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
Defendant should be charged to the value of the whole personal Estate or only for as much as he converted Serjeant Barrell argued That he ought to be charged for the whole because 1. He is made Executor by the Will and he is thereby compleat Executor before Probate to all intents but bringing of Actions 2. He has possession of the Goods and is chargeable in respect of that 3. He caused some to be sold and paid a Debt which is a sufficient administration There is found to discharge him 1. His refusal before the Ordinary But that being after he had so far intermeddled avails nothing Hensloe's case 9 Co. 37. An Executor de son tort he confessed should not be charged for more then he converted and shall discharge himself by delivering over the rest to the rightful Executor But the case is different of a rightful Executor that has taken upon him the burden of the Will The second thing found to discharge him is the granting of Administration to another but that is void because here is a rightful Executor that has administred in which case the Ordinary has no power to grant Administration Hob. 46. Keble Osbaston's case The third thing found to discharge him is the delivery of the Goods over to the Administrator but that will not avail him for himself became responsible by his having possession and he cannot discharge himself by delivering the Goods over to a stranger that has nothing to do with them If it be objected that by this means two persons will be chargeable in respect of the same Goods I answer that payment by either discharges both Cr. Car. Whitmore Porter's case The Court was of Opinion that the committing of Administration in this case is a mere void act A great inconvenience would ensue if men were allowed to Administer as far as they would themselves and then to set up a beggarly Administrator they would pay themselves their own Debts and deliver the residue of the Estate to one that 's worth nothing and cheat the rest of the Creditors If an Administrator bring an Action it is a good plea to say that the Executor made by the Will has administred Accordingly Iudgment was given for the Plaintiff Major Stubbing versus Birde Harrison REsolved that a plea may be a good plea in abatement though it contain matter that goes in bar they relyed upon the case in 10 H. 7. fol. 11. which they said was a case in point and Salkell Skelton's case 2 Rolls Reports and Iudgment was given accordingly Term. Trin. 28 Car. II. in Communi Banco PEr North Chief Iustice if there are Accounts betwéen two Merchants and one of them becomes Bankrupt the course is not to make the other who perhaps upon stating the Accounts is found endebted to the Bankrupt to pay the whole that originally was entrusted to him and to put him for the recovery of what the Bankrupt owes him into the same condition with the rest of the Creditors but to make him pay that only which appears due to Bankrupt on the foot of the Account otherwise it will be for Accounts betwixt them after the time of the others becoming Bankrupt if any such were Wing Jackson TRespass Quare vi armis the Defendant insultum fecit upon the Plaintiff was brought in the County Court and Iudgment there given for the Plaintiff But it was reversed here upon a Writ of false Iudgment because the County Court not being a Court of Record cannot fine the Defendant as he ought to be if the cause go against him because of the vi armis in the Declaration but an Action of Trespass without those words will lie in the County Court well enough Anonymus A Vicar libell'd in the Spiritual Court for Tythes of of young Cattle and surmised that the Defendant was seised of Lands in Middlesex of which Parish he was Vicar and that the Defendant had Common in a great Waste called Sedgemore-Common as belonging to his Land in Middlesex and put his Cattle into the said Common The Defendant prayed a Prohibition for that the Land where the Cattle went was not within the Parish of Middlesex The same Plaintiff libelled against the same Defendant for Tythes of Willow-Faggots who suggests to have a Prohibition the payment of 2 d. a year to the Rector for all Tythes of Willow The same Plaintiff libelled also for Tythes of Sheep The Defendant to have a Prohibition suggests that he took them in to feed after the Corn was reaped pro melioratione agriculturae infra terras arabiles non aliter As for the first of these no Prohibition was granted because of that clause in 2 Edw. 6. whereby it is enacted that Tythes of Cattle feeding in a Waste or Common where the Parish is not certainly known shall be paid to the Parson c. of the Parish where the owner of the Cattle lives For the second they held that a modus to the Rector is a good discharge against the Vicar For the third they held that the Parson ought not to have Tythe of the Corn and Sheep too which make the ground more profitable and to yield more Per quod c. Ingram versus Tothill Ren. REplevin Trevill leased to Ingram for 99 years if Joan Ingram his wife Anthony John Ingram his Sons should so long live rendring an Heriot or 40 shillings to the Lessor and his Assigns at the election of the Lessor his heirs and Assigns after their several deaths successive as they are named in the Indenture Trevill deviseth the Reversion John dyes and then Joan dies and the question was whether or no a Heriot were due to the Devisee upon the death of Joan. The Court agreed that the Avowry was faulty because it does not appear thereby whether Anthony Ingram was alive or not at the time of the distress taken for if he were dead the Lease would be determined North. Though Anthony were alive the Devisee of Trevill could not distrain for the Heriot for that the reservation is to him and his Assigns and although the Election to have the Heriot or 40 shillings given to the Lessor his heirs or Assigns yet that will not help the fault in the reservation Ellis There is another fault in the pleading for it is pleaded that Trevill made his Will in writing but it is not said that he dyed so seized for if the Estate of the Devisor were turned to a right at the time of his death the Will could not operate upon it Also it is said that the Avowant made his Election and that the Plaintiff habuit notitiam of his Election but it is not said by whom notice was given for these causes Iudgment was given for the Plaintiff It was urged likewise against the Avowant that no Heriot could be due in this case because Joan did not die first but the course of succession is interrupted and that a Heriot not being due of
desirous to have the money paid before the day took another Bond for the same sum payable sooner and that this was in full satisfaction of the former Bond upon this plea the Plaintiff took issue and it was found against him And Serjeant Maynard moved that notwithstanding this Verdict Iudgment ought to be given for the Plaintiff for that the Defendant by his plea has confessed the Action and to say that another Bond was given in satisfaction is nothing to the purpose Hob. 68. so that upon the whole it appears that the Plaintiff has the right and he ought to have Iudgment 2 Cr. 139. 8 Co. 93. a. and day was given to shew cause why the Plaintiff should not have Iudgment Vide infra hoc eodem Termino Savill against the Hundred of THe Plaintiff in an Action upon the Stat. of Wint. had a Verdict and it was moved in arrest of Iudgment that the Felonious taking is not said to be in the High-way 2 Cro. 469 675. North. An Action lies upon the Stat. of Winton though the Robbery be not committed in the High-way to which the Court-agreed and the Prothonotaries said that the Entries were frequently so Per quod c. Calthrop Philippo ONe J. S. had recovered a Debt against Calthrop and procured a Writ of Execution to Philippo the then Sheriff of D. but before that Writ was executed Calthrop procured a Supersedeas to the same Philippo who when his year was out delivered over all the Writs to the new Sheriff save this Supersedeas which not being delivered J. S. procures a new Writ of Execution to the new Sheriff upon which the Goods of Calthrop being taken he brings his Action against Philippo for not delivering over the Supersedeas After a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Action would not lie for that the Sheriff is not bound to deliver over a Supersedeas 1. Because it is not a Writ that has a return 2. Because it is only the Sheriffs Warrant for not obeying the Writ of Execution The Prothonotaries said that the course was to take out a new Writ to the new Sheriff Serjeant Strode argued that the Supersedeas ought to be delivered over because the Kings Writ to the old Sheriff is Quod Com' praedict ' cum pertinentiis uno cum rotulis brevibus memorandis omnibus officium illud tangentibus quae in custodia sua existunt liberet c. Reg. 295. 3 Co. 72. Westby's case Besides the Supersedeas is for the Defendants benefit and there is no reason why the Capias should be delivered over which is for the Plaintiffs benefit and not the Supersedeas which is for the Defendants And he said an Action will lie for not delilivering over some Writs to the new Sheriff though those Writs are not returnable as a Writ of Estrepement The Court inclined to his Opinion but it was adjourned to a further day on which day it was not moved Bascawin Herle versus Cooke THo Cook granted a Rent-charge of 200 l. per annum to Bascawin Herle for the life of Mary Cook habend ' to them their heirs and assigns ad opus usum of Mary and in the Indenture covenanted to pay the rent ad opus usum of Mary Bascawin Herle upon this bring an Action of Covenant and assign the breach in not paying the Rent to themselves ad opus usum of Mary The Defendant demurs 1. Because the words in which the breach is assign'd contain a negative pregnant Baldwin for the Plaintiff we assign the breach in the words of the Covenant Cur ' accord 2. Because the Plaintiff does not say that the money was not paid to Mary it would satisfie the Covenant 3. This Rent-charge is executed to Mary by the Stat. of Uses and she ought to have distrained for it for she having a remedy the Plaintiffs out of whom the Rent is transferred by the Statute cannot bring this Action Hereupon two questions were made 1. Whether this remedy by Action of Covenant be transferred to Mary by the Stat. of Uses or not And 2dly if not whether the Covenant were discharged or not North Wyndham When the Statute transfers an Estate it transfers together with it such remedies only as by Law are incident to that Estate and not collateral ones Atkyns accordant There is a clause in the Statute of 27 H. 8. c. 10. which gives the Cestuy que use of a Rent all such remedies as he would have had if the Rent had been actually and really granted to him but that has place only where one is seized of Lands in trust that another shall have a Rent out of them not where a Rent is granted to one to the use of another They agreed also that the Covenant was not discharged And gave Iudgment for the Plaintiff Nisi c. Higden versus VVhitechurch Executor of Dethicke A Udita Querela The Plaintiff declares that himself and one Prettyman became bound to the Testator for the payment of a certain sum that in an Action brought against him he was Outlawed that Dethick afterward brought another Action upon the same Bond against Prettyman and had Iudgment that Prettyman was taken by a Cap. ad satisfaciend ' and imprisoned and paid the Debt and was released by Dethick's consent upon this matter the Plaintiff here prays to be relieved against this Iudgment and Outlawry The Defendant protestando that the Debt was not satisfied pleads the Outlawry in disability The Plaintiff demurs Baldw. for the Plaintiff Non datur exceptio ejus rei cujus petitur dissolutio He resembled this to the cases of bringing a Writ of Error or Attaint in neither of which Outlawry is pleadable 3 Cr. 225. 7 H. 4. 39. 7 H. 6. 44. Seyse contra Outlawry is a good plea in Audita querela 2 Cr. 425. 8 Co. 141. this case is not within the maxime that has been cited a writ of Error and Attaint is within it for in both them the Iudgment it self is to be reversed But in an Audita querela you admit the Iudgment to be good only upon some equitable matter arising since you pray that no Execution may be upon it Vide 6 Ed. 4. 9. b. Jason Kite's case Mich. 12 Car. 2. Rot. 385. Adj. Pasch 13. Cur ' accord ' If the Iudgment had been erroneous and a writ of Error had been brought the Outlawry which was but a superstructure would fall by consequence but an Audita querela meddles not with the Iudgment the Plaintiff here has no remedy but to sue out his Charter of Pardon Blythe Hill supra 221. THe case being moved again appeared to be thus viz. The Plaintiff brought an Action of Debt upon a Bond against the Defendant as heir to the Obligor The Defendant pleaded that the Obligor his Ancestor dyed intestate and that one J. S. had taken out Letters of Administration and had given the Plaintiff
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
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
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
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
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
also for that they sued the Plaintiff in another Court knowing that he was an Attorney of the Common-Pleas and priviledged there Per tot ' Cur ' there is no cause of Action For put the case as strong as you will suppose a man be retained as an Attorney to sue for a debt which he knows to be released and that himself were a witness to the Release yet the Court held that the Action would not lye for that what he does is only as Servant to another and in the way of his Calling and Profession And for suing an Attorney in an inferiour Court that they said was no cause of Action for who knows whether he will insist upon his priviledge or not and if he does he may plead it and have it allowed Fits al. versus Freestone IN an Action grounded upon a promise in Law payment before the Action brought is allowed to be given in Evidence upon non Assumpsit But where the Action is grounded upon a special promise there payment or any other legal discharge must be pleaded Bringloe versus Morrice IN Trespass for immoderately riding the Plaintiffs Mare the Defendant pleaded that the Plaintiff lent to him the said Mare licentiam dedit eidem aequitare upon the said Mare and that by virtue of this Licence the Defendant and his Servant alternatim had rid upon the Mare The Plaintiff demurs Serj. Skipwith pro Quer ' The Licence is personal and incommunicable as 12 H. 7. 25. 13 H. 7. 13. the Dutchess of Norfolk's case 18 Ed. 4. 