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
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
receive the bodies of James Earl of Salisbury Anthony Earl of Shaftsbury and Philip Lord Wharton Members of this House and keep them in safe custody within the said Tower during his Majesties pleasure and the pleasure of this House for their high Contempt committed against this House And this shall be a sufficient Warrant on that behalf To the Constable c. John Browne Cler ' Parl ' The Earl of Shaftsbury's Counsel prayed that the Retorn might be Filed and it was so And Friday following appointed for the debating of the sufficiency of the Retorn and in the mean time directions were given to his Counsel to attend the Iudges and the Attorny-General with their Exceptions to the Retorn and my Lord was remanded till that day And it was said that though the Retorn was Field the Court could remand or commit him to the Marshal at their Election And on Friday the Earl was brought into Court again and his Counsel argued the insufficiency of the Retorn Williams said That this cause was of great consequence in regard the King was touched in his Prerogative The Subject in his Liberty and this Court in its Iurisdiction The cause of his Commitment which is retorned is not sufficient for the general allegation of high Contempts is too uncertain for the Court cannot judge of the Contempt if it doth not appear in what act it is Secondly It is not shewed where the Contempt was committed and in favour of Liverty it shall be intended they were committed out of the House of Peers Thirdly The time is uncertain so that peradventure it was before the last Act of general Pardon 1 Roll 192 193. and 219. Russells case Fourthly It doth not appear whether this Commitment were on a Conviction or an Accusation only It cannot be denied but that the Retorn of such Commitment by any other Court would be too general and uncertain Moore 839. Astwick was bailed on a Retorn Quod commissus fuit per mandatum Ni. Bacon Mil. Domini Custodis magni Sigilli Angliae virtute cujusdam Contempt ' in Curia Cancellariae fact ' and in that book it appears that divers other persons were bailed on such general Retorns and the cases have been lately affirmed in Bushells case repeated by the Lord Chief Iustice Vaughan where it is expresly said that on such Commitment and Retorns being too general and uncertain the Court cannot believe in an implicite manner that in truth the Commitment was for causes particular and sufficient Vaughans Rep. 14. accord 2 Inst 52 53 55. and 1 Roll 218. And the Commitment of the Iurors was for acquitting Pen and Mead contra plenam manifestam Evidentiam and it was resolved to be too general for the Evidence ought to appear as certain to the Iudge of the Retorn as it appeared before the Iudge authorized to Commit Russells case 137. Now this Commitment being by the House of Peers will make no difference for in all cases where a matter comes in Iudgment before this Court let the question be of what nature it will the Court is obliged to declare the Law and that without distinction whether the question began in Parliament or no. In the case of Sir George Binion in C. B. there was a long debate whether an Original might be Filed against a Member of Parliament during the time of priviledge and it was urged that it being during the Sessions of Parliament the determination of the question did belong to the Parliament But it was resolved an Original might be Filed and Bridgman then being Chief Iustice said That the Court was obliged to declare the Law in all cases that come in Iudgment before them Hill 24 E. 4. Rot. 4. 7. 10. in Scacc ' in Debt by Rivers versus Cousin The Defendant pleads he was a Servant to a Member of Parliament and ideo capi seu arrest ' non debet and the Plaintiff prays Iudgment and quia videtur Baronibus quod tale habetur privilegium quod magnates c. et eorum familiares capi seu arrestari non debent Sed nullum habetur privilegium quod non debent implacitari Ideo respondeat oustr ' So in Treymiards case a question of priviledge was determined in this Court Dyer 60. In the 14 E. 3. in the case of Sir John and Sir Geoffrey Staunton which was cited in the case of the Earl of Clarendon and is entred in the Lords Iournal an Action of Waste depended between them in the Common-Pleas and the Court was divided and the Record was certified into the House of Parliament and they gave direction that the Iudgment should be entred for the Plaintiff Afterwards in a Writ of Error brought in this Court that Iudgment was reversed notwithstanding the Objection That it was given by Order of the House of Lords for the Court was obliged to proceed according to the Law in a matter which was before them in point of Iudgment The construction of all Acts of Parliament is given to the Courts at Westminster And accordingly they have adjudged of the Validity of Acts of Parliament They have searched the Rolls of Parliament Hob. 109. Lord Hudsons case They have determined whether the Iournals be a Record Hob. 110. When a point comes before them in Iudgment they are not foreclosed by any Act of the Lords If it appears that an Act of Parliament was made by the King and Lords without the Commons that is Felo de se and the Courts of Westminster do adjudge it void 4 H. 7. 18. Hob. 111. and accordingly they ought to do If this Retorn contains in it that which is fatal to it self it must stand or fall thereby It hath been a question often resolved in this Court when a Writ of Error in Parliament shall be a Supersedeas And this Court hath determined what shall be said to be a Session of Parliament 1 Roll 29. and if the Law were otherwise there would be a failour of Iustice If the Parliament were Dissolved there can be no question but the Prisoner should be discharged on a Habeas Corpas and yet then the Court must examine the cause of his Commitment and by consequence a matter Parliamentary And the Court may now have cognisance of the matter as clearly as when the Parliament is Dissolved The party would be without remedy for his Liberty if he could not find it here for it is not sufficient for him to procure the Lords to determine their pleasure for his Imprisonment for before his enlargement he must obtain the pleasure of the King to be determined and that ought to be in this Court and therefore the Prisoner ought first to resort hither Let us suppose for it doth not appear on the Retorn and the Court ought not to enquire of any matter out of it that a supposed contempt was a thing done out of the House it would be hard for this Court to remand him Suppose he were committed to a Forreign prison during the
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
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
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
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
it was said that the Act of Parliament only takes away a Writ of Error in such case but there is no day in Bank to plead It was order'd to stand in the paper Corporation of Darby THe Corporation of the Town of Darby prescribe to have Common sans number in grosse Sanders I conceive it may be by prescription what a man may grant may be prescribed for Co. Lit. 122. is express Keel In a Forest the King may grant Common for Sheep but you cannot prescribe for it And if you may prescribe for Common sans number in grosse then you may drive all the Cattel in a Fair to the Common Sanders But the prescription is for their own Cattel only Twisd If you prescribe for common sans number appurtenant to Land you can put in no more Cattel then what is proportionable to your Land for the Land stints you in that case to a reasonable number But if you prescribe for common sans number in grosse what is it that sets any bounds in such case There was a case in Glyn's time betwéen Masselden and Stoneby where Masselden prescribed for common sans number without saying levant couchant and that being after a Verdict was held good but if it had been upon a Demurrer it would have been otherwise Livesey said he was agent for him in the case Bucknall Swinnock INdebitat Assumpsit for money received to the Plaintiffs use the Defendant pleads specially that post assumptionem praedictam there was an agreement between the Plaintiff and Defendant that the Defendant should pay the money to J. S. and he did pay it accordingly The Plaintiff demurrs Jones This plea doth not only amount to the general issue but is repugnant in it self It was put off to be argued Hall versus Wombell THe question was whether an Action of Debt would lie upon a Iudgment given by the Commissioners of Excise upon an Information before them Adjornatur Vaughan Casewell A Writ of Error was brought to reverse a Iudgment given at the grand Sessions in Wales in a Writ of Quod ei deforciat Sanders The point in Law will be this whether a Tenants vouching a Vouchee out of the line be peremptory and final or that a Respondeas ouster shall be awarded Mr. Jones In an Assise the Tenant may vouch another named in the Writ 9 H. 5. 14. and so in the Com. fo 89. b. but a voucher cannot be of one not named in the Writ because it is festinum remedium In Wales they never allow foreign vouchers because they cannot bring them in If there be a Counterplea to a Voucher and that be adjudged in another Term it is always peremptory otherwise if it be determined the same Term. An Action of Trover and Conversion was brought against husband and wife and the wife arrested Twisd The wife must be discharged upon Common bail so it was done in the Lady Baltinglasse's case And where it is said in Crook that the Wife in such case shall be discharged it is to be understood that she shall be discharged upon Common bail So Livesey said the course was It was said to be the course of the Court That if an Attorney be sued time enough to give him two Rules to plead within the Term Iudgment may be given otherwise not Russell Collins AN Assumpsit was brought upon two several promises and entire damages were given Moved by Mr. Sympson in arrest of Iudgment that for one of the promises an Action will not lie It was a general indebitatus pro opere facto which was urged to be too general and uncertain But per Cur ' it is well enough as pro mercimoniis venditis pro servitio without mentioning the Goods or the Service in particular And the Plaintiff had Iudgment Dyer versus East AN Action upon the Case upon a promise for Wares that the wife took up for her wearing Apparel Polyxfen moved for a new Trial. Keel The husband must pay for the wives Apparel unless she does elope and he give notice not to trust her that is Scott Manby's case which was a hard Iudgment but we will not impeach it The Plaintiff had Iudgment Beckett Taylor DEbt upon a Bond to submit to an Award Exception was taken to the Award because the concurrence of a third person was awarded which makes it void They award that one of the parties shall discharge the other from his undertaking to pay a Debt to a third person and it was pretended that the third person being no party to the submission was not compellable to give a discharge But it was answered that he is compellable for in case the debt be paid him he is compellable in equity to give a Release to him that had undertaken to pay it Rolls 1 part 248. Giles Southwards case Mich. 1653. Judgment nisi Seventéen Serjeants being made the 4th of November a day or two after Serjeant Powis the Junior of them all coming to the Kings Bench bar the Lord Chief Iustice Keeling told him that he had something to say to him viz. That the Rings which he and the rest of the Serjeants had given weighed but 18 s. apiece whereas Fortescue in his book de laudibus legum Angliae says That the Rings given to the Chief Iustices and to the Chief Baron ought to weigh 20 s. apiece and that he spake this not expecting a recompence but that it might not be drawn into a president and that the young Gentlemen there might take notice of it Clerke versus Rowell Phillips A Trial at bar in Ejectment for Lands settled by Sir Pexall Brockhurst The Court said a Trial against others shall not be given in Evidence in this cause And Twisden said that an Entry to deliver a Declaration in Ejectment should not work to avoid a Fine but that it must be an express Entry Vpon which last matter the Plaintiff was non-suit Redmans Case IT was moved that one Redman an Attorney of the Court who was going into Ireland might put in special Bail Twisd A Clerk of the Court cannot put in bail You have filed a Bill against him and so waved his putting in bail Keel You may remember Woolly's case that we discharged him by reason of his priviledge and took Common bail Twisd You cannot declare against him in custodia But though we cannot take bail yet we may commit him and then deliver him out by mainpernancy Jones If he be in Court in propria persona you cannot procéed against his bail The Court agréed that the Attorney should not put in bail Grafton GRafton one of the Company of Drapers was brought by Habeas Corpus In the Return the cause of his Imprisonment was alledged to be for that being chosen of the Livery he refused to serve Per Cur ' they might have fined him and have brought an Action of Debt for the sum but they could nor imprison him Keel The Court of Aldermen may imprison a
of the great Sessions have power to try all Murthers as the Iudges here have and the Statute of 26 H. 8. for the Trial of Murthers in the next English County was made before that of the 34 H. 8. Twisden I never yet heard that the Statute of 34 H. 8. had repealed that of 26 Henr. 8. It is true the Iudges of the Grand Sessions have power but the Statute that gives it them does not exclude this Court. To be moved when the Chief Iustice should be in Court Franklyn's Case FRanklyn was brought into Court by Habeas Corpus and the Return being read it appeared that he was committed as a Preacher at Seditious Conventicles Coleman prayed he might be discharged he said this Commitment must be upon the Oxford Act for the last Act only orders a Conviction and the Act for Vniformity Commitment only after the Bishops Certificate And the Oxford Act provides that it shall be done by two Iustices of the Peace upon Oath made before them and in this Return but one Iustice of Peace is named for Sir William Palmer is mentioned as Deputy Lieutenant and you will not intend him to be a Iustice of Peace Nor does it appear that there was any Oath made before them Twisden Vpon the Statute of the 18th of the Queen that appoints that two Iustices shall make Orders for the keeping of Bastard-children whereof one to be of the Quorum I have got many of them quash'd because it was not exprest that one of them was of the Quorum Whereupon Franklyn was discharged Vpon a motion for time to plead in a great cause about Brandy Twisden said if it be in Bar you cannot demand Oyer of the Letters Patents the next Term but if it be in a Replication you may because you mention the precedent Term in the Bar but not in the Replication Yard Ford. MOved by Jones in Arrest of Iudgment an Action upon the Case was brought for keeping a Market without Warrant it being in prejudice of the Plaintiffs Market He moved that the Action would not lie because the Defendant did not keep his Market on the same day that the Plaintiff kept his which he said is implied in the case in 2 Rolls 140. Saunders contra Vpon a Writ of Ad quod dampnum they enquire of any Markets generally though not held the same day In this case though the Defendants Market be not held the same day that ours is yet it is a damage to us in forestalling our Market Twisden I have not observed that the day makes any difference If I have a Fair or Market and one will erect another to my prejudice an Action will lye and so of a Ferry It s true for one to set up a School by mine is damnum absque injuria Ordered to be moved again Pawlett moved in Trespass that the Defendant pleaded in Bar that he had paid 3 l. and made a promise to pay so much more in satisfaction and said it was a good plea and did amount to an accord with satisfaction an Action being but a Contract which this was Twisden An Accord executed is pleadable in Bar but Executory not Twisden There are two clauses in the Statute of Vsury if there be a corrupt agreement at the time of the lending of the money then the Bonds and all the Assurances are void but if the agreement be good and afterward he receives more than he ought then he forfeits the treble value Bonnefield HE was brought into Court upon a Cap. Excom and it was urged by Pawlett that he might be delivered for that his name was Bonnefield and the Cap. Excom was against one Bromfield Twisden You cannot plead that here to a Cap. Excom You have no day in Court and we cannot Bail upon this but you may bring your Action of False Imprisonment Caterall Marshall ACtion upon the Case wherein the Plaintiff declares that in consideration that he would give the Defennant a Bond of sufficient penalty to save him harmless he would c. and sets forth that he gave him a Bond with sufficient penalty but does not eppress what the penalty was This was moved in Arrest of Iudgment Jones After a Verdict it is good enough as in the case in Hob. 69. Twisd If it had been upon a Demurrer I should not have doubted but that it had been naught Rainsford Morton But the Iury have judged the penalty to be reasonable and have found the matter of fact Twisden The Iury are not Iudges what is reasonable and what unreasonable but this is after a Verdict And so the Iudgment was affirm'd the cause coming into the Kings Bench upon a Writ of Error Martin Delboe AN Action upon the Case setting forth that the Defendant was a Merchant and transmitted several Goods beyond Sea and promised the Plaintiff that if he would give him so much money he would pay him so much out of the proceed of such a parcel of Goods as he was to receive from beyond Sea The Defendant pleaded the Statute of Limitations and doth not say non assumpsit infra sex annos but that the cause of Action did not arise within six years The Plaintiff demurs because the cause is betwéen Merchants c. Sympson The plea is good Accounts within the Statute must be understood of those that remain in the nature of Accounts now this is a sum certain Jones accorded This is an Action upon the Case and an Action upon the Case betwéen Merchants is not within the exception And the Defendant has pleaded well in saying that the cause of Action did not arise within six years for the cause of Action ariseth from the time of the Ships coming into Port and the six years are to be reckoned from that time Twisden I never knew but that the word Accounts in the Statute was taken only for Actions of account An insimul computasset brought for a sum certain upon an Account stated though betweén Merchants is not within the Exception So Iudgment was given for the Defendant The King versus Leginham AN Information was exhibited against him for taking unreasonable Distresses of several of his Tenants Jones moved in arrest of Iudgment that an Information would not lye for such cause Marlebr cap. 4. saith that if the Lord take an unreasonable Distress he shall be amerced so that an Information will not lye And my Lord Coke upon Magna Carta says the party grieved may have his Action upon the Statute but admit an Information would lye yet it ought to have been more particular and to have named the Tenants it is not sufficient to say in general that he took unreasonable Distresses of several of his Tenants And the second part of the Information viz. that he is communis oppressor is not sufficient Rolls 79. Moor 451. Twisden It hath so been adjudged that to lay in an Information that a man is communis oppressor is not good And a Lord cannot be indicted
