dye without heirs of his body shall not be applied to the time of his death it will be a void Devise But the meaning is That if at the time of his death he shall have no Issue then c. Now that they must have such construction I prove from the words of the Will The limitation of the Remainder must be taken so as to quadrate with the particular Estate As if there be a Conveyance to one for life and if he dye without Issue to another this is a good Remainder upon Condition and the Remainder shall rest upon the determination of the particular Estate if the Tenant for life have no Issue when he dyeth but if a Man Convey to one and the heirs of his body and if he dye without Issue to another there it must be understood of a failer of Issue at any time because the precedent limitation goes further then his life But admitting there were no precedent words to guide the intention and that common parlance were against me yet if there be but a possibility of a good construction it shall be so construed and they may very well be understood of his dying without Issue of his body at the time of his death In Goodyer Clerk's case in this Court Trin. 12 Car. Rot. 1048. I confess it was adjudged that it should be understood of a failer of Issue at any time but in our case if you shall not understand it of a failer of Issue at the time of his death it cannot have any construction at all to take effect I think there are no express Authorities against me those that may seem to be so I will put and endeavour to give an answer to them As for Child Baylie's case Reports differ upon the reason of that Iudgment For Cro. says it was held to be a void Devise because it was taken if he dye without Issue at any time during the term But Sergeant Rolls goes upon another reason Rolls 613. there he says it is void because given absolutely to the Son and his Assigns before In Rolls first part 611. Leventhorp Ashly's case the Remainder there is said to be void because when he had devised the term to A. and the Heirs Males of his body it shall
for an excessive Distress for it is a private matter and the party ought to bring his Action To stay Haman Truant AN Action upon the Case brought upon a bargain for Corn and Grass c. The Defendant pleads another Action depending for the same thing The Plaintiff replies that the bargains were several absque hoc that the other Action was brought for the same cause The Defendant demurs specially for that he ought to have concluded to the Country Polyxfen When there is an affirmative they ought to make the next an Issue or otherwise they will plead in infinitum 3 Cro. 755. and accordingly Iudgment was given for the Defendant Fox alii Executors of Mr. Pinsent Vide supra 47. INdebitat Assumpsit The Defendant pleads that two of the Plaintiffs are Infants and yet they all Sue per Attornatum The question is if there be two Executors and one of them under age whether the Infant must sue per Guardianum and the other per Attornatum or whether it is not well enough if both sue per Attornat Offley spake to it and cited 2 Cro. 541. Pasch 11 Car. 288. Powell's case Styles 318. 2 Cro. 577. 1 Inst 157. Dyer 338. Morton I am of Opinion that he may Sue by Attorney as Executor though if he be Defendant he must appear by Guardian Rainsford I think it is well enough and I am led to think so by the multitude of Authorities in the point And I think the case stronger when Infants joyn in Actions with persons of full age He Sues here in auter droit and I have not heard of any Authority against it Twisden concurred with the rest and so Iudgment was given Moreclack Carleton UPon a Writ of Error out of the Court of Common Pleas one Error assigned was that upon a relicta verificatione a misericordia was entred whereas it ought to have been a capiatur Twisden The Common-Pleas ought to certifie us what the practice of their Court is Monday the Secondary said it was always a Capiatur It s true in 9 Edw. 4. it is said that he shall but be amerced because he hath spared the Iury their pains and 34 H. 8. is accordingly but say they in the Common Pleas a Capiatur must be entred because dedicit factum suum So they said they would discourse with the Iudges of the Common Pleas concerning it The King versus Holmes MOved to quash an Indictment of Forcible Entry into a Messuage passage or way for that a passage or way is no Land nor Tenement but an Easement and then it is not certain whether it were a passage over Land or Water Yelv. 169. the word passagium is taken for a passage over Water Twisd You need not labour about that of the passage we shall quash it as to that but what say you to the Messunge Jones It is naught in the whole for it is but by way of recital with a quod cum he was possessed c. Et sic possessionatus c. but that Twisden said was well enough Jones Then he saith that he was possessed de quodam Termino and doth not say annorum Twisden That 's naught And the Indictment was quash'd An Action was brought against the Hundred of Stoak upon the Statute of Hue and Cry and at the Trial some House-keepers appeared as Witnesses that lived within the Hundred who being examined said they were Poor and paid no Taxes nor Parish Duties and the question was whether they were good Witnesses or not Twisden Alms-people and Servants are good Witnesses but these are neither Then he went down from the Bench to the Iudges of the Common-Pleas to know their Opinions and at his return said That Iudge Wyld was confident that they ought not to be sworn and that Iudge Tyrrell doubted at first but afterwards was of the same Opinion their reason was because when the money recovered against the Hundred should come to be levied they might be worth something Hoskins versus Robins Hill 23 Car. 2. Rot. 233. IN this case these points were spoke to in Arrest of Iudgment viz. 1. Whether a Custom to have a several Pasture excluding the Lord were a good Custom or not It was said that a prescription to have Common so was void in Law and if so then a prescription to have sole Pasture which is to have the Grass by the mouth of the Cattle is no other then Common appendant Daniel's case 1 Cro. so that Common and Pasturage is one and the same thing They say that it is against the nature of Common for the very word Common supposeth that the Lord may feed I answer if that were the reason then a man could not by Law claim Common for half a year excluding the Lord which may be done by Law But the true reason is that if that were allowed then the whole profits of the Land might be claimed by prescription and so the whole Land be prescribed for The Lord may grant to his Tenants to have Common excluding himself but such a Common is not good by prescription The second point was whether or no the prescription here not being for Beasts levant couchant were good or not for that a difference was made betwixt Common in grosse and common appendant viz. That a man may prescribe for Common in grosse without those words but not for Common appendant 2 Cro. 256. 1 Brownl 35. Noy 145. 15 Edw. 4. fol. 28. 32. Rolls tit Common 388. Fitz. tit Prescription 51. a third point was whether or no these things are not help'd by a Verdict As to that it was alledged that they are defects in the Title appearing on Record and that a Verdict doth not help them Saunders contra In case of a Common such a prescription is not good because it is a contradiction but here we claim solam Pasturam Now what may be good at this day by grant may be claimed by prescription As to the Exception that we ought to have prescribed for Cattle levant couchant its true if one doth claim Common for Cattle levant couchant is the measure for the Common unless it be for so many Cattle in number but here we claim the whole Herbage which perhaps the Cattle levant couchant will not eat up Hales Notwithstanding this prescription for the sole Pasture yet the Soil is the Lords and he has Mynes Trees Bushes c. and he may dig for Turfes And such a grant viz. of the sole Pasturage would be good at this day 18 Edw. 3. though a grant by the Lord that he will not improve would be a void grant at this day Twisden My Lord Coke is express in the point A man cannot prescribe for sole Common but may prescribe for sole Pasture And there is no Authority against him And for levant couchant it was adjudged in Stoneby Muckleby's case that after a Verdict it was help'd And Iudgment was given accordingly Anonymus AN Action of