14. Serj. Nudigate contra This Licence is given by the party and not created by Law wherefore no Trespass lyeth 8 Rep. 146 147. per Cur ' the Licence is annexed to the person and cannot be communicated to another for this riding is matter of pleasure North took a difference where a certain time is limited for the Loan of the Horse and where not In the first case the party to whom the Horse is lent hath an interest in the Horse during that time and in that case his Servant may ride but in the other case not A difference was taken betwixt hiring a Horse to go to York and borrowing a Horse in the first place the party may set his Servant up in the second not Term. Pasch 28 Car. II. in Communi Banco Anonymus A Man upon marriage Covenants with his Wives relations to let her make a Will of such and such Goods she made a Will accordingly by her husbands consent and dyed After her death her Will being brought to the Prerogative Court to be proved a Prohibition was prayed by the Husband upon this suggestion that the Testatrix was foemina viro cooperta and so disabled by the Law to make a Will Cur ' Let a Prohibition go Nisi causa c. North. When a question ariseth concerning the Iurisdiction of the Spiritual Court as whether they ought to have the Probate of such a Will whether such a disposition of a personal Estate be a Will or not whether such a Will ought to be proved before a peculiar or before the Ordinary whether by the Archbishop of one Province or another or both and what shall be bona notabilia in these and the like cases the Common Law retains the Iurisdiction of determining there is no question but that here is a good surmise for a Prohibition to wit that the woman was a person disabled by the Law to make a Will the Husband may by Covenant depart with his right and suffer his Wife to make a Will but whether he hath done so here or not shall be determined by the Law we will not leave it to their decision it is too great an invasion upon the right of the Husband In this case the Spiritual Court has no Iurisdiction at all they have the Probate of Wills but a Feme-covert cannot make a Will If she disposeth of any thing by her Husbands consent the property of what she so disposeth passeth from him to her Legatee and it is the gift of the husband If the Goods were given into anothers hands in trust for the wife still her Will is but a Declaration of the trust and not a Will properly so called But of things in Action and things that a Feme-Covert hath as Executrix she may make a Will by her Husbands consent and such a Will being properly a Will in Law ought to be proved in the Spiritual Court. In the case in question a Prohibition was granted against the Hambrough Company THe Plaintiff brought an Action of Debt in London against the Hambrough-Company who not appearing upon Summons and a Nihil being returned against them an Attachment was granted to attach Debts owing to the Company in the hands of 14 several persons by Certiorari the cause was removed into this Court and whether a Procedendo should be granted or not was the question Serjeant Goodfellow Baldwin and Barrell argued that a debt owing to a Corporation is not attachable Serjeant Maynard Scroggs contra Cur ' We are not Iudges of the Customs of London nor do we take upon us to determine whether a debt owing to a Corporation be within the Custom of forrein Attachment or not This we judge and agree in that it is not unreasonable that a Corporation's debts should be attached If we had judged the Custom unreasonable we could and would have retained the cause For we can over-rule a Custom though it be one of the Customs of London that are confirmed by Act of Parliament if it be against natural reason But because in this Custom we find no such thing we will return the cause Let them proceed according to the Custom at their peril If there be no such Custom they that are aggrieved may take their remedy at Law We do not dread the consequences of it It does but tend to the advancement of Iustice and accordingly a Procedendo was granted per North Chief Justice Wyndham Ellis Atkyns aberat Anonymus PEr Cur ' if a man is indicted upon the Statute of Recusancy Conformity is a good plea but not if an Action of Debt be brought Parten Baseden's Case PArten brought an Action of Debt in this Court against the Testator of Baseden the now Defendant aâ—d had Iudgment After whose death there was a devastavit returned against the Defendant Baseden his Executor he appeared to it and pleaded and a special Verdict was found to this effect viz. that the Defendant Baseden was made Executor by the Will and dwelt in the same house in which the Testator lived and died and that before Probate of the Will he possest himself of the Goods of the Testator prized them inventoried them and sold part of them and paid a Debt and converted the value of the residue to his own use that afterwards before the Ordinary he refused and that upon his refusal administration was committed to the Widow of the deceased And the question was whether or no the
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
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
that he had cured her the consideration of the first promise being future and both promises found and entire damages given Twisd It is well enough for now it lies upon the whole Record whether he hath cured her or no if it had rested upon the first promise it had been nought And in the second promise there is an averment that he had cured her So that now after a Verdict it is help'd and the want of an averment is holpen by a Verdict in many cases Iudgement nisi c. Twisd If a man be in prison and the Marshal dye and the Prisoner escape there is no remedy but to take him again Twisd Pleas in abatement come too late after imparlance Hall Sebright AN Action of Trespass wherein the Plaintiff declared That the Defendant on the 24th of January did enter and take possession of his house and did keep him out of possession to the day of the exhibiting the Bill The Defendant pleads that ante praedict tempus quo sc c. the Plaintiff did licence the Defendant to enjoy the house until such a day Saunders The plea is naught in substance for a licence to enjoy from such a time to such a time is a Lease and ought to be pleaded as a Lease and not as a Licence it is a certain present Interest Twisd It is true 5 H. 7. fo 1. is That if one doth licence another to enjoy his house till such a time it is a Lease but whether it may not be pleaded as a Licence I have known it doubted Judgment nisi c. Coppin versus Hernall TWisden said upon a motion in arrest of Iudgment because an Award was not good that the Vmpirage could not be made till the Arbitrators time were out And if any such power be given to the Vmpire it s naught in its constitution for two persons cannot have a several Iurisdiction at one and the same time The Law allows the Defendant a Copy of the Pannel to provide himself for his challenges Fetyplace versus ACtion upon the Case upon a promise in consideration that the Plaintiff would affeerere instead of afferre c. it was moved in arrest of Iudgment Cr. 3 part 466. was cited Bedel Wingfield Twisd I remember districtionem for destructionem cannot be help'd so neither vaccaria instead of vicaria So the Court gave directions to see if it were right upon the Roll. Holloway THe Condition of a Bond for performance of Covenants in an Indenture doth estop to say there is no such Indenture but doth not estop to say there are no Covenants Keel The course of the Court is that if a man be brought in upon a Latitat for 20 l. or 30 l. we take the bail for no more but yet he stands bail for all Actions at the same parties suit otherwise if a stranger bring an Action against him Twisd They cannot declare till he hath put in Bail and when we take bail it is but for the sum in the Latitat perhaps 30 l. or 40 l. but when he is once in he may be declared against for 200 l. Smith versus Wheeler A Writ of Error was brought to reverse a Iudgment given in the Common Pleas upon a special Verdict in an Ejectione firmae The Iury found that one Simon Mayne was possest of a Rectory for a long term and having conveyed the whole term in part of it to certain persons absolutely he conveyed his term in the residue being two parts in this manner sc in trust for himself during life and afterwards in trust for the payment of the Rent reserved upon the original Lease and for several of his Friends c. Provided that if he should have any issue of his body at the time of his death then the trusts to cease and the Assignment to be in trust for such issue c. and there was another Proviso that if he were minded to change the uses or otherwise to dispose of the premisses that he should have power so to do by writing in the presence of two or more Witnesses or by his last Will and Testament They further find that he had Issue male at the time of his death but made no disposition pursuant to his power and that in his life time he had committed Treason and they find the Act of his Attainder The question was whether the rest of the term that remained unexpired at the time of his death were forfeited to the King The points made were two 1. Whether the Deed were fraudulent 2. Whether the whole term were not forfeited by reason of the trust or the power of revocation Pemberton argued that the Deed was fraudulent because he took the profits during his life and the Assignees knew not of the Deed of trust The Court hath in these cases adjudged fraud upon circumstances appearing upon Record without any Verdict the case that comes nearest to this is in Lane 42. c. The King against the Earl of Nottingham and others 2dly He argued that there was a Trust by express words and if there be a Trust then not only the Trust but the Estate is vested in the King by the express words of the Stat. of 33 Hen. 8. The King indeed can have no larger Estate in the Land then the person attainted had in the Trust and if this Conveyance were in Trust for Simon Mayne only during his life the King can have the Land no longer but he conceived it was a Trust for Simon Mayne during the whole term A Trust he said was a right to receive the profits of the Land and to dispose of the Lands in Equity Now if Simon Mayne had a right to receive the profits and a present power to dispose of the Land he took it to be a Trust for him and that consequently by his attainder it was forfeited to the King Coleman contra As for the matter of Fraud first there is no Fraud found by the Iury and for you to judge of Fraud upon Circumstances is against the Chancellor of Oxfords case 10th Rep. As for the Trust it must be agreed that if there be any either Trust or Condition by construction upon these Provisoes in Simon Mayne in his life between Mich. 1646. and the time of making the Act the Trust will be vested in the King but whether will it be vested in the King as a Trust or as an Estate For I am informed that it hath been adjudged between the King and Holland Styles Reports That if an Alien purchase Copy-hold Lands the King shall not have the Estate but as a Trust and the particular reason was because the King shall not be Tenant to the Lord of the Mannor Keeling The Act of Parliament takes the Estate out of the Trustees and puts it in the King Coleman But I say here is no Trust forfeitable By the body of the Déed all is out of him If a man makes a feoffment in Fée to the use of his
neither Keeling If an Infant let you a House shall he not have an Action against you for the Rent Twisd I have known an Action upon the case brought by an Infant upon a promise to pay so much money in consideration that he would permit the Defendant to enjoy such a House it was long insisted upon that this was not a good consideration because not reciprocal for the Infant might avoid his promise if an Action were grounded upon it against him but it was adjudged to be a good consideration and that the Action was maintainable And in the principal case the Court gave Iudgment for the Plaintiff Nisi c. Bear versus Bennett TWisden When a man is arrested and has lain in Prison three Terms and is discharged upon Common bail whether shall the Plaintiff ever hold the Defendant to special Bail afterward for the same cause if he begins anew Keel If he may then may a man be kept in Prison for ever at that rate At last it was agreed that if he would pay the Defendant his Costs for lying so long in prison he should have special Bail Mr. Masters moved for a Prohibition to the Spiritual Court to stay a Suit there against a man for having married his Wives Sisters Daughter alledging the Marriage to be out of the Levitical degrees Cur. Take a Prohibition and demur to it for it is a case of moment Dominus Rex versus Turnith MOved to quash an Indictment upon 5 Eliz. cap. 2. for exercising a Trade in Chesthunt in Hertfordshire not having been an Apprentice to it for seven years because the Statute says they shall proceed at the Quarter-Sessions and the word Quarter is not in the Indictment Twisden That word ought to be in And I believe the using of a Trade in a Country Village as this is is not within the Statute Morton accorded Rainesford It will be very prejudicial to Corporations not to extend the Statute to Villages Twisden I have heard all the Iudges say that they will never extend that Statute further then they needs must Obj. further That there wanted these words sc Ad tunc ibidem onerati jurati for which all the three Iudges Keeling being absent conceived it ought to be quash'd A cause was removed out of London by Habeas Corpus wherein the Plaintiff had declared against the Defendant as a feme sole Merchant and Bartue moved for a Procedendo because he said they could not declare against her here as a feme sole for that she had a Husband Jones contra The Husband may then be joyned with her for he is not beyond Sea Twisd I think a Procedendo must be granted for the cause alledged It was resolved in Langlin Brewin's case in Cro. though not reported by him that if the Wife use the same Trade that her Husband does she is not within the Custom And they are to determine the matter there whether this case be within their Custom perhaps a Victualler as this Trade is is not such a Trade as their Custom will warrant and whether it will warrant it or not is in their Iudgment A Procedendo was granted Tomlin versus Fuller A Special Action on the Case was brought for keeping a passage stopt up so that the Plaintiff could not come to cleanse his Gutter After Verdict for the Plaintiff it was moved in Arrest of Iudgment that there ought to have been a request for the opening of it Answ It s true where the Nusance is not by the party himself there must be notice before the Action brought but in this case the wrong began in the Defendants own time Twisden I know this hath been ruled where a man made a Lease of a House with free liberty of ingress c. through part of the Lessors House the Lessor notwithstanding might shut up his doors and was not bound to leave them open for his coming in at one or two of the Clock at night but he must keep good hours And must the Defendant in this case keep his Gate always open expecting him wherefore it seems he ought to have laid a request Cur. It s aided by the Verdict Twisden It is not good at the Common Law and the Defendant might well have demurred for that cause Judgment pro Querente Butler Play UPon a motion for a new Trial in a cause where the matter was upon protesting a Bill of Exchange Serj-Maynard said the protest must be on the day that the money becomes due Twisden It hath been ruled That if a Bill be denied to be paid it must be protested in a reasonable time and that 's within a Fortnight but the Debt is not lost by not doing it on the day A new Trial was denied Hughes Underwood KEeling The very Sealing of the Writ of Error is a Supersedeas to the Execution Twisd There was once a Writ of Error to remove the Record of a Iudgment between such and such but some of the parties names were left out and by my Brother Wyld's advice that Writ not removing the Record they took out Execution But the Court was of Opinion that though the Record was not removed thereby of which yet they said he was not Iudge whether it was or not yet that it so bound up the cause that they could not take out Execution It is indeed good cause to quash the Writ of Error when it comes up but Execution cannot be taken out Term. Hill 21 22 Car. II. 1669. in B. R. Jefferson Dawson IN a Scire facias upon a Recognisance in Chancery entered into by one Garraway There was a demurrer to part and issue upon part And the question was whether this Court could give Iudgment upon the demurrer Jones The Iudgment upon the demurrer must be given in Chancery The Court of Chancery cannot try an Issue and therefore it is sent hither to be tryed but with the demurrer this Court has nothing to do Indeed the books differ in case of an Issue sent hither out of Chancery whether the Iudgment shall be here or there Keilway says it ought to be given here My Lord Coke in his 4 Inst says it must be given in Chancery But none ever made it a question whether Iudgment upon a demurrer were to be given here or there V. Co. Jurisdiction of Courts fol. 80. Saunders contra When there is a demurrer upon part and Issue upon part the Record being here this Court ought to give Iudgment because there can be but one Execution Keeling If the Record come hither entirely we cannot send it back again I cannot find one Authority that the Record shall be removed from hence He cited Keilway 941. 21 H. 7. Co. 2. 12. Co. Entries 678. 24 Ed. 3. fol. 65. there it is held that Iudgment shall be given here upon a demurrer Now if it must not be given here there must be two Executions for the same thing or else they must loose half for they can