Hales in that case said that upon a penalty you need not make a demand as in case of a nomnine poenae as if I bind my self to pay 20 l. on such a day and in default thereof to pay 40 l. the 40 l. must be paid without any demand Hales If a man cut and carry away Corn at the same time it is not Felony because it is but one Act but if he cut it and lay it by and carry it away afterwards it is Felony Hales If a Declaration be general Quare clausum fregit and doth not express what Close there the Defendant may mention the Trespass at another day and put the Plaintiff to a new Assignment But if he say Quare clausum vocat Dale fregit c. there the conclusion Quae est eadem transgressio will not help Fitz-gerard Maskall ERror of a Iudgment in the Kings Bench in Ireland the general Error assigned Offered 1. That the Eject was brought de quatuor molendinis without expressing whether they were Wind-mills or Water-mills Hales That is well enough The Presidents in the Register are so Secondly That it was of so many Acres Jampnor ' bruer ' not expressing how many of each Cur ' That hath always been held good It was then objected that the Record was not removed upon which it was ordered to stay Pemberton moved for a Prohibition to the Spiritual Court for that they cited the Minister of Mary-bone which is a Donative to take a faculty of Preaching from the Bishop Hales If the Bishop go about to visit a Donative this Court will grant a Prohibition But if all the pretence be that it is a Chappel and the Chaplain hired and the Bishop send to him that he must not Preach without Licence it may be otherwise Twisden Fitzherbert saith if a Chaplain of the Kings Free-Chappel keep a Concubine the Bishop shall not Visit but the King Hales Indeed whether there be all Ornaments requisite for a Church the Bishop shall not enquire nor shall he punish for not Repairing Originally Free-Chappels were Colledges and some did belong to the King and some to private men And in such a Chappel he that was in was entituled as Incumbent and not a Stipendiary To hear Counsel Moved by Stroud for a Prohibition to the Bishops Court of Exeter because they proceeded to the Probate of a Will that contained Devises of Lands as well as bequests of personal things Hales Their proving the Will signifies nothing as to the Land Stroud urged Denton's case and some other Authorities Hales The Will is entire and we are not advised to grant a Prohibition in such case Hales It is the course of the Exchequer in case of an Outlawry to prefer an Information in the nature of a Trover and Conversion against him that hath the Goods of the party Outlawed Parsons Perns TWo Women were Ioyntenants in Fée One of them made a Charter of Feoffment and delivered the Déed to the Feoffee and said to him being within view of the Land Go enter and take possession but before any actual entry by the Feoffee the feoffor and feoffee entermarry And the question was whether or no this Marriage coming between the delivery of the Deed and the Feoffees Entry had destroyed the operation of the Livery within the view Polynxfen It hath not for the power and authority that the Feoffee hath to enter is coupled with an Interest and not countermandable in Fact and if so not in Law If I grant one of my Horses in my Stable nothing passeth till Election and yet the grant is not revocable so till attornment nothing passeth and yet the Deed is not revocable If the Woman in our case had married a Stranger that would not have been a revocation Perk. 29. I shall compare it to the case of 1 Cro. 284. Burdet versus Now for the interest gotten by the Husband by the Marriage he hath no Estate in his own right If a man be seized in the right of his Wife and the Wife be attainted of Felony the Lord shall enter and oust the Husband he gains nothing but a bare perception of profits till Issue had after Issue had he has an Estate for life Where a man that hath title to enter comes into possession the Law doth execute the Estate to him 7 H. 7. 4. 2 R. 2. tit Attornment 28 Ed. 3. 11. Bro. tit Feoffment 57. Moor fol. 85. 3 Cro. 370. Hales said to the other side you will never get over the case of 38 Ed. 3. My Lord Coke to that case saith that the Marriage without Attornment is an execution of the grant but that I do not believe for the attendance of the Tenant shall not be altered without his consent The effectual part of the Feoffment is Go enter and take possession Twisden Suppose there be two Women seized one of one Acre and another of another Acre and they make an exchange and then one of them marries before Entry shall that defeat the Exchange Hales That is the same case So Iudgment was given accordingly Zouch Clare THomas Tenant for life the Remainder to his first second and third son the Remainder to William for life and then to his first second and third son and the like Remainders to Paul Francis and Edward with Remainders to the first second and third son of every one of them William Paul Francis and Edward levy a Fine to Thomas Paul having Issue two Sons at the time Then Thomas made a Feoffment And it was urged by Mr. Leak that the Remainders were hereby destroyed Hales Suppose A. be Tenant for life the Remainder to B. for life the Remainder to C. for life the Remainder to a Contingent and A. and B. do joyn in a Fine doth not C's right of Entry preserve the contingent Estates If there had béen in this case no Son born the contingent Remainders had béen destroyed but there being a Son born it left in him a right of Entry which supports the Remainders and if we should question that we should question all for that is the very basis of all Conveyances at this day And Iudgment was given accordingly Term. Pasch 24 Car. II. 1672. in B. R. Monke versus Morris Clayton AN Action was brought by Monke against the Defendants and Iudgment was given for him They brought a Writ of Error and the Iudgment was affirmed Jones moved that the money might be brought into Court the Plaintiff being become a Bankrupt Winning ' This case was adjudged in the Common-Pleas viz. a man brought an Action of Debt upon a Bond and had a Verdict and before the day in Bank became a Bankrupt it was moved that that Debt was assigned over and prayed to have the money brought into Court but the Court refused it Coleman We have the very words for us in effect for now it is all one as if Iudgment had been given for the Assignées of the Commissioners Twisden How can we
take notice that he is a Bankrupt any Execution may be stopped at that rate by alledging that there is a Commission of Bankrupts out against the Plaintiff If he be a Bankrupt you must take out a special Scire facias and try the matter whether he be a Bankrupt or not Which Jones said they would do and the Court granted Twisden If a Mariner or Ship-Carpenter run away he loses his wages due which Hales granted Henry L. Peterborough vers John L. Mordant A Trial at Bar upon an Issue out of the Chancery whether Henry Lord Peterborough had only an Estate for Life or was seized in Fee-tail The Lord Peterborough's Counsel alledged that there was a settlement made by his Father 9 Car. 1. whereby he had an Estate in Tail which he never understood till within these three years but he had claimed hitherto under a Settlement made 16 Car. 1. And to prove a Settlement made 9 Car. 1. he produced a Witness who said that he being to purchase an Estate from my Lord the Father one Mr. Nicholls who was then of Counsel to my Lord gave him a Copy of such a Deed to shew what title my Lord had But being asked whether he did see the very Deed and compare it with that Copy he answered in the negative whereupon the Court would not allow his Testimony to be a sufficient Evidence of the Deed and so the Verdict was for my Lord Mordant Cole Forth A Trial at Bar directed out of Chancery upon this Issue whether Wast or no Wast Hales By protestation I try this cause remembring the Statute of 4 Henr. 4. And the Statute was read whereby it is Enacted That no Iudgment given in any of the Kings Courts should be called in question till it were reverst by Writ of Error or Attaint He said this cause had been tried in London and in a Writ of Error in Parliament the Iudgment affirmed Now they go into the Chancery and we must try the cause over again and the same point A Lease was made by Hilliard to Green in the year 1651. afterwards he deviseth the Reversion to Cole and Forth gets an under-Lease from Green of the premisses being a Brew-house Forth pulls it down and builds the ground into Tenements Hales The question is whether this be Wast or no and if it be Wast at Law it is so in Equity To pull down a House is Wast but if the Tenant build it up again before an Action brought he may plead that specially Twisden I think the Books are pro and con whether the building of a new House be Wast or not Hales If you pull down a Malt-mill and build a Corn-mill that is Wast Then the Counsel urged that it could not be repaired without pulling it down Twisden That should have been pleaded specially Hales I hope the Chancery will not Repeal an Act of Parliament Wast in the House is Wast in the Curtelage and Wast in the Hall is Wast in the whole House So the Iury gave a Verdict for the Plaintiff and gave him 120 l. damages Term. Mich. 25 Car. II. 1673. in B. R. AN Action of Debt was brought upon a Bond in an inferiour Court the Defendant cognovit actionem petit quod inquiratur per patriam de debito This pleading came in question in the Kings Bench upon a Writ of Error but was maintain'd by the Custom of the place where c. Hales said it was a good Custom for perhaps the Defendant has paid all the Debt but 10 l. and this course prevents a Suit in Chancery And it were well if it were established by Act of Parliament at the Common Law Wild. That Custom is at Bristow Randall versus Jenkins 24 Car. 2. Rot. 311. REplevin The Defendant made Conusance as Bayliff to William Jenkins for a Rent-charge granted out of Gavel-kind Lands to a man and his Heirs The question was whether this Rent should go to the Heir at Common Law or should be partible amongst all the Sons Hardres It shall go to the eldest Son as Heir at Law for I conceive it is by reason of a Custom time out of mind used that Lands in Kent are partible amongst the Males Lamb. Perambulat of Kent 543. Now this being a thing newly created it wants length of time to make it descendible by Custom 9 H. 7. 24. A feoffment in Fee is made of Gavel-kind Lands upon Condition the Condition shall go to the Heirs at Common Law and not according to the descent of the Land Co. Litt. 376. If a warranty be annex'd to such Lands it shall descend only upon the eldest Son Now this Rent-charge being a thing contrary to common right and de novo created is not apportionable Litt. Sect. 222. 224. it is not a part of the Land for if a man levy a Fine of the Land it will not extinguish his Rent unless by agreément betwixt the parties 4 Edw. 3. 32. Bro. tit Customs 58. if there be a Custom in a particular place concerning Dower it will not extend to a Rent-charge Fitz. Dower 58. Co. Litt. 12. Fitz. Avowry 207. 5 Edw. 4. 7. there is no occasion in this case to make the Rent descendible to all for the Land remains partible amongst the Males according to the Custom And why a Rent should go so to the prejudice of the Heir I know not 14 H. 88. it is said that a Rent is a different and distinct thing from the Land Then the language of the Law speaks for general Heirs who shall not be disinherited by construction The grand Objection is whether the Rent shall not follow the nature of the Land 27 H. 8. 4. Fitzherb said he knew four Authorities that it should Fitz. Avowry 150. As for his first case I say that Rent amongst Parceners is of another nature than this for that is distreynable of Common right As for the second I say the rule of it holds only in cases of Proceedings and Trials which is not applicable to his Custom His third case is that if two Coparceners make a feoffment rendring Rent and one dies the Rent shall not survive To this I find no answer given Litt. Sect. 585. is further objected where it is said that if Land be deviseable by Custom a Rent out of such Lands may be devised by the same Custom but Authorities clash in this point He cited farther these books viz. Lamb. Peramb of Kent and 14 H. 8. 7 8. 21 H. 6. 11. Noy Randall Roberts case 51. Den. cont I conceive this Rent shall descend to all the Brothers for it is of the quality of the Land and part of the Land it is contained in the bowels of the Land and is of the same nature with it 22 Ass 78. which I take to be a direct Authority as well as an instance Co. Lit. 132. ibid 111. In some Boroughs a man might have devised his Land by Custom and in those places he might have devised a Rent
in the continuance of that Estate that is not subject to the Rent but is above all those charges now no recompence can come to such a Rent And therefore there is another reason why a Common Recovery will bar at Common Law upon an Estate Tail which was a Fée-simple conditional a Remainder could not be limited over because but a possibility but now comes that Statute De donis conditionalibus and makes it an estate tail and a Common recovery is an inherent priviledge in the Estate that was never taken away by that Statute De donis the Law takes it as a conveiance excepted out of the Statute as if he were absolutely seised in fee and this is by construction of Law It is true there can be no recompence to him that hath but a possibilitie But the business of recompence is not material as to this charge And the reason of Whites case and other cases put explain this Now what difference between this and Capels case Say they there the charge doth arise subsequent but here the charge doth arise precedent why I say the charge doth arise precedent to the Remainder but subsequent to the Estate tail for it is not to take effect till the Estate tail be determined It was doubted in the Queens time whether a Remainder for years was barred but it hath béen otherwise practised ever since and there is no colour against it Now you do agrée that the Remainder to the right Heirs of one living shall be barred for the Estate is certain though the Person be uncertain So long as the Rent doth not come within the compass and limitation of the Estate tail the Rent is extinct and killed there is nothing to keep life in it But whether doth not the Lease for years preserve it Heretofore it was a question among young men Whether if Tenant in Tail granted a Rent Charge for Life then makes a Lease for three Lives In this case though the Rent before would have dyed with Tenant in Tail yet this Rent will continue now during the three Lives which it will And it hath been questioned if he had made a Lease for years instead of the Lease for lives if that would have supported the Rent Now in our case if the Lease for years were chargeable the Rent would arise out of that But if this Rent should continue then most mens Estates in England would be shaken Wild. The Lease for years doth not preserve the Rent but the Common Recovery doth bar it For Pell Brownes case in that Case the Recovery could not barr the possibility for he was not Tenant in Tail that did suffer the Recovery but he had only a Fee simple determinable and the contingent Remainder not depend upon an Estate Tail nay did not depend by way of Remainder but by way of Contingency It is true Iustice Dodridge did hold otherwise but the rest of Iudges gave Iudgment against him upon very good reason Twisden I never heard that case cited but it was grumbled at Hales But to your knowledge and mine they always gave Iudgment accordingly A man made a gift in Tail determinable upon his non-payment of 1000 l. the Remainder over in Tail to B. with other Remainders Tenant in Tail before the day of payment of the 1000 l. suffers a common Recovery and doth not pay the 1000 l. yet because he was Tenant in Tail when he suffered the Recovery by that he had barred all and had an Estate in Fee by that Recovery At a day after Hales said the Rent was granted before the Lease for years and is not to take effect till the Estate Tail be spent and a common Recovery bars it If there be Tenant in Tail reserving Rent a common Recovery will not bar it so if a Condition be for payment of Rent it will not bar it But if a Condition be for doing a collateeal thing it is a bar And so if Tenant in Tail be with a Limitation so long as such a Tree shall stand a common Recovery will bar that Limitation Lampiere versus Mereday AN Audita Querela was brought before Iudgment entred which they could not do 9 H. 5. 1. which the Court agreed Whereupon Counsel said it was impossible for them to bring an Audita Querela before they were taken in Execution for the Plaintiff will get Iudgment signed and take out Execution on a suddain and behind the Defendants back Thereupon the Court ordered the Postea to be brought in for the Defendant to see if Execution were signed And at a day after Hales said If an Audita Querela was brought after the day in bank though the Iudgment was not entred up yet the Court would make them enter up the Iudgment as of that day So that they shall not plead Nul tiel Record Wyld said a Sheriffs bond for ease and favour was void at Common Law and so it was declared in Sir John Lenthalls case Twisden upon opening of a Record by Mr. Den said It was already adjudged in this Court that a Rent issuing out of Gavelkind Land is of the nature of the Land and shall descend as the Land doth An Action of Debt upon a Bond. Sympson moved in Arrest of Iudgment The Bond was dated in March and the Condition was for payment super vicessimum octavum diem Martii prox ' sequentem It was sequentem which refers to the day which shall be understood of the month next year If it had been sequentis then it had referred to March and then it had beén payable the next year But the Court was of Opinion that it should be understood the currant month Sympson cited a case wherein he said it had been so held Read versus Abington Hales Formerly if Execution was gone before a Writ of Error delivered or shewed to the party it was not to be a Supersedeas Wyld He must not keep the Writ in his pocket and think that will serve At another day Hales said it shall not be a Supersedeas unless shewed to the party and he must not foreslow his time of having it allowed for if it be not allowed by the Court within four days it is no Supersedeas Hales A Writ of Error taken out if it be not shewn to the Clerk of the other side nor allowed by the Court it is no Supersedeas to the Execution And that if a Writ of Error be sued bearing Teste before the Iudgment be given if the Iudgment be given before the Retorn it is good to remove it though at first he said it was so in respect of a Certiorari but not of a Writ of Error And he said that Iudgment when ever it is entred hath relation to the day in bank viz. the first day of the Term So that a Writ of Error retornable after will remove the Record when ever the Iudgment is entred Vpon a motion concerning the amending of Leather-Lane Hales If you plead Not-guilty it goes to the Repair or