Trespass was brought for taking away a Cup till he paid him 20 shillings The Defendant pleads that ad quandam curiam he was amerced and that for that the Cup was taken Hales We cannot tell what Court it is whether it be a Court-Baron by Grant or Prescription if it be by Grant then it must be coram Seneschallo if by Prescription it may be coram Seneschallo or coram Sectatoribus or coram both Then it does not appear that the House where the Trespass was laid was within the Manor Then he doth not say infra Jur. Cur ' It was put upon the other side to shew cause Jacob Hall's Case ONe Jacob Hall a Rope-dancer had erected a Stage in Lincolns-Inn-fields but upon a Petition of the Inhabitants there was an Inhibition from Whitehall now upon a complaint to the Iudges that he had erected one at Charing-cross he was sent for into Court and the Chief Iustice told him that he understood it was a Nusance to the Parish and some of the Inhabitants being in Court said that it did occasion Broyles and Fightings and drew so many Rogues to that place that they lost things out of their Shops every Afternoon And Hales said that in 8 Car. 1. Noy came into Court and prayed a Writ to prohibit a Bowling-Ally erected near St. Dunstans Church and had it Sir Anthony Bateman's Case IN the Trial at Bar the Son and Daughter of Sir Anthony Bateman were Defendants the Action was an Ejectione Firmae The Defendants admitted the point of Sir Anthony's Bankrupcy but set up a Conveyance made by Sir Anthony to them for the payment of 1500 l. apiece being money given to them by their Grandfather Mr. Russell to whom Sir Anthony took out Administration Hales It is a voluntary Conveyance unless you can prove that Sir Anthony had Goods in his hands of Mr. Russell at the time of the executing it So they proved that he had and there was a Verdict for the Defendants Legg Richards EJectment Iudgment against the Defendant who dies and his Executor brings a Writ of Error and is non-suited It was moved that he should pay Costs Twisden An Executor is not within the Statute for payment of Costs occasione dilationis Hales I am of the same Opinion Harwood's Case HE was brought to the Bar by Habeas Corpus being committed by the Court of Aldermen for marrying an Orphan without their consent Sol. North. We conceive the Return insufficient and that it is an unreasonable Custom to impose a Penalty on a man for marrying a City-Orphan in any place of England Now we marryed her far from London and knew not that she was an Orphan Then they have put a Fine of 40 l. upon him whereas there is no cause why he should be denied Marriage with her there being no disparagement Twisden Mr. Waller of Berkingsfield was imprison'd six months for such a thing So the money was ordered to be brought into Court Vide infra 79. Leginham Porphery REplevin and Avowry for not doing Suit The Plaintiff sets forth a Custom that if any Tenant live at a distance if he comes at Michaelmas and pay eight pence to the Lord and a penny to the Steward he shall be excused for not attending and then says that he tendred eight pence c. and the Lord refused it c. Polynxfen I know no case where payment will do and tender and refusal will not do Hales Have you averred that there are sufficient Copy-holders that live near the Mannor Polynxfen We have averred that there are at least 120. Hales Surely tender and refusal is all one with payment Twisden An Award is made that super receptionem c. a man should give a Release there tender and refusal is enough Iudgment for the Defendant Waldron versus c. HAles It is true one Parish may contain thrée Vills The Parish of A. may contain the Vills of A. B. and C. that is when there are distinct Constables in every one of them But if the Constable of A. doth run through the whole then is the whole but one Ville in Law Or where there is a Tything-man it may be a Ville but if the Constable run through the Tything then it is all one Ville I know where three or four Thousand l. per annum hath béen enjoyed by a Fine levied of Land in the Ville of A. in which are five several Hamlets in which are Tythings but the Constable of A. runs through them all and upon that it was held good for all Here was a case of the Constable of Blandford-Forum wherein it was held that if he had a concurrent Iurisdiction with all the rest of the Constables the Fine would have passed the Lands in all In some places they have Tythingmen and no Constables Polynxfen Lambard 14. is that the Constable and the Tything-man are all one Hales That is in some places Praepositus is a proper word for a Constable and Decemarius for a Tything-man An Indictment for retaining a Servant without a Testimonial from his last Master Moved to quash it because it wants the words contra pacem 2. Becausâ—â—â—ey do not shew in what Trade it was So quash'd Moved to quash another Indictment because the year of our Lord in the Caption was in Figures Hales The year of the King is enough Moved for a Prohibition to the Spiritual Court for that they Sue a Parish for not paying a Rate made by the Church-wardens only whereas by the Law the major part of the Parish must joyn Twisden Perhaps no more of the Parish will come together Counsel If that did appear it might be something Hales A Writ of Error will lie in the Exchequer-Chamber of a Iudgment in a Scire facias grounded upon a Iudgment in one of the Actions mentioned in the 27 of Eliz. cap. 8. because it is in effect a piece of one of the Actions therein mentioned Harwood's Case HE was removed out of London by Habeas Corpus the Return was That he was fined and committed there for marrying a City-Orphan without the consent of the Court of Aldermen Exception 1. They do not say that the party was a Citizen or that the Marriage was within the City and they are not bound to take notice of a City Orphan out of the City for their Customs extend only to Citizens in the City Exception 2. They have not shewed that we had reasonable time to shew cause why we should not be fined Twisden These Objections were over-ruled in one Waller's case Afterward in the same Term Weston spake to it There are two matters upon which the validity of this Return doth depend viz. The Custom and the Offence within the Custom The Custom is laid that time out of mind the Court of Aldermen have had power to set a reasonable Fine upon such as should marry an Orphan without their leave and upon refusal to pay it to imprison him I conceive this Custom as it is laid to
is the same imprisonment Serjeant Jones for the Plaintiff took exceptions to this plea as 1. The Court is ill pleaded to be held coram Vicecomite for in a County Court the suitors are Iudges Cr. Jac. 582. and though this Court holdeth plea upon a questus est nobis which is the Kings Writ yet that doth not alter the nature of the Court nor its Iurisdiction Jentleman's case 6 Rep. 11. 2. The Custom of holding this Court de quindecem diebus in quindecem dies is void being not only against Magna Cart. 35. but against the 2 3 Edw. 6. cap. 25. which enacts That no County Court c. shall be longer deferred then one month from Court to Court c. any Usage Custom Statute or Law to the contrary notwithstanding 3. He took these exceptions to the Custom 1. It is absurd that if upon a questus est nobis the party affirm quandam querelam that then c. for a questus est nobis is an Action upon the case and this quaedam querela may be in any other Action though never so remote the plaint ought to be in pursuance of the Writ and so to have been pleaded 2. As this Custom is laid it does not appear that the plaint ought to arise within the Iurisdiction of the Court. 3. It is against the Law that in any inferiour Court a Capias should be awarded before Summons 1 Rolls 563. Seaburn Savaker 2 Rolls 277. placit ' 2. Pasch 16 Jac. Bankes Pembleton The 4th exception to the Declaration was that it does not appear whether this Writ were purchased out of the Chancery of the City of Durham or of that of the County the words ex Cur. Cancellar Dunelm are applicable to either 5. Here is not an averment that the cause of Action did arise within the County Palatine it is said indeed that he was endebted and did assume within the County but it is the contract and cause of the debt that entities the Court there to the Action 6. He says that he did levare quandam querelam but does not say that it was super brevi de questus est nobis nor that it was in placito praedict ' nor makes any application at all of the plaint to the Writ and then the plaint not appearing to be warranted by the Writ and being for above 40 shillings the proceedings are coram non Judice 7. The Sheriffs Warrant is to Arrest si inventus fuerit in balliva tua and it does not appear that the Bayliff had any Bayliwick If the County were divided into several divisions and each Bayliff allotted to a several division this ought to have been shown and that the place where this Arrest was made was within this Bayliffs proper division 8. Of the Defendants own showing the Court was not held according to the Custom alledged viz. de quindecim diebus in 15 dies for the last Court is said to have been held the 12th of March and the next after that on the 26th Turner for the Defendant argued that the imprisonment was lawful To the first exception he said that the Court mention'd in the bar is not a County-Court nor so pleaded it is pleaded as it is Cur ' vocat Cur ' Comitat ' and there were never any Suitors known there to be Iudges It is not to be examined according to the rules of County Courts properly so called for we plead it to be according to the Custom of the County Palatine of Durham which is an exempt Iurisdiction As for the exception to its being held de 15 diebus in 15 dies the answer to the first exception answers this also The Iudges of Assize in Writs of false Iudgment have allowed this Custom and affirm'd Iudgments given in this Court of which we have many Presidents For the third exception concerning the validity of the Custom to the first exception against it he answered that a Bar is good enough if it be to a common intent and the common intent is that the quaedam querela must be pursuant to the questus est nobis and in this case it was so the questus est nobis and the precept upon which the Plaintiff was arrested are both in an Action of the case upon a promise And to the second that the cause of Action is shown to arise within the Iurisdiction for the promise which is the ground of this Action is said to have been made infra Comitat Palatin To the third exception that in inferiour Courts it is illegal to award a Capias before Summons but this Court is in a County Palatine and such Courts are like to the Courts at Westminster and have the same Authority Rowlandson landson Sympson 1 Rolls 801. placito 11. and the Customs of those Courts are as good Warrants for their proceedings as the Custom of the Kings Bench is for their issuing Latitats To the fourth he said it was a forreign intendment to suppose a Court of Chancery in the City of Durham a Court of Equity cannot be by grant and there is no prescription in the City of Durham to hold plea in Equity To the fifth he said the promise was laid to have beén made within the Iurisdiction To the sixth ut supra To the seventh that this Precept was according to the form of all their Precepts in like cases To the eigth that taking both days inclusively there are 15 days But admitting that there were some defect in the proceedings yet since that Court can issue such a Writ as this is it is sufficient to excuse the Officer 10 Rep. the case of the Marshalsey Cur ' This is not a County Court but a Court vocat ' Cur ' Com' and it is within a County Palatine and for both those reasons not in the same degree with other County Courts And though it were a County Court it might by prescription be held before the Sheriff as a Court Baron may by a special prescription be held coram Seneschallo and so it hath béen adjudged in the case of Armyn Appletoft Cr. Jac. 582. there is no such special prescription as there ought to be but a general prescription for a Court Baron and every Court Baron must be prescribed for The County Palatine of Durham is not of late standing like that of Lancaster but is immemorial and a Custom there is of great Authority As to the objection against quandam querelam why it may not be as allowable for a man there to bring a questus est nobis and declare in what plaint he will as it is here to arrest a man and declare against him in any Action But admitting the proceedings irregular yet since the Court can issue a Capias that excuses the Officer in this Action and Iudgment was given for the Defendant Nisi causa c. Term. Pasch 26 Car. II. in Communi Banco Brooking versus Jennings alios THe Plaintiff declared as Executor against the