have but one Elegit At another day the Iudges gave their Opinions severally that Iudgment ought to be given in this Court upon the whole Record for that it is an entire Record and the Execution one and if Iudgment were to be given there upon the demurrer there must be two Executions And because the Record shall not be remanded Twisden said the Record it self was here and that it had been so adjudged in King and Holland's case and in Dawkes Batter's case though my Lord Chief Baron being then at the Bar urged strongly that it was but the tenour of the Record that was sent hither And it is a Maxim in Law that if a Record be here once it never goes out again for that here it is coram ipso Rege so that if we do not give Iudgment here there will be a failer of Iustice because we cannot send the Record back The Iury that tries the Issue must assess the damages upon the demurrer The Record must not be split in this case Accordingly Iudgment was given here Willbraham Snow TRover Conversion Vpon Issue Not-guilty the Iury find a special Verdict viz. that one Talbot recovered in an Action of Debt against one Wimb and had a Fierr facias directed to the Sheriff of Chester whereupon he took the Goods into his possession and that being in his possession the Defendant took them away and converted them c. and the sole point was whether the possession which the Sheriff has of Goods by him levied upon an Execution is sufficient to enable him to bring an Action of Trover Winnington I conceive the Action does not lie An Action of Trover and Conversion is an Action in the right and two things are to be proved in it viz. a Property in the Plaintiff and a Conversion in the Defendant I confess that in some cases though the Plaintiff have not the absolute property of the Goods yet as to the Defendants being a wrong-doer he may have a sufficient property to maintain the Action against him But I hold that in this case the property is not at all altered by the seizure of the Goods upon a Fieri facias for that he cited Dyer 98 99. Yelvert 44. This case is something like that of Commissioners of Bankrupts they have power to sell and grant and assign but they cannot bring an Action their Assignees must bring all Actions It is true a Sheriff in this case may bring an Action of Trespass because he has possession but Trover is grounded upon the right and there must be a Property in the Plaintiff to support that whereas the Sheriff takes the Goods by vertue of a nude Authority As when a man deviseth that his Executors shall sell his Land they have but a nude Authority Cur. The Sheriff may well have an Action of Trover in this case As for the case in Yelvert 44. there the Sheriff seiz'd upon a Fieri facias then his Office determined then he sold the Goods and the Defendant brought Trover And it was holden that the Property was in the Defendant by reason of the determining of the Sheriffs Office and because a new Fieri facias must be taken out for that a venditioni exponas cannot issue to the new Sheriff They compared this case to that of a Carryer who is accountable for the Goods that he receives and may have Trover or Trespass at his Election Twisden said the Commissioners of Bankrupts might have an Action of Trover if they did actually seize any Goods of the Bankrupts as they might by Law Rainsford said let the Property after the seizure of Goods upon an Execution remain in the Defendant or be transferred to the Plaintiff since the Sheriff is answerable for them and comes to the possession of them by the Law it is reasonable that he should have as ample remedy to recover damages for the taking of them from him as a Carryer has that comes to the possession of Goods by the delivery of the party Morton said if Goods are taken into the custody of a Sheriff and the Defendant afterward become Bankrupt the Statute of Bankrupts shall not reach them which proves the Property not to be in the Defendant Twisd I know it hath been urged several times at the Assizes that a Sheriff ought to have Trespass and not Trover and Counsel have pressed hard for a special Verdict Morton My Lord Chief Justice Brampston said he would never deny a special Verdict while he lived if Counsel did desire it Gavell Perked ACtion for words viz. You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen Vpon Issue Not-guilty there was a special Verdict found Jones The Declaration says further whereby her Husband did conceive an evil Opinion of her and refused to cohabit with her But the Iury not having found any such special damage the question is whether the words in themselves are Actionable without any relation had to the damage alledged I confess that to call one Bawd is not Actionable for that is a term of reproach used in Scolding and does not imply any act whereof the Temporal Courts take notice for one may be said to be a Bawd to her self But where one is said to be a Bawd in such actions as these it is actionable 27 H. 8. 14. If one say that another holds Bawdry it is Actionable 1 Cro. 329. Thou keepest a Whore in thy House to pull out my Throat these words have been adjudged to be Actionable for that they express an act done and so are special and not general railing words In Dimock's case 1 Cro. 393. Two Iustices were of Opinion that the word Pimp was Actionable of it self But I do not relie upon that or the word Bawd but taking the words all together they explain one another the latter words show the meaning of the former viz. that her Pimping and Bawdry consisted in bringing young men and women together and what she brought them together for is sufficiently expressed in the words Pimp and Bawd viz. that she brought them together to be naught And that is such a Slander as if it be true she may be indicted for it and is punishable at the Common Law The Court was of the same Opinion and gave Iudgment for the Plaintiff Nisi c. Healy Warde ERror of a Iudgment in Hull Weston The Action is brought upon a promise cum inde requisitus foret and does not say cum inde requisitus foret infra Jurisdictionem Twisd Though the agreement be general cum inde requisitus foret yet if he does request within the Iurisdiction it is good enough and so it has been ruled and this Error was disallowed Boswill Coats TWo several Legacies are given by Will to Alice Coats and John Coats the Executors deposit these Legacies in a third persons hand for them and take a Bond of that third person conditioned That if the Obligor at the request of
a disadvantage to the party that owed the money besides there is an uncertainty whither or to whom he should send Twisd Mittere prosequi is well enough for the Plaintiff must be at charge in it Keeling Certainly it ought to have been omitteret and if it be so in the Office-book we will mend it Twisden This being after a Verdict if you mend it they must have a new Trial for then it becomes another promise Jones moved for Iudgment and said he found the word mitto did signifie to send forbear cease or let alone as mitte me quaeso I pray let me alone in Terence And in the Latine and English Dictionary it hath the sense of forbearing Keeling I think the consideration not good unless the word mitto will admit of that sense If it have a propriety of sense to signifie forbear in reference to things as well as persons it will be well Whereupon the Dictionary being brought it was found to bear that sense And Twisden said if a word will bear divers senses the best ought to be taken after a Verdict Court Let the Plaintiff take his Iudgment Richards Hodges DEbt upon a Bond. The Condition was to save a Parish harmless from the charge of a Bastard-child The Defendant pleaded Non damnificatus The Plaintiff replies that the Parish laid out three shillings for keeping the Child The Defendant rejoyns that he tendred the money and the Plaintiff paid it de injuria sua propria Whereupon it was demurred the question being whether this re-joynder were a departure or no from the Bar Saunders It is a good Rejoynder for in our Bar we say that the Parish is not damnified that is not damnified within the intent of the Condition If I am to save a man harmless and he will voluntarily run himself into trouble the Condition of my Bond is not broken And so our Rejoynder is pursuant to our Bar and shows that there is no such damnification as can charge us Twisden The Rejoynder is a departure as in an Action of Covenant for payment of Rent if the Defendant pleads performance and the Plaintiff reply that the Rent is unpaid for the Defendant to rejoyn that it was never demanded is a departure You should have pleaded thus viz. that non fuit damnificat till such a time and that then you offered to take care of the Child and tendred c. Iudgment for the Plaintiff Nisi c. Smith Lluellyn al. Commission of Sewers THey were brought into Court by Attachment because they proceeded to Fine a person after a Certiorari delivered Twisd Sir Anthony Mildmay was a Commissioner of Sewers and for not obeying a Certiorari was Indicted of a Praemunire and was fain to get the Kings pardon And I have known that upon an unmannerly receit of a Prohibition they have been bound to the good Behaviour Keeling When there are Informations exhibited against you and you are fined a 1000 l. a man which is less then it was in King Edward the Third's time for then a 1000 l. was a great deal more then it is now you will find what it is to disobey the Kings Writ Afterwards they appeared again and Coleman said the first Writ was only to remove Presentments the second to remove Orders and we have made two Returns the one of Presentments the other of Orders A general Writ might have had a general Return Keeling Before you file the Return let a clause of the Statute of 13 Eliz. cap. 9. be read which being done he said that by the Statute of 23 Henr. 8. no Orders of the Commissioners of Sewers are binding without the Royal Assent now this Statute makes them binding without it and enacts that they shall not be Reverst but by other Commissioners Yet it never was doubted but that this Court might question the Legality of their Orders notwithstanding And you cannot oust the Iurisdiction of this Court without particular words in Acts of Parliament There is no Iurisdiction that is uncontroulable by this Court Sir Henry Hungate's case was a famous case and we know what was done in it Morton Since the making this Statute of Eliz. were those cases in my Lord Coke's Reports adjudged concerning Chester Mills If Commissioners exceed their Iurisdiction where are such matters to be reformed but in this Court If any Court in England of an inferiour Iurisdiction exceed their bounds we can grant a Prohibition Twisd I have known it ruled in 23 Car. 1. That the Statute of 13 Eliz. cap. 9. where it is said there shall be no Supersedeas c. hath no reference to this Court but only to the Chancery But this is a Certiorari whereby the King doth command the Cause to be removed voluit that it be determined here and no where else So the Court fined them for not obeying two Certioraries but fining them that brought them 5 l. a piece Jones moved That one who was Partner with his Brother a Bankrupt being Arrested might be ordered to put in Bail for the Bankrupt as well as for himself Twisden If there are two Partners and one breaks you shall not charge the other with the whole because it is ex maleficio but if there are two Partners and one of them dye the Survivor shall be charged for the whole In this case you have admitted him no Partner by Swearing him before the Commissioners of Bankrupts So not granted Rawlin's Case MOved by Sergeant Scroggs That Rawlins having personated one Spicer in acknowledging a Iudgment that therefore the Iudgment might be set aside Twisden The Statute that makes it Felony does not provide that the Iudgment shall be vacated One Tymberly escaped with his life very narrowly for he had personated another in giving Bail but the Bail was not filed Then he moved that the Defendant had paid the Fées of the Execution which the Plaintiff ought to have done So the Court granted an Attachment against the Bayliff Taylor Wells TRover Conversion decem parium tegularum valorum Anglice of ten pair of Curtains and Valons Obj. That it is not certain what is meant by a pair whether so many two's or so many Sets and that in Web Washburn's case 1652. four pair of Hangings held not good Twisden I remember that a pair of Hangings has been held naught Trover Convers pro decem Ovibus Agnis not expressing how many Ewes and how many Lambs ruled naught Another Action of Trover de velis not saying how many held to be naught It was urged that ten pair of Curtains and Valons is certain enough for by pair shall be understood two and so there are Twenty in all If it be objected that it does not appear how many of each I answer the words ten pair shall go to both Besides it is after a Verdict and therefore ought to be made good if by any reasonable construction it may If it had been ten Sets or ten Suits then without
question it had béen well enough now why may not a pair be understood of Sets or Suits or so many as will serve for a bed if it shall not be taken for a couple They quoted some cases in which it had béen adjudged that in Trover and Conversion for several things though it did not appear how many of each sort there were yet it had been held good Twisden acknowledged that there had been such Resolutions but said he knew not what to think of such cases considering the uncertainty of the Declarations And the word pair in our case is as uncertain as may be there a pair of Gloves a pair of Cards a pair of Tongs The word applyed to some things signifies more to others less and what shall it signifie here but by thrée Iudges against Twisden the Plaintiff had Iudgment Fox alii Exec ' of Pinsent versus Tremain THe Plaintiffs being Executors and some of them under age all appeared by Attorney and thereupon it was prayed that Iudgment might be stayed for 1. An Infant cannot make a Warrant of Attorney 2. An Infant appearing by Attorney may be amerced pro falso clamore and the reason is because it does not appear that he is under age but if he appear by guardian or prochein amy he shall not be amerced 3. The Infant may be much prejudiced For these reasons and because they said the practice had gone accordingly Iudgment was stayed The cases cited pro con were 3 Cro. 424. 2 Cro. 441. 1 Roll 288. Hutton Askew's case A Scire facias brought by two Executors reciting that there was a third but within age resolved that all must joyn Colt Sherwood's case resolved that an Infant Executor cannot defend by Attorney Twisden Where there are several Executors and one or more under age and the rest of full age all must joyn in an Action and Administration durante minore aetate cannot be granted if any of them be of full age Vid. infr Haspurt Wills A Special Action brought upon the Custom of Wharfage and Cranage in the City of Norwich The Declaration sets forth that they have a common Wharfe and a Crane to it and then they set forth a Custom that all Goods brought down the River and passing by shall pay such a Duty Obj. That the Custom is not good for that it is Toll-thorough which is malum Tolnetum Twisd There is a case in Hob. 175. of a bad Custom of paying the Charges of a Funeral though the Plaintiff were a Stranger and not buried in the Parish So here if they had unladed at the Key they should have paid the whole Duty nay if they had unladed at any other place in the City there would have béen some reason for it or if the Declaration had set forth that they had cleansed the River At Gravesend they claimed a Toll of Boats lying in the River of Thames and it was adjudged in Parliament to be malum Tolnetum To stay Heskett Lee. A Writ of Error was brought to reverse a Iudgment given in a common Recovery in the County Palatine of Lancaster Weston The Tenant in the common Recovery is an Infant and appears by his Guardian but there is a fault in the admittance for whereas he ought to have been admitted as Defendant in this form scil A. B. admittitur per C. D. Gardianum suum ad comparendum defendendum he is admitted in the Record ad sequendum The second Error is in the appearance which is entred in this manner sc qui admissus est ad sequendum c. following the Error of the admittance ut Gardianus ipsius Thomae in propria persona sua venit defendit c. so that he is admitted ad sequendum which is the act of the Plaintiff And as Guardian he defends which is the act of the Defendant and further it is said that the Guardian appears in propria persona which cannot be Now I conceive that the Assignment of the Guardian and the appearance of the Guardian is triable by the Record and if the Infant should bring an Action against his Guardian he must declare that he was admitted to appear and defend his right Now whether will this admittance ad sequendum warrant such a Declaration I conceive it will not and that therefore the Recovery is erroneous Winnington I am for them that claim under the Recovery And I conceive this whole Record is not only good in substance but according to the form used in all common Recoveries If an Infant Tenant appear per Gardianum either as Defendant or Vouchée he shall be bound as well as one of full age And if the Guardian faint-pleads or mispleads the Infant hath an Action against him 9 Ed. 4. 34 35. Dyer 104. b. In our case there is a common Recovery wherein the Tenant is an Infant who ought to appear by his Guardian whether the admittance of him here by his Guardian be well entred or no is the question the word sequi signifies only to follow the cause and the Defendant doth prosecute and act a Venire by Proviso may be taken out at the Defendants Suit 35 H. 8. 7. so in a Replevin the Defendant is the prosecutor and the Tenant doth sue in common Recoveries and is the only person that doth prosecute and act so that I think the word is proper It is true one book is cited where prosequendum is void in an Ejectment 2 Cro. 640 641. Sympson's case but that Iudgment is upon the point of prochein amy There is a President for me in 6 Car. 1. which I believe was the president of this case And Sir Francis Englefield's case where the Infant came in as Vouchée is the same with ours As for the second Error assigned viz. that the Guardian is said to come in propria persona In the Earl of Newport's Case and in Englefield's Case propria persona is in the same manner as here Now the Law doth not regard so much the manner of the admittance as that a good Guardian be admitted Twisden This is a Recovery suffered upon a Privy Seal from the King and upon a marriage settlement upon good consideration and therefore ought to be favoured The word sequatur is as proper for the Defendant as for the Plaintiff And for the second the words propria persona are well enough being applyed to the Guardian who does in proper person appear for the Infant For an Infant to suffer a common Recovery if it were res integra it would hardly be admitted But if an Infant will reverse a common Recovery he ought to do it whilest he is under age as it was adjudged here about two years ago according to my Lord Coke's Opinion Weston If you stand upon that whether an Infant having suffered a common Recovery may reverse it after he is come of full age I desire to be heard to it Cur. advisare vult Tildell Walter A Vicar Libelled in