pleaded A special Verdict that the Lands are Copyhold Lands and surrendred to the use of one for eleven years the Remainder for five years to the Daughter the Remainder to the right heirs of the Tenant for eleven years The eleven years expire the Daughter is admitted the five years expire And there being a Son and Daughter by one Venter and a Son by another Venter the Son of the first Venter dies before admittance and the Daughter of the first Venter and her Husband bring Trover for cutting down of Trees And the question was if the admittance of Tenant for years was the admittance of the Son in Remainder Levings I conceive it is and then the Son is seized and the Daughter of the whole blood is his heir and he cited 4 Rep. 23. 3 Cro. 503. Bunny's case Wyld The Estate is bound by the Surrender Hales If a man doth surrender to the use of John Styles till admitted there is no Estate in him but remains in the Surrenderor but he hath a right to have an admittance If a surrender be to J. S. and his heirs his heir is in without admittance if J. S. dies About this hath indeed been diversity of Opinion but the better Opinion hath been according to the Lord Coke's Opinion I do not see any inconvenience why the admission of Tenant for life or years should not be the admittance of all in Remainder for Fines are to be paid notwithstanding by the particular Remainders and so the Books say it shall be no prejudice to the Lord. Twisd I think it is strong that the admission of Lessee for years is the admission of him in Remainder for as in a case of possessio fratris the Estate is bound so that the Sister shall be heir so here the Estate is bound and goes to him in Remainder Hales I shall not prejudice the Lord for if a Fine be assessed for the whole Estate there is an end of the business but if a Fine be assessed only for a particular Estate the Lord ought to have another If a surrender be to the use of A. for life the Remainder to his eldest Son c. or to the use of A. and his heirs and then A. dies the Estate is in the Son without admittance whether he takes by purchase or descent And Iudgment was given accordingly Draper versus Bridwell Rot. 320. ALL the Court held that an Action of Debt would lye upon a Iudgment after a Writ of Error brought Twisden They in the Spiritual Court will give Sentence for Tythes for rakings though they be never so unvoluntarily left which our Law will not allow of Wyld said that Actions personal transitory though the party doth live in Chester yet they may be brought in the Kings Courts Hales Shew a President where a man can wage his Law in an Action brought upon a Prescription for a duty as in an Action of Debt for Toll by Prescription you cannot wage your Law Pybus versus Mitford Postea THe Chief Iustice delivered his Opinion Wyld Rainsford and Twisden having first delivered theirs Hales I think Iudgment ought to be given for the Defendant whether the Son take by descent or purchase I shall divide the case 1 Whether the Son doth take by descent 2 Admitting he doth not whether he can take by purchase We must make a great difference betweén Conveyances of Estates by way of use and at Common Law A man cannot convey to himself an Estate by a Conveyance at Common Law but by way of Vse he may But now in our case here doth doth retorn by operation of Law an Estate to Michael for his life which is conjoyned with the Limitation to his heirs The reason is because a Limitation to the heirs of his body is in effect to himself this is perfectly according to the intention of the parties Objection The use being never out of Michael he hath the old use and so it must be a Contingent use to the heirs of his body But I say we are not here to raise a new Estate in the Covenantor but to qualifie the Estate in Fee in himself for the old Estate is to be made an Estate for life to serve the Limitation Further Objection It shall be the old Estate in Fee as if a man deviseth his Lands to his heirs the heir is in of the old Estate But I answer if he qualifie the Estate the Son must take it so as in Hutton fo So in this case is a new qualification Roll 789. 15 Jac. If a man makes a Feoffment to the use of the heirs of the body of the Feoffor the Feoffor hath an Estate Tail in him Pannel versus Fenne Moor 349. Englefield and Englefield 2 I conceive if it were not possible to take by descent this would be a Contingent use to the heirs of the body Objection It is limited to the heir when no heir in being Why I say it would have come to the heir at Common Law if no express Limitation had been and it cannot be intended that he did mean an heir at Common Law because he did specially limit it Fitz. tit Entayle 23. An Assise for the Serjeant at Mace's place in the House of Commons The Plaintiff had his Patent read The Court asked if they could prove Seisin They answered that they had recovered in an Action upon the case for the mean profits and had Execution Court For ought we know that will amount to a seisin Twisden Vpon your grant since you could not get seisin you should have gone into Chancery and they would have compelled him to give you seisin Hales A man may bring an Action upon the case for the profits of an Office though he never had seisin So the Record was read of his Recovery in an Action upon the case for the profits Hales This is but a seisin in Law not a seisin in Fact The Counsel for the Plaintiff much urged that the Recovery and Execution had of the profits was a sufficient seisin to entitle them to an Assise It was objected that the Plaintiff was never invested into the Office Hales said That an investiture did not make an Officer when he is created by Patent as this is but he is an Officer presently But if he were created an Herald at Arms as in Segars case he must be invested before he can be an Officer a person is an Officer before he is sworn Hales You are the Pernor of the profits and they have recovered them is not this a Seisin against you They shall find it specially but they chose rather to be Non-suit because of the delay by a special Verdict And the Court told them they could not withdraw a Iuror in an Assise for then the Assise would be depending The Roll of the Action sur le case fuit 19 Car. 2. Mich. Rot. 557. Term. Trin. 15 Car. II. 1663. Judge Hide 's Argument in the Exchequer-Chamber Manby versus Scott A Feme Covert departs
to chuse every year two Surveyors to take care that no unwholsome Victuals were sold within the Precinct of that Mannor and that they were sworn to execute their Office truly for the space of a year and that they had power to destroy whatever corrupt Victuals they found exposed to sale and that the Defendants being chosen Surveyors and sworn to execute the Office truly examining the Plaintiffs meat who was also a Butcher found a side of Beef corrupt and unwholsome and that therefore they took it away and burnt it prout eis bene licuit c. The Plaintiff demurs North. This is a case of great consequence and seems doubtful It were hard to disallow the Custom because the design of it seems to be for the preservation of mens health And to allow it were to give men too great a power of seizing and destroying other men's Goods There is an Ale-taster appointed at Leets but all his Office is to make Presentment at the Leet if he finds it not according to the Assize Wyndham Atkyns Ellis It is a good reasonable Custom It is to prevent evil and Laws for prevention are better then Laws for punishment As for the great power that it seems to allow to these Surveyors it is at their own peril if they destroy any Victuals that are not really corrupt for in an Action if they justifie by virtue of the Custom the Plaintiff may take issue that the Victuals were not corrupt But here the Plaintiff has confessed it by the demurrer Atkyns said if the Surveyors were not responsible the Homage that put them in must answer for them according to the rule of respondeat superior Iudgment was given for the Plaintiff unless c. Thredneedle Lynham's Case UPon a special Verdict the case was thus The Iury found that the Lands in the Declaration are and time out of mind had been parcel of the demesnes of the Mannor of Burniel in the County of Cornwall which Mannor consists of demesnes viz. Copy-hold tenements demisable for one two or three lives and services of divers Free-hold Tenants that within the Mannor of Burniel there is another Mannor called Trecaer consisting likewise of Copy-holds and Free-holds and that the Bishop of Exeter held both these Mannors in the right of his Bishoprick Then they find the Statute of 1. Eliz. in haec verba They find that the old accustomed yearly Rent which used to be reserved upon a demise of these two Mannors was 67 pounds 1 s. and 5 d. then they find that Joseph Hall Bishop of Exeter demised these two Mannors to one Prowse for 99 years determinable upon three lives reserving the old and accustomed Rent of 67 l. 1 s. and 5 d. that Prowse living the Cestuy que vies assigned over to James Prowse the demesnes of the Mannor of Trecaer for that afterwards he assigned over all his Interest in both Mannors to Mr. Nosworthy excepting the demesnes of Treacer then in the possession of James Prowse That Mr. Nosworthy when two of the lives were expired for a sum of money by him paid to the Bishop of Exeter surrendred into his hands both the said Mannors excepting what was in the possession of James Prowse and that the Bishop Joseph Hall's Successor redemised unto him the said Mannors excepting the demesnes of Trecaer and excepting one Messuage in the occupation of Robert and excepting one Farm parcel of the Mannor of Burniel for three lives reserving 67 l. 1 s. 5 d. with a nomine poenae and whether this second Lease was a good Lease and the 67 l. 1 s. 5 d. the old and accustomed Rent within the intention of the Statute of 1 Eliz. was the question After several arguments at the Bar it was argued at the Bench in Michaelmas Term Ann. 26 Car. 2. And the Court was divided viz. Vaughan Ellis against the Lease Atkyns Wyndham for it This Term North Chief Justice delivered his Opinion in which he agreed with Atkyns Wyndham so that Iudgment was given in maintenance of the Lease and the Iudgment was affirmed in the Kings Bench upon a Writ of Error The Chapter of the Collegiate Church of Southwell versus the Bishop of Lincoln and J. S. Incumbent c. IN a Qua. imp the Incumbents Title was under a grant made by the Plaintiffs who were seized of the Advowson ut de uno grosso in the right of their Church of the next avoidance one Esco being then Incumbent of their Presentation to Edward King from whom by mean assignments it came to Elizabeth Bley who after the death of Esco presented the Defendant Vpon a demurrer these points came in question 1. Whether the grantors were within the Statute of the 13 Eliz. or not 2. Whether a grant of a next avoidance be restrained by the Statute 3. If the grant be void whether it be void ab initio or when it becomes so And 4. Whether the Statute of 13 Eliz. shall be taken to be a general Law for it is not pleaded Serjeant Jones For the first point argued that the Grantors are within the Statute the words are Deans Chapters which he said might well be taken severally for of this Chapter there is no Dean If they were to be taken joyntly then a Dean were not within this Law in respect of those possessions which he holds in the right of his Deanry but the subsequent general words do certainly include them and would extend even to Bishops but that they are superiour to all that are expressed by name For the second he said the Statute restrains all gifts grants c. other then such upon which the old Rent c. He cited Cr. Eliz. 440. 5. Co. the case of Ecclesiastical persons 10 Co. the Earl of Salisbury's case For the third point he held it void ab initio it must be so or good for ever For here is no Dean after whose death it may become void as in Hunt Singleton's case the Chapter in our case never dies For the fourth point he argued that it is a general Law because it concerns all the Clergy Holland's case 4 Rep. Dumpor's case ibid. 120. b. Willmote contra North Chief Justice Atkyns Wyndham Ellis Iustices all agreed upon the three first points as Serjeant Jones had argued Atkyns doubted whether the 13 of Eliz. were a general Law or not but was over-ruled They all agreed that the Action should have been brought against the Patron as well as against the Ordinary and the Incumbent but that being only a plea in abatement that the Defendant has waived the benefit thereof by pleading in Bar. And Iudgment was given for the Plaintiff Nisi causa c. Hunt Singleton's case being mentioned Atkyns said he thought it a hard case considering that the Dean and the Chapter were all persons capable that a grant should hold in force as long as the Dean lived and determine then He thought they being a Corporation aggregate of
the Sheriff because he is compellable to let him to bail but this is an Action at the Common Law for a false Return which if it should not be maintainable the design of the Statute would be defrauded for the Plaintiff cannot controll the Sheriff in his taking bail but he may take what persons and what bail he pleaseth and if he should not be chargeable in an Action for not having the body ready the Plaintiff could never have the effect of his Suit and although the Sheriff be chargeable he will be at no prejudice for he may repair his loss by the bail-bond and it is his own fault if he takes not security sufficient to answer the Debt The last clause in the Statute is That if any Sheriff return a Cepi corpus or reddidit se he shall be chargeable to have the body at the day of the Return as he was before c. that if implies a Liberty in the Sheriff not to return a Cepi corpus or reddidit se But notwithstanding by the opinion of North Chief Justice Wyndham Atkyns Justice the Plaintiff was barred Bowles Lassel's case they said was a strong case to govern the point and the return of paratum habeo is in effect no more then if he had the body ready to bring into Court when the Court should command him and it is the common practice only to amerce the Sheriff till he does bring in the body and therefore no Action lies against him for it is not reasonable that he should be twice punished for one Offence and that against the Court only Scroggs delivered no Opinion but Iudgment was given ut sup Cockram Welby ACtion upon the Case against a Sheriff for that he levied such a sum of money upon a Fieri facias at the Suit of the Plaintiff and did not bring the money into Court at the day of the return of the Writ Per quod deterioratus est dampnum habet c. the Defendant pleads the Statute of 21 Jac. of Limitations To which the Plaintiff demurs Serjeant Barrell This Action is within the Statute It ariseth ex quasi contractu Hob. 206. Speak Richard's case It is not grounded on a Record for then nullum tale Recordum would be a good plea which it is not it lies against the Executors of a Sheriff which it would not do if it arose ex maleficio Pemberton This Action is not brought upon the Contract if we had brought an Indebitatus Assumpsit which perhaps would lie then indeed we had grounded our selves upon the Contract and there had been more colour to bring us within the Statute but we have brought an Action upon the case for not having our money here at the day Per quod c. North. An Indebitatus Assumpsit would lie in this case against the Sheriff or his Executor and then the Statute would be pleadable I have known it resolved that the Statute of Limitations is not a good plea against an Attorny that brings an Action for his Fees because they depend upon a Record here and are certain Next Trinity Term the matter being moved again the Court gave Iudgment for the Plaintiff Nisi causa c. if the Fieri facias had been returned then the Action would have beén grounded upon the Record and it is the Sheriffs fault that the Writ is not returned but however the Iudgment in this Court is the foundation of the Action Debt upon the Stat. of 2 Edw. 6. for not setting out Tythes is not within the Stat. for oritur ex maleficio so the ground of this Action is maleficium and the Iudgment here given In both which respects it is not within the Statute of Limitations Barrow Parrot PArrot had married one Judith Barrow an Heiress Sir Herbert Parrot his Father and an ignorant Carpenter by vertue of a dedimus potestatem to them directed took the conusance of a Fine of the said Judith being under age and by Indenture the use was limited to Mr. Parrot and his wife for their two lives the remainder to the Heirs of the Survivor about two years after the wife died without issue and Barrow as heir to her prayed the relief of the Court. Vpon examination it appear'd that Sir Herbert did examine the woman whether she were willing to levy the fine and asked the husband and her whether she were of age or not both answered that she was She afterwards being privately examin'd touching her consent answered as before and that she had no constraint upon her by her husband but she was not there question'd concerning her age Sir Herbert Parrot was not examined in Court upon Oath because he was accused and North said this Court could no more administer an Oath ex Officio then the Spiritual Court could North Wyndham There is a great trust reposed in the Commissioners and they are to inform themselves of the parties age and a voluntary ignorance will not excuse them But Atkyns opposed his being fined he cited Hungates case Mich. 12 Jac. Cam. Stell 12. Cook 122 123. where a Fine by Dedimus was taken of an Infant and because it was not apparent to the Commissioners that the Infant was within age they were in that Court acquitted But North Wyndham Scroggs agreed that the Son should be fined for that he could not possibly be presumed to be ignorant of his Wifes age Atkyns contra But they all agreed that there was no way to set the Fine aside Term. Trin. 29 Car. II. in Communi Banco Searle Long. QUare Impedit against two one of the Defendants appears the other casts an essoyn wherefore he that appear'd had idem dies then he that was essoyn'd appears and the other casts an essoyne Afterward an issued for their not Attachment appearing at the day and so Process continued to the great distress which being return'd and no appearance Iudgment final was ordered to be entred according to the Statute of Marlebr cap. 12. It was moved to have this rule discharged because the party was not summoned neither upon the Attachment nor the great distress and the Sureties returned upon the Process were John Doo Richard Roo an Affidavit was produced of Non-summons and that the Defendant had not put in any Sureties nor knew any such person as John Doo Richard Roo It was objected on the other side that they had notice of the suit for they appeared to the Summons and it appeared that they were guilty of a voluntary delay in that they forched in essoyne and the Stat. of Marlebr is peremptory wherefore they prayed Iudgment Serjeant Maynard for the Defendants If Iudgment be entred against us we have no remedy but by a Writ of Deceit Now in a Writ of Deceit the Sumners and veyors are to be examin'd in Court and this is the Trial in that Action but feigned persons cannot be examined It is a great abuse in the Officers to return such