also for that they sued the Plaintiff in another Court knowing that he was an Attorney of the Common-Pleas and priviledged there Per tot ' Cur ' there is no cause of Action For put the case as strong as you will suppose a man be retained as an Attorney to sue for a debt which he knows to be released and that himself were a witness to the Release yet the Court held that the Action would not lye for that what he does is only as Servant to another and in the way of his Calling and Profession And for suing an Attorney in an inferiour Court that they said was no cause of Action for who knows whether he will insist upon his priviledge or not and if he does he may plead it and have it allowed Fits al. versus Freestone IN an Action grounded upon a promise in Law payment before the Action brought is allowed to be given in Evidence upon non Assumpsit But where the Action is grounded upon a special promise there payment or any other legal discharge must be pleaded Bringloe versus Morrice IN Trespass for immoderately riding the Plaintiffs Mare the Defendant pleaded that the Plaintiff lent to him the said Mare licentiam dedit eidem aequitare upon the said Mare and that by virtue of this Licence the Defendant and his Servant alternatim had rid upon the Mare The Plaintiff demurs Serj. Skipwith pro Quer ' The Licence is personal and incommunicable as 12 H. 7. 25. 13 H. 7. 13. the Dutchess of Norfolk's case 18 Ed. 4. 14. Serj. Nudigate contra This Licence is given by the party and not created by Law wherefore no Trespass lyeth 8 Rep. 146 147. per Cur ' the Licence is annexed to the person and cannot be communicated to another for this riding is matter of pleasure North took a difference where a certain time is limited for the Loan of the Horse and where not In the first case the party to whom the Horse is lent hath an interest in the Horse during that time and in that case his Servant may ride but in the other case not A difference was taken betwixt hiring a Horse to go to York and borrowing a Horse in the first place the party may set his Servant up in the second not Term. Pasch 28 Car. II. in Communi Banco Anonymus A Man upon marriage Covenants with his Wives relations to let her make a Will of such and such Goods she made a Will accordingly by her husbands consent and dyed After her death her Will being brought to the Prerogative Court to be proved a Prohibition was prayed by the Husband upon this suggestion that the Testatrix was foemina viro cooperta and so disabled by the Law to make a Will Cur ' Let a Prohibition go Nisi causa c. North. When a question ariseth concerning the Iurisdiction of the Spiritual Court as whether they ought to have the Probate of such a Will whether such a disposition of a personal Estate be a Will or not whether such a Will ought to be proved before a peculiar or before the Ordinary whether by the Archbishop of one Province or another or both and what shall be bona notabilia in these and the like cases the Common Law retains the Iurisdiction of determining there is no question but that here is a good surmise for a Prohibition to wit that the woman was a person disabled by the Law to make a Will the Husband may by Covenant depart with his right and suffer his Wife to make a Will but whether he hath done so here or not shall be determined by the Law we will not leave it to their decision it is too great an invasion upon the right of the Husband In this case the Spiritual Court has no Iurisdiction at all they have the Probate of Wills but a Feme-covert cannot make a Will If she disposeth of any thing by her Husbands consent the property of what she so disposeth passeth from him to her Legatee and it is the gift of the husband If the Goods were given into anothers hands in trust for the wife still her Will is but a Declaration of the trust and not a Will properly so called But of things in Action and things that a Feme-Covert hath as Executrix she may make a Will by her Husbands consent and such a Will being properly a Will in Law ought to be proved in the Spiritual Court. In the case in question a Prohibition was granted against the Hambrough Company THe Plaintiff brought an Action of Debt in London against the Hambrough-Company who not appearing upon Summons and a Nihil being returned against them an Attachment was granted to attach Debts owing to the Company in the hands of 14 several persons by Certiorari the cause was removed into this Court and whether a Procedendo should be granted or not was the question Serjeant Goodfellow Baldwin and Barrell argued that a debt owing to a Corporation is not attachable Serjeant Maynard Scroggs contra Cur ' We are not Iudges of the Customs of London nor do we take upon us to determine whether a debt owing to a Corporation be within the Custom of forrein Attachment or not This we judge and agree in that it is not unreasonable that a Corporation's debts should be attached If we had judged the Custom unreasonable we could and would have retained the cause For we can over-rule a Custom though it be one of the Customs of London that are confirmed by Act of Parliament if it be against natural reason But because in this Custom we find no such thing we will return the cause Let them proceed according to the Custom at their peril If there be no such Custom they that are aggrieved may take their remedy at Law We do not dread the consequences of it It does but tend to the advancement of Iustice and accordingly a Procedendo was granted per North Chief Justice Wyndham Ellis Atkyns aberat Anonymus PEr Cur ' if a man is indicted upon the Statute of Recusancy Conformity is a good plea but not if an Action of Debt be brought Parten Baseden's Case PArten brought an Action of Debt in this Court against the Testator of Baseden the now Defendant aâ—d had Iudgment After whose death there was a devastavit returned against the Defendant Baseden his Executor he appeared to it and pleaded and a special Verdict was found to this effect viz. that the Defendant Baseden was made Executor by the Will and dwelt in the same house in which the Testator lived and died and that before Probate of the Will he possest himself of the Goods of the Testator prized them inventoried them and sold part of them and paid a Debt and converted the value of the residue to his own use that afterwards before the Ordinary he refused and that upon his refusal administration was committed to the Widow of the deceased And the question was whether or no the
Defendant should be charged to the value of the whole personal Estate or only for as much as he converted Serjeant Barrell argued That he ought to be charged for the whole because 1. He is made Executor by the Will and he is thereby compleat Executor before Probate to all intents but bringing of Actions 2. He has possession of the Goods and is chargeable in respect of that 3. He caused some to be sold and paid a Debt which is a sufficient administration There is found to discharge him 1. His refusal before the Ordinary But that being after he had so far intermeddled avails nothing Hensloe's case 9 Co. 37. An Executor de son tort he confessed should not be charged for more then he converted and shall discharge himself by delivering over the rest to the rightful Executor But the case is different of a rightful Executor that has taken upon him the burden of the Will The second thing found to discharge him is the granting of Administration to another but that is void because here is a rightful Executor that has administred in which case the Ordinary has no power to grant Administration Hob. 46. Keble Osbaston's case The third thing found to discharge him is the delivery of the Goods over to the Administrator but that will not avail him for himself became responsible by his having possession and he cannot discharge himself by delivering the Goods over to a stranger that has nothing to do with them If it be objected that by this means two persons will be chargeable in respect of the same Goods I answer that payment by either discharges both Cr. Car. Whitmore Porter's case The Court was of Opinion that the committing of Administration in this case is a mere void act A great inconvenience would ensue if men were allowed to Administer as far as they would themselves and then to set up a beggarly Administrator they would pay themselves their own Debts and deliver the residue of the Estate to one that 's worth nothing