the Spiritual Court for Tyth-wood Barrell prayed a Prohibition suggesting that time out of mind they paid no small Tythe to the Vicar but that small Tythes by the Custom of the Parish were paid to the Parson Twisden If the Endowment of the Vicarage be lost small Tythes must be paid according to prescription Jordan versus Fawcett ERror of a Iudgment in the Common Pleas. An Action was brought against an Executor who pleaded several Iudgments but for the last Iudgment that he pleads he doth not express where it was entred nor when obtained Coleman held it well enough upon a general demurrer Twisden It is not good for by this plea he is tyed up to plead nothing but nul tiel record He might if the Iudgment had been pleaded as it ought to have been have pleaded perhaps obtent per fraudem And Iudgment was given accordingly Love versus Wyndham Wyndham UPon an issue out of Chancery the Iury find a special Verdict viz. That one Gilbert Thirle was seized of the Lands in question for three lives and did demise the same to Nicholas Love the Father if he should so long live that he being so possessed made his Will and devised them in this manner viz. to his Wife for her life and after her decease to Nicholas his Son for his life and if Nicholas his Son should dye without Issue of his body begotten then he deviseth them to Barnaby the Plaintiff Then they find that the Wife was Executrix and that she did agree to this Devise And whether this be a good Limitation to Barnaby or not is the question Jones I conceive it is a good Limitation to Barnaby I shall enquire whether a Termor having devised to one for life and after his death to another for life may go any further And secondly admitting that he may go further whether the Limitation in our case which is to begin after the death of the second without Issue of his body be good or no For the first point he said the reason given in Plo. Com. 519. in 8. Co. 94. why an Executory Devise of a term is good in Law is because the Law takes it as devised to the last man first and then afterwards to the first man without which transposition it is not good for if it should be a Devise to the first man first there would be nothing left for the last but a possibility which is not grantable over Now then if a man may devise a term after the death of another then he may devise it after the death of two other It is true this cannot be in Grants for they are founded upon Contracts and there must be a certainty in them according to the Rector of Chedington's case Now if a Devise may be good after the death of one or two it is all one if it be limited after the death of five or six Now that a contingency may be devised upon a Contingency I take it that the Authorities are clear 14 Car. 1. Cotton Herle 1 Roll 612. resolved by three Iustices Et Hill 9 Jac. Rot. 889. 2 Cr. 461. And for the case of Child and Bayly reported in 2 Cro. 459. and in Roll 613. I conceive it is not against our case for they held the Devise to be void not because it was a Contingency upon a Contingency but in respect of the remoteness of the possibility and because the term was wholly devised to a man and his Assigns So that by the express Authority of the two first cases and by the implication of this case I do think that a Devise to a man after such a manner is good provided that it do not introduce a perpetuity so that where there is not the inconvenience of a perpetuity though there are many Contingencies they are no impediment to the Devise Therefore where a Devise is upon a Contingency that may happen upon the expiration of one or more mens lives and where it is upon a Contingency that may endure for ever there is a great difference The reason of the Rector of Chedington's case was because of the uncertainty for in case of a grant of a term there is a great uncertainty but ours is in case of a Devise which is not taken in the Law by way of remainder 12 Ass 5. so that I conceive a Contingency may be limited upon a Contingency provided that it be not remote The second point is whether this Devise thus limited be a good Devise Now I conceive the limitation is as good as if it had been to his Wife for her life and after her death to Nicholas for life and after his death to Barnaby I agree that if these words if Nicholas dye without heirs of his body shall not be applied to the time of his death it will be a void Devise But the meaning is That if at the time of his death he shall have no Issue then c. Now that they must have such construction I prove from the words of the Will The limitation of the Remainder must be taken so as to quadrate with the particular Estate As if there be a Conveyance to one for life and if he dye without Issue to another this is a good Remainder upon Condition and the Remainder shall rest upon the determination of the particular Estate if the Tenant for life have no Issue when he dyeth but if a Man Convey to one and the heirs of his body and if he dye without Issue to another there it must be understood of a failer of Issue at any time because the precedent limitation goes further then his life But admitting there were no precedent words to guide the intention and that common parlance were against me yet if there be but a possibility of a good construction it shall be so construed and they may very well be understood of his dying without Issue of his body at the time of his death In Goodyer Clerk's case in this Court Trin. 12 Car. Rot. 1048. I confess it was adjudged that it should be understood of a failer of Issue at any time but in our case if you shall not understand it of a failer of Issue at the time of his death it cannot have any construction at all to take effect I think there are no express Authorities against me those that may seem to be so I will put and endeavour to give an answer to them As for Child Baylie's case Reports differ upon the reason of that Iudgment For Cro. says it was held to be a void Devise because it was taken if he dye without Issue at any time during the term But Sergeant Rolls goes upon another reason Rolls 613. there he says it is void because given absolutely to the Son and his Assigns before In Rolls first part 611. Leventhorp Ashly's case the Remainder there is said to be void because when he had devised the term to A. and the Heirs Males of his body it shall
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
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
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
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
less absolute than that of the Lords It doth not appear but that this Commitment was for breach of priviledge but nevertheless if it were so this Court may give relief as appears in Sir John Benions case before cited for the Court which hath the power to judge what is Priviledge hath also power to judge what is Contempt against Priviledge If the Iudges may judge of an Act of Parliament a fortiori they may judge of an Order of the Lords 12 E. 1. Butlers case where he in Reversion brought an Action of Wast and died before Iudgment and his Heir brought an Action for the same Wast and the King and the Lords determined that it did lye and commanded the Iudges to give Iudgment accordingly for the time to come this is published as a Statute by Poulton but in Ryley 93. it appears that it is only an Order of the King and the Lords and that was the cause that the Iudges conceived that they were not bound by it but 39 E. 3. 13. and ever since have adjudged the contrary If it be admitted that for breach of Priviledge the Lords may commit yet it ought to appear on the Commitment that that was the cause for otherwise it may be called a breach of priviledge which is only a refusing to answer to an Action whereof the House of Lords is restrained to hold plea by the Statute 1 H. 4. And for a Contempt committed out of the House they cannot commit for the word Appeal in the Statute extends to all Misdemeanors as it was resolved by all the Iudges in the Earl of Clarendons case 4 Julii 1663. If the Imprisonment be not lawful the Court ought not to remand to his wrongful Imprisonment for that would be an act of Injustice to imprison him de novo Vaughan 156. It doth not appear whether the Contempt was a voluntary act or an omission or an inadvertency and he hath now suffered five months Imprisonment False Imprisonment is not only where the Commitment is unjust but where the deteynor is too long 2 Inst 53. In this case if this Court cannot give remedy peradventure the Imprisonment shall be perpetual for the King as the Law is now taken may Adjourn the Parliament for ten or twenty years But all this is upon supposition that the Session hath continuance but I conceive that by the Kings giving his Royal Assent to several Laws which have been enacted the Session is determined and then the Order for the Imprisonment is also determined Brook tit Parliament 36. Every Session in which the King signs Bills is a day of it self and a Session of it self 1 Car. 1. cap. 7. A special Act is made that the giving of the Royal Assent to several Bills shall not determine the Session 't is true 't is there said to be made for avoiding all doubts In the Statute 16 Car. 1. cap. 1. there is a Proviso to the same purpose And also 12 Car. 2. cap. 1. 11. R. 2. H. 12. By the Opinion of Coke 4 Inst 27. the Royal Assent doth not determine a Session but the Authorities on which he relies do not warrant his Opinion For 1. In the Parliament Roll 1 H. 6. 7. it appears that the Royal Assent was given to the Act for the Reversal of the Attainder of the Members of Parliament the same day that it was given to the other Bills and in the same year the same Parliament assembled again and then it is probable the Members who had been attainted were present and not before 8 R. 2. n. 13 is only a Iudgment in case of Treason by virtue of a power reserved to them on the Statute 25 E. 3. Roll Parliament 7 H. 4. n. 29. and is not an Act of Parliament 14 E. 3. n. 7 8 9. the Aid is first entred on the Roll but upon condition that the King will grant their other Petitions The inference my Lord Coke makes that the Act for the Attainder of Queen Katherine 33 H. 8. was passed before the determination of the Session is an Error for though she was executed during the Session yet it was on a Iudgment given against the Queen by the Commissioners of Oyer and Terminer and the subsequent Act was only an Act of Confirmation but Coke ought to be excused for all his Notes and Papers were taken from him so that this book did not receive his last hand But it is observable that he was one of the Members of Parliament 1 Car. 1. when the special Act was passed And afterwards the Parliament did proceed in that Session only where there was a precedent agreement betwixt the King and the Houses And so concluded that the Order is determined with the Session and the Earl of Shaftesbury ought to be discharged _____ argued to the same effect and said that the Warrant is not sufficient for it doth not appear that it was made by the Iurisdiction that is exercised in the House of Peers for that is coram Rege in Parliamento So that the King and the Commons are present in supposition of Law And the Writ of Error in Parliament is Inspecto Recordo nos de Consilio advisamento Dominorum Spiritual ' Temporalium Commun ' in Parliament ' praed ' existen ' c. It would not be difficult to prove that anciently the Commons did assist there And now it shall be intended that they were present for there can be no averment against the Record The Lords do several acts as a distinct House as the debating of Bills enquiring of Franchises and Priviledges c. And the Warrant in this case being by the Lords Spiritual and Temporal cannot be intended otherwise but it was done by them in their distinct capacity And the Commitment being during the pleasure of the King and of the House of Peers it is manifest that the King is principal and his pleasure ought to be determined in this Court If the Lords should Commit a great Minister of State whose advice is necessary for the King and the Realm it cannot be imagined that the King should be without remedy for his Subject but that he may have him discharged by his Writ out of this Court This present recess is not an ordinary Adjournment for it is entred in the Iournal that the Parliament shall not be assembled at the day of Adjournment but adjourned or prorogued till another day if the King do not signifie his pleasure by Proclamation Some other exceptions were taken to the Retorn First That no Commitment is retorned but only a Warrant to the Constable of the Tower to receive him Secondly The Retorn does not answer the mandate of the Writ for it is to have the body of Anthony Earl of Shaftesbury and the Retorn is of the Warrant for the imprisonment of Anthony Ashly Cooper Earl of Shaftesbury Maynard to maintain the Retorn The House of Lords is the supream Court of the Realm 'T is true this Court is superiour to all Courts
of ordinary Iurisdiction If this Commitment had been by any inferiour Court it could not have been maintained But the Commitment is by a Court tht is not under the comptroll of this Court and that Court is in Law sitting at this time and so the expressing of the Contempt particularly is matter which continues in the deliberation of the Court 'T is true this Court ought to determine what the Law is in every case that comes before them and in this case the question is only whether this Court can judge of a Contempt committed in Parliament during the same Session of Parliament and discharge one committed for such Contempt When a question arises in an Action depending in this Court the Court may determine it but now the question is whether the Lords have capacity to determine their own priviledges and whether this Court can comptroll their determination and discharge during the Session a Peer committed for Contempt The Iudges have often demanded what the Law is and how a Statute should be expounded of the Lords in Parliament as in the Statute of Amendments 40 E. 3. 84. 6. 8. Co. 157 158. a fortiori the Court ought to demand their Opinion when a doubt arises on an Order made by the House of Lords now sitting As to the duration of the Imprisonment doubtless the pleasure of the King is to be determined in the same Court where Iudgment was given As also to the determination of the Session the Opinion of Coke is good Law and the addition of Proviso's in many Acts of Parliament is only in majorem cautelam Jones Attorney General to the same effect As to the uncertainty of the Commitment it is to be considered that this case differs from all other cases in two circumstances First the person that is a Member of the House by which he is committed I take it upon me to say that the case would be different if the person committed were not a Peer Secondly The Court that doth commit which is a superiour Court to this Court and therefore if the Contempt had been particularly shewn of what Iudgment soever this Court should have been as to that Contempt yet they could not have discharged the Earl and thereby take upon them a Iurisdiction over the House of Peers The Iudges in no age have taken upon them the Iudgment of what is Lex consuetudo Parliamenti but here the attempt is to engage the Iudges to give their Opinion in a matter whereof they might have refused to have given it if it had been demanded in Parliament This is true if an Action be brought where priviledge is pleaded the Court ought to judge of it as an incident to the Suit whereof the Court was possessed but that will be no warrant for this Court to assume a Iudgment of an original matter arising in Parliament And that which is said of the Iudges power to expound Statutes cannot be denied but it is not applicable in this case By the same reason that this Commitment is questioned every Commitment of the House of Commons may be likewise questioned in this Court It is objected That there will be a failer of Iustice if the Court should not discharge the Earl but the contrary is true for if he be discharged there would be a manifest failer of Iustice for Offences of Parliament cannot be punished any where but in Parliament and therefore the Earl would be delivered from all manner of punishment for his Offence if he be discharged For the Court cannot take Bail but where they have a Iurisdiction of the matter and so delivered out of the hands of the Lords who only have power to punish him It is objected That the Contempt is not said to be committed in the House of Peers but it may well be intended to be committed there for it appears he is a Member of that House and