But the Law in many cases takes notice of Parishes in civil affairs and Custom having by degrees introduced it we may allow of it in a Recovery as well as in a Fine Scroggs accordant If an Infant levy a Fine when he becomes of full age he shall be bound by the Deed that leads the Vses of the Fine as well as by the Fine it self because the Law looks upon both as one assurance So the Court was of Opinion that the Lands did pass It was then suggested that Iudgment ought not to be given notwithstanding for that the Plaintiff was dead But they said they would not stay Iudgment for that as this case was For between the Lessor of the Plaintiff and the Defendant there was another cause depending and tryed at the same Assizes when this issue was tryed and by agreément between the parties the Verdict in that cause was not drawn up but agreed that it should ensue the determination of this Verdict and the title to go accordingly Now the submission to this Rule was an implicite agreement not to take advantage of such occurrences as the death of the Plaintiff in an Ejectione firmae whom we know to be no wise concerned in point of interest and many times but an imaginary person It was said also to have Iudgment that there lived in the County where the Lands in question are a man of the same name with him that was made Plaintiff This the Court said was sufficient and that were there any of that name in rerum natura they would intend that he was the Plaintiff Cur̄ We take notice judicially that the Lessor of the Plaintiff is the person interested and therefore we punish the Plaintiff if he release the Action or release the damages Accordingly Iudgment was given Anonymus DEbt upon an Obligation was brought against the Heir of the Obligor hanging which Action another Action was brought against the same Heir upon another Obligation of his Ancestor Iudgment is given for the Plaintiffs in both Actions but the Plaintiff in the second Action obtains Iudgment first And which should be first satisfied was the question Barrel He shall be first satisfied that brought the first Action North. It is very clear That he for whom the first Iudgment was given shall be first satisfied For the Land is not bound till Iudgment be given But if the Heir after the first Action brought had aliened the Land which he had by descent and the Plaintiff in the second Action commenced after such alienation had obtained Iudgment and afterward the Plaintiff in the first Action had Iudgment likewise in that case the Plaintiff in the first Action should be satisfied and he in the second Action not at all What if the Sheriff return in such a case that the Defendant has Lands by descent which indeed are of his own purchase North. If the Sheriffs return cannot be traversed at least the party shall be relieved in an Ejectione firmae Dominus Rex versus Thorneborough Studly THe King brought a Quare Impedit against the Bishop of _____ and Thorneborough and Studly and declares That Queen Elizabeth was seised in see of the Advowson of Redriff in the County of Surrey and presented J. S. that the Quéen died and the Advowson descended to King James who died seized c. and so brings down the Advowson by descent to the King that now is Thorneborough the Patron pleads a Plea in Bar upon which the King demurs Studly the Incumbent pleads confessing Queen Elizabeths seisin in feé in right of her Crown but says that she in the second year of her Reign granted the Advowson to one Bosbill who granted to Ludwell who granted to Danson who granted to Hurlestone who granted to Thorneborough who presented the Defendant Studly and traverseth absque hoc that Queen Elizabeth died seized The Defendants Council produced the Letters Patents of secundo Reginae to Bosbill and his Heirs The King's Council give in evidence a Presentation made by Queen Elizabeth by usurpation anno 34 Regni sui of one Rider by which Presentation the Advowson was vested again in the Crown The Presentation was read in Court wherein the Queen recited that the Church was void and that it appertained to her to present North Chief Justice Is not the Queen deceived in this Presentation for she recites that it belongs to her to present which is not true If the Queen had intended to make an usurpation and her Clerk had been instituted she had gained the Fee-simple but here she recites that she had right Maynard When the King recites a particular Title and has no such Title his Presentation is void but not when his recital is general as it is here And this difference was agreed to in the Kings Bench in the Case of one Erasmus Dryden The Defendants Council shewed a Iudgment in a Quare Impedit against the same Rider at the suit of one Wingate in Queen Elizabeths time whereupon the Plaintiff had a writ to the Bishop and Rider was ousted Wingate claimed under the Letters Patents of the Second of the Queen viz. by a Grant of one Adie to himself to which Adie one Ludwell granted it anno 33 Eliz. Baldwin It appears by the Record of this Iudgment that a writ to the Bishop was awarded but no final Iudgment is given which ought to be after the three points of the writ enquired North. What is it that you call the final Iudgment there are two Iudgments in a Quare Impedit one that the Plaintiff shall have a writ to the Bishop and that is the final Iudgment that goes to the right betwixt the parties And the Iudgment at the Common Law There in another Iudgment to be given for Damages since the Stat. of West 2. cap. 5. after the points of the writ are enquired of Which Iudgment is not to be given but at the instance of the party Pemberton This Wingate that recovered was a stranger and had no title to have a Quare Impedit Now I take this difference where the King has a good Title no recovery against his Clerk shall affect the King's Title he shall not be prejudiced by a Recovery to which he is no party If the King have a defeasible Title as in our case by Vsurpation there if the rightful Patron recover against the King's Incumbent the King's Title shall be bound though he be not a party for his Title having no other Foundation than a Presentation when that is once avoided the Kings Title falls together with it But though the Kings Title be only by Vsurpation yet a Recovery against his Clerk by a stranger that has nothing to do with it shall not predudice the King covin may be betwixt them and the King be tried Now Wingate had no Right for he claimed by Grant from one Adie to whom Ludwell granted ann 33 Eliz. But we can prove this Grant by Ludwell to have been void for in the 29th of the
Martij prox sequentem the money is payable the same month 112 V. Tit. Survivor The Condition of a Bond runs thus viz. That if the Obligee shall within six months after his Mothers death settle upon the Obligor an Annuity of 20 l. per annum during life if he require the same or if he shall not grant the same if then he shall pay to the Obligor 300 l. within the time aforementioned then the Obligation to be void is this a disjunctive Condition or not 264 265 c. Words allowed to be part of the Condition of a Bond though following these words then the Obligation to be void 274 275 Consideration V. Action upon the Case V. Etiam 284 Constable Moved to quash an Order made by the Justices of Peace for one to serve as Constable 13 Contingent remainder Supported by a Right of Entry 92 Conventicles To meet in a Conventicle whether a breach of the Peace or no 13 Conusance V. Tit. Vniversity Copy Copy of a Deed given in Evidence because the Original was burnt 4 Copies allow'd in evidence 266 Copyhold Tenant for life of a Copyhold He in the remainder entreth upon the Tenant for life and makes a Surrender nothing passeth 199 Tenant for life of a Copyhold suffers a Recovery as Tenant in Fee-simple this is no forfeiture 199 200 Of all Forfeitures committed by Copyholders the Lord only is to take advantage 200 Coroner V. Enquest Corporation What things can a Corporation do without Deed and what not 18 Costs An Executor is not within the Statute to pay Costs occasione dilationis executionis c. 77 Cottage An Enditement for erecting a Cottage contra formam Statuti quasht because it is not said That it was inhabited 295 Covenant Action of Covenant upon the Warranty in a Fine the Plaintiff assigns his Breach that a stranger habens legale jus titulum did enter c. but does not not say that it was by vertue of an Eigne Title 66 67 101 292 293 Covenant to make such an Assurance as Council shall advise 67 Covenant for quiet Enjoyment 101 A man does assignare transponere all the money that shall be allowed by any Order of a Foreign State does an Action of Covenant lie upon these words or not 113 An Action of Covenant lies against a Woman upon a Covenant in a Fine levied by her when she was a Feme Covert 230 231 V. Ibidem exceptions to the pleading in such Action Covenant to stand seized A man Covenants to stand seiz'd to the use of the Heirs of his own body 98 121 159 V. Limitation d' Estates V. Vses County-Courts V. 171 172 215 249. County-Palatine V. 2. Counterplea of Voucher V. 8. Court of Kings Bench. It s Jurisdiction is not ousted without particular words in an Act of Parliament 45 V. Habeas Corpus Cure of Souls What Ecclesiastical Persons have Cure of Souls and what not 11 12 Cur ' advisare vult During a Cur ' adv vult one of the parties dies how must Judgment be entred 37 Custom Custom of a Mannor for the Homage to chuse every year two Surveyors to destroy corrupt Victuals exposed to sale a good Custom 202 A Custom to be discharged of Tythes of Sheep all the year after in consideration of the payment of full Tythes of all the Sheep they have on Candlemas-day 229 D. Damages EXcessive Damages no good Cause for a new Writ of Enquiry 2 Demand Requisite or not requisite 89 Departure in Pleading V. 43 44 227 289. Depositions V. Tit. Evidence Debt For Rent upon a Lease for years 3 Debt upon a Bond against two Executors they pleaded a Statute acknowledged by the Testator of 1200 li. and no assets ultra c. the Plaintiff replies That one of the Executors was bound together with the Plaintiff in that Statute 165 Devise Of a term for years V. Limitation of Estates By a Devise of all a man's Estate what passeth 100 I give Rees-Farm to my Wife during her natural life and by her to be disposed of to such of my Children as she shall think fit What Estate passeth hereby 189 A man has a Son called Robert Robert has likewise a Son call'd Robert The Grand-Father deviseth Land to his Son call'd Robert and his heirs Robert the Devisee dies living the Father The Devisor makes a new publication of the same Will and declares it to be his intention that Robert the Grand-Child should take the Land per eandem voluntat Does the Grand-Child take or no 267 268 A man deviseth a Rent-Charge to his Wife for her life but that if she marry that then his Executor shall pay her 100 l. and the rent shall cease and return to the Executor she does marry and the Executor does not pay the 100 l. The question is Whether the Rent shall cease before the 100 l. be paid or not 272 273 Distribution Administrators must make Distribution to those of the half-blood as well as to those of the whole 209 Donative V. 11 12 22 90. Double Plea V. 18 227. E. Ecclesiastical persons A Chapter of which there is no Dean is restrain'd by the Statute of 13 Eliz. 204 A Grant of next avoidance restrain'd ibid. Such Grant void ab initio ibid. Ejectione firmae De quatuor molendinis good Of so many Acres jampnor ' bruere without saying how many of each good 90 The Plaintiff in Ejectment dies before Judgment 252 Entry to deliver a Declaration in Ejectione firmae shall not work to avoid a Fine 10 Error A Writ of Error will lie in the Exchequer-Chamber upon a Judgment in a Scire facias grounded upon a Judgment in one of the Actions mentioned in 27 Eliz. 79 It shall not be assign'd for Error of Judgment in an inferior Court that the matter arose out the Jurisdiction but it must be pleaded 81 Escape V. 116. A Trial at Bar upon an Escape In an Action for an Escape the Defendant pleads That he let the Prisoner to bail according to the Stat. of 23 H. 6. cap. 10. and that he had taken reasonable Sureties of persons having sufficicient c. The Plaintiff replies and traverseth the sufficiency of the Sureties 227 Estoppel By the condition of a Bond. 113 Exchange of Lands Two women seized one of one Acre and another of another and they make an exchange then one of them marries before entry shall that defeat the exchange 91 Excise The Statute for Excise prohibits the bringing of a Certiorari but not Habeas Corpus 103 Executors V. Costs V. Appearance In what order Executors are to pay Debts c. 174 175 Executor dur ' minor ' aetate 174 175 An Executor must entitle himself to the Executorship to enable him to retain for his own debt 208 An Executors refusal before the Ordinary after Administration is a void act 213 Action of Debt against an Executor the Defendant pleads That the Testator made a Will but did not make him Executor therein that he
Milwood and Ingram 205 Monke versus Morrice and Clayton 93 Moor and Field 229 Lord Mordant versus the Earl of Peterborough 114 Moreclack and Carleton 73 Mors and Sluce 85 Mosedel the Marshall of the Kings Bench. 116 N. NAylor against Sharply and others 198 Norman and Foster 101 Nosworthy and Wildeman 42 O. OGnel versus the Lord Arlington Gardian of c. 217 Osburn and Walleeden 272 P. PAge and Tulse 239 Parker and Welby 57 Parten and Baseden 213 Parsons and Perns 91 Henry Lord Peterborough versus John Lord Mordant 94 Doctor Poordage 22 Porter and Fry 86 Prin and Smith 19 Pybus and Mitford 121 159 R. RAndal and Jenkins 96 Rawlin's Case 46 Redman and Edelfe 4 Redman 10 Redman and Pyne 19 Dominus Rex versus Vaws 24 Dominus Rex versus Turnith 26 Rich and Morrice 36 Richards and Hodges 43 Roberts and Mariot 42 289 Rogers and Danvers 165 Rogers and Davenant 194 Russel and Collins 8 S. SAvil against the Hundred of 221 Scudamore and Crossing 175 Searl and Long. 248 Sedgewicke and Gofton 106 Earl of Shaftsbury's Case 144 Slater and Carew 187 Smith and Wheeler 16 38 Smith and Bowin 25 Smith Lluellin al. Commissioners of Sewers 44 Smith's Case 209 Smith versus Smith 284 The Chapter of the Collegiate-Church of Southwell versus the Bishop of Lincoln 204 Southcote and Stowell 226 237 The Company of Stationers versus Seymor 256 Stead and Perryer 267 Strode versus the Bishop of Bathe and Wells and Sir George Hornet and Masters 230 T. TAylor and Wells 46 Taylor and Rowse Church-Wardens versus their Predecessors 65 Lord Tenham versus Mullins 119 Thredneedle and Lynham 203 Sir John Thoroughgood 107 Tildell and Walter 50 Tomlin and Fuller 27 Lord Townsend versus Hughes 232 Troy 5 Turner and Benny 61 Turner and Davies 62 V. VAughan and Casewell 7 Vaughton versus Atwood alios 202 Vere and Reyner 19 W. WAldron versus 78 Warren and Prideaux 104 Warren and Sayer 191 Watkyns and Edwards 286 Wayman and Smith 63 Wilbraham and Snow 30 Williams and Lee. 42 Williamson and Hancock 192 Wilson and Robinson 100 Wing and Jackson 215 Wood and Davies 289 Wootton and Heal. 66 Wootton and Penelope 290 Worthy and Liddal 21 Y. YArd and Ford. 69 Z. ZOuch and Clare 92 Errata PAge 40. line 2. a Conveyance with power lege a Conveyance reserving a power p. 50. l. 23. to Nicholas Love the Father if he should so long live lege to Nicholas Love the Father for a term of years if the Cestuy qui vies or any of them should so long live p. 54. l. 22. tenant for life dele for life p. 63. l. 26. pro Quer ' lege pro Defendent ' p. 109. l. 20. if tenant in tail grant a Rent lege if tenant be rendring a Rent p. 112. l. 9. of the month next year lege of the same month p. 127. l. 20. ab inconventi lege ab inconvenienti p. 128. l. 2. and lining thereupon lege and linnen Thereupon c. p. 136. l. 7. left lege lost l. 28. left lege lost p. 145. l. 20 21. repeated lege reported p. 170. l. 2. joyntly to lege joyntly and severally to p. 190. l. 31. A's ground lege B's ground p. 193. l. 5. a stranger a tenant in possession lege a stranger tenant in possession p. 206. l. 20. Shrewsbury the Liberties lege Shrewsbury and the Liberties p. 217. l. 8. shillings given lege shillings be given p. 223. l. 13 Mary it would lege Mary for if it were it would c. p. 245. l. 12. if he had lege that he had p. 262. l. 13. a verbal request lege a verbal discharge p. 271. l. 12. Heley lege Offley p. 285. l. 24. upon the Merchants lege upon the custom of Merchants The Cases of Trin. Term 29 Car. 2. in Com. B. end with page 270. and from that page to page 299. through a mistake of the Composer it 's printed C. B. instead of B. R. which the Reader is desired to to amend with his Pen. REPORTS Of divers Select Cases In the Reign of CAROLI II. Term. Mich. 21 Car. II. 1669. in Banco Regis ONe Mynn an Attorney entred a Iudgment by colour of a Warrant of Attorney of another Term then was expressed in the Warrant The Court consulting with the Secondary about it he said That if the Warrant be to appear and enter Iudgment as of this Term or any time after the Attorney may enter Iudgment at any time during his life but in the case in question the Warrant of Attorney had not those words or at any time after Wherefore the Secondary was ordered to consider the charge of the party grieved in order to his reparation Which the Court said concluded him from bringing his Action on the Case The Secondary said That in Trin. Hil. Term they could not compel the party in a Habeas Corpus to plead and go to Trial the same Term but in Michaelmas and Easter Term they could Mr. Solicitor moved for a new Writ of Enquiry into London and to stay the filing of a former because of excessive damages given but it was denied An Affidavit for the changing of a Venue made before the party was Arrested and allowed Moved in Battery for putting an Arm out of joint that the party might be held to special Bail but denied Twisd Follow the course of the Court. Mr. Sanders moved to quash an Order made by the Iustices of Peace for putting away an Apprentice from his Master and ordering the Master to give him so much Money Keeling The Statute of 5 Eliz. leaves this to their discretion An Indictment was preferred in Chester for a Perjury committed in London For which Keeling threatned to have the Liberties of the County Palatine seized if they kept not within their bounds Goodwin Harlow ERror to reverse a Iudgment in Colchester there being no appearance by the party but Iudgment upon thrée defaults recorded Revers'd Twisd If there be a Iudgment against thrée you cannot take out Execution against one or two Vpon a motion for a new Trial Twisden said That in his practice the Heir in an Action of Debt against him upon a Bond of his Ancestor pleaded riens per discent the Plaintiff knew the Defendant had levied a Fine and at the Trial it was produced but because they had not a Déed to lead the uses it was urged that the use was to the Conusor and his heirs and so the heir in by descent whereupon there was a Verdict against him and it being a just and due Debt they could never after get a new Trial. Gostwicke Mason DEbt for Rent upon a Lease for a year and so from year to year quamdiu ambabus partibus placuerit there was a Verdict for the Plaintiff for two years rent Sanders moved in Arrest of Iudgment that the Plaintiff alledges indeed that the Defendant entred and was possest the first year but mentions no entry as
such power nay if he have Children they must be living at his death Further by these Provisoes if the Contingencies do happen he hath but a power to declare the Vses he hath no Interest in him at all Litt. Sect. 463. It is one thing to have a power or possibility of limiting an Interest another to have an Interest vested 7 Rep. 11. Moor's Reports 366. about the delivery of a Ring where they hold that if it had been to have been done with his own hand it had not been forfeited The case of Sir Edward Clere is different from ours for if a man make a feoffment to the use of his last Will or to the use of such persons as shall be appointed by his last Will in this case he remains a perfect owner of the Land But if a man makes a Conveyance with power to make Leases or to make an Estate to pay Debts he hath here no Interest but a naked power The Duke of Norfolk's case is full in the point A Conveyance to the use of himself for life the Remainder to his Son in Tail with power to revoke under Hand and Seal adjudged not forfeited and yet he had a power to declare his mind as in our case Pagett's case Moor 193 194. Keeling If this way be taken a man may commit Treason pretty cheaply Twisden Whoever hath a power of Revocation hath a power of Limitation The reason is because else the feoffées would be seized to their own Vse Sir William Shelly's case in Latch Twisden There is no difference betwixt the Duke of Norfolk's case and this only here it is under his hand writing and there under his proper hand writing Afterward Term. Pasch 23 Car. 2. 