and cheat the rest of the Creditors If an Administrator bring an Action it is a good plea to say that the Executor made by the Will has administred Accordingly Iudgment was given for the Plaintiff Major Stubbing versus Birde Harrison REsolved that a plea may be a good plea in abatement though it contain matter that goes in bar they relyed upon the case in 10 H. 7. fol. 11. which they said was a case in point and Salkell Skelton's case 2 Rolls Reports and Iudgment was given accordingly Term. Trin. 28 Car. II. in Communi Banco PEr North Chief Iustice if there are Accounts betwéen two Merchants and one of them becomes Bankrupt the course is not to make the other who perhaps upon stating the Accounts is found endebted to the Bankrupt to pay the whole that originally was entrusted to him and to put him for the recovery of what the Bankrupt owes him into the same condition with the rest of the Creditors but to make him pay that only which appears due to Bankrupt on the foot of the Account otherwise it will be for Accounts betwixt them after the time of the others becoming Bankrupt if any such were Wing Jackson TRespass Quare vi armis the Defendant insultum fecit upon the Plaintiff was brought in the County Court and Iudgment there given for the Plaintiff But it was reversed here upon a Writ of false Iudgment because the County Court not being a Court of Record cannot fine the Defendant as he ought to be if the cause go against him because of the vi armis in the Declaration but an Action of Trespass without those words will lie in the County Court well enough Anonymus A Vicar libell'd in the Spiritual Court for Tythes of of young Cattle and surmised that the Defendant was seised of Lands in Middlesex of which Parish he was Vicar and that the Defendant had Common in a great Waste called Sedgemore-Common as belonging to his Land in Middlesex and put his Cattle into the said Common The Defendant prayed a Prohibition for that the Land where the Cattle went was not within the Parish of Middlesex The same Plaintiff libelled against the same Defendant for Tythes of Willow-Faggots who suggests to have a Prohibition the payment of 2 d. a year to the Rector for all Tythes of Willow The same Plaintiff libelled also for Tythes of Sheep The Defendant to have a Prohibition suggests that he took them in to feed after the Corn was reaped pro melioratione agriculturae infra terras arabiles non aliter As for the first of these no Prohibition was granted because of that clause in 2 Edw. 6. whereby it is enacted that Tythes of Cattle feeding in a Waste or Common where the Parish is not certainly known shall be paid to the Parson c. of the Parish where the owner of the Cattle lives For the second they held that a modus to the Rector is a good discharge against the Vicar For the third they held that the Parson ought not to have Tythe of the Corn and Sheep too which make the ground more profitable and to yield more Per quod c. Ingram versus Tothill Ren. REplevin Trevill leased to Ingram for 99 years if Joan Ingram his wife Anthony John Ingram his Sons should so long live rendring an Heriot or 40 shillings to the Lessor and his Assigns at the election of the Lessor his heirs and Assigns after their several deaths successive as they are named in the Indenture Trevill deviseth the Reversion John dyes and then Joan dies and the question was whether or no a Heriot were due to the Devisee upon the death of Joan. The Court agreed that the Avowry was faulty because it does not appear thereby whether Anthony Ingram was alive or not at the time of the distress taken for if he were dead the Lease would be determined North. Though Anthony were alive the Devisee of Trevill could not distrain for the Heriot for that the reservation is to him and his Assigns and although the Election to have the Heriot or 40 shillings given to the Lessor his heirs or Assigns yet that will not help the fault in the reservation Ellis There is another fault in the pleading for it is pleaded that Trevill made his Will in writing but it is not said that he dyed so seized for if the Estate of the Devisor were turned to a right at the time of his death the Will could not operate upon it Also it is said that the Avowant made his Election and that the Plaintiff habuit notitiam of his Election but it is not said by whom notice was given for these causes Iudgment was given for the Plaintiff It was urged likewise against the Avowant that no Heriot could be due in this case because Joan did not die first but the course of succession is interrupted and that a Heriot not being due of
desirous to have the money paid before the day took another Bond for the same sum payable sooner and that this was in full satisfaction of the former Bond upon this plea the Plaintiff took issue and it was found against him And Serjeant Maynard moved that notwithstanding this Verdict Iudgment ought to be given for the Plaintiff for that the Defendant by his plea has confessed the Action and to say that another Bond was given in satisfaction is nothing to the purpose Hob. 68. so that upon the whole it appears that the Plaintiff has the right and he ought to have Iudgment 2 Cr. 139. 8 Co. 93. a. and day was given to shew cause why the Plaintiff should not have Iudgment Vide infra hoc eodem Termino Savill against the Hundred of THe Plaintiff in an Action upon the Stat. of Wint. had a Verdict and it was moved in arrest of Iudgment that the Felonious taking is not said to be in the High-way 2 Cro. 469 675. North. An Action lies upon the Stat. of Winton though the Robbery be not committed in the High-way to which the Court-agreed and the Prothonotaries said that the Entries were frequently so Per quod c. Calthrop Philippo ONe J. S. had recovered a Debt against Calthrop and procured a Writ of Execution to Philippo the then Sheriff of D. but before that Writ was executed Calthrop procured a Supersedeas to the same Philippo who when his year was out delivered over all the Writs to the new Sheriff save this Supersedeas which not being delivered J. S. procures a new Writ of Execution to the new Sheriff upon which the Goods of Calthrop being taken he brings his Action against Philippo for not delivering over the Supersedeas After a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Action would not lie for that the Sheriff is not bound to deliver over a Supersedeas 1. Because it is not a Writ that has a return 2. Because it is only the Sheriffs Warrant for not obeying the Writ of Execution The Prothonotaries said that the course was to take out a new Writ to the new Sheriff Serjeant Strode argued that the Supersedeas ought to be delivered over because the Kings Writ to the old Sheriff is Quod Com' praedict ' cum pertinentiis uno cum rotulis brevibus memorandis omnibus officium illud tangentibus quae in custodia sua existunt liberet c. Reg. 295. 3 Co. 72. Westby's case Besides the Supersedeas is for the Defendants benefit and there is no reason why the Capias should be delivered over which is for the Plaintiffs benefit and not the Supersedeas which is for the Defendants And he said an Action will lie for not delilivering over some Writs to the new Sheriff though those Writs are not returnable as a Writ of Estrepement The Court inclined to his Opinion but it was adjourned to a further day on which day it was not moved Bascawin Herle versus Cooke THo Cook granted a Rent-charge of 200 l. per annum to Bascawin Herle for the life of Mary Cook habend ' to them their heirs and assigns ad opus usum of Mary and in the Indenture covenanted to pay the rent ad opus usum of Mary Bascawin Herle upon this bring an Action of Covenant and assign the breach in not paying the Rent to themselves ad opus usum of Mary The Defendant demurs 1. Because the words in which the breach is assign'd contain a negative pregnant Baldwin for the Plaintiff we assign the breach in the words of the Covenant Cur ' accord 2. Because the Plaintiff does not say that the money was not paid to Mary it would satisfie the Covenant 3. This Rent-charge is executed to Mary by the Stat. of Uses and she ought to have distrained for it for she having a remedy the Plaintiffs out of whom the Rent is transferred by the Statute cannot bring this Action Hereupon two questions were made 1. Whether this remedy by Action of Covenant be transferred to Mary by the Stat. of Uses or not And 2dly if not whether the Covenant were discharged or not North Wyndham When the Statute transfers an Estate it transfers together with it such remedies only as by Law are incident to that Estate and not collateral ones Atkyns accordant There is a clause in the Statute of 27 H. 8. c. 10. which gives the Cestuy que use of a Rent all such remedies as he would have had if the Rent had been actually and really granted to him but that has place only where one is seized of Lands in trust that another shall have a Rent out of them not where a Rent is granted to one to the use of another They agreed also that the Covenant was not discharged And gave Iudgment for the Plaintiff Nisi c. Higden versus VVhitechurch Executor of Dethicke A Udita Querela The Plaintiff declares that himself and one Prettyman became bound to the Testator for the payment of a certain sum that in an Action brought against him he was Outlawed that Dethick afterward brought another Action upon the same Bond against Prettyman and had Iudgment that Prettyman was taken by a Cap. ad satisfaciend ' and imprisoned and paid the Debt and was released by Dethick's consent upon this matter the Plaintiff here prays to be relieved against this Iudgment and Outlawry The Defendant protestando that the Debt was not satisfied pleads the Outlawry in disability The Plaintiff demurs Baldw. for the Plaintiff Non datur exceptio ejus rei cujus petitur dissolutio He resembled this to the cases of bringing a Writ of Error or Attaint in neither of which Outlawry is pleadable 3 Cr. 225. 7 H. 4. 39. 7 H. 6. 44. Seyse contra Outlawry is a good plea in Audita querela 2 Cr. 425. 8 Co. 141. this case is not within the maxime that has been cited a writ of Error and Attaint is within it for in both them the Iudgment it self is to be reversed But in an Audita querela you admit the Iudgment to be good only upon some equitable matter arising since you pray that no Execution may be upon it Vide 6 Ed. 4. 9. b. Jason Kite's case Mich. 12 Car. 2. Rot. 385. Adj. Pasch 13. Cur ' accord ' If the Iudgment had been erroneous and a writ of Error had been brought the Outlawry which was but a superstructure would fall by consequence but an Audita querela meddles not with the Iudgment the Plaintiff here has no remedy but to sue out his Charter of Pardon Blythe Hill supra 221. THe case being moved again appeared to be thus viz. The Plaintiff brought an Action of Debt upon a Bond against the Defendant as heir to the Obligor The Defendant pleaded that the Obligor his Ancestor dyed intestate and that one J. S. had taken out Letters of Administration and had given the Plaintiff