that the Contempt was against the House And besides there are Contempts whereof they have cognizance though they are committed out of the House It is objected That it is possible this Contempt was committed before the general pardon but surely such Injustice should not be supposed in the supream Court and it may well be supposed to be committed during the Session in which the Commitment to Prison was It would be great difficulty for the Lords to make their Commitments so exact and particular when they are imployed in the various affairs of the Realm and it hath been adjudged on a Retorn out of the Chancery of a Commitment for a Contempt against a Decreé that it was good and the Decrée was not shewn The limitation of the Imprisonment is well for if the King or the House determine their pleasure he shall be discharged for then it is not the pleasure of both that he should be detained and the addition of these words during the pleasure is no more than was before imply'd by the Law for if these words had been omitted yet the King might have pardoned the Contempt if he would have expressed his pleasure under the Broad Seal If Iudgment be given in this Court that one should be imprisoned during the Kings pleasure his pleasure ought to be determined by Pardon and not by any act of this Court. So that the King would have no prejudice by the Imprisonment of a great Minister because he could discharge him by a Pardon the double limitation is for the benefit of the Prisoner who ought not to complain of the duration of the Imprisonment since he hath neglected to make application for his discharge in the ordinary way I confess by the determination of the Session the Orders made the same Session are discharged but I shall not affirm whether this present Order be discharged or no because it is a Iudgment but this is not the present case for the Session continues notwithstanding the Royal Assent given to several Bills according to the Opinion of Cooke and of all the Iudges Hutton 61 62. Every Proviso in an Act of Parliament is not a determination what the Law was before for they are often added for the satisfaction of those that are ignorant of the Law Winington Solicitor General to the same purpose In the great case of Mr. Selden 5 Car. 1. the Warrant was for notable Contempts committed against us and our Government and stirring up Sedition and though that be almost as general as in our case yet no objection was made in that cause in any of the arguments Rushworths Collections 18 19. in the Appendix But I agree that this Retorn could not have béen maintained if it were of an inferiour Court but during the Session this Court can take no cognizance of the matter And the inconveniency would be great if the Law were otherwise taken for this Court might adjudge one way and the House of Peers another way which doubtless would not be for the advantage or liberty of the Subject for the avoiding of this mischief it was agreed by
this whole Court in the case of Barnadiston and Soames that the Action for the double Retorn could not be brought in this Court before the Parliament had determined the right of the Election lest there should be a difference between the Iudgments of the two Courts When a Iudgment of the Lords comes into this Court though it be of the reversal of a Iudgment of this Court this Court is obliged to execute it but the Iudgment was never examined or corrected here In the case of my Lord Hollis it was resolved that this Court hath no Iurisdiction of a misdemeanour commited in the Parliament when the Parliament is determined the Iudges are Expositors of the Acts and are intrusted with the lives liberties and fortunes of the Subjects And if the Sessions were determined the Earl might apply himself to this Court for the Subject shall not be without place where he may resort for the recovery of his liberty but this Session is not determined For the most part the Royal Assent is given the last day of Parliament as saith Plow Partridges case Yet the giving of the Royal Assent doth not make it the last day of the Parliament without a subsequent Dissolution or Prorogation And the Court Iudicially takes notice of Prorogations or Adjournments of Parliament Cro. Jac. 111. Ford versus Hunter And by consequence by the last Adjournment no Order is discontinued but remains as if the Parliament were actually assembled Cro. Jac. 342. Sir Charles Heydon's case so that the Earl ought to apply himself to the Lords who are his proper Iudges It ought to be observed that these Attempts are primae Impressionis and though Imprisonments for Contempts have been frequent by the one and the other House till now no person ever sought enlargement here The Court was obliged in Iustice to grant the Habeas Corpus but when the whole matter being disclosed it appears upon the Return that the case belongs ad aliud examen they ought to remand the party As to the limitation of the Imprisonment the King may determine his pleasure by Pardon under the Great Seal or Warrant for his discharge under the Privy Seal as in the case of Reniger Fogassa Plow 20. As to the Exception that no Commitment is returned the Constable can only shew what concerns himself which is the Warrant to him directed and the Writ doth not require him to return any thing else As to the Exception that he is otherwise named in the Commitment then in the Writ the Writ requires the body of Anthony Earl of Shaftesbury quocunque nomine Censeatur in the Commitment The Court delivered their Opinion and first Sir Thomas Jones Justice said such a Retorn made by an ordinary Court of Iustice would have been ill and uncertain but the case is different when it comes from this high Court to which so great respect hath been paid by our Predecessors that they deferred the determination of doubts conceived in an Act of Parliament until they had received the advice of the Lords in Parliament But now instead thereof it is demanded of us to comptroll the Iudgment of all the Peers given on a Member of their own House and during the continuance of the Session The cases where the Courts of Westminster have taken cognizance of Priviledge differ from this case for in those it was only an incident to a case before them which was of their cognizance but the direct point of the matter now is the Iudgment of the Lords The course of all Courts ought to be considered for that is the Law of the Court Lane's case 2 Rep. And it hath not been affirmed that the usage of the House of Lords hath been to express the matter more punctually on Commitments for Contempts And therefore I shall take it to be according to the course of Parliament 4 Inst 50. it is said that the Iudges are Assistants to the Lords to inform them of the Common Law but they ought not to judge of any Law Custom or usage of Parliament The objection as to the continuance of the Imprisonment hath received a plain answer for it shall be determined by the pleasure of the King or of the Lords and if it were otherwise yet the King could pardon the Contempt under the Great Seal or discharge the Imprisonment under the Privy Seal I shall not say what would be the consequence as to this Imprisonment if the Session were determined for that is not the present case but as the case is this Court can neither Bail nor discharge the Earl Wyld Justice The Retorn no doubt is illegal but the question is on a point of Iurisdiction whether it may be examined here this Court cannot intermeddle with the transactions of the high Court of Peers in Parliament during the Session which is not determined and therefore the certainty or uncertainty of the Retorn is not material for it is not examinable here but if the Session had béen determined I should be of Opinion that he ought to be discharged Rainsford Chief Justice This Court hath no Iurisdiction of the cause and therefore the form of the Retorn is not considerable we ought not to extend our Iurisdiction beyond its due limits and the Actions of our Predecessors will not warrant us in such Attempts The consequence would be very mischievous if this Court should deliver the Members of the Houses of Peers and Commons who are committed for thereby the business of the Parliament may be retarded for perhaps the Commitment was for evil behaviour or undecent Reflections on the Members to the disturbance of the affairs of Parliament The Commitment in this case is not for safe custody but he is in Execution on the Iudgment given by the Lords for the Contempt and therefore if he be bailed he will be delivered out of Execution because for a Contempt in facie Curiae there is no other Iudgment or Execution This Court hath no Iurisdiction of the matter and therefore he ought to be remanded And I deliver no Opinion if it would be otherwise in case of Prorogation Twisden Justice was absent but he desired Justice Jones to declare that his Opinion was that the party ought to be remanded And so he was remanded by the Court. Term. Trin. 26 Car. II. 1674. in B. R. Pybus versus Mitford ante 121. THis case having been several times argued at the Bar received Iudgment this Term. The case was Michael Mitford was seised of the Lands in question in Fee and had Issue by his second wife Ralph Mitford and 23. Jan ' 21 Jac. by Indenture made betwéen the said Michael of the one part and Sir Ralph Dalivell and others of the other part he covenanted to stand immediately seised after the date of the said Indenture amongst others of the Lands in question by these words viz. To the use of the Heirs Males of the said Michael Mitford begotten or to be begotten on the body of Jane his wife the
cannot deprive us of the benefit of the Common Law and in the Vice-Chancellors Court they proceed by the Civil Law If you allow this demand there will be a failer of Justice for the Defendants being a Corporation cannot be arrested they can make no stipulation the Vice-Chancellors Court cannot issue Distringas's against there Lands nor can they be excommunicated Presidents we find of Corporations suing there as Plaintiffs in which case the afore-mentioned inconvenience does not ensue but none of Actions brought against Corporations Maynard contra Servants to Colledges and Officers of Corporations have been allowed the priviledge of the Vniversity which they could not have in their own right and if in their Masters right a fortiori their Masters shall enjoy it The word persona in the demand will include a Corporation well enough Vaughan Chief Justice Perhaps the words atque confirmat ' c. in the demand of Conisance are not material for the priviledges of the Vniversity are grounded on their Patents which are good in Law whether confirm'd by Parliament or not The word persona does include Corporations 2 Inst 536. per Coke upon the Statute of 31 Eliz. cap. 7. of Cottages and Inmates A demand of Conisance is not in derogation of the Common Law for the King may by Law grant tenere placita though it may fall out to be in derogation of Westminster-Hall Nor will there be a failer of Justice for when a Corporation is Defendant they make them give Bond and put in Stipulators that they will satisfie the Iudgment and if they do not perform the Condition of their Bond they commit their Bail They have enjoyed these priviledges some hundreds of years ago The rest of the Iudges agreed that the Vniversity ought to have Conisance But Atkyns objected against the form of the demand that the word persona privilegiata cannot comprehend a Corporation in a demand of Conisance howsoever the sense may carry it in an Act of Parliament Ellis Wyndham If neither Schollars nor priviledged persons had been mentioned but an express demand made of Conisance in this particular cause it had then been sufficient and then a fault if it be one in Surplusage and a matter that comes in by way of Preface shall not hurt Atkyns It is not a Preface they lay it as the foundation and ground of their claim The demand was allowed as to matter and form Rogers Danvers DEbt against S. Danvers and D. Danvers Executors of G. Danvers upon a Bond of 100 l. entred into by the Testator The Defendants pleaded that G. Danvers the Testator had acknowledged a Recognisance in the nature of a Statute Staple of 1200 l. to J. S. and that they have no assets ultra c. The Plaintiff replied that D. Danvers one of the Defendants was bound together with the Testator in that Statute to which the Defendants demur Baldwin pro Defendente If this plea were not good we might be doubly charged It is true one of us acknowledged the Statute likewise but in this Action we are sued as Executors And this Statute of 1200 l. was joynt and several so that the Conisee may at his Election either sue the surviving Conisor or the Executors of him that is dead so that the Testators Goods that are in our hands are lyable to this Statute It runs concesserunt se utrumque eorum if it were joynt the charge would survive and then it were against us It is common for Executors upon pleinment administer pleaded to give in Evidence payment of Bonds in which themselves were bound with the Testator and sometimes such persons are made Executors for their security The Opinion of the Court was against the Plaintiff whereupon he prayed leave to discontinue and had it Amie Andrews ASsumpsit The Plaintiff declares that whereas the Father of the Defendant was endebted to him in 20 l. for Malt sold and promised to pay it that the Defendant in consideration that the Plaintiff would bring two Witnesses before a Iustice of Peace who upon their Oaths should depose that the Defendants Father was so endebted to the Plaintiff and promised payment assumed and promised to pay the money then avers that he did bring two Witnesses c. who did swear c. The Defendant pleaded non Assumpsit which being found against him he moved by Sergeant Baldwin in Arrest of Iudgment that the consideration was not lawful because a Iustice of Peace not having power to administer an Oath in this case it is an extrajudicial Oath and consequently unlawful And Vaughan was of Opinion that every Oath not legally administred and taken is within the Statute against prophane swearing And he said it would be of dangerous consequence to countenance these extrajudicial Oaths for that it would tend to the overthrowing of Legal proofs Wyndham Atkins thought it was not a prophane Oath nor within the Statute of King James because it tended to the determining of a controversie And accordingly the Plaintiff had Iudgment Horton Wilson A Prohibition was prayed to stay a Suit in the Spiritual Court commenced by a Proctor for his Fees Vaughan Wyndham No Court can better judge of the Fees that have been due and usual there then themselves Most of their Fees are appointed by constitutions Provincial and they prove them by them A Proctor lately libell'd in the Spiritual Court for his Fees and amongst other things demanded a groat for every Instrument that had been read in the cause the Client pretended that he ought to have but 4 d. for all They gave Sentence for the Defendant the Plaintiff appealed and then a Prohibition was prayed in the Court of Kings Bench. The Opinion of the Court was that the Libell for his Fees was most proper for the Spiritual Court but that because the Plaintiff there demanded a customary Fee that it ought to be determin'd by Law whether such a Fee were customary or no and accordingly they granted a Prohibition in that case It is like the case of a modus for Tythes for whatever ariseth out of the custom of the Kingdom is properly determinable at Common Law But in this case they were of Opinion that the Spiritual Court ought not to be prohibited and therefore granted a Prohibition quoad some other particulars in the Libell which were of temporal cognisance but not as to the suit for Fees Wyndham said if there had been an actual Contract upon the Retainer the Plaintiff ought to have sued at Law Atkyns thought a Prohibition ought to go for the whole Fées he said had no relation to the Iurisdiction of the Spiritual Court nor to the cause in which the Proctor was retain'd No Suit ought to be suffered in the Spiritual Court when the Plaintiff has a remedy at Law as here he might in an Action upon the case for the Retainer is an implied Contract A difference about the grant of the Office of Register in a Bishops Court shall be