1671. the Court delivered their Opinions Hales being then Chief Iustice Morton I conceive the Iudgment in the Common-Pleas is well given As for the first point whether this Conveyance made by Sir Simon Mayn be fraudulent or not the Counsel themselves have declined it and therefore I shall say nothing to it For the second I conceive no larger Interest is forfeited then during the Life of the Father If it be objected that the Father had by this Proviso jus disponendi I answer it is true he had a power if he had been minded so to do but it was not his mind and Will Now animus hominis est ipse homo but he must not only be minded so to do but he must declare his pleasure Hobart saith if a man will create a power to himself and impose a Condition or Qualification for the Execution of it it must be observed Now here is a personal and individual power seated in the heart of a man And it seems to me a stronger case then that of the Duke of Norfolk put in Englefield's case where yet the Condition was not given to the King by the Statute of Hen. 8. There was a later case adjudged in Latch betwéen Warner and Hynde a case that walked through all the Courts in Westminster-hall there by reason of the ipso declarante it could not be forfeited Rainsford I hold it is not forfeited My reason is because the Proviso is at an end and determined for when he dyed and made no Will there 's an end of the Proviso The altering of the old Trust is to be done by Sir Simon Mayn and it is inseparable from his person nothing can be more inseparable then a mans Will Moor 193. Twisd I am of the same Opinion Hales was of the same Opinion that nothing was forfeited but during Sir Simon 's life The Proviso he said did not create a Trust but potestatem disponendi which is not a Trust He said he did not understand the difference betwéen the Duke of Norfolk's case and this Accordingly the Iudgment was affirm'd In a cause wherein one Aston was Attorney Keeling said That a man may discontinue his Action here before an Action brought in the Common-Pleas But if he do begin there and then they plead another Action depending here and then they discontinue I take it the Attorney ought to be committed for this practice Twisden When I was at the Bar Error was brought and Infancy assigned when the Man was thirty years old and the Attorney was threatned to be turned out of the Roll. Serjeant Newdigate moved for a Certiorari to remove an Indictment hither from Bedford against several Frenchmen for Robbery Keeling Will it remove the Recognisances there to appear Twisden I never knew such a motion made by any but the King's Attorney or Solicitor Rainsford There is no Indictment yet before a Iudge of Assise Keeling You may have a Certiorari but it must not be delivered till the Indictment be found and then the Iudge hath the Prosecutors there and may bind them over hither and so the Trial may be here Keel A Iury was never ordered to a view before their appearance unless in an Assise Twisd Neither shall you have it here but by consent Nosworthy versus Wyldeman THe Plaintiff declares in an Indeb Assumpsit that the Defendant was endebted to him in 50 l. for so much money received of the Plaintiff by one Thomas Buckner by the appointment and to the use of the Defendant After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Plaintiff could not have an Action for money received by the Defendant to the use of the Defendant But because it might be money lent which the Defendant received to his own use though he was to make good the value to the Plaintiff the Court will presume after a Verdict that it appeared so to the Iury at the Trial. For where 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 And accordingly the Plaintiff had Iudgment Willams versus Lee. AN Action of Account It was prayed that the Court would give further day for giving the Account the matter being referred to Auditors Twisden The Auditors themselves must give further day Keeling The Auditors are Iudges whether there be a voluntary delay or not If they find the parties remiss and negligent they must certifie to the Court that they will not account Roberts Mariott MOved to discontinue an Action of Debt upon a Bond. Keeling We will not favour Conditions Ruled that the other side should shew cause why they should not discontinue Buckly versus Turner ACtion upon the case upon a Promise The case was that Edward Turner Brother to the Defendant was endebted to the Plaintiff for a Quarters Rent and the Defendant in consideration that the Plaintiff mitteret prosequi praedictum Edwardum Turner so the words are in the Declaration promised to pay the money After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that here is not any consideration for there is no loss to the Plaintiff in sending to prosecute c. nor any benefit but
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
be unreasonable it ought to be locally circumscribed and confined to the City 17 Ed. 4. 7. there was an Action brought upon the Statute of Labourers for retaining one that was the Plaintiffs retained Servant the Defendant pleaded in abatement that there was no place laid where the Plaintiffs retainer was and this was held a good Plea for that if it were in another County then where the Defendant retained him it was impossible for the Defendant to take notice of a Retainer in another County No more can we take notice who is a City Orphan in the County of Kent Then they have returned a Custom to imprison generally but it should have beén that without reasonable cause shewn they might imprison and the party have liberty to shew cause to the contrary Then I conceive they have returned the Fact as defective as the Custom they say that he marryed her without their consent they ought to have said that he took her out of their custody and your Lordships will not intend that she was in their custody when she was out of the City Offley of the same side and cited 21 Ed. 3. Fitz. Guard 31. and Hob. in Moor Hussey's case 95. 3 Cro. 803. 3 Cro. 689. 1 Cro. 561. In all the cases its returned that they were Free-men of the City Mr. Solicitor North on the same side cited Day Savage's case Mr. Attorney General on the other side said that because it was impossible to give notice to all therefore ex necessitate rei they must take notice at their peril Hales The City has an Interest in the Orphan wherever the Orphan be And for notice he may enquire there is no impossibility of his coming to the knowledge whether she be an Orphan or no therefore if he takes her he takes her at his peril Twisden And for the Fine such a Fine was set in Langham's Case and adjudged good Let a Citizen of London live where he will his Children shall be Orphans Hales Some things are local in themselves some things adherent to the person and follow the person now this is an Interest which follows the person and is transmitted to his Children and the party must take notice of it at his peril Cox St. Albanes A Prohibition was prayed for to the City of London because the Defendant had offered a Plea to the Iurisdiction sworn and it had been refused Hales In transitory Actions if they will plead a matter that ariseth out of the Iurisdiction and swear it before Imparlance and it be refused a Prohibition shall go There was a case in which it was adjudged 1. That upon a bare surmise that the matter ariseth out of the Iurisdiction the Court will not grant a Prohibition 2. It must be pleaded and the Plea sworn and it must come in before Imparlance If all this were done we would grant a Prohibition here It was also agréed in that case that the party should never be received to assign for Error that it was out of the Iurisdiction but it must be pleaded Twisd So in this Court when there is a Plea to the Iurisdiction as that it is within a County Palatine they plead it before Imparlance and swear their Plea Twisden There was a Venire facias returnable coram nobis apud Westm whereas it should have béen ubicunque fuerimus c. yet because the Court was held here it was held to be good Hales I remember it Hales When in an inferiour Court the Venire facias is ad prox Cur ' it is naught because it is uncertain when the Court will be kept But if it be at such a day ad prox Cur. it is good Anonymus A Writ of Error of a Iudgment in White-chappel After the Record was read Hales said the acts of a Court ought to be in the present Tense as praeceptum est not praeceptum fuit But the acts of the party may be in the Preterperfect Tense as venit protulit hic in Cur ' quandam querelam suam And the Continuances are in the Preterperfect Tense as venerunt not veniunt But upon another Exception the Court gave time to move it again Moved for a melius inquirendum to be granted to the Coroner of Kent who had returned an Inquisition concerning the death of one that was killed within the Manor of Greenwich he had returned that he dyed of a Meagrim in his head when he was really killed with a Coach Hales A melius inquirendum is generally upon an Office post mortem and is directed to the Sheriff Twisden But this cannot be to the Sheriff In 22 Ed. 4. the Coroner must enquire only super visum corporis And if you will have a new inquiry you must quash this Indéed a new inquiry was granted in Miles Bartly's case Thurland prayed that the Court being the supreme Coroner would examine the misdemeanor of the Coroner Hales Make some Oath of his misdemeanor because he is a sworn Officer Without Oath we will not quash this Inquisition Newdigate said that in the case of Miles Bartly the inquiry was not Filed and that that was the reason why a new one was granted Hales Let the Coroner attend he must take the Evidence in writing and he should bring his Examination into Court. Daniel Appleford's Case A Writ of Mandamus was directed to the Master and Fellows of New-Colledge in Oxford to restore one Daniel Appleford a Fellow They return that the Bishop of Winchester did erect the Colledge and among other Laws by which the Colledge was to be governed they return this to be one viz. That if a Scholar or other Member of the said Colledge should commit any crime whereby scandal might arise to the Colledge and that it appeared by his own confession or full Evidence of the Fact that then he should be removed without any remedy and that Daniel Appleford a Fellow was guilty of enormous Crimes and was convicted and thereupon removed and they pray Iudgment whether this Court will proceed Jones By this conclusion they rely chiefly upon the Iurisdiction of the Court I will lay this for a ground that this Court hath Iurisdiction in Extrajudicial causes as well as Iudicial 11 Rep. Bagg's case And Appleford hath no remedy but this I will not say that he may not have an Action upon the Case but by that he will not recover the thing but damages And for an Assize if a man be a Corporation sole or head of a Corporation aggregate and be turn'd out wrongfully he may have an Assize but for a man that is but an inferiour Member of a Corporation no Assize lyeth for him because he is but a part of the body politick and doth not stand by himself but must joyn with others and as he cannot have an Assize so he cannot have an Appeal Dyer 209. 11 Rep. in Bagg's case 24 H. 8. 22. 25 H. 8. cap. 19. 4 Inst 340. by these Authorities it appears that we are without
not Repair but if you will discharge your self you must do it by prescription or ratione tenurae and say that such an one ratione tenurae or such part of the Parish hath always used time out of mind c. Anonymus AN Action of Debt upon a Bond the Condition Whereas one Bardue did give by his Will so much if he should pay it such a day c. The Defendant pleads bene verum est he did give him so much by his Will and Testament but he revoked that and made another last Will. The Court said he was estopped to plead so Hales It doth not appear when the Bond was made and it shall be intended to be made after the parties death Iudgment pro Querente Deereing versus Farrington AN Action of Covenant declaring upon a Deed by which the Defendant assignavit transposuit all the money that should be allowed by any Order of a Forreign State to come to him in lieu of his share in a Ship Tompson moved that an Action of Covenant would not lye for it was neither an express nor implied Covenant 1 Leon. 179. Hales You should rather have applyed your self to this viz. whether it would not be a good Covenant against the party as If a man doth demise that is an implied Covenant but if there be a particular express Covenant that he shall quietly enjoy against all claiming under him that restrains the general implyed Covenant But it is a good Covenant against the party himself If I will make a Lease for years reserving Rent to a Stranger an Action of Covenant will lye by the party for to pay the Rent to the Stranger Then it was said it was an Assignment for maintenance Hales That ought to have been averred Then it was further said that an Assignment transferring when it cannot transfer signifies nothing Hales But it is a Covenant and then it is all one as if he had covenanted that he should have all the money that he should recover for his loss in such a Ship Twisd seemed to doubt But Iudgment Lord Mordant versus Earl of Peterborough TRial at Bar the question was Whether the Earl of Peterborough was Tenant for life only of the Mannor of Mayden The Defendant did not appear the Plaintiff thereupon desired to examine his Witnesses that so he might preserve their Evidence Twisd When they do not appear what good will that do you for they will say you set up a man of straw and pull him down again There was a former Deed of entail with a power of revocation in it and after the Deed exhibited was made whereby the Estate was otherwise settled and there was a Ioynture to the present Lady and done by persons of great Learning in the Law The Revocation was to be by Deed under my Lords Hand and Seal in the presence of thrée Witnesses Now the question was whether this second Deed was a revocation in Law and an Execution of that power And the Court told the Counsel they should find it specially if they would but they refused Hales In 16 Car. Snape and Sturts case If there be a power of revocation and a Lease for years is made it doth suspend quoad the term but after it is good Then it hath been questioned formerly if there be such a power and the person makes a Lease and Release whether it was a Revocation But shall we conceive the learned Counsel in this case would have ventured upon an implicit revocation and not have made an express revocation So that you must be non-suit or find it specially But the issue being If he wee only Tenant for life he said he must go back to the Chancery to amend it for by the Deéd produced he hath an Estate for life and the Reversion in Fee Burgis versus Burgis In Chancery A Man having a long Lease settled it in Trust upon himself for life the Remainder to his Wife for life the Remainder to the first Son of their two bodies the Remainder to the second Son and so to the tenth Son And if they should have no Son or Sons then the Remainder to such Daughter and Daughters of their bodies c. The man and his wife died and left only a Daughter who preferred her Bill against the Trustees for the executing of this Remainder to her The question is whether this Remainder be a good Remainder or whether it be void And the Lord Keeper Finch held it was a void Remainder because it doth depend upon so many and such remote Contingencies for otherwise it would be a perpetuity And he said he would allow one Contingency to be good viz. that to the first Son though the first Son was not in esse at the time of his decease And he said he did deny my Lord Cokes Opinion in Leon. Lovells case which saith that in case of a Lease settled to one and the heirs males of his body when he dies the Estate is determined for he said it shall go to his Executors And he said there was the same case with this in this Court Backhurst versus Bellingham And he said that the Common Law did complain that this Court did encroach upon them whereas they are beholding to this Court for their rules in Equity as Formerly when Ecclesiastical persons made Leases a misnosmer would avoid them but Elsmere in his time would notwithstanding the misnosmer make them good And he cited a case in Dyer and Matthew Mannings case Leon. Lovell and Lampetts case and Child and Bailies case Another case in Chancery One mortgaged Lands then confest a Iudgment and died The Mortgagée buys of the heir the Equity of Redemption for 200 l. The Bill was preferred by the Creditor by Iudgment against the Mortgagée and Heir either to be let in by paying the Mortgage money or else that the 200 l. received by the heir might be Assets And the Court said that the Mortgagees Estate should not be stirred But it was left by my Lord to be made a case whether the two hundred pounds should be Assets in the hands of the heir Mosedell the Marshal of the K. B's Case A Trial at Bar An Action of Debt brought against Mosedell for the escape of one Reynolds The Plaintiff said he could prove that he was at London three long Vacations Twisd It is hard to put three Escapes upon the Marshal for he may be provided only for one and he cannot give in Evidence a Fresh pursuit but it must be pleaded Hales I always let them give in evidence a Fresh suit upon a Nil debet And Wild said it was generally done So they gave evidence of an Habeas corp ad test ' and that the Prisoner went down too long before-hand and stayed too long after the Assizes were done at Wells in Somerset-shire and that he went back threescore miles beyond Wells before he retorned again for London Hales If an Habeas Corpus be granted to bring a person into
Court and the Sheriff let him go into the Country it is an escape And though he be not bound to bring him the direct way because he may be rescued yet he ought not to carry him round about a great way for the accommodation of the party if he doth it is an Escape but by this Evidence you let him go back threescore miles to which there can be no answer An Habeas Corpus retornable immediate is not fixt to an hour but to a convenient time They answered that he went back to carry back some Writings Counsel Here is an escape of one of the parties who dies before the Action brought whereby the whole charge is survived to the other before the Action brought and whether this shall purge the Escape is the question or how far it shall purge it Wild. Before you brought your Action the Debt is gone as to the Escape Hales We are made the Engines of doing all the mischief if this shall go unpunished being by colour of an Habeas Corpus So the Iury brought in a Verdict for the Plaintiff who declared in Debt for 6200 l. Greene versus Proude A Trial at Bar The question whether a Will or no Will The Plaintiff produced a Deed indented made between two parties the Man and his Son and the Father did agree to give the Son so much and the Son did agree to pay such and such Debts and Sums of money And there were some particular expressions resembling the form of a Will as that he was sick of body and did give all his Goods and Chattels c. but the Writing was both Sealed and delivered as a Deed And they gave evidence that he intended it for his last Will which the Court said was a good proof of his Will Then the Defendant setting up an Entail the Plaintiff exhibited an Exemplification of a Recovery in the Marquess of Winchesters Court in ancient demesne The other side objected that they did not prove it a true Copy But because it was ancient the Court said they should not be so strict upon the Evidence of it for the other side said the Court Rolls were burned in Baseing-house in the time of the Wars Hales I remember a case where one had gotten a presentation to the Parsonage of Gosnall in Lincoln-shire and brought a Quare Impedit and the Defendant pleaded an Appropriation there was no Licence of Appropriation produced but because it was ancient the Court would intend it Then they objected that they ought to prove seisin in the Tenant to the Praecipe Hales It being an ancient Recovery we will not put them to prove that He said the Mayor of Bristol had offered in evidence an Exemplification of a Recovery under the Town Seal of Houses in Bristol the Records being burned and that Exemplification was allowed for Evidence Hales If Tenant in Tail accept a Fine come ceo c. this doth not not alter his Estate If Tenant for life accept of a Fine Sur conusance c. he doth forfeit his Estate but it doth not alter the Estate for life Objection The Recovery is of Land in Kingscleare whereas the Land claimed is in a particular Ville called And the Vills are several and there are distinct Courts in every Ville Hales There are several Tythings of Dale Sale and Downe there is a Tythingman in every particular place but the Constable of Dale goes through all these may go for several Vills or one Vill There may be a Mannor that hath several little Mannors within it wherein are held several Courts for the ease of the Tenants but all but one Mannor And a Writ of Right close is Quod plenam rectam c. and runs to the Bayliff of the Mannor and may extend to the Precinct of the whole Mannor as the Mannor of Barton hath several little Mannors under it yet all within the Mannor Hales Where there is a Writ of Right close in ancient demesne it is not like a demand to a Sheriff here where he hath his direction for so many Acres Maynard But then he must demand it in the particular Ville where it is Hales If a Praecipe quod reddat be of Land in a Parish where it must be in a Ville there may be exception to the Writ but if he recovers it is good for now the time is past And so where it is infra manerium if he recovers it is good Browne versus AN Action brought in Canterbury Town The Defendant removes it by Habeas Corpus Then the Plaintiff declares here It was moved that it might be tried in some other County because the Iudges came there so seldom Court Let them shew cause why they should not consent and if they will plead Nil debet the Plaintiff will be willing to let them give any thing in Evidence And Simpson said it was the Opinion of all the Iudges that upon Nil debet pleaded Entry and Suspension may be given in Evidence which the Court did not deny So the Court ordered the other side to shew cause why they should not consent One Hillyard an Attorney sued for his Fees in this Court in the Court at Bristol But the Court said an Attorney ought not to wave this Court A motion was made by Sir William Jones for the Lord Mayor Starling See Bushel's case reported in Vaughan's Reports and the Recorder Howell One Bushell brought an Action against them for False Imprisonment And because the plea was long he prayed he might have time to plead Hales I speak my mind plainly that an Action will not lye for a Certiorari and an Habeas Corpus whereby the body and proceédings are removed hither are in the nature of a Writ of Error And in case of an erroneous Iudgmene given by a Iudge which is reverst by a Writ of Error shall the party have an Action of False Imprisonment against the Iudge No nor against the Officer neither The Habeas Corpus and Writ of Error though it doth make void the Iudgment it doth not make the awarding of the Process void to that purpose and the matter was done in a course of Iustice They will have but a cold business of it An Habeas Corpus and Certiorari is a Writ of right the highest Writ the party can bring So day was given to shew cause Lord Tenham versus Mullins A Trial at Bar about a fraudulent Deed. Hales There are thrée things to be considered Fraud Consideration and Bona fide Now the Bona fide is opposite to Fraud I remember a case in Twine's case If the Son be dissolute and the Father with advice of Friends doth settle things so that he shall not spend all though here be not a consideration of money yet it is no fraudulent Deed and a Deed may be voluntary and yet not fraudulent otherwise most of the Settlements in England would be avoided and so said Twisden Blackburne versus Graves TRover for 100 Loads of Wood Not-guilty