another Bond in full satisfaction of the former Vpon this issue being joyned it was found for the Defendant It was said for him that one Bond might be taken in satisfaction of another and 1 Inst 212. b. 30 Ed. 1. 23. Dyer 29. were cited North Chief Iustice If the second Bond had been given by the Obligor himself it would not have discharged the former but here being given by the Administrator so that the Plaintiffs security is bettered and the Administrator chargeable de bonis propriis I conceive it may be a sufficient discharge of the first Bond. Wyndham accord ' else the Administrator and Heir might both be charged Scroggs accord Atkyns There are many Authorities in the point and all directly that one Bond cannot be given in satisfaction of another So is Cr. Eliz. 623 697 716. 727. and many others But yet I hold that Iudgment ought to be given for the Defendant for though it be an impertinent issue yet being found for him he ought by the Statute of 23 H. 8. to have Iudgment If no issue at all had been joyned it would have been otherwise 2 Cro. 44. 575. Serjeant Maynard cites 9 H. 6. but that case was before the Statute so I ground my Iudgment upon that point North. I took it that unapt issues are aided by the Statute but not immaterial ones And so said Scroggs Judic ' pro Defendente Nisi c. Southcot Stowell Intrat ' Hill 25 26 Car. 2. Rot. 1303. COvenant for non-payment of money The case was thus viz. Thomas Southcote had issue two Sons Sir Popham and William and in consideration of the marriage of his Son Sir Popham covenanted to stand seized to the use of Sir Popham and the heirs Males of his body and for default of such issue to the use of the heirs Males of his own body the remainder to his own right heirs Sir Popham dies leaving issue Edward his Son and four Daughters then Thomas the Father died and then Edward died without issue and the question was whether Sir Pophams Daughters or William had the better title Two points were made 1. Whether the limitation of the Remainder to the Heirs Males of the body of the Covenantor were good in its creation or not 2. Admitting it to be good originally whether it could take effect after the death of Edward he leaving Sisters which are general heirs to the Covenantor North Wyndham Atkyns upon admission of the first point were of opinion for William and that he should have the Estate not by purchase but by descent from Edward for after the death of the Father both the Estates in tail were vested in him and he was capable of the remainder by purchase and being once well vested in a purchaser the Estate shall afterwards run in course of descent Scroggs doubted But they all doubted of the first point and would advise V. infr ' Pasch 29 Car. 2. It was said by the Iustices in the Countess of Northumberlands case That if a Knight be but returned on a Iury when a Nobleman is concerned it is not material whether he appear and give his Verdict or no. Also that if there be no other Knights in the County a Serjeant at Law that is a Knight may be returned and his priviledge shall not excuse him Gayle Betts DEbt upon a Bond. The Defendant demands Oyer of the Bond and Condition which was to pay forty pounds per annum quarterly so long as the Defendant should continue Register to the Arch deacon of Colchester and says that the Office was granted to A. B. C. for their lives and that he enjoyed the Office so long as they lived and no longer and that so long he paid the said 40 l. quarterly The Plaintiff replies that the Defendant did enjoy the Office longer and had not paid the money The Defendant demurs supposing the replication was double Cur ' The Replication is not double for the Defendant cannot take issue upon the non-payment of the money that would be a departure from his plea in bar so if upon a plea of nullum fecit arbitrium the Plaintiff in his Replication set forth an award and a breach the Defendant cannot take issue upon the breach for that would be an implicite confession of what he had denied before North. If the Defendant plead that he did not exercise the Office beyond such a time till which time he paid the money the Plaintiff may take issue either upon the payment till that time or reply upon the continuance but if he do the latter he must shew a breach for the continuance is in it self no breach Ellis Yarborough ACtion upon the Case against a Sheriff for an Escape The Plaintiff declares that one G. was endebted to him in 200 l. and that the Defendant took him upon a Latitat at the Plaintiffs suit and afterward suffered him to escape The Defendant pleads the Statute of 23 H. 6. cap. 10. and that he let G. out upon Bail according to the said Statute and that he had taken reasonable Sureties A. B. persons having sufficient within the County The Plaintiff replies and traverses absque hoc that the Defendant took Bail of persons having sufficient within the Country the Defendant demurs Skipwith The Sheriff is compellable to take Bail If he take insufficient Bail the course is for the Court to amerce the Sheriff and not for the party to have an Action upon the case Cr. Eliz. 852. Bowles and Lassell's case and Noy 39. if the Sheriff takes no Bail an Action lies against him and all Actions brought upon this Statute are founded upon this suggestion 3 Cro. 460. Moor. 428. 2 Cro. 280. but if he take insufficient bail it is at his own peril and no Action lies the Sheriff is Iudge of the bail and the sum is at his discretion Cr. Jac. 286. Villers Hastings and so are the number of the persons he may take one two or three as he pleaseth He cited Cr. Eliz. 808. Clifton Web's case Besides the traverse is pregnant for it implies that the persons have sufficient out of the County and the Sheriff is not bound to take bail only of persons having sufficient within the County Serjeant Barrell contra The Court not agreeing in their Opinions upon the matter of Law it was put off to the next Term to be argued Baldwin for the Defendant cited 3 Cr. 624. 152. 2 Cr. 286. Noy 39. Rolls tit Escape 807. Moor 428. that the Sheriff is compellable to let him to bail and is Iudge of the sufficiency of the Sureties The Statute was made for the Prisoners benefit for the mischief before was that the Sheriff not being compellable to bail him would extort money from him to be bailed and the word sufficient is added in favour of the Sheriff and so are the words within the County The Sheriff is not compellable to assign the bail Bond and then if the Plaintiff cannot
proceed against the whole Parish to have it repair'd they cannot Rate any particular person towards the repair of it But the Church-wardens must summon the Parish and that needs not be from house to house but a general publick Summons at the Church is sufficient and the major part of them that appear may bind the Parish If the Church and Chancel be out of repair the Parishioners are only chargeable to be contributory towards the Repairs of the Navis Ecclesiae If a Libel be against the Parish for not repairing the Church though the word Ecclesia may include the Chancel yet we will not grant a Prohibition If a Tax be set by the major part of the Parish pro reparatione Ecclesiae it is well enough and afterward any part of the money raised be laid out upon the Chancel the Parish ought not to allow it upon the Church-wardens accounts But if a Tax be imposed expresly for the repair of the body of the Church and of the Chancel we will not suffer them to proceed Or if a Libel be against a Parish for not repairing the Navis Ecclesiae and the Chancel we will prohibit them If a Church be down and the Parish encreased so that of necessity they must have a larger Church the major part of the Parish may raise a Tax for the enlarging it as well as the repairing it per Cur. It was insisted on at the Bar that to a Tax for the encreasing of a Church the consent of every Parishioner must be had But the Court was of another Opinion Southcote Stowell super Mich. 28 Car. 2. BAldw for the Plaintiff Thomas the Covenantor may be said to take an Estate for life by implication and then it will be all one as if an express Estate for life had been limited to him with a remainder to his Heirs males which would be a fée-tail executed in himself and if so then William has a good Title 1 And. 265. the Lord Paget's Case 1 Rep. 154. in the Rector of Chedington's Case Fenwyke and Mittfords Case Moor. 284. 