tried at Common Law though the Subjectum circa quod be Spiritual 2 Rolls 285. placito 45. 2 Rolls 283. Wadworth Andrewes Shall a six-Clark prefer a Bill in Equity for his Fees But a Prohibition was granted quoad c. Glever versus Hynde alios GLever brought an Action of Trespass of Assault and Battery against Elizabeth Hynde and six others for that they at York-Castle in the County of York him the said Plaintiff with force and arms did Assault beat and evil entreat to his damage of 100 l. The Defendants plead to the Vi armis not-guilty to the Assault beating and evil entreating they say that at such a place in the County of Lancaster one _____ Jackson a Curate was performing the Rites and Funeral obsequies according to the usage of the Church of England over the body of _____ there lying dead and ready to be buried and that then and there the Plaintiff did maliciously disturb him that they the Defendants required him to desist and because he would not that they to remove him and for the preventing of further disturbance molliter ei manus imposuerunt c. quae est eadem transgressio absque hoc that they were guilty of any Assault c. within the County of York or any where else extra Comitatum Lancastriae The Plaintiff demurs Turner pro Querente The Defendants do not show that they had any Authority to lay hands on the Plaintiff as that they were Constables Church-wardens or any Officers nor do they justifie by the Authority of any that were If they had pleaded that they laid hands on him to carry him before a Iustice of Peace perhaps it might have alter'd the case The Plaintiff here if he be faulty is lyable to Ecclesiastical Censure and the Statute of Ph. Ma. ann 1. cap. 3. provides a remedy in such cases Jones contra If the Statute of Ph. Ma. did extend to this case yet it does not restrain other ways that the Law allows to punish the Plaintiff or keep him quiet Our Saviour himself has given us a President he whipt buyers and sellers out of the Temple which act of buying and selling was not so great an impiety as to disturb the worship of God in the very act and exercise of it Court The St. of 1 Ph. Ma. concerns Preachers only but there is another Act made 1 Eliz. that extends to all men in Orders that perform any part of publick Service But neither of these Statutes take away the Common Law And at the Common Law any person there present might have removed the Plaintiff for they were all concern'd in the Service of God that was then performing so that the Plaintiff in disturbing it was a Nusance to them all and might be removed by the same rule of Law that allows a man to abate a Nusance Whereupon Iudgment was given for the Defendant Nisi causa c. Anonymus ACtion sur le Case The Plaintiff declares that whereas the Testator of the Defendant was endebted to the Plaintiff at the time of his death in the sum of 12 l. 10 s. that the Defendant in consideration of forbearance promised to pay him 5 l. at such a time and 5 l. more at such a time after and the other 50 shillings when he should have received money then avers that he did forbear c. and saith that the Defendant paid the two five pounds but for the 50 shilllings residue that he hath received money but hath not paid it The Defendant pleaded non Assumpsit which was found against him Wilmot moved in arrest of Iudgment that the Plaintiff doth not set forth how much money the Defendant had received who perhaps had not received so much as 50 shillings he said though the promise was general yet the breach ought to be laid so as to be adequate to the consideration And secondly that the Plaintiff ought to have set forth of whom the Defendant received the money and when and where because the receit was traversable The Court agreed that there was good cause to demur to the Declaration but after a Verdict they would intend that the Defendant had received 50 shillings because else the Iury would not have given so much in damages and for the other exception they held that the Defendant having taken the general issue had waived the benefit thereof Alford Tatnell GRegory Melchisedec Alford were bound joyntly to Tatnell in a Bond of 700 l. the Obligee brought several Actions and obtained two several Iudgments in this Court against the Obligors and sued both to an Outlawry And in Mich. Term. 18 Car. 2. both were returned outlawed In Hill Term following Gregory Alford was taken upon a Cap. utlagatum by Browne Sheriff of Dorset-shire who voluntarily suffered him to escape Tatnell brought an Action of Debt upon this escape against Browne and recover'd and receiv'd satisfaction notwithstanding which he proceeded to take Melchisedec Alford who brought an Audita querela and set forth all this matter in his Declaration but upon a demurrer the Opinion of the Court was against the Plaintiff for a fault in the Declaration viz. because the satisfaction made to the Plaintiff by the Sheriff was not specially pleaded viz. time and place alledged where it was made for it is issuable and for ought appears by the Declaration it was made after the Writ of Audita querela purchased and before the Declaration The Court said if Tatnell had only brought an Action on the case against the Sheriff and recovered damages for the escape though he had had the damages paid that would not have béen sufficient ground for the Plaintiff here to bring an Audita querela but in this case he recovered his Original debt in an Action of debt grounded upon the escape which is a sufficient ground of Action if he had declared well They gave day to show cause why the Declaration should not be amended paying Costs Anonymus AN Action of False Imprisonment The Defendants justifie by vertue of a Warrant out of a Court within the County Palatine of Durham to which the Plaintiff demur'd The material part of the Plea was That there was antiqua Curia tent coram Vicecomite Comitatus c. vocat The County Court which was accustomed to be held de 15 diebus in 15 dies and that there was a Custom that upon a Writ of questus est nobis issuing out of the County Palatine of Durham and delivered to the Sheriff c. that upon the Plaintiffs affirming quandam querelam against such person or persons against whom the questus est nobis issued the Sheriff used to make out a Writ in the nature of a cap. ad satisfac against him or them c. that such a Writ of questus est nobis issued ex Cur ' Cancellarii Dunelm which was delivered to the Sheriff who thereupon made a precept to his Bayliffs to take the Plaintiff who thereupon was arrested which
is the same imprisonment Serjeant Jones for the Plaintiff took exceptions to this plea as 1. The Court is ill pleaded to be held coram Vicecomite for in a County Court the suitors are Iudges Cr. Jac. 582. and though this Court holdeth plea upon a questus est nobis which is the Kings Writ yet that doth not alter the nature of the Court nor its Iurisdiction Jentleman's case 6 Rep. 11. 2. The Custom of holding this Court de quindecem diebus in quindecem dies is void being not only against Magna Cart. 35. but against the 2 3 Edw. 6. cap. 25. which enacts That no County Court c. shall be longer deferred then one month from Court to Court c. any Usage Custom Statute or Law to the contrary notwithstanding 3. He took these exceptions to the Custom 1. It is absurd that if upon a questus est nobis the party affirm quandam querelam that then c. for a questus est nobis is an Action upon the case and this quaedam querela may be in any other Action though never so remote the plaint ought to be in pursuance of the Writ and so to have been pleaded 2. As this Custom is laid it does not appear that the plaint ought to arise within the Iurisdiction of the Court. 3. It is against the Law that in any inferiour Court a Capias should be awarded before Summons 1 Rolls 563. Seaburn Savaker 2 Rolls 277. placit ' 2. Pasch 16 Jac. Bankes Pembleton The 4th exception to the Declaration was that it does not appear whether this Writ were purchased out of the Chancery of the City of Durham or of that of the County the words ex Cur. Cancellar Dunelm are applicable to either 5. Here is not an averment that the cause of Action did arise within the County Palatine it is said indeed that he was endebted and did assume within the County but it is the contract and cause of the debt that entities the Court there to the Action 6. He says that he did levare quandam querelam but does not say that it was super brevi de questus est nobis nor that it was in placito praedict ' nor makes any application at all of the plaint to the Writ and then the plaint not appearing to be warranted by the Writ and being for above 40 shillings the proceedings are coram non Judice 7. The Sheriffs Warrant is to Arrest si inventus fuerit in balliva tua and it does not appear that the Bayliff had any Bayliwick If the County were divided into several divisions and each Bayliff allotted to a several division this ought to have been shown and that the place where this Arrest was made was within this Bayliffs proper division 8. Of the Defendants own showing the Court was not held according to the Custom alledged viz. de quindecim diebus in 15 dies for the last Court is said to have been held the 12th of March and the next after that on the 26th Turner for the Defendant argued that the imprisonment was lawful To the first exception he said that the Court mention'd in the bar is not a County-Court nor so pleaded it is pleaded as it is Cur ' vocat Cur ' Comitat ' and there were never any Suitors known there to be Iudges It is not to be examined according to the rules of County Courts properly so called for we plead it to be according to the Custom of the County Palatine of Durham which is an exempt Iurisdiction As for the exception to its being held de 15 diebus in 15 dies the answer to the first exception answers this also The Iudges of Assize in Writs of false Iudgment have allowed this Custom and affirm'd Iudgments given in this Court of which we have many Presidents For the third exception concerning the validity of the Custom to the first exception against it he answered that a Bar is good enough if it be to a common intent and the common intent is that the quaedam querela must be pursuant to the questus est nobis and in this case it was so the questus est nobis and the precept upon which the Plaintiff was arrested are both in an Action of the case upon a promise And to the second that the cause of Action is shown to arise within the Iurisdiction for the promise which is the ground of this Action is said to have been made infra Comitat Palatin To the third exception that in inferiour Courts it is illegal to award a Capias before Summons but this Court is in a County Palatine and such Courts are like to the Courts at Westminster and have the same Authority Rowlandson landson Sympson 1 Rolls 801. placito 11. and the Customs of those Courts are as good Warrants for their proceedings as the Custom of the Kings Bench is for their issuing Latitats To the fourth he said it was a forreign intendment to suppose a Court of Chancery in the City of Durham a Court of Equity cannot be by grant and there is no prescription in the City of Durham to hold plea in Equity To the fifth he said the promise was laid to have beén made within the Iurisdiction To the sixth ut supra To the seventh that this Precept was according to the form of all their Precepts in like cases To the eigth that taking both days inclusively there are 15 days But admitting that there were some defect in the proceedings yet since that Court can issue such a Writ as this is it is sufficient to excuse the Officer 10 Rep. the case of the Marshalsey Cur ' This is not a County Court but a Court vocat ' Cur ' Com' and it is within a County Palatine and for both those reasons not in the same degree with other County Courts And though it were a County Court it might by prescription be held before the Sheriff as a Court Baron may by a special prescription be held coram Seneschallo and so it hath béen adjudged in the case of Armyn Appletoft Cr. Jac. 582. there is no such special prescription as there ought to be but a general prescription for a Court Baron and every Court Baron must be prescribed for The County Palatine of Durham is not of late standing like that of Lancaster but is immemorial and a Custom there is of great Authority As to the objection against quandam querelam why it may not be as allowable for a man there to bring a questus est nobis and declare in what plaint he will as it is here to arrest a man and declare against him in any Action But admitting the proceedings irregular yet since the Court can issue a Capias that excuses the Officer in this Action and Iudgment was given for the Defendant Nisi causa c. Term. Pasch 26 Car. II. in Communi Banco Brooking versus Jennings alios THe Plaintiff declared as Executor against the
Man brings an Action of Debt against B. Sheriff of the County Palatine of Lancaster and sues him to an Outlawry upon mean Process and has a Capias directed to the Chancery of the County Palatine who makes a Precept to the Coroners of the County being six in all to take his body and have him before the Kings Iustices of the Court of Common-Pleas at Westminster such a day One of the Coroners being in sight of the Defendant and having a fair opportunity to Arrest him doth it not but they all return non est inventus though he were easie to be found and might have been taken every day Hereupon the Plaintiff brings an Action against the Coroners and lays his Action in Middlesex and has a Verdict for 100 l. Serj. Baldwin moved in Arrest of Iudgment that the Action ought to have been brought in Lancaster he agreed to the cases put in Bulwer's case 7 Rep. where the cause of Action arises equally in two Counties but here all that the Coroners do subsists and determines in the County Palatine of Lancaster for they make a Return to the Chancery of the County Palatine only and it is he that makes the Return to the Court He insisted upon Dyer 38 39 40. Husse Gibbs 2. He said this Action is grounded upon two wrongs one the not arresting him when he was in sight the other for returning non est inventus when he might easily have been taken now for the wrong of one all are charged and entire damages given He said two Sheriffs make but one Officer but the case of Coroners is different each of them is responsible for himself only and not for his Companion Serjeant Turner Pemberton contra They said the Action was well brought in Middlesex because the Plaintiffs damage arose here viz. by not having the body here at the day They cited Bulwer's case Dyer 159. b. the Chancery returns to the Court the same answer that the Coroners return to him so that their false Return is the cause of prejudice that accrues to the Plaintiff here The ground of this Action is the return of non est inventus which is the act of them all that one of them saw him and might have arrested him and that the Defendant was daily to be found c. are but mentioned as arguments to prove the false Return And they conceived an Action would not lie against one Coroner no more then against one Sheriff in London York Norwich c. But to the first exception taken by Baldwin they said admitting the Action laid in another County then where it ought yet after Verdict it is aided by the Statute of 16 17 Car. 2. if the Ven. come from any place of the County where the Action is laid it is not said in any place of the County where the cause of Action ariseth now this Action is laid in Middlesex and so the Trial by a Middlesex Iury good let the cause of Action arise where it will Cur̄ That Statute doth not help your case for it is to be intended when the Action is laid in the proper County where it ought to be laid which the word proper County implies But they inclined to give Iudgment for the Plaintiff upon the reasons given by Turner Pemberton Adjornatur Bird Kirke IT was resolved in this case by the whole Court 1. That if there be Tenant for life the Remainder for life of a Copy-hold and the Remainder-man for life enter upon the Tenant for life in possession and make a surrender that nothing at all passeth hereby for by his entry he is a Disseisor and has no customary Estate in him whereof to make a surrender 2. That when Tenant for life of a Copy-hold suffers a Recovery as Tenant in Fee that this is no forfeiture of his Estate for the Free-hold not being concern'd and it being in a Court-Baron where there is no Estoppell and the Lord that is to take advantage of it if it be a forfeiture being party to it it is not to be resembled to the forfeiture of a Free-Tenant that Customary Estates have not such accidental qualities as Estates at Common Law have unless by special Custom 3. That if it were a forfeiture of this and all other forfeitures committed by Copy-holders the Lord only and not any of those in Remainder ought to take advantage And they gave Iudgment accordingly North Chief Justice said that where it is said in King Lord's case in Cr. Car. that when Tenant for life of a Copy-hold surrenders c. that no use is left in him but whosoever is afterward admitted comes in under the Lord that that is to be understood of Copy-holds in such Mannors where the Custom warrants only Customary Estates for life and is not applicable to Copy-holds granted for life with a Remainder in Fee Anonymus A Writ of Annuity was brought upon a Prescription against the Rector of the Parish Church of St. Peter in c. the Defendant pleads that the Church is overflown with the Sea c. the Plaintiff demurs Serjeant Nudigate pro Querente The Declaration is good for a Writ of Annuity lies upon a prescription against a Parson but not against an heir F. N. B. 152. Rastall 32. the plea of the Church being drowned is not good at best it is no more then if he had said that part of the Glebe was drowned it is not the building of the Church nor the consecrated ground in respect whereof the Parson is charged but the profits of the Tythes and the Glebe Though the Church be down one may be presented to the Rectory 21 H. 7. 1. 10. H. 7. 13. 16 H. 7. 9. Luttrel's case 4 Rep. Wilmote contra The Parson is charged as Parson of the Church of St. Peter we plead in effect that there is no such Church and he confesseth it 21 Ed. 4. 83. Br. Annuity 39. 21 Ed. 4. 20. 11 H. 4. 49. we plead that the Church is submersa obruta c. which is as much a dissolution of the Rectory as the death of all the Monks is a dissolution of an Abbathie It may be objected that the Defendant has admitted himself Rector by pleading to it but I answer 1. An Estoppel is not taken notice of unless relyed on in pleading 2. The Plaintiff by his demurrer has confessed the Fact of our plea. By which mean the matter is set at large though we were estopped The Court was clearly of opinion for the Plaintiff The Church is the Cure of Souls and the right of Tythes If the material Fabrick of the Parish-Church be down another may be built and ought to be Judicium pro Quer ' nisi c. Term. Trin. 27 Car. II. in Communi Banco Vaughton versus Atwood alios TRespass for taking away some Flesh-meat from the Plaintiff being a Butcher The Defendant justifies by virtue of a Custom of the Mannor of c. that the Homage used