pleasure of the Lords no doubt that would have been an illegal Commitment against Magna Charta and the Petition of Right There the Commitment had been expresly illegal and it may be this Commitment is no less For if it had been expresly shewn and he be remanded he is committed by this Court who are to answer for his Imprisonment But secondly The duration of the Imprisonment during the pleasure of the King and of the House is illegal and uncertain for since it ought to determine in two Courts it can have no certain period A Commitment until he shall be discharged by the Courts of Kings-Bench and Common-Pleas is illegal for the Prisoner cannot apply himself in such manner as to obtain a discharge If a man be committed till further Order he is bailable presently for that imports till he shall be delivered by due course of Law and if this Commitment have not that sense it is illegal for the pleasure of the King is that which shall be determined according to Law in his Courts as where the Statute of Westm ' 1. cap. 15. declares that he is not replevisable who is taken by command of the King it ought to extend to an extrajudicial command not in his Courts of Iustice to which all matters of Iudicature are delegated and distributed 2 Inst 186 187. Wallop to the same purpose he cited Bushells case Vaughan's Rep. 137. that the general Retorn for high Contempts was not sufficient and the Court that made the Commitment in this case makes no difference for otherwise one may be imprisoned by the House of Peers unjustly for a matter relievable here and yet shall be out of all relief by such a Retorn for upon a supposition that this Court ought not to meddle where the person is committed by the Peers then any person at any time and for any cause is to be subject to perpetual Imprisonment at the pleasure of the Lords But the Law is otherwise for the House of Lords is the supream Court yet their Iurisdiction is limited by the Common and Statute Law and their excesses are examinable in this Court for there is great difference betwéen the errors and excesses of a Court betwéen an erroneous proceéding and a proceeding without Iurisdiction which is void and a meer nullity 4 H. 7. 18. In the Parliament the King would have one Attaint of Treason and lose his Lands and the Lords assented but nothing was said of the Commons wherefore all the Iustices held that it was no Act and he was restored to his Land and without doubt in the same case if the party had been imprisoned the Iustices must have made the like resolution that he ought to have been discharged It is a Sollecism that a man shall be imprisoned by a limited Iurisdiction and it shall not be examinable whether the cause were within their Iurisdiction or no. If the Lords without the Commons should grant a Tax and one that refused to pay it should be imprisoned the Tax is void but by a general Commitment the party shall be remediless So if the Lords shall award a Capias for Treason or Felony By these instances it appears that their Iurisdiction was restrained by the Common Law and it is likewise restrained by divers Acts of Parliament 1 H. 4. cap. 14. No Appeals shall be made or any way pursued in Parliament And when a Statute is made a power is implicitely given to this Court by the fundamental constitution which makes the Iudges Expositors of Acts of Parliament And peradventure if all this case appeared upon the Retorn this might be a case in which they were restrained by the Statute 4 H. 8. cap. 8. That all Suits Accusements Condemnations Punishments Corrections c. at any time from henceforth to be put or had upon any Member for any Bill speaking or reasoning of any matters concerning the Parliament to be communed or treated of shall be utterly void and of none effect Now it doth not appear but this is a correction or punishment imposed upon the Earl contrary to the Statute There is no question made now of the power of the Lords but it is only urged that it is necessary for them to declare by virtue of what power they proceed otherwise the Liberty of every Englishman shall be subject to the Lords whereof they may deprive any of them against an Act of Parliament but no usage can justifie such a proceeding Ellismeres case of the Post-nati 19. The Duke of Suffolk was impeached by the Commons of High Treason and Misdemeanors the Lords were in doubt whether they would proceed on such general Impeachment to imprison the Duke And the advice of the Iudges being demanded and their resolutions given in the negative the Lords were satisfied This case is mentioned with design to shew the respect given to the Iudges and that the Iudges have determined the highest matters in Parliament At a conference between the Lords and Commons 3 Aprilis Car. 1. concerning the Rights and Priviledges of the Subject It was declared and agreed that no Freeman ought to be restrained or committed by command of the King or Privy-Council or any other in which the House of Lords are included unless some cause of the Commitment Restraint or Deteynor be set forth for which by Law he ought to be committed c. Now if the King who is the Head of the Parliament or his Privy Council which is the Court of State ought therefore to proceed in a legal manner this solemn resolution ought to end all Debates of this matter It is true 1 Roll 129. in Russells case Coke is of Opinion that the Privy-Council may commit without shewing cause but in his more mature age he was of another Opinion And accordingly the Law is declared in the Petition of Right and no inconvenience will ensue to the Lords by making their Warrants more certain Smith argued to the same purpose and said That a Iudge cannot make a Iudgment unless the Fact appears to him on a Habeas Corpus the Iudge can only take notice of the Fact retorned It is lawful for any Subject that finds himself agrieved by any Sentence or Iudgment to Petition the King in an humble manner for Redress And where the Subject is restrained of his liberty the proper place for him to apply himself to is this Court which hath the supreme power as to this purpose over all other Courts and an Habeas Corpus issuing here the King ought to have an accompt of his Subjects Roll tit Habeas Corp. 69. Wetherlies case And also the Commitment was by the Lords yet if it be illegal this Court is obliged to discharge the Prisoner as well as if he had been illegally imprisoned by any other Court The House of Peers is an high Court but the Kings-Bench hath ever been entrusted with the Liberty of the Subject and if it were otherwise in case of Imprisonment by the Peers the power of the King were
2. Suppose the Defendant had taken issue upon the Statutes being burnt and it had been found to have béen burnt and yet had been found afterwards the Defendant could not have any benefit of this Verdict He said it was a proper case for Equity Slater Carew DEbt upon a Bond. The Condition was that if the Obligor his heirs Executors c. do yearly and every year pay or cause to be paid to Tho. and Dor. his wife during their two lives that then c. the Husband dies and the question was whether or no the payment should continue to the Wife Serjeant Baldwin argued that the money is payable during their lives and the longer liver of them he cited Brudnel's case 5 Rep. and 1 Inst 219. b. that whenever an Interest is secured for lives it is for the lives of them and the longer liver of them and Hill's case adjudged Pasch 4 Jac. Rot. 112. in Warburton's Reports Seyse contra The interest of this Bond is in the Obligee the Husband and Wife are strangers and therefore the payment ceaseth upon the death of either of them and of that Opinion was the whole Court and grounded themselves upon that distinction in Brudnel's case betwixt where the Cestuy que vies have an interest and the cases of collateral limitations They said also that in some cases an interest would not survive as if an Office were granted to two and one of them dyed unless there were words of Survivorship in the Grant So the Plaintiff was barred Term. Mich. 26 Car. II. in Communi Banco Farrer Brooks Administrat of Jo. Brooks THe Plaintiff had Iudgment in Debt against John Brooks the intestate and took out a Fieri facias bearing teste the last day of Trin. Term de bonis catallis of John Brooks before the Execution of which Writ John Brooks dies and Eliz. Brooks administers the Sheriffs Bayliff executes the Writ upon the Intestates Goods in her hands Vpon this Serjeant Baldwin moved the Court for Restitution for that a Fieri facias is a Commission and must be strictly pursued Now the words of the Writ are de bonis of John Brooks and by his death they cease to be his Goods The Plaintiff will be at no prejudice the Goods will still remain lyable to the Iudgment only let the Execution be renewed by Scire facias to which the Administratress may plead somewhat Wyndham The property of the Goods is so bound by the Teste of the Writ as that a Sale made of them bona fide shall be avoided which is a stronger case And since the Intestate himself could not have any plea why should we take care that the Administrator should have time to plead And of that Opinion was all the Court after they had advised with the Iudges of the Kings Bench who informed them that their practice was accordingly But Vaughan faid that in his Opinion it was clearly against the rules of Law But they said there were cases to this purpose in Cr. Car. Rolls Moor c. Liefe Saltingstone's Case EJect ' firmae The case upon a special Verdict was thus viz. Sir Rich. Saltingstone being seized in Fee of Rees-Farm on the 17th day of Febr ' in the 19th year of the King made his Will in writing in which were these words viz. for Rees-Farm in such a place I will and bequeath it to my Wife during her natural life and by her to be disposed of to such of my Children as she shall think fit Sir Richard dyed his Wife entred and sealed such a Writing as this viz. Omnibus Christi fidelibus c. Noveritis that whereas my Husband Sir Richard Salting-stone c. reciting that clause in the Will I do dispose the same in manner following that is to say I dispose it after my decease to my Son Philip and his heirs for ever The Wife died and Philip entred and dyed and left the Lessor of the Plaintiff his Son and heir The question was what Estate Philip took or what Estate the Testator intended should pass out of him This case was argued in Easter-Term last past by Serjeant Scroggs for the Plaintiff and by Serjeant Waller for the Defendant and in Trinity-Term by Serjeant Baldwin for the Plaintiff and Serjeant Newdigate for the Defendant They for the Plaintiff insisted upon the word dispose that when a man deviseth his Land to be disposed by a stranger it has been always held to be a bequeathing of a Feé-simple or at least a power to dispose of the Fee-simple 19 H. 8. 10. Moor 5 Eliz. 57. per Dyer Weston Welshe but they chiefly relyed on Daniel Uply's case in Latch The Defendants Councel urged that the heir at Law ought not to be disinherited without very express words That if the Devisor himself had said in his Will I dispose Rees-Farm to Philip that Philip would have had no more then an Estate for life and what reason is there that the disposal being limited to another should carry a larger Interest then if it had been executed by the Testator himself This Term it was argued at the Bench and by the Iudgments of Ellis Wyndham Atkyns Iustices the Plaintiff had Iudgment they agreed that the Wife took by the Will an Estate for her own life with a power to dispose of the Fee She cannot take a larger Estate to her self by implication then an Estate for life because an Estate for life is given to her by express limitation 1 Bulst 219 220. Whiting Wilkins case For cases resembling the case in question were cited 7 Ed. 6. Brook tit Devise 39. 1 Leon. 159. Daniel Uply's case Clayton's case in Latch It is objected that in Daniel Uply's case there are these words at her will and pleasure to which they answered that if she have a power to dispose according to her discretion and as she her self pleaseth and then expressio eorum quae tacite insunt nihil operatur If I devise that J. S. shall sell my Land he shall sell the Inheritance Kelloway 43 44. 19 H. 8. fol. 9. Where the Devisor gives to another a power to dispose he gives to that person the same power that himself had Vaughan Chief Justice differed in Opinion he said it is plain that the word dispose does not signifie to give for if so then it is evident that the Lessor of the Plaintiff cannot have any title for if the Wife were to give then were the Estate to pass out of her which could not be by such an appointment as she makes here but must be by a legal Conveyance Besides she cannot give what she has not and she has but an Estate for life If then it does not signifie to give what does it signifie let us a little turn the words and a plain certain signification will appear I will and bequeath Rees-Farm to such of my Children as my Wife shall think fit at her disposal at this rate
obtained by their Testator unde Executio adhuc restat faciend The Defendant confesseth the Iudgment but says that a Cap. ad satisf issued against him upon which he was taken and was in the custody of the Warden of the Fleet and that he paid the sum mentioned in the condemnation to the Warden of the Fleet who suffered him to go at large The Plaintiff demurred This the Court held to be no plea but that it was a voluntary escape in the Warden and Iudgment was given for the Plaintiff Haley's Case PEr Cur ' If a Habeas Corpus be directed to an inferiour Court returnable two days after the end of the Term yet the inferiour Court cannot proceed contrary to the Writ of Habeas Corpus North cited the case of Staples Steward of Windsor who hardly escaped a Commitment because he had proceeded after a Habeas Corpus delivered to him though the value were under five pounds and would not make a Return of it The King against Sir Francis Clerke Ent. Hill 24. 25 Car. 2. Rot. 594. THe case upon a special Verdict was thus viz. The King being seized in Feé of the Mannor of Leyborn in Kent to which the Advowson of the Church of Leyborn is appendant which Mannor came to him by the dissolution of Monasteries having been part of the possessions of the Abbot of Gray-Church granted the Mannor to the Archbishop of Canterbury and his Successors saving the Advowson Afterward the King presents to the Church being void J. S. The Archbishop of Canterbury grants the Mannor and the Advowson to the King his Heirs and Successors which grant is confirmed by the Dean and Chapter the King grants the Mannor with the appurtenances and this Advowson naming it in particular which lately did belong to the Archbishop of Canterbury and to the Abbot of Gray-Church together with all priviledges profits commodities c. in as ample manner as they came to the Kings hand by the grant of the Archbishop or by colour or pretence of any grant from the Archbishop or confirmation of the Dean and Chapter or by surrender of the late Abbot of Gray-Church or as amply as they are now or at any time were in our hands to Sir Edw. North and his heirs c. The question was whether or no by this grant the Advowson passed Serjeant Newdigate The King is not apprised of his title and therefore the grant void 1 Rep. 52. a. for he thought this Advowson came to him by grant from the Archbishop He cited Moor 318. Inglefields case If the King be deceived in Déed or in Law his grant is void Brook Patents 104. 1 Rep. 51 52. 1 Rep. 46 49. 10 Rep. Arthur Legat's case Hob. 228 229 230 c. ibid. 223 243. Dyer 124. 1 Rep. 50. Hob. 170. Moor 888. 1 Rep. 49. 2 Rep. 33. 11 Rep. 90. 9 H. 6. 28. b. 2 Rolls 186. Hob. 323. Coke's Entries 384. Serjeant Hardes contra He laid down four grounds or rules whereby to construe the Kings Letters Patents 1. Where a particular certainty precedes it shall not be destroyed by an uncertainty or a mistake coming after 2 Cr. 34. Yel 42. 2. Cr. 48. 3 Leon. 162. 1 And. 148. 29 Ed. 3. 71. b. 10 H. 4. 2. Godb. 423. Markham's case cited in Arthur Legate's case 10 Rep. 2. There is a difference when the King mistakes his title to the prejudice of his tenure or profit and when he is mistaken only in some description of his grant which is but supplimental and not material nor issuable 21 Ed. 4. 49. 33 H. 7. 6. ◠H. 8. 1. 38 H. 6. 37. 9 Ed. 4. 11 12. Lane's Reports 111. 2 Co. 54. 1 Bulstr 4. 3. Distinct words of relation in the Kings grant are good to pass away any thing Dyer 350 351. 9 Rep. 24. c. Whistler's case 10 Co. 4. When the Kings grants are upon a valuable consideration they shall be construed favourably for the Patentée for the honour of the King 18 Ed. 1. de Quo warranto 2 Inst 446 447. 6 Rep. Sir John Molyn's case 10 Co. 65. a. Then he applyed all these rules to the case in question and prayed Iudgment Afterward Serjeant Maynard argued against the passing of the Advowson He said those two descriptions of the Advowson viz. belonging lately to the Archbishop of Canterbury and formerly to the Abby of Gray-Church are coupled together with a Conjunctive et so that both must be true So here is a falsity in the first and material part of the grant viz. the description of the thing granted though the Advowson of Leyborn be named yet it is so named as to be capable of a generality for there may be more Advowsons then one belonging to that Mannor This falsity goes to the title of the Church No subsequent words will aid this misrecital for the description of the thing granted ends there The following words viz. adeo plene c. and whatever comes after do but set out how fully and amply he should enjoy the thing granted and being no part of its description cannot enlarge it or make it more certain 8 H. 4. 2. Serj. Turner contra cited these books viz. Bacon's Elements 96. 1 Leon. 120. Veritas nominis tollit errorem demonstrationis 29 Ed. 3. 7 8. 1 And. 148. Plowd Comm. 192. 2 Co. Doddington's case 10 Co. 113. 19 Ed. 3. Fitzherb grants 58. 10 H. 4. 2. Sir John L'Estranges case Markham's case 10 Co. in Arthur Legate's case Cr. Car. 548. Ann Needler's case in Hob. 9 H. 6. 12. Brook Annuity 3. Baker Bacon's case Cr. Jac. 48. Bozoun's case 4. Rep. 6 Co. 7. Cr. Jac. 34. 1 Leon. 119 120. 2 Rolls Prerog le Roy 200. 8 Co. 167. 21 Ed. 4. 46. 8 Co. 56. Rolls tit Prerog 201. 10 Co. 64. 9 Co. the Earl of Salop's case 1 Inst 121. b. Moor 421. 2 Rolls 125. This Term the Court gave their Iudgment that the Advowson did well pass In this grant there are as large words and the same words that are in Whistlers case 10 Rep. and the King is not here deceived neither in the value nor in his title And Iudgment was given accordingly Furnis VVaterhouse IT was moved for a Supersedeas to stay proceedings upon a Grand Cape in Dower quia erronice emanavit because the return of the Summons was not according to the Stat. of 31 Eliz. cap. 3. the Stat. is after Summons 2. The Land lieth in a Ville called Heriock and the Return is of a Proclamation of Summons at the Parish-Church of Halyfax and it does not appear that the Land lies within that Parish 3. The Return is proclamari feci secundum formam Statuti and it is not returned to have been made upon the Land Hob. 33. Allen Walter These were all held erronious and the Grand Cape was superseded Term. Pasch 26 Car. II. in Communi Banco Naylor against Sharply and others Coroners of the County Palatine of Lancaster A