1 And. 256. Cr. Eliz. 321. Hodgekinson and Wood's Case 1 Cr. 23. Lane and Pannell's Case 1 Rolls But if this will not hold then William may take an estate by way of a future springing use for this he quoted 2 Rolls Uses p 794. Mills and Parsons num 7. If neither of these ways will serve yet the remainder to the Heirs males of Thomas may vest in Edward for Sir Popham died in the Covenantor's life-time and William may take by descent as special Heir per formam doni though he be not Heir of the body of Edward in whom the remainder first vests Stroud contr The limitation of a remainder in tail to the Heirs males of the Covenantor is bad in its original creation For no man can make himself or his own Heirs Purchasers without departing with the whole Fée-simple Dyer 309. b. 42 Ass 2. 1 H. 5. 8. per Skrene 24 Ed. 3. 28. Bro. Estates 23. 1 H. 8. 65. per Hull 42 Ed. 3. 5. Br. Estates 66. Dyer 69. b. 2 H. 5. 4. b. 1 H. 5. 8. 14 H. 4. 32. a. Cook 2 Inst 333. 1 Inst 22. b. 32 H. 8. Bro. Livery 61. but all these Cases are of Estates passed by Conveyance at Common Law and not by way of use But Vses are directed by the Rules of the Common Law and as to the vesting of them differ not from Estates conveyed in possession 1 Rep. 138. Chudleigh's Case No favourable construction ought to be made for Vses against a Rule of Law The Stat. of H. 8. seems intended to extirpate all private Vses and was in restitution of the Common Law He cited the Earl of Bedford's Case 1 Rep. 130. a. Poph. 3 4. Moor. 718. and Fenwyke and Miltford's Case 1 Inst 22. b. If Thomas took any estate by this settlement he took a Fée-simple For no estate being limited to him if he took any the Law vested it in him Now the act of Law will not settle in him an Estate tail which is a fettered Estate but a Fée-simple if any thing And the rather because the reason of it must be upon a supposition that the old Vse continues still in him being never well limited out of him Then he argued that admitting the limitation to be good yet since it vested in Edward as a Purchasor it is spent by his dying without issue But North Windham and Atkins were of Opinion That if an Estate limited to a man and the Heirs of the body of his Father vest in him be it either by descent or purchase that if he die without issue it shall go to his Brother c. so that in this case if the remainder to the Heirs males of Thomas ever vested in Edward it comes to William as Heir male of the body of Thomas and he is a special Heir to take by descent 2. They agreed that at the Common Law a man could not make his right Heir a Purchasor without parting with the whole feé but that by way of Vse he might Creswold's Case in Dyer is of an Estate executed They agreed the limitation of the remainder in this case to be good and that it vested in Edward as a Purchasor North. It cannot take effect as a springing Vse because where the limitation is of a remainder the Law will never construe it so as to support it any other way This he said he had known resolved in one Cutler's Case in the Kings Bench. Scroggs agréed to the Iudgment but said he went contrary to the Books in so doing which go upon nice and subtile differences little less than Metaphysical Justice versus Whyte IN an Action of Debt against the Defendant as Executor to John Whyte the Defendant pleaded That John did make a Will but made not him Executor and that the said John had bona notabilia in divers Diocesses and that the Archbishop of Canterbury committed Administration to the Defendant and concluded in bar to which there was a demurrer Serjeant Turner 1. This is a plea in a abatement only and the Defendant has concluded in bar Cr. Eliz. 202. Isham Hitchcot 2. The Defendant does not traverse absque hoc that he ever administred as Executor 20 H. 6. 1. b. per Fortescue 3. The Defendant does not shew when Administration was committed to him for if it were committed hanging the Writ it will not abate it 21 H. 6. 8. 5 H. 5. 10 11. Br. tit Executors 7. 4. Hob. 49. 4. The Defendant does not lay it expresly that John Whyte died intestate but only says that he made a Will but did not appoint him the Defendant to be his Executor by that Will and that Administration was granted to him Now also the Defendant was not made Executor by the Will yet he might have been made so by a Codicil annexed to the Will Rolls Rep. 2 part 285. 5. He says not in what Province the bona notabilia
not bind an Infant neither by Common Law nor 5 Eliz. 1. Cr. 170. yet by this custom it shall in Pasch 21 Jac. B. R. Cole versus Holme there was such an Action against an Apprentice the Defendant pleaded Nonage the Plaintiff replyed the custom of London and that the Indenture of Apprentiship was inrolled as it ought to be c. and this was certified by the Recorder Serjeant Finch to be the custom and thereupon Iudgment was against the Defendant it is a Manuscript Jones The custom ought to have been alledged that he should have an Action of Covenant against him which is not done here and customs shall be taken strictly not by implication Moreover the Plaintiff declares for a loss not yet sustained the term not being ended Cur. The custom is sufficiently alledged to give and make good an Action of Covenant Tale remedium implies it Those words are applicable to all things relating to this matter viz. That the Master may correct him may go to a Iustice of Peace And also may have an Action of Covenant against him V. Hutt 63. 4. as against a man of full age Winch. 63. 4. And though by Common Law or the Statute his Covenant shall not bind him yet by the custom it shall But Twisden desired to sée Offley's Report As to the declaring for the loss of the term part whereof is unexpired though it has beén adjudged to be naught after a Verdict yet in this Case which is upon demurrer it may be helped For the Plaintiff may take damages for the departure only not the loss of service during the term and then it will be well enough Judgment nisi c. Jones versus Powel WOrds spoken of an Attorney Thou canst not read a Declaration per quod c. Cur. The words are actionable though there had been no special damages For they speak him to be ignorant in his Profession and we shall not intend that he had a distemper in his eyes c. Judic pro querente Anonymus THe Defendant in an Action of false Imprisonment justified the taking and imprisoning the Plaintiff by vertue of an Order of Chancery that he should be committed to the Fleet and the Plea judged naught because an Order is not sufficient It ought to have beén an Attachment he should have pleaded Quoddam breve de attachamento c. Osborne versus Walleeden REplevin The Defendant avows in right of his Wife for a Rent-charge devised to her for life by her former Husband But in the Will there was this Clause viz. If she shall marry c. he the Executor shall pay her 100 l. and the rent shall cease and return to the Executor She doth marry and the Executor does not pay the 100 l. The question was Whether the rent should cease before the 100 l. be paid Jones for the Plaintiff the rent ceaseth immediately upon her Marriage and she shall have remedy for the 100 l. in the Spiritual Court If the words had been He shall pay her 100 l. and from that time the rent shall cease It had been otherwise if she had died presently after the marriage her Executor should have had the 100 l. Brewer and Sanders for the Defendant she hath not a present interest in the 100 l. In this very Case the Common Pleas delivered their Opinion That this 100 l. ought to be paid before the rent should cease But for imperfection in the pleading we could not have Iudgment there Roll. She has no present interest in the 100 l. nor can her Executors have any and the rent shall not cease till the payment of it For first It is devised to her for life not during her Widowhood Secondly The rent issues out of the Inheritance and by the construction of the Will it shall go to the Executor for by cease in the Will is meant cease as to the Wife and the Executor is in nature of Purchasor and ought to pay the money before he has the rent and he ought to pay it out of his own Estate if he will have the rent For otherwise if it be lookt upon as a Legacy if he have no Assets she shall be immediately stript of her rent and have nothing Twisden I think the Divisors meaning was to give her a present interest in the 100 l. and if so the rent must cease presently upon the marriage But since it is to be issuing out of the Inheritance it is doubtful And since my Brothers are both of Opinion for the Avowant let him have Iudgment Then it was Objected That the Avowry was ill For it ought to have been in the Wifes name as well as the Husbands and alledged that Roll. 1 part 318. N. num 2. makes a Quaere and séems to be of opinion that Wise versus Bellent which is to the contrary is not Law V. 2 Cr. 442. 3. Twisd That was his Opinion it may be when he was a Student You have in that Work of his a common place which you stand too much upon I value him where he reports Iudgments and Resolutions But otherwise it is nothing but a Collection of Year-Books and little things noted when he made his Common Place Books His private opinion must not warrant or controul us here It has béen adjudged That the Husband alone may avow in right of his Wife Delaval versus Maschall DEbt upon a Bond the Condition whereof was That if J. S. and J. D. Arbitrators did make an Award on or before the 19. of February and if the Defendant should perform it then the Obligation should be void and then follow these words And if they do not make an Award before the 19. of February then I impower them to choose an Umpire and by these Presents bind my self to perform his Award The Defendant pleads That they did not make an Award The Plaintiff replies and sets forth an Award made upon the said 19. of February by an Vmpire chosen by the Arbitrators and alledges a breach thereof The Defendant demurs Sanders for the Defendant Here is no breach of the Condition of the Bond. For that which relates to the performing the Vmpires Award it following those words Then the Obligation shall be void is no part of the Condition and if any Action is to be brought upon that part it ought to be Covenant 2. The Award made by the Vmpire is void because made the 19. of February which was within the time limited to the Arbitrators for their power and the Vmpire could not make an award within that time because their power was not then determined as was lately adjudged in Copping versus Hornar Jones for the Plaintiff The Condition is good as to this part It is all but one Condition A man may make several Defeasances or Conditions to defeat the same Obligation Brook Condition 66. There is a continuance of this Condition It is said I bind my self by these presents which refers to the Lien before in the