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
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
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
Penel post mortem praed J. W. licet sepius requisit̄ c. Conventionem suam praed Warrant̄ praed non tenuit sed infregit sed J. H. eidem J. W. tenere omnino recusavit adhuc recusat ad dam̄ c. 600 l. The Defendant pleads Representando quod eadem Penelope conventionem suam Warrant̄ praed a tempore levationis finis praed ex parte sua custodiend hucusque bene fideliter custodivit representandoque quod praed Hugo Stowell praed tempore intrationis ipsius Hugonis in tenementa praed non habuit aliquod Legale Jus aut titulum ad eadem tenementa c. pro placito eadem Penel dicit quod praed H. Stow. ipsum Johannem a possessione occupatiane tenementor non ejecit expulit amovit prout praed Johannes superius versus eam narravit hoc parat̄ est verificare Vpon this issue was taken and a Verdict for the Plaintiff was found and 300 l. damages And upon a motion in arrest of Iudgment the Cause was spoken to three or four times Jones pro Defendent̄ 1. It is considerable whether an Action will lie against a Feme upon a Covenant in a Fine levied by her when Covert-Baron It would be inconvenient that Land should be unalienable and therefore the Law enables a Feme Covert to levy a Fine Which Fine shall work by Estoppel and pass against her a good Interest But to make her liable to a personal Action thereupon to answer damages c. it were hard and it is Casus primae impressionis For the Plaintiff it was said there is little question but an Action of Covenant will well lie upon this warranty The Law enables a Feme Covert to corroborate the Estate she passes and to do all things incident If she levy a Fine of her Inheritance she may be vouched or a Warrantia Chartae c. thereupon be had against her and so is Roll versus Osborn Hob. 20. and if she can thus bind her Land a fortiori she may subject her self to a Covenant as in the Case at the Bar. If a Husband and Wife make a Lease for years and she accept the rent after his death she shall be liable to a Covenant This Point was agreed by the Council on both sides that a Covenant in this Case would lie against her and so this Court agreéd Twisd added That there was no question but a Covenant would lie upon a Fine For saith he sealing is not always necessary to found an Action of Covenant Thus Covenant lies against the Kings Lesseé by Patent upon his Covenant in the Patent though we know there is no sealing by the said Lessée Secondly It was urged on the Defendants behalf That the breach of Covenant is not well assigned for it is not shewed what Title Stowell had It is not only participially expressed Habens Legale c. but what is said is altogether general and uncertain Jus Legalem titulum ad tenementa praed ' so that the breach assigned is in effect no more but that Stowell entred and so the Covenant was broken If a man plead Indemn Conservat̄ he must shew how Gyll versus Gloss Yelverton 227. 8. 2 Cr. 312. Debt for Rent on a parol-Lease the Defendant pleads That the Plaintiff nil habuit in tenementis praedictis unde dimissionem praedictam facere potuit The Defendant replies Quod habuit c. in general without shewing in special what Estate he had that so it might appear to the Court that he had sufficient in the Lands whereout to make the Lease and therefore the Replication was adjudged naught It is true it was adjudged That after the Verdict it was helped by the Stat. of Jeoffails But that I conceive was because the issue though not very formal yet was upon the main point viz. Whether the Lessor had an Estate in the Tenements or no. For the true reason why a Verdict doth help in such a Case is because it is supposed that the matter left out was given in Evidence and that the Iudges did direct accordingly or else the Verdict could not have been found So in our Case If the issue had béen Whether Stowell had Right c. it might have been supposed and intended by his special Title and Estate made out and proved by trial But here the issue going off on a Collateral point it cannot be intended that any such matter was given in Evidence Jones and Pollexfen for the Plaintiff This Objection is against all the Precedents by which it appears that alledging generally as we do habens Legale Jus Titulum is good It is sufficient for a man to alledge that the Covenantor had no power to demise or was not seized c. without shewing any cause why or that any other person was seized c. 9 Co. 61. 2 Cr. 304. 369. 70. Co. Ent. 177. a. It it to be inquired upon Evidence Whether the party had a good Title or no and so the Court agreéd Thirdly Saunders for the Defendant said Though the Plaintiff was very wary bringing in the Right of Stowell with a Participle only so that we could not take issue upon it we could only protest yet I agreed that having taken issue upon one Point we must admit and do admit the rest of the matter in the Declaration But that is only as it is alledged Now here therefore we must admit that Stowell had Right and Title c. But we do not admit that he had a Title precedent to this Fine or had right otherwise than from and under the Plaintiff himself for that is not alledged And it shall never be intended no not after Verdict that Stowell had good and Eigne Right and Title before the Lease granted by the Fine but the contrary shall be intended And for that I rely upon Kirby versus Hansaker 2 Cr. 315. By all Iudges of C. B. and Scacc̄ in Cam. Scacc̄ in Point Nay that is a stronger Case than ours is For there the issue which was found for the Plaintiff was that the Recovery by Essex who answers to Stowell in our Case was not by Covin but by lawful Title And yet because it was not alledged that he had a good and Eigne Title it was held to be ill and not helped and the Iudgment was reversed The saying that Stowell ejected him c. Contra formam effectum Finis Warrant̄ praed ' or if it had been Contra formam effectum Conventionis praed ' is absurd and helps nothing For Stowell could not do so because he is not party to the Fine Jones for the Plaintiff It can never be intended that Stowell entred c. by a Title under us because it is alledg'd to be Contra formam effectum Finis Warrant ' praed ' Contra voluntatem ipsius J. W. eum a possessione sua Custodivit c. had it been by Lease under us the Defendant should have pleaded it
I doubt whether the Defendant could have demurred But certainly now the Iury have found all this it can never be intended as they would have it as to the Case that has beén cited between Kirby and Hansaker I say it is not so clearly alledged there as here It is not said there that the Lesseé was possessed and that the Recoveror entred into and upon his Possessions and ejected him 2. These words Contra formam c. are not in that Case 3. In that Case the Court of Kings Bench was of Opinion That the Verdict had made it good 4. The Roll of that Case is not to be found here is a man will make Oath that he hath searched four years before and after the time when that Case is supposed to have been and cannot find it Rainsford and Moreton were at first of Opinion That the Verdict had helped it For saith Rainsford If Stowell had Title under the Plaintiff it could not have been found that there was a breach of Covenant But afterwards they said that Kirby and Hansaker's Case came so close to it that it was not to be avoided and they were unwilling to make new Presidents Twisden That Book is so express'd that it is not an ordinary authority it is not to be waved But I was of the same Opinion before that Book was cited For here it is possible Stowell might have a Lease from Wootton since the Fine Now the warranty doth not extend to Puisne Titles The Defendant should have said that Stowell had Priorem Titulum c. when a good Title is not set forth in the Declaration to entitle the Plaintiff to his Action it shall never be helped There was an Action upon the Stat. of Monopolies for that the Defendant entred I suppose by pretext of some Monopoly-Commission c. detinuit certain goods But it was not said they were his the Plaintiffs and though we had a Verdict yet we could never have Iudgment In 3 Car. there was an Action brought upon a Promise to give so much with a Child quantum daret to any other Child and it was alledged that dedit so much and because that that it might be before the time of the promise it was held naught after Verdict It may be the Roll of Kirby versus Hansaker is not to be found no more than the Roll of Middleton versus Clesman reported Yelv. 65. But certainly Justice Crook and Yelverton were men of that Integrity they would never have reported such Cases unless there had been such There are many losses miscarriages and mistakes of this kind Pray where will you find the Roll of the Decreé for Titles in London yet I have heard the Iudges say They verily believe it is upon a wrong Roll. Nil Capiat per Bill Rex versus Neville INdictment for erecting a Cottage for habitation contra Stat. quasht because it was not said That any inhabited it For else it is no offence per Rainsford Moreton qui soli aderant Jemy versus Norrice A Writ of Errour was brought of a Iudgment given in the Common Pleas in an Action upon a quantum meruit for Wares sold First One of them is unum par Chirothecarum But it is not said of what sort Twisden It is good enough however so it has been held de Coriis without saying Bovinis c. de Libris without saying what Books they were Secondly Another is parcella fili which it was said was uncertain unless it had been made certain by an Anglice For though it was agréed it had been good in an Indeb assumpsit yet in this Case there must vs a certainty of the debt Such a general word cannot be good no more than in a Trover Twisden If an Indeb assumpsit should be brought for 20 l. for Wares sold and no Evidence should be given of an agreement for the certain price I should direct it to be found especially But parcella fili séems to be as uncertain as paires of Hangings Cur. It is doubtful But however affirmetur nisi c. Foxwist al. versus Tremayneaut Trin. 21 Rot. 1512. V. Super. FOr the Plaintiff The two parties who are Infants may well sue by Attorney as they do The Authorities are clear 2 Cr. 441. 1 Ro. 288. Weld versus Rumney in 1650. Styles 318. We beg leave to mention especially what you Mr. Justice Twisden said there though indeéd we do not know nor can be very confident that it is reported right Twisden I do protest not one word of it true they went about But 3 Cr. 541. V. 5 Co. 29. 6 Co. 67. 6. and especially 378. is express in our Point In Rot. 288. num 2. Indeed there is a Quaere made because an Infant might by this means be amerced But that reason is a mistake for an Infant shall not be amerced Dyer 338. 1 Inst 127. a. 1 Ro. 214. Moreton I take the Law to be that where an Infant sues with others in auter droit as here he shall sue by Attorney for all of them together represent the Testator I ground my self upon the Authorities which have been cited and Yelv. 130. Also it is for the Infants advantage to sue by Attorney But if he be a Defendant he may appear by Guardian Popham 112. I think the parties may all joyn in this suit though perhaps in Hatton versus Maskew they could not For in that Case it appeared that the wife only who was Plaintiff was Executrix So he concluded that Iudgment ought to be given for the Plaintiffs Rainsford accordant This Case is stronger than where a single person is made Executor or Administrator For though Ro. 288. num 2. makes a Quaere of that yet Num. 3. which is our Case he agrees clearly with the Countess of Rutlands Case in 3 Cr. 377. 8. That the Infant as well as the other Executors shall sue by Attorney The Reasons objected on the contrary are That an Infant cannot make an Attorney and that he may be prejudiced hereby I answer That the Executors of full age have influence upon the Infants and they are entrusted to order and manage the whole business V. 1 Leon 74. And therefore Administration durante minoritate shall not be granted so in this Case he shall have priviledge to sue by Attorney because he is accompanied with those which are of full age I conclude I have not heard of any Authority against my Opinion and how we can go over all the Authorities cited for it I do not know Twisden contra This is an Action upon the Case for that the Defendant was indebted for damages clear received to the Testator's Vse And indeed I do not sée otherwise how it would lie Two questions have been made First Whether all the Executors may or must joyn I confess I have heard nothing against this viz. but that they may joyn But I cannot so easily as my Brothers slubber over all the Authorities cited viz. Hatton versus
Maskew which I confess is a full authority for this that they need not joyn The Case was thus The Testator recovers a Iudgment and dies making his Will thus Also I devise the residue of my Estate to my two Daughters and my Wife whom I make my Executrix I confess I cannot tell why but the Spiritual Court did judge them all both the two Daughters as well as the Wife to be Executrices and therefore we the Iudges must take them to be so The Wife alone proves the Will with a reservata potestate to the Daughters when they should come in But this makes nothing at all in this Case I think this is according to their usual form The Wife alone sues a Scire facias upon this Iudgment and therein sets forth this whole matter viz. that there were two other Executrices which were under seventeen c. It was adjudged for the Plaintiff and affirmed in a Writ of Errour in Cam. Scacc̄ that the Scire facias was well brought by her alone But first I cannot see how a Writ of Errour should lie in that Case in Cam. Scacc̄ For it is not a Cause within 27 Eliz. 2. What reason is there for Iudgment a reason may be given that before an Executor comes to seventeen he is no Executor But I say he is quoad esse though not quoad Excecutionem A Wife Administratrix under seventeen shall joyn with her Husband in an Action and why shall not the Infants as well in our Case Yelv. 130. is express that the Infant must joyn and be named It is clear that no Administration durante minore aetate can be committed in this Case For all the Executors make but one person and therefore why may not all joyn 2. Admitting they may joyn whether the Infants may sue by Attorney I hold that in no Case an Infant shall sue or be sued either in his own or auter droit by Attorney There are but four ways by which any man can sue In propria persona per Attornatum per Guardianum and per Prochein amy 1 Ro. 747. aut 340. 