persons who were all capable that there was no difference betwixt that case and this Ellis said that in Floyd Gregories case reported in Jones it was made a point and that Jones in his argument denied the case of Hunt Singleton he said that himself and Sir Rowland Wainscott reported it and that nothing was said of that point but that my Lord Coke followed the Report of Serjeant Bridgeman who was three or four years their puisne and that he mistook the case Milword Ingram THe Plaintiff declares in an Action of the case upon a quantum meruit for 40 shillings and upon an Indebitat Assumpsit for 40 shillings likewise The Defendant acknowledged the promises but further says that the Plaintiff and he accounted together for divers sums of money and that upon the foot of the Account the Defendant was found to be endebted to the Plaintiff in 3 shillings and that the Plaintiff in consideration that the Defendant promised to pay him those 3 shillings discharged him of all demands The Plaintiff demurred The Court gave Iudgment against the demurrer 1. They held that if two men being mutually endebted to each other do account together and the one is found in arrear so much and there be an express agréement to pay the sum found to be in arrear and each to stand discharged of all other demands that this is a good discharge in Law and the parties cannot resort to the original Contracts But North Ch. Just said if there were but one Debt betwixt them entring into an account for that would not determine the Contract 2. They held also that any promise might well be discharged by paroll but not after it is broken for then it is a Debt Jones Wait. SHrewsbury Cotton are Towns adjoining Sir Samuel Jones is Tenant in Tail of Lands in both Towns Shrewsbury Cotton are both within the Liberties of the Town of Shrewsbury Sir Samuel Jones suffers a Common Recovery of all his Lands in both Vills but the Praecipe was of two Messuages and Closes thereunto belonging these were in Shrewsbury and of c. mentioning those in Cotton lying and being in the Ville of Shrewsbury in the Liberties thereof And whether by this Recovery the Lands lying in Cotton which is a distinct Ville of it self not named in the Recovery pass or not was the question Serjeant Jones argued against the Recovery He cited Cr. Jac. 575. in Monk Butler's case Cr. Car. 269 270. 276. he said the Writ of Covenant upon which a Fine is levied is a personal Action but a Common Recovery is a real Action and the Land it self demanded in the Praecipe There is no President he said of such a Recovery He cited a case Hill 22 23 Car. 2. Rot. 223. Hutton 106. Marche's Reports one Johnson Baker's case which he said was the case in point and resolved for him But the Court were all of Opinion that the Lands in Cotton passed And gave Iudgment accordingly Ellis said if the Recovery were erroneous at least they ought to allo 〈…〉 t till it were reversed Lepping Kedgewin AN Action in the nature of a Conspiracy was brought by the Plaintiff against the Defendant in which the Declaration was insufficient The Defendant pleaded an ill plea but Iudgment was given against the Plaintiff upon the insufficiency of the Declaration Which ought to have been entred Quod Defendens eat inde sine die but by mistake or out of design it was entred Quia placitum praedictum in forma praedicta superius placitat ' materiaque in eodem contenta bonum sufficiens in lege existit c. ideo consideratum est per Cur ' quod Quer ' nil capiat per billam The Plaintiff brings a new Action and declares aright The Defendant pleads the Iudgment in the former Action and recites the Record verbatim as it was To which the Plaintiff demurred And Iudgment was given for the Plaintiff nisi causa c. North Chief Justice There is no question but that if a man mistakes his Declaration and the Defendant demurs the Plaintiff may set it right in a second Action But here it is objected that the Iudgment is given upon the Defendants plea. Suppose a Declaration be faulty and the Defendant take no advantage of it but pleads a plea in bar and the Plaintiff takes issue and the right of the matter is found for the Defendant I hold that in this case the Plaintiff shall never bring his Action about again for he is estopped by the Verdict Or suppose such a Plaintiff demur to the plea in bar there by his demurrer he confesseth the fact if well pleaded and this estops him as much as a Verdict would But if the plea were not good then there is no Estoppel And we must take notice of the Defendants plea for upon the matter as that falls out to be good or otherwise the second Action will be maintainable or not The other Iudges agreed with him in omnibus Atkinson Rawson THe Plaintiff declares against the Defendant as Executor The Defendant pleads that the Testator made his Will and that he the Defendant suscepto super se onere Testamenti praedict c. did pay divers sums of money due upon specialties and that there was a Debt owing by the Testator to the Defendants Wife and that he retained so much of the Testators Goods as to satisfie that Debt and that he had no other Assets The Plaintiff demurred because for ought appears the Defendant is an Executor de son tort and then he cannot retain for his own debt The Plaintiffs naming him in his Declaration Executor of the Testament of c. will not make for him for that he does of necessity he cannot declare against him any other way and of that Opinion was all the Court viz. that he ought to entitle himself to the Executorship that it may appear to the Court that he is such a person as may retain And accordingly Iudgment was given for the Plaintiff Term. Hill 27 28 Car. II. in Com. Banco Smith's Case A Man dies leaving Issue by two several Venters viz. by the first three Sons and by the second two Daughters One of the Sons dies intestate the elder of the two surviving Brothers takes out Administration and Sir Lionel Jenkins Iudge of the Prerogative Court would compell the Administrator to make distribution to the Sisters of the half-blood He prayed a Prohibition but it was denied upon advice by all the Iudges for that the Sisters of the half-blood being a kin to the Intestate and not in remotiori gradu then the Brother of the whole blood must be accounted in equal degree Anonymus AN Action was brought against four men viz. two Attornies and two Solicitors for being Attornies and Solicitors in a cause against the Plaintiff in an inferiour Court falso malitiose knowing that there was no cause of Action against him and
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
Windham and Scroggs contr for that the Iury are the sole Iudges of the damages At another day it was moved in arrest of Iudgment That the words are not actionable And of that Opinion was Atkyns But North Windham Scroggs contr And so the Plaintiff had Iudgment Atkyns The occasion of the making of the Stat. of 5 Rich. 2. appears in Sir Robert Cotton's Abr. of the Records of the Tower fol. 173. num 9. 10. he says there That upon the opening of that Parliament the Bishop of St. Davids in a Speech to both Houses declared the Causes of its being summoned and that amongst the rest one of them was to have some restraint laid upon Slanderers and Sowers of Discord which sort of men were then taken notice of to be very frequent Ex malis moribus bonae Leges The Preamble of the Act mentions false News and horrible Lyes c. of things which by the said Prelates c. were never said done nor thought So that it seems designed against telling stories by way of News concerning them The Stat. does not make or declare any new Offence Nor does it inflict any new Punishment All that seems to be new is this 1. The Offence receives an aggravation because it is now an Offence against a positive Law and consequently deserves a greater Punishment as it is held in our Books That if the King prohibit by his Proclamation a thing prohibited by Law that the Offence receives an aggravation by being against the King's Proclamation 2. Though there be no express Action given to the party grieved yet by operation of Law the Action accrews For when ever a Statute prohibits any thing he that finds himself grieved may have an Action upon the Statute 10 Rep. 75. 12 Rep. 100. there this very Case upon this Statute was agreed on by the Iudges So that that is the second new thing viz. a further remedy An Action upon the Stat. 3. Since the Stat. the party may have an Action in the tam quam Which he could not have before Now every lye or falsity is not within the Stat. It must be horrible as well as false We find upon another occasion such a like distinction It was held in the 12 Rep. 83. That the High-Commission Court could not punish Adultery because they had Iurisdiction to punish enormous Offendors only So that great and horrible are words of distinction Again it extends not to small matters because of the ill consequences mentioned Debates and Discord betwixt the said Lords c. great peril to the Realm and quick subversion and destruction of the same Every word imports an aggravation The Stat. does not extend to words that do not agree with this Description and that cannot by any reasonable probability have such dire effects The Cases upon this Statute are but few and late in respect of the antiquity of the Act. It was made Anno 1379. for a long time after we hear no tydings of an Action grounded upon it And by reading it one would imagine that the makers of it never intended that any should be But the Action arises by operation of Law not from the words of the Act nor their intention that made it The first Case that we find of an Action brought upon it is in 13 H. 7. which is 120 years after the Law was made so that we have no contemporanea expositio which we often affect That Case is in Keil 26. the next in 4 H. 8. where the Duke of Buckingham recovered 40 l. against one Lucas for saying that the Duke had no more conscience than a Dog and so he got money he cared not how he came by it He cited other Cases and said he observed That where the words were general the Iudges did not ordinarily admit them to be actionable otherwise when they charged a Peer with any particular miscarriage Serjeant Maynard observed well That the Nobility and great men are equally coucerned on the Defendants part for Actions upon this Statute lie against them as well as against the meanest Subject Acts of Parliament have been tender of racking the King's Subjects for words And the Scripture discountenances mens being made Transgressors for a word I observe that there is not one case to be met with in which upon a motion in arrest of Iudgment in such an Action as this the Defendant has prevailed The Court hath sometimes been divided the matter compounded the Action has abated by death c. but a positive Rule that Iudgment should be arrested we find not So that it is time to make a President and fix some Rules according to which men may demean themselves in converse with great persons Misera est servitus ubi jus est vagum Since we have obtained no Rules from our Predecessors in Actions upon this Statute we had best go by the same Rules that they did in other Actions for words In them when they grew frequent some bonnds and limits were set by which they endeavoured to make these Law certain The Actions now encrease The stream seems to be running that way I think it is our part to obviate the mischief So he was of Opinion That the Iudgment ought to be arrested but the Court gave Iudgment for the Plaintiff North. There are three sorts of Hab. Corp. in this Court 1. Hab. Corp. ad respondendum and that is when a man hath a cause of suit against one that is in prison he may bring him up hither by Hab. Corp. and charge him with a Declaration at his own suit 2. There is a Hab. Corp. ad faciendum recipiendum and that Defendants may have that are sued in Courts below to remove their Causes before us Both these Hab. Corp. are with relation to the suits properly belonging to the Court of Common Pleas. So if an inferiour Court will proceed against the Law in a thing of which we have Conisance and commit a man we may discharge him upon a Hab. Corp. this is still with relation to Common Pleas. A third sort of Hab. Corp. is for priviledged Persons But a Hab. Corp. ad subjiciendum is not warranted by any Presidents that I have seen Term. Pasch 29 Car. II. in Communi Banco Hall Booth NOrth In Actions of Debt c. the first Process is a Summons if the Defendant appears not upon that a Cap. goes and then we hold him to Bail The reason of Bail is upon a supposition of Law that the Defendant flies the Iudgment of the Law And this supposition is grounded upon his not appearing at the first For if he appear upon the Summons no Bail is required And this is the reason why it is held against the Law for any inferiour Court to issue out a Capias for the first Process For the liberty of a man is highly valued in the Law and no man ought to be abridged of it without some default in him A Church is in decay the Bishops Court must
feigned names The first cause thereof was the ignorance of Sheriffs who being to make a return looked into some Book of Presidents for a form and finding the names of John Doo and Rich. Roo put down for examples made their return accordingly and took no care for true Sumners and true Manucaptors For Non-appearance at the return of the great Distress in a plea of Quare Impedit final Iudgment is to be given and our right bound for ever which ought not to be suffered unless after Process legally served according to the intention of the Statute In a case Mich. 23. of the present King Iudgment was entred in this Court in a plea of Quare impedit upon non-appearance to the great Distress but there the party was summoned and true Summoners returned upon non-appearance an Attachment issued and real Sumners return'd upon that but upon the Distress it was return'd that the Defendants districti fuerunt per bona catalla manucapti per Joh. Doo Rich. Roo and for that cause the Iudgment was vacated Cur ' The design of the Statute of Marlebridge was to have Process duly executed which if it were executed as the Law requires the Tenant could not possibly but have notice of it For if he do not appear upon the Summons an Attachment goes out that is a command to the Sheriff to seize his body and make him give Sureties for his appearance if yet he will not appear then the great distress is awarded that is the Sheriff is commanded to seize the thing in question if he come not in for all this then Iudgment final is to be given Now the issue of this Process being so fatal that the right of the party is concluded by it we ought not to suffer this Process to be changed into a thing of course It is true the Defendant here had notice of the Suit but he had not such notice as the Law does allow him And for his fourching in essoyn the Law allows it him Accordingly the Iudgment was set aside Anonymus FAlse Judgment out of a County Court the Record was vitious throughout and the Iudgment reversed and ordered that the Suitors should be amerced a Mark but the Record was so imperfectly drawn up that it did not appear before whom the Court was held and the County Clark was fined Five pounds for it Cessavit per biennium the Defendant pleads Non-tenure He commenceth his plea quod petenti reddere non debet but concludes in abatement Serjeant Barrell He cannot plead this plea for he has imparled Cur̄ Non-tenure is a plea in bar the conclusion indeed is not good but he shall amend it Barrell Non-tenure is a plea in abatement The difference is betwixt Non-tenure that goes to the tenure as when the Tenant denies that he holds of the demandant but says that he holds of some other person which is a plea in bar and Non-tenure that goes to the Tenancy of the Land as here he pleads that he is not Tenant of the Land and that goes in abatement only The Defendant was ordered to amend his plea. Addison versus Sir John Otway TEnant in tail of Lands in the Parishes of Rippon Kirby-Marleston in the Towns of A. B. C. Tenant in Tail makes a Deed of bargain and sale to J. S. to the intent to make J. S. Tenant to the Praecipe in order to the suffering of a common Recovery of so many Acres in the Parishes of Rippon Kirby-Marlestone Now in those Parishes there are two Towns called Rippon Kirby-Marlestone and the Recovery is suffered of Lands in Rippon Kirby-Marlestone generally all this was found by special Verdict and further that the intention of the parties was that the Lands in question should pass by the said recovery and that the Lands in question are in the Parishes of Rippon Kirby-Marlestone but not within the Townships and that the bargainor had no Lands at all within the said Townships The question was whether the Lands in question should pass by this Recovery or not Shaftoe They will pass The Law makes many strained constructions to support common Recoveries and abates of the exactness that is required in adversary Suits 2 Rolls 67. 5 Rep. Dormer's case Eare Snow Plo. Com. Sir Moyle Finche's case 6 Rep. Cr. Jac. 643. Ferrers Curson In Stork Foxe's case Cr. Jac. 120 121. where two Villes Walton Street were in the Parish of Street and a man having Lands in both levied a Fine of his Lands in Street his Lands in Walton would not pass but there the Conusor had Lands in the Town of Street to satisfie the grant but in our case it is otherwise He cited also Rolls Abridgm Grants 54. Hutton 105. Baker Johnson The Deed of bargain and sale and the Recovery make up in our case but one assurance and construction is to be made of both together as in Cromwells case 2 Report The intention of the parties Rules Fines and Recoveries and the intention of the parties in our case appears in the Deed and is found by the Verdict Rolls Abridgm 19. 2 part Winch. 122. per Hob. Cr. Car. 308. Sir George Symond's case betwixt which last case and ours all the diffreence is that that case is of a Fine and ours of a Common Recovery betwixt which Conveyances as to our purpose there is no difference at all He cited Jones Wait's case Trin 27 Car. 2. in this Court and a case 16 Reg. nunc in B. R. when Hide was Chief Iustice betwixt Thynne Thynne North. The Law has always stuck at new niceties that have been started in cases of Fines and Common Recoveries and has gotten over almost all of them I have not yet seen a case that warrants the case at Bar in all points Nor do I remember an Authority expresly against it and it seems to be within the reason of many former resolutions But we must be cautious how we make a further step Wyndham I think the Lands in question will pass well enough and that the Deed of bargain and sale which leads the uses of the Recovery does sufficiently explain the meaning of the words Rippon Kirby Marlestone in the recovery I do not so much regard the Iuries having found what the parties intention was as I do the Deéd it self in which he expresses his own intention himself and upon that I ground my Opinion Atkyns agreed with Wyndham Indeed when a place is named in legal proceedings we do prima facie intend it of a Ville if nothing appears to the contrary stabitur praesumptio donec probetur in contrarium In this case the Evidence of the thing it self is to the contrary The reason why prima facie we intend it of a Ville is because as to civil purposes the Kingdom is divided into Villes He do not intend it of a Parish because the division of the Kingdom into Parishes is an Ecclesiastical distribution to Spiritual purposes