Smith versus Smith ASsumpsit The Plaintiff declared whereas himself and the Defendant were Executors of the last Will and Testament of J. S. and whereas the Defendant had received so much of the money which was the Testators a moiety whereof belonged to the Plaintiff and whereas the Plaintiff Pro recuperatione inde Sectasset the Defendant that he the said Defendant in consideration that the Plaintiff abstineret a Secta praedicta prosequenda monstraret Quoddam computum did promise him 100 l. and avers that he did forbear c. quod ostentavit quoddam Computum praedictum After a Verdict for the Plaintiff it was moved in Arrest of Iudgment by Jones for the Defendant as followeth Though I do not see how that which one Executor claims against another is recoverable at all unless in Equity yet I shall insist only on this that here is no good consideration alledged for it is only alledged in general that the Plaintiff Sectasset It is not said so much as that it was legali modo in a legal way whereas it ought to be set forth in what Court it was c. that so the Court might know whether it were in a Court which had Iurisdiction therein or no and so are all the Presidents in Actions concerning forbearance to sue In point of Evidence the first thing to be shewn in such a case as this is that there was a Suit c. Saunders for the Plaintiff That being the prime thing necessary to be proved since the Verdict is found for us must be intended to have been proved But however if this consideration be idle and void yet the other maintains the Action and so the Court agreed viz. that one was enough It was agreed that if the Plaintiff averred only that he had shewed Quoddam Computum that unless the consideration had been to shew any account it had been naught for quoddam is aliud Dy. 70. nu 38 39. 1 H. 7. 9. but it being Quoddam computum praedict ' it was well enough Computum praedictum refers it to the particular account discoursed of between them It was agreed that it had been best to have said Monstravit in the averment that it might agree with the allegation of the consideration But yet the word ostentavit though most commonly by a Metonimy it signifies to boast yet signifieth also to shew or to shew often as appears by all the Dictionaries and therefore it is well enough Take Iudgment Sir Francis Duncombe's Case IT was held If a Writ of Error abate in Parliament or the like and another Writ of Error be brought in the same Court it is no Supersedeas But if the first Writ of Error be in Cam̄ Scacc ' c. and then a Writ be brought in Parliament c. it is a Supersedeas by the Opinion of all the Iudges against my Lord Cooke vide Heydon versus Godsalve 2 Cr. 342. Browne versus London INdeb ' Assumpsit for fifty three pounds due to the Plaintiff upon a Bill of Exchange drawn upon the Defendant and accepted by him according to the custom of the Merchants c. After a Verdict for the Plaintiff it was moved in arrest of Iudgment that though an Action upon the Case does well lie in such case upon the Merchants yet an Indeb ' Assumpsit may not be brought thereupon Winnington I think it doth well lye Debt lies against a Sheriff upon levying and receiving of money upon an Execution Hob. 206. Now this is upon a Bill of Exchange accepted and also upon the Defendants having effects of the drawer in his hands having read the value for so it must be intended because otherwise this general Verdict could not be found Rainesford This is the very same with Milton's Case lately in Scacc ' where it was adjudged that an Indeb ' Assumpsit would not lye In this case he added that the Verdict would not help it for though my Lord Chief Baron said it were well if the Law were otherwise yet he and we all agreed that a Bill of Exchange accepted c. was indeed a good ground for a special Action upon the case but that it did not make a Debt first because the acceptance is but conditional on both sides If the money be not received it returns back upon the drawer of the Bill He remains liable still and this is but collateral Secondly because the word Onerabilis doth not imply Debt Thirdly Because the case is primae Impressionis there was no President for it Then Offley who was of Council pro Defendente in the case at bar said that he was of Council for the Plaintiff in the Exchequer case and that therein direction was given to search Presidents and that they did search in this Court and in Guildhall and that there was a Certificate from the Attorneys and Prothonotaries there that there was no President of such an Action Adjornatur Twisden I remember an Action upon the Case was brought for that the Defendant had taken away his Goods and hidden them in such secret places that the Plaintiff could not come at them to take them in Execution and adjudged it would not lye Watkins versus Edwards ACtion of Covenant brought by an Infant per Guardian ' suum for that the Plaintiff being bound Apprentice to the Defendant by Indenture c. the Defendant did not keep maintain educate and teach him in his Trade of a Draper as he ought but turned him away The Defendant pleads that he was a Citizen and Freeman of Bristol and that at the General Sessions of the Peace there held there was an Order that he should be discharged of the Plaintiff for his disorderly living and beating his Master and Mistress and that this Order was inrolled by the Clarke of the Peace as it ought to be c. To which the Plaintiff demurred It was said for the Plantiff that the Statute 5 El. cap. 4. doth not give the Iustices c. any power to discharge a Master of his Apprentice in case the fault be in the Apprentice but only to minister due Correction and Punishment to him Cur̄ That hath been over-ruled here The Iustices c. have the same power of discharging upon complaint of the Master as upon complaint of the Apprentice Else that Master would be in a most ill case that were troubled with a bad Apprentice for he could by no means get rid of him Secondly it was urged on the Plaintiffs behalf that he had not for ought that appears any notice or summons to come and make his defence V. 11 Co. 99. Baggs case And this very Statute speaks of the appearance of the party and the hearing the matter before the Iustices c. Saunders pro Defendente In this case the Iustices are Iudges and it being pleaded that such a Iudgment was given that is enough and it shall be intended all was regular Twisden Rainesford That which we doubt is whether the Defendant ought not
I doubt whether the Defendant could have demurred But certainly now the Iury have found all this it can never be intended as they would have it as to the Case that has beén cited between Kirby and Hansaker I say it is not so clearly alledged there as here It is not said there that the Lesseé was possessed and that the Recoveror entred into and upon his Possessions and ejected him 2. These words Contra formam c. are not in that Case 3. In that Case the Court of Kings Bench was of Opinion That the Verdict had made it good 4. The Roll of that Case is not to be found here is a man will make Oath that he hath searched four years before and after the time when that Case is supposed to have been and cannot find it Rainsford and Moreton were at first of Opinion That the Verdict had helped it For saith Rainsford If Stowell had Title under the Plaintiff it could not have been found that there was a breach of Covenant But afterwards they said that Kirby and Hansaker's Case came so close to it that it was not to be avoided and they were unwilling to make new Presidents Twisden That Book is so express'd that it is not an ordinary authority it is not to be waved But I was of the same Opinion before that Book was cited For here it is possible Stowell might have a Lease from Wootton since the Fine Now the warranty doth not extend to Puisne Titles The Defendant should have said that Stowell had Priorem Titulum c. when a good Title is not set forth in the Declaration to entitle the Plaintiff to his Action it shall never be helped There was an Action upon the Stat. of Monopolies for that the Defendant entred I suppose by pretext of some Monopoly-Commission c. detinuit certain goods But it was not said they were his the Plaintiffs and though we had a Verdict yet we could never have Iudgment In 3 Car. there was an Action brought upon a Promise to give so much with a Child quantum daret to any other Child and it was alledged that dedit so much and because that that it might be before the time of the promise it was held naught after Verdict It may be the Roll of Kirby versus Hansaker is not to be found no more than the Roll of Middleton versus Clesman reported Yelv. 65. But certainly Justice Crook and Yelverton were men of that Integrity they would never have reported such Cases unless there had been such There are many losses miscarriages and mistakes of this kind Pray where will you find the Roll of the Decreé for Titles in London yet I have heard the Iudges say They verily believe it is upon a wrong Roll. Nil Capiat per Bill Rex versus Neville INdictment for erecting a Cottage for habitation contra Stat. quasht because it was not said That any inhabited it For else it is no offence per Rainsford Moreton qui soli aderant Jemy versus Norrice A Writ of Errour was brought of a Iudgment given in the Common Pleas in an Action upon a quantum meruit for Wares sold First One of them is unum par Chirothecarum But it is not said of what sort Twisden It is good enough however so it has been held de Coriis without saying Bovinis c. de Libris without saying what Books they were Secondly Another is parcella fili which it was said was uncertain unless it had been made certain by an Anglice For though it was agréed it had been good in an Indeb assumpsit yet in this Case there must vs a certainty of the debt Such a general word cannot be good no more than in a Trover Twisden If an Indeb assumpsit should be brought for 20 l. for Wares sold and no Evidence should be given of an agreement for the certain price I should direct it to be found especially But parcella fili séems to be as uncertain as paires of Hangings Cur. It is doubtful But however affirmetur nisi c. Foxwist al. versus Tremayneaut Trin. 21 Rot. 1512. V. Super. FOr the Plaintiff The two parties who are Infants may well sue by Attorney as they do The Authorities are clear 2 Cr. 441. 