400. post 747. An Infant cannot sue in propria persona That was adjudged in Dawkes versus Peyton It was an excellent Case and there were many notable Points in it First It was Resolved That a Writ of Errour might be brought in this Court upon an Errour in Fact in the Petty Bagg 2. That the Entry being general venit such a one it shall he intended to be in propia persona 3. That it was Error for the Infant in that Case to appear otherwise than by a Guardian 4. That the Errour was not helped by the Statute of Jeoffails In a Case between Colt Sherwood Mich. 1649. an Infant Administrator sued and appeared per Guardianum and it appeared upon the Record that he was above seventeen years of age I was of Council in it and we insisted it was Errour but it was adjudged That he appeared as he ought to appear and that he ought not to appear by Attorney And the Reasons given were First Because an Infant cannot make an Attorney by reason of his inability Secondly Because by this means an Infant might be amerced pro falso Clamore For when he appears by Attorney non constat unless it happen to be specially set forth that he is an Infant and so he is amerced at all adventures and to relieve himself against this he has no remedy but by a Writ of Errour For Errour in Fact cannot be assignd ore tenus And it were well worth the Cost to bring a Writ of Errour to take off an amercement But it is said That the Infants may appear by Attorney in this Case because they are coupled and joyned in company with those of full age I think that makes no difference for that reason would make such appearance good in case that they were all Defendants But it is agreed That if an Infant be Defendant with others who are of full age he cannot appear by Attorney The reason is the same in both Cases If an Infant and two men of full age joyn in a Feoffment and make a Letter of Attorney c. this is not good nor can in any sort take away the imbecility which the Law makes in an Infant I conclude I think the Plaintiffs ought to joyn but the Infants ought to appear by Guardian But since my two Brothers are of another mind as to the last Point there must be Iudgment that the Defendant respondeat ouster Nota Coleman argued for the Defendant his Argument which ought to have been inserted above was to this effect First These five cannot joyn had there been but one Executor and he under seventeen years the Administrator durant̄ minor̄ c. ought to have brought the Action 5 Co. 29. a. But since there are several Executors and some of them of full age there can be no Administration durant ' minor̄ Those of full age must Administer for themselves and the Infants to But the course is that Executors of full age prove the Will and the other that is under age shall not come in till his age of seventeen years But now the question is How this Action should have beén brought I say according to the President of Hatton versus Maskew which was in Cam. Scacc̄ Mich. 15 Car. 2. Rot. 703. wherein the Executor who was of full age brougt the Scire fac̄ but set forth that there were other two Executors who were under age and therefore they which were of full age pray Iudgment It was resolved the Scire fac̄ was well brought and they agreed That the Cases in Yelverton 130. was good Law because in that Case it was not set forth specially in the Declaration that there was another Executor under age So that they Resolved That the Executor of full age could not bring the Action without naming the others 2. However the Infants ought to sue by Guardian and where Rolls and other Books say that where some are of age and some under they may all sue by Artorney It is to be understood of such as are indeed under 21 but above 17. Respondeas ouster After this the Suit was Compounded Term. Pasch 22 Car. II. Regis The great Case in Cancellaria between Charles Fry and Ann his Wife against George Porter Resolved That there is no Relief in Equity against the Forfeiture of Land limited over by Devise in Marrying without consent c. Many particulars concerning Equity THe Case was Montjoy Earl of Newport was seized of an house called Newport-house c. in the County of Middlesex and had three Sons who were then living and two Daughters Isabel married to the Earl of Banbury with her Fathers consent who had issue A. the Plaintiff and Ann married to Mr. Porter without her Fathers Consent who had issue D. both these Daughters dyed The Earl of Newport made his Will in this manner I give and bequeath to my dear wife
lay in the River whether it lies or not 85 Action upon the Case upon a Promise on consideration to bring two men to make Oath before two men not authoriz'd by Law to administer an Oath 166 Action against the Coronors of a County Palatine for a false Return the Action laid in Middlesex 198 199 V. Attorney Action upon the Case lies not for suing an Attorney in an inferior Court 209 Action upon the Case 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 adjudged that it does not lie 286 Administrators An Administrator recovers Damages in an Action of Trover and Conversion for Goods of the Intestate taken out of his own possession then his Administration is revoked whether can he now have Execution 62 63 Administrators plead fully administred to an Action of Debt for Rent incurr'd in their own time Which was held to be an ill plea. 185 186 The Action lies against them in the debet detinet for Rent incur'd in their own time ibid. They cannot waive a term for years ibid. Debt upon an Obligation against an Administrator The Defendant pleads a Statute acknowledged by the Intestate to the Plaintiff which Statute is yet in force the Plaintiff replies That it is burnt The Defendant demurs 186 187 A Stranger takes out Administration to a Feme Covert and puts a Bond in Suit the Defendant pleads That the Husband is de jure Administrator to the Wife and is yet alive 231 V. Distribution Annuity An Action lies for an Annuity against the Rector of a Church though the Church be drown'd 200 201 Appearance In an Action brought by Executors some of whom are under age all the Plaintiffs appear by Attorney whether well or no 47 72 276 277 c. Apprentices Vide p. 2. Enditement for exercising a Trade in a Village not having served seven years as an Apprentice 26 An Action of Covenant lies against an Infant Apprentice upon his Indenture of Apprenticeship c. by the custom of London 271 Concerning the Power of the Justices in discharging Masters of their Apprentices Vide 286 287 Whether may a Difference between a Master and an Apprentice be brought originally before the Sessions or not V. 287 Arbitrement and Arbitrators An Award that one of the Parties shall discharge the other from his undertaking to pay a Debt to a third person a good Award 9 The Power of the Arbitrators and of the Umpire cannot concur 15 274 275 The staying of a Cause is implied in referring it to Arbitrators 24 Inter alia arbitratum fuit naught 36 Arrest Attachment for arresting a man upon a Sunday or as he is going to Church 56 Assault and Battery What makes an Assault 3 Justification in an Action of Assault and Battery 168 169 For striking a Horse whereon the Plaintiff rode whereby that Horse ran away with him so that he was thrown down and another Horse ran over him 24 Pleading in an Action of Assault and Battery 36 Assets Assets in equity V. 115. Attachment Against a man for not performing an Award submitted to by Rule of Court 21 V. Arrest Attorney Whether are Attorneys within the Statute against Extortion or not 5 6 If an Attorney be sued time enough to give him two Rules to plead within the Term Judgment may be given 8 Not compellable to put in special Bail 10 Whether can an Attorney of the Kings Bench be debar'd from appearing for his Client in the Court at Stepney 23 24 Ill practices of Attorneys 41 An Attorney ought not to waive his Court 118 An Action lies not against an Attorney for suing in a Cause as Attorney knowing that the Plaintiff has no Cause of Action 209 Audita Querela Can be brought before Judgment enter'd 111 V. 170 Outlawry pleaded in disability 224 Avowry Whether needs he that distrains Cattel for a Rent-Charge set forth in his Avowry that they were Levant and Couchant 63 Exceptions to an Avowry for a Heriot 216 217 The Husband alone may avow for a Rent due to him in right of his Wife 273 B. Bail THree men bring an Action and the Defendant puts in bail at the Suit of four 5 V. Baron and Feme The course of the Court in taking bail 16 The reason of the Law in requiring bail 236 Special bail denied in Battery 2 V. Attorney V. p. 25. Bankrupt A Plaintiff has Judgment and before Execution becomes Bankrupt moved that the money may be brought into Court 93 Accounts between two Merchants and one of them becomes Bankrupt how far shall the other be a Debtor or Creditor 215 Baron and Feme Baron and Feme are sued in Trover and Conversion and the Wife arrested she shall be discharg'd upon common Bail 8 The Husband must pay for the Wives Apparrel unless she elope and he give not order to trust her 9 Whether or no and in what cases the Husband is bound by the Contract of the Wife and in what cases not 124 c. Husband and Wife recover in Action of Debt and have Judgment the Wife dies the Hushand shall have Execution 179 180 V. Tit. Avowry Bar. Judgment in a former Action pleaded in Bar of a second 207 Bastard-Children Orders of Sessions made upon the 18th of Eliz. for the keeping of them by the reputed Fathers 20 Bill of Exchange Needs not be protested on the very day that it becomes due 27 V. Tit. Indebitat assumpsit Borough-English Copyhold Land of the tenure of Borough-English surrendred to the use of another person and his heirs who dies before admittance the Right shall descend to the youngest Son 102 C. Cap. Excommunicatum MIsnosmer cannot be pleaded to a Cap. Excomm for the party has no day in Court 70 Certiorari To remove an Enditement of Robbery whether it removes the Recognizances to appear 41 To remove an Enditement of Murder out of Wales 64 68 Cinque-Ports Hab. Corp. to remove one out of the Cinque-Ports 20 Citation Citation ex officio not according to Law 185 Common Whether may a Corporation prescribe for a common sans number in gross 6 7 Condition That if the Obligor bring in Alice and John Coats when they come to their ages of 21 years c. to give Releases c. these words must be taken respectively 33 The Condition of a Bond for the parties appearance at a certain day and concludes If the party appear then the Condition to be void 35 36 Condition precedent or not 64 An Estate is given by Will upon Condition that if the Devisee marry without the consent of c. then a stranger to enter c. whether is this a Condition or a Limitation 86 c. 300 c. Condition of a Bond is to seal and execute a Release is the Obligor bound to do it without a tender 104 A Bond is dated in March the Condition is to pay money super 28 diem
in the Mannor 232 R. Recovery sc Common Recovery VIde Gardian Whether can an Infant that suffers a Common Recovery reverse it when he comes of age 49 What shall be bar'd by a Common Recovery and what not 108 109 c. A Common Recovery suffered of Lands in Shrewsbury and the Liberties thereof good to pass Lands in the Liberties of Shrewsbury though lying out of the Town of Shrewsbury 206 The pleading of a Common Recovery V. 218 219 There are two Parishes adjoyning Rippon and Kirby-Marstone and within those two Parishes are two Towns of the same names A man has Lands within the Parishes but not within those Towns and suffers a recovery of Lands in Rippon and Kirby-Marstone generally but the Deed to lead the Uses mentions the Lands as lying in the Parishes of Rippon and Kirby-Marstone 250 c. Recusance and Recusancy An Information for not coming to Church may be brought upon the Stat. of 23 Eliz. reciting the clause in it that refers to 1 Eliz. 191 To an Endictment for Recusancy Conformity is a good Plea but not to an Action of Debt 213 Reddendo singula singulis V. 33. Release A man makes a Release of all Demands and Titles quid operatur 99 100 Reparations of Churches Parishioners how compellable to repair their Parish-Church 194 236 237 The greater part of the Parish shall conclude the Lesser for enlarging the Church as well as repairing it 236 237 The Chancel of a Parish-Church whereof the Rectory is Impropriate is out of repair Whether can the Ordinary sequester the Tythes 258 259 c. Request An Action for keeping a passage stopt up so that the Plaintiff could not come to cleanse his gutter ought the Plaintiff to lay a Request 27 Reservation A Heriot or 40 s. reserved to the Lessor and his Assigns at the Election of the Lessor his Heirs and Assigns yet cannot the Devisee of the Lessor have either the Heriot or 40 s. 216 217 Return false Return Action upon the Case against a Sheriff for that he arrested such a one at the Plaintiffs Suit and suffered him to go at large and at the day of the return of the Writ returned that he had his body ready The Defendant demurs generally 57 In a like Action the Defendant pleads the Stat. of 23 H. 6. cap. 10. and adjudged against the Plaintiff 239 240 V. Action upon the Case Robbery An Action lies against the Hundred upon the Statute of Winchester though the Robbery were not committed in the High-way 221 S. Scandalum Magnatum MY Lord _____ is an unworthy person and does things against Law and Reason Actionable 232 233 c. Scire Facias Scire facias upon a Recognizance in Chancery there is a demurrer to part and issue upon part Judgment must be given in the Court of Kings Bench upon the whole Record 29 Scias facias against Executors to have execution of a Judgment obtained against their Testator they plead That a Ca. Sa. issued against him upon which he was taken and that he paid the money to the Warden of the Fleet who suffered him to go at large This held to be no plea. 194 Seal Whether does the Seals being broken off invalidate a Deed c. given in Evidence 11 Seisin of an Office What shall be a Seisin of an Office and what not 122 123 Serjeants at Law What Serjeants Rings ought to weigh 9 Priviledge of Serjeants 226 Statute-Merchant and Staple V. Administrators Summons V. 197. Supersedeas The very sealing a Writ of Error is a Supersedeas to the Execution 28 The Stat. of 13 Eliz. cap. 9. where it is said there shall be no Supersedeas c. hath no reference to the Court of Kings Bench but only to the Chancery 45 A Writ of Error in Parliament in what Cases is it a Supersedeas and in what Cases not 106 285 V. 112 Whether is a Sheriff obliged at his years end to deliver a Writ of Supersedeas over to the new Sheriff 222 Survivor The Condition of a Bond is That if the Obligor shall pay yearly a sum of money to two strangers during their two lives that then c. Resolved that the payment is to cease upon the death of either of them 187 T. Tenant in Common TEnant in Common sues without his Companion 102 Tender and Refusal Where ever Payment will do Tender and Refusal will do 77 78 Toll Toll-thorough 47 48 V. Prescription Toll-thorough and Toll-traverse 231 232 Trespass Justification in Trespass 75 Whether does an Action of Trespass lie for immoderately riding a lent Mare 210 In an Action of Trespass it appears upon Evidence that the Fact if true was Felony yet does not this Evidence destroy the Plaintiffs Action Otherwise if it had appear'd upon the Declaration 282 283 Trover and Conversion A Sheriff may have an Action of Trover and Conversion for Goods taken by himself in Execution upon a Fieri facias 30 31 Trover and Conversion decem paririum tegularum valorum Angl. of ten pair of Curtains and Vallance held good 46 47 V. 135 136 c. many Cases of Trover and Conversion and of pleading in that Action Trover and Conversion de tribus struibus foeni 289 290 Trial. Motion for a new Trial. 2 An Action of Covenant is laid at York issue is joyn'd upon a matter in Barwick where shall the Trial be 36 37 c. Tythes Turfe Gravel and Chalk not tythable 35 If the Endowment of the Vicarage be lost small Tythes must be paid according to Prescription 50 Tythes of Cattel feeding in a Common where the Parish is not certainly known 216 A modus to the Rector is a good Discharge against the Vicar ibid. A Parson shall not have Tythe both of Corn and of Sheep taken in pro melioratione agriculturae infra terras arabiles c. ibid. V. tit Custom V. Venire Facias A Venire Facias returnable coram nobis apud Westm held good 81 Venue A Venue refused to be changed because the Plaintiff was a Counsellor at Law 64 Verdict When a Declaration will bear two Constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense 42 43 Matters helpt after Verdict 70 74 75 V. tit Jeofails View A Jury never ordered to View before their appearance but in an Assize 41 Ville What makes a Ville in Law 78 117 118 Visitation of Churches What Ecclesiastical Persons are visitable and what not 11 12 Vniversity Indebitat assumpsit against a Colledge in Oxford the Chancellor of the University demands Conusance whether is his Cause within the Priviledge of the University or not 163 164 Voluntary Conveyance What shall be said to be a Voluntary Conveyance within the Statute of Bankrupts and what not 76 Voucher A Tenant in an Assize avoucheth out of the line is it peremptory or not 7 8 Vses V. Covenant to stand seised V. 175 176 c. A man granted a Rent to one to the use of another and Covenants with the Grantee to pay the Rent to him to the use of the Cestuy que use The Grantee brings an Action of Covenant 223 Whether is the reservation of a Pepper-Corn a sufficient Consideration to raise an Use or not 262 263 Vsury V. 69. W. Wages IF a Mariner or Ship-Carpenter run away he looseth his Wages due 93 Warrant of Attorney Judgment enter'd of another Term than is expressed in the Warrant of Atturney 1 Warranty Feme Tenant in tail remainder to her Sisters in Fee the Tenant in tail and her Husband levy a Fine to the use of them two and the Heirs of the body of the Wife the remainder to the right Heirs of the Husband with Warranty against them and the Heirs of the Wife The Wife dies without issue 181 He that comes to Land by the limitation of an Use may rebut 192 193 Waste What is Waste and what not 94 95 Will. A Will drawn in the form of a Deed. 117 Whether must the Will of a Feme Covert be proved 211 The pleading of a Will of Land 217 Witnesses Who are good Witnesses and who are not 21 73 74 107 283 FINIS