Queen he had made a Prior Grant to one Danson of which Grant we here produce the Inrolment This Grant to Danson was an effectual Grant for anno 11 Jacobi a Presentation was made by J. R. Th. Danson which proves that this Grant took effect and the Defendant himself deduceth the Title of his own Patron under that Grant Barrel Wingate is not to be accounted a stranger for he makes Title by the Letters Letters Patents of 2 Eliz. so that he encounters the Queen with her own Grant and his Title under that Grant was allowed by the Court who gave Iudgment accordingly There was no faint Pleader in the Case as appears by the Record that has been read And covin shall not be presumed if it be not alledged We deduce our Title under the Grant made to Danson 29 Eliz. in our plea but that is only by way of inducement to our traverse Cur. By that Iudgment temp Regin Eliz. the Quéens Title was avoided We must not presume that Wingate had a Title Ex diuturnitate temporis omnia presumuntur solemniter esse acta That Quare Impedit was brought when the matter was fresh Without doubt Danson would have asserted his Title against Wingate if he had had any The Defendant did not do prudently in conveying a Title to his Patron under the Grant made to Danson but issue being taken upon the Quéens dying seized he shall not be concluded to give in Evidence any other Title to maintain the Issue Vpon which Evidence the Iury found for the Defendant that Queen Elizabeth did not die seized North said He was clearly of Opinion That the Kings Title by Vsurpation should be avoided by a Recovery against his Clerk though the Recoverer were a meer stranger The Company of Stationers against Seymour THe Company brought an Action of Debt against Seymour for printing Gadbury's Almanacks without their leave Vpon a special Verdict found the question was Whether the Letters Patents whereby the Company of Stationers had granted to them the sole printing of Almanacks were good or not The Iury found the Stat. of 13 14 Car. 2. concerning Printing They found a Patent made by King James of the same Priviledge to the Company in which a former Patent of Queen Elizabeths was recited and they found the Letters Patents of the King that now is Then they found that the Defendant had printed an Almanack which they found in his verbis figuris and that the said Almanack had all the essential parts of the Almanack that is printed before the Book of Common Prayer but that it has some other additions such as are usual in common Almanacks c. Pemberton The King may by Law grant the sole-printing of Almanacks The Art of Printing is altogether of another consideration in the eye of the Law than other Trades and Mysteries are the Press is a late Invention But the Exorbitancies and Licentiousness thereof has ever since it was first found out been under the care and restraint of the Magistrate For great Mischiefs and Disorder would ensue to the Common-wealth if it were under no Regulation and it has therefore always been thought fit to be under the Inspection and Controul of the Government And the Stat. 14. Car. 2. recites that it is a matter of publique Care In England it has from time to time been under the Kings own Regulation so that no Book could lawfully be printed without an Imprimatur granted by some that derive authority from him to Licence Books But the question here is not Whether the King may by Law grant the sole-Printing of all Books but of any and of what sort of Books the sole-printing of Law-Books is not now in question that seémed to be a point of some difficulty because of the large extent of such a Patent and the uncertainty of determining what should be accounted a Law-Book and what not And yet such a Patent has been allowed to be good by a Iudgment in the House of Péers When Sir Orlando Bridgeman was Chief Justice in this Court there was a question raised concerning the validity of a Grant of the sole-printing of any particular Book with a Prohibition to all others to print the same how far it should stand good against them that claim a Property in the Copy paramount to the Kings Grant and Opinions were divided upon the Point But the Defendant in our Case makes no Title to the Copy only he pretends a nullity in our Patent The Book which this Defendant has printed has no certain Author and then according to the Rule of our Law the King has the property and by consequence may grant his Property to the Company Cur. There is no difference in any material part betwixt this Almanack and that that is put in the Rubrick of the Common-Prayer Now the Almanack that is before the Common-Prayer proceeds from a publick Constitution it was first setled by the Nicene Council is established by the Canons of the Church and is under the Government of the Archbishop of Canterbury So that Almanacks may be accounted Prerogative Copies Those particular Almanacks that are made yearly are but applications of the general Rules there laid down for the moveable Feasts for ever to every particular year And without doubt this may be granted by the King This is a stronger Case than that of Law-Books which has been mentioned The Lords in in the Resolution of that Case relyed upon this That Printing was a new Invention and therefore every man could not by the Common Law have a liberty of printing Law-Books And since Printing has been invented and is become a common Trade so much of it as has been kept inclosed never was made common but matters of State and things that concern the Government were never left to any mans liberty to print that would And particularly the sole Printing of Law-Books has been formerly granted in other Reigns Though Printing be a new Invention yet the use and benefit of it is only for men to publish their Works with more ease than they could before Men had some other way to publish their Thoughts before Printing came in and forasmuch as Printing has always been under the Care of the Government since it was first set on foot we may well presume that the former way was so too Queen Elizabeth King James and King Charles the First granted such Patents as these and the Law has a great respect to common usage We ought to be guided in our Opinions by the Iudgment of the House Peérs which is express in the point the ultimate resort of Law and Iustice being to them There is no particular Author of an Almanack and then by the Rule of our Law the King has the Property in the Copy Those additions of Prognostications and other things that are common in Almanacks do not alter the Case no more than if a man should claim a property in another mans Copy by reason of some inconsiderable
Title has closed up the King so as that he ought to take issue and maintain his own Title V. 2 Cr. 651. I say therefore That the Kings declining his own Title and falling upon the others is a departure which is matter of substance and it would make pleading infinite therefore the demurrer in this Case is good 1 Cr. 105. is in point and so is Hobart's Opinion in Digby versus Fitzherbert 103. 104. and though the Iudges are two and two in that Case as it is there reported yet the whole Court agreed it afterwards So that were this a common persons Case I suppose it would be agreed on all hands But it is insisted that this is one of the Kings Prerogatives that when his Title is traversed by the party he may either maintain his own Title against the traverse of the party or traverse the affirmative of the party Pasch pr. C. 243. a. c. Answer It is true this is there reckoned up among many other Prerogatives of the King But first with reverence several of them are judged no Law as that if the King have Title by Lapse and he suffer another to present an Incumbent who dies the King shall yet present is counter-judged 3 Cr. 44. and both that and the next following point too 7 Co. 28. a. Secondly In the same Case fol. 236. there is a good Rule given which we may make use of in our Case viz. the Common Law doth so admeasure the Kings Title and Prerogatives as that they shall not take away nor prejudice any mans Inheritance V. 19 E. 4. 9. 11 H. 4. 37. 13 E. 4. 8. 28 H. 6. 2. 9 H. 4. 6. F. N. B. 152. Now my Brother Wild hath given the true Answer that when the Kings Title appears to the Court upon Record that Record so intitles the King that by his Prerogative he may either defend his own or fall upon the other's Title For in all Cases where the King either by traverse as 24 E. 3. 30. pl. 27. Keil 172. 192. or otherwise as by special demurrer E. 3. Fitz. monst de Faits 172. falls upon a Defendants Title It must be understood that the King is intitled by Record and sometimes it is remembred and mentioned in the Case Fitz. 34. That the King is in as by Office c. But Br. Preg 116. the Kings Attorney doth confess the Law to be so expresly that the King has not this Prerogative but where he is entitled by matter of Record Before 21 Jac. cap. 2. when the Kings Titles was found by any Inquisition or Presentment by virtue of Commissions to find out concealments defective Titles c. he exercised this Prerogative of falling upon and traversing the parties Titles and much to the prejudice of the Subjects whose Titles are often so ancient and obscure as they could not well be made out Now that Statute was made to cure this defect and took away the severity of that Prerogative Ordaining that the King should not sue or impeach any person for his Lands c. unless the Kings Titles had béen duly in charge to that King or Queen Eliz. or had stood insuper of Record within 30 years before the beginning of that Parliament c. Hob. 118. 9. the King takes Issue upon the Defendants Traverse of his Title and could the King do otherwise the mischief would be very great as my Brother observed both to the Patron and Incumbent The Law takes notice of this and had a jealousie that false Titles would be set on foot for the King and therefore 25 Edw. 3. St. 3. Car. 7. 13 R. 2. Car. 1. 4 H. 4. Ca. 22. enables the Ordinary and Incumbent to counterplead the Kings Title and to defend sue and recover against it But a fortiori at Common Law the Patron who by his Endowment had this Inheritance might controvert and Traverse the Kings Title and it is unreasonable and mischievous that the Crowns possessions by Lapse or it may be the meer suggesting a Title for the King should put the Patron to shew and maintain his Title when perhaps his Title is very long consisting of 20 mesne Conveyances and the King may Traverse any one of them Keilway 192. b. Pl. 3. I conclude I think the King ought to have taken Issue and he not doing it the Demurrer is good and that the Defendant ought to have Iudgment Tyrrell contra I am not satisfied but here is a Discontinuance For the Defendant pleads the Appendency of the Church only not the Chappel It is true he traverseth that the Queen was not seized of both I deny what is affirmed that the King by his Presentation of Timothy White and the present Incumbent is out of possession By the Iudgment of reversal 2 Cr. 123. 4. the Law at this day is that he cannot be put out of possession of an Advowson by 20 usurpations A Quare Impedit is an Action of Possession and if he were out of possession how could he bring it As to this Traverse It is a common Erudition that a party shall not depart and that there shall not be a Traverse upon a Traverse But the King is excepted 5 Co. 104. Pl. C. 243. a Br. Petition 22. Prerogatives 59 60 69. 116. It is agreéd where the King is in possession and where he is intitled by matter of Record he may take a Traverse upon a Traverse And there is no Book says that where he is in by matter of Fact he cannot do it Indeed there is some kind of pregnancy at least in the last of those Authorities But I will cite two cases on which I will rely viz. 19 E. 3. Fitz monstr de faits 172. which is our case The King in a Quare Impedit makes Title by reason of Awardship whereby he had the custody of the Mannor to which the Advowson belonged and that the Father dyed seised thereof c. and there is not a word that his Tytle was by matter of Record The Defendant pleads that the Father of a Ward made a Feoffment of the Mannor to him for life and afterwards released all his right c. so that the Father had nothing therein at the time of his death and that after his death he the Defendant enfeoffed two men c. and took back an Estate to himself for 10 years which term yet continues and so it belongs to him to present But he did not shew the release but demurred in Iudgment upon this that he ought not to shew the release and the King departs from his Count and insists upon that which the Defendant had confessed that he had made a Feoffmēt which he having not shewn by the release as he ought to make himself more then Tenant for life was a Forfeiture and therefore the heir had cause to enter and the King in his right and thereupon prays Iudgment and has a Writ to the Bishop Cook 86. 7. 1 Inst 304. b. The other case
is 24 Ed. 3. 30. Pl. 27. which is our very case The King brings a Quare Impedit for a Church appendant to a Mannor as a Guardian the Defendant makes a Title and traverseth the Title alledged by the King in his Count viz. the appendancy the King replies and Traverses the Defendants Title For this cause the Defendant demurs and Iudgment was for the King In this case it doth not appear in the pleading that the King was in by matter of Record and so it is our very case For the King may be in by possession by virtue of a Wardship without matter of Record by Entry c. Stamf. Prerog 54. I rely upon these two Cases But 7 H. 8. Keil 175. is somewhat to the purpose Per Fitz. In a Ravishment of Ward by the King if the Defendant make a Title and traverse the Kings Title the Kings Attorney may maintain the Kings Title and Traverse the Defendants Title I think there is no difference betwéen the Kings being in possession by matter of Record and by matter of Fact Again If matter of Record be necessary here is enough viz. The Queens Presentation under the Great Seal of England And here is a descent which is and must be Jure Coronae It is unreasonable that a Subject should turn the King out of possession by him that hath no Title This is a Prerog Case As to the Statutes objected by my Brother Archer they concern not this case The first enables the Patron to counterplead But here the Patron pleads The rest concern the Kings Presenting En auter droit But here it is in his own Right I think the King in our case may fly upon the Defendants Title and there is no inconvenience in it For the Kings Title is not a bare suggestion For it is confessed by the Defendant that the Quéen did Present But he alledges it was by Lapse For another reason I think Iudgment ought to be for the King viz. because the Defendant has committed the first fault For his Bar is naught in that he has traversed the Queens Seisin in Grosse whereas he ought to have traversed the Queens Presentment modo forma For where the Title is by a Seisin in Grosse it is repugnant to admit the Presentment and deny the Seisin in Grosse because the Presentment makes it a Seisin in Grosse 10 H. 7. 27. Pl. 7. in point and so is my Lord Buckhurst's Case in 1 Leonard 154. The traverse here is a matter of substance But if it be but Form it is all one For the King is not within the Statute 27 El. cap. 5. So he concluded that Iudgment ought to be given for the King Doctor Lee's Case A Motion was made by Raymond for a Writ of Priviledge to be discharged from the Office of Expenditour to which he was elected and appointed by the Commissioners of Sewers in some part of Kent in respect of some Lands he had within the Levell He insisted that the Doctor was an Ecclesiastical person Archdeacon of Rochester where his constant attendance is required Adding that the Office to which he was appointed was but a mean Office being in the nature of that of a Bayliff to receive and pay some small sums of money and that the Lands in respect whereof he is elected were let to a Tenant V. 1. Cr. 585. Abdy's case It was objected against this that this Archdeacons Predecessors did execute this Office and the Court ordered that notice should be given and cause shewn why the Doctor should not do the like Afterward Rainesford Morton only being in Court it was ruled he should be priviledged Because he is a Clergy-man F. B. 175. r. But I think for another reason viz. because the Land is in Lease and the Tenant if any ought to do the Office Take the Writ Lucy Lutterell vid. versus George Reynell Esq George Turbervile Esq John Cory Ann Cory THe Plaintiff as Administratrix to Jane Lutterell durante minori aetate of Alexander Lutterell the Plaintiffs second Son declared against the Defendants in an Action of Trespass for that they simul cum John Chappell c. did take away 4000 l. of the moneys numbred of the said Jane upon the 20th day of October 1680. and so for seven days following the like sums ad damnum of 32000 l. Upon a full hearing of Witnesses on both sides the Iury found two of the Defendants guilty and gave 6000 l. damages and the others not guilty A new Trial was afterwards moved for and denied At the Trial Mr. Attorney General excepted against the Evidence that if it were true it destroyed the Plaintiffs Action inasmuch as it amounted to prove the Defendants guilty of Felony and that the Law will not suffer a man to smooth a Felony and bring Trespass for that which is a king of Robbery Indeed said he if they had been acquitted or found guilty of the Felony the Action would lye and therefore it may be maintained against Mrs. Cory who was as likewise was William Maynard acquitted upon an Indictment of Felony for this matter but not against the rest But my Lord Chief Baron declared and it was agreed that it should not lye in the mouth of the party to say that himself was a Thief and therefore not guilty of the Trespass But perhaps if it had appeared upon the Declaration the Defendant ought to have been discharged of the Trespass Quaere what the Law would be if it appeared upon the pleading or were found by special Verdict My Lord Ch. Baron did also declare and it was agréed that whereas W. Maynard one of the Witnesses for the Plaintiff was guilty as appeared by his own Evidence together with the Defendants but was left out of the Declaration that he might be a Witness for the Plaintiff that he was a good and legal Witness but his credit was lessened by it for that he swore in his own discharge For that when these Defendants should be convicted and have satisfied the Condemnation he might plead the same in Bar of an Action brought against himself But those in the simul cum were no Witnesses Several witnesses were received and allowed to prove that William Maynard did at several times discourse and declare the same things and to the like purpose that he testified now And my Lord Chief Baron said though a hear-say was not to be allowed as a direct Evidence yet it might be made use of to this purpose viz. to prove that William Maynard was constant to himself whereby his Testimony was Corroborated One Thorne formerly Mr. Reynell's Servant being Subpoened by the Plaintiff to give Evidence at this trial did not appear But it being sworn by the Exeter Waggoner that Thorne came so far on his Iourney hitherward as Blandford and there fell so sick that he was not able to travel any further his Depositions in Chancery in a Suit there between these parties about this matter were admitted to be read
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