1 Ro. 288. Weld versus Rumney in 1650. Styles 318. We beg leave to mention especially what you Mr. Justice Twisden said there though indeéd we do not know nor can be very confident that it is reported right Twisden I do protest not one word of it true they went about But 3 Cr. 541. V. 5 Co. 29. 6 Co. 67. 6. and especially 378. is express in our Point In Rot. 288. num 2. Indeed there is a Quaere made because an Infant might by this means be amerced But that reason is a mistake for an Infant shall not be amerced Dyer 338. 1 Inst 127. a. 1 Ro. 214. Moreton I take the Law to be that where an Infant sues with others in auter droit as here he shall sue by Attorney for all of them together represent the Testator I ground my self upon the Authorities which have been cited and Yelv. 130. Also it is for the Infants advantage to sue by Attorney But if he be a Defendant he may appear by Guardian Popham 112. I think the parties may all joyn in this suit though perhaps in Hatton versus Maskew they could not For in that Case it appeared that the wife only who was Plaintiff was Executrix So he concluded that Iudgment ought to be given for the Plaintiffs Rainsford accordant This Case is stronger than where a single person is made Executor or Administrator For though Ro. 288. num 2. makes a Quaere of that yet Num. 3. which is our Case he agrees clearly with the Countess of Rutlands Case in 3 Cr. 377. 8. That the Infant as well as the other Executors shall sue by Attorney The Reasons objected on the contrary are That an Infant cannot make an Attorney and that he may be prejudiced hereby I answer That the Executors of full age have influence upon the Infants and they are entrusted to order and manage the whole business V. 1 Leon 74. And therefore Administration durante minoritate shall not be granted so in this Case he shall have priviledge to sue by Attorney because he is accompanied with those which are of full age I conclude I have not heard of any Authority against my Opinion and how we can go over all the Authorities cited for it I do not know Twisden contra This is an Action upon the Case for that the Defendant was indebted for damages clear received to the Testator's Vse And indeed I do not sée otherwise how it would lie Two questions have been made First Whether all the Executors may or must joyn I confess I have heard nothing against this viz. but that they may joyn But I cannot so easily as my Brothers slubber over all the Authorities cited viz. Hatton versus
Maskew which I confess is a full authority for this that they need not joyn The Case was thus The Testator recovers a Iudgment and dies making his Will thus Also I devise the residue of my Estate to my two Daughters and my Wife whom I make my Executrix I confess I cannot tell why but the Spiritual Court did judge them all both the two Daughters as well as the Wife to be Executrices and therefore we the Iudges must take them to be so The Wife alone proves the Will with a reservata potestate to the Daughters when they should come in But this makes nothing at all in this Case I think this is according to their usual form The Wife alone sues a Scire facias upon this Iudgment and therein sets forth this whole matter viz. that there were two other Executrices which were under seventeen c. It was adjudged for the Plaintiff and affirmed in a Writ of Errour in Cam. Scacc̄ that the Scire facias was well brought by her alone But first I cannot see how a Writ of Errour should lie in that Case in Cam. Scacc̄ For it is not a Cause within 27 Eliz. 2. What reason is there for Iudgment a reason may be given that before an Executor comes to seventeen he is no Executor But I say he is quoad esse though not quoad Excecutionem A Wife Administratrix under seventeen shall joyn with her Husband in an Action and why shall not the Infants as well in our Case Yelv. 130. is express that the Infant must joyn and be named It is clear that no Administration durante minore aetate can be committed in this Case For all the Executors make but one person and therefore why may not all joyn 2. Admitting they may joyn whether the Infants may sue by Attorney I hold that in no Case an Infant shall sue or be sued either in his own or auter droit by Attorney There are but four ways by which any man can sue In propria persona per Attornatum per Guardianum and per Prochein amy 1 Ro. 747. aut 340. 400. post 747. An Infant cannot sue in propria persona That was adjudged in Dawkes versus Peyton It was an excellent Case and there were many notable Points in it First It was Resolved That a Writ of Errour might be brought in this Court upon an Errour in Fact in the Petty Bagg 2. That the Entry being general venit such a one it shall he intended to be in propia persona 3. That it was Error for the Infant in that Case to appear otherwise than by a Guardian 4. That the Errour was not helped by the Statute of Jeoffails In a Case between Colt Sherwood Mich. 1649. an Infant Administrator sued and appeared per Guardianum and it appeared upon the Record that he was above seventeen years of age I was of Council in it and we insisted it was Errour but it was adjudged That he appeared as he ought to appear and that he ought not to appear by Attorney And the Reasons given were First Because an Infant cannot make an Attorney by reason of his inability Secondly Because by this means an Infant might be amerced pro falso Clamore For when he appears by Attorney non constat unless it happen to be specially set forth that he is an Infant and so he is amerced at all adventures and to relieve himself against this he has no remedy but by a Writ of Errour For Errour in Fact cannot be assignd ore tenus And it were well worth the Cost to bring a Writ of Errour to take off an amercement But it is said That the Infants may appear by Attorney in this Case because they are coupled and joyned in company with those of full age I think that makes no difference for that reason would make such appearance good in case that they were all Defendants But it is agreed That if an Infant be Defendant with others who are of full age he cannot appear by Attorney The reason is the same in both Cases If an Infant and two men of full age joyn in a Feoffment and make a Letter of Attorney c. this is not good nor can in any sort take away the imbecility which the Law makes in an Infant I conclude I think the Plaintiffs ought to joyn but the Infants ought to appear by Guardian But since my two Brothers are of another mind as to the last Point there must be Iudgment that the Defendant respondeat ouster Nota Coleman argued for the Defendant his Argument which ought to have been inserted above was to this effect First These five cannot joyn had there been but one Executor and he under seventeen years the Administrator durant̄ minor̄ c. ought to have brought the Action 5 Co. 29. a. But since there are several Executors and some of them of full age there can be no Administration durant ' minor̄ Those of full age must Administer for themselves and the Infants to But the course is that Executors of full age prove the Will and the other that is under age shall not come in till his age of seventeen years But now the question is How this Action should have beén brought I say according to the President of Hatton versus Maskew which was in Cam. Scacc̄ Mich. 15 Car. 2. Rot. 703. wherein the Executor who was of full age brougt the Scire fac̄ but set forth that there were other two Executors who were under age and therefore they which were of full age pray Iudgment It was resolved the Scire fac̄ was well brought and they agreed That the Cases in Yelverton 130. was good Law because in that Case it was not set forth specially in the Declaration that there was another Executor under age So that they Resolved That the Executor of full age could not bring the Action without naming the others 2. However the Infants ought to sue by Guardian and where Rolls and other Books say that where some are of age and some under they may all sue by Artorney It is to be understood of such as are indeed under 21 but above 17. Respondeas ouster After this the Suit was Compounded Term. Pasch 22 Car. II. Regis The great Case in Cancellaria between Charles Fry and Ann his Wife against George Porter Resolved That there is no Relief in Equity against the Forfeiture of Land limited over by Devise in Marrying without consent c. Many particulars concerning Equity THe Case was Montjoy Earl of Newport was seized of an house called Newport-house c. in the County of Middlesex and had three Sons who were then living and two Daughters Isabel married to the Earl of Banbury with her Fathers consent who had issue A. the Plaintiff and Ann married to Mr. Porter without her Fathers Consent who had issue D. both these Daughters dyed The Earl of Newport made his Will in this manner I give and bequeath to my dear wife