enough and Iudgment was given accordingly When this Cause was tried at the Barr which was in Easter-Term last the Lord Mohun offered to give his Testimony for the Plaintiff but refused to be sworn offering to speak upon his Honour but Iustice Wyld told him in Causes between Party and Party he must be upon his Oath The Lord Mohun asked him whether he would answer it The Iudge replyed that he delivered it as his Opinion and because he knew not whether it might cause him to be questioned in another place he desired the rest of the Iudges to deliver their Opinions which they all did and said he ought to be sworn and so he was but with a salvo jure for he said there was an Order in the House of Peers That 't is against the Priviledge of the House for any Lord to be sworn Anonymus DEBT upon the Statute for not coming to Church and concludes Per quod Actio accrevit eidem Domino Regi quer̄ ad exigend ' habend ' The Exception after Iudgment was taken that it ought to have been only Actio accrevit eidem the Plaintiff qui tam c. and not exigend ' habend ' for the King and himself Sed non allocatur For upon search of Presidents the Court were all of Opinion that it was good either way Anonymus Factor where he cannot sell but for ready Mony IN Accompt Iudgment was given quod computet and the Defendant pleads before the Auditors that the Goods whereof he was to give a reasonable accompt were bona peritura and though he was carefull in the keeping of them yet they were much the worse that they remained in his hands for want of Buyers and were in danger of being worse and therefore he sold them upon Credit to a Man beyond Sea The Plaintiff demurred and after Argument by Barrel Serjeant for the Plaintiff and Baldwin Serjeant for the Defendant the whole Court were of Opinion that the Plea was not good Curia For if a Merchant deliver Goods to his Factor ad merchandizand ' he cannot sell them upon Credit but for ready Mony unless he hath a particular Commission from his Master so to do for if he can find no Buyers he is not answerable and if they are bona peritura and cannot be sold for Mony upon the delivery the Merchant must give him authority to sell upon Trust If they are burned or he is robbed without his own default he is not lyable and in this Case it was not pleaded that he could not sell the Goods for ready Mony and the Sale it self was made beyond Sea where the Buyer is not to be found like the Case of * 1 Bulst 103. Yelv. 202. Sadock and Burton where in Accompt against a Factor he pleads that he sold the Iewel to the King of Barbary for the Plaintiffs use and upon a Demurrer the Plea was held naught for when a Factor hath a bare Authorty to sell in such Case he hath no power to give a day of payment but must receive the Mony immediately upon the Sale Therefore in the Case at Barr if the Master is not bound by the Contract of the Servant without his Consent or at least the Goods coming to his use neither shall the Servant have Authority to sell without ready Mony unless he hath a particular Order for that purpose There was another thing moved in this Case for the Plaintiff that the Plea ought to be put in upon Oath for having pleaded that he could not sell without loss he ought to swear it Fitzh Accompt 47. But no Opinion was delivered herein only the Chief Iustice said that the Plaintiff ought to have required the Plea upon Oath for otherwise it was not necessary But for the substance of the Plea it was held ill and Iudgment was given for the Plaintiff Harris's Case SErjeant Hopkins moved for a Prohibition The Case was Husband dies his Wife Executrix she dies before Probate Administration must be to the next of kin of the Husband 22 23 Car. 2. cap. 10. A Man makes a Will and appoints his Wife to be Executrix and devises a Shilling to his Daughter for a Legacy and dies the Executrix before Probate of the Will dies also intestate and whether the Goods shall be distributed by the Act for settling Intestates Estates amongst the next of kin to the Executrix or to the next of kin to the Testator her Husband was the Question Since she dying before Probate her Husband in Iudgment of Law died also intestate This Case seems to be out of the Statute the Husband having made a Will and the Act intermeddles only where no Will is made The Court delivered no Iudgment in it but seemed to incline that the Statute did extend to this very Case and that Administration must be committed to the next of kin of the Husband but if there should be no distribution it must then be according to the Will of the Testator Reder versus Bradley IT was moved to reverse a Iudgment given in an Honour Court upon a Writ of false Iudgment brought here Judgment reversed in an inferior Court where the damage was laid to 30 l. The Plaintiff declared in the Action below that there was a Communication between him and the Defendant concerning the Service of his Son and it was agreéd between them that in consideration the Plaintiff would permit his Son to serve him the Defendant promised to pay the Plaintiff 30 s. The Plaintiff avers that he did permit his Son to serve him and that the Defendant hath not paid him the 30 s. There was a Verdict for the Plaintiff and the Exceptions now taken were 1. 'T is not said that the Iurors were electi ad triand ' c. 2. He lays his damage to 30 l. of which a Court Baron cannot hold Plea for the difference taken by my Lord Coke is where Damages are laid under 40 s. Costs may make it amount to more but where 't is laid above in such Case all is coram non Judice for which reason Iudgment was reversed but in this Court the Iudge doth not pronounce the Reversal as 't is done in the Kings Bench. Lane versus Robinson Inferior Court TRespass for taking of his Cattel the Defendant justifies by vertue of an Execution in an Action of Trespass brought in a Hundred Court and the Plaintiff demurred Serjeant Pemberton took two Exceptions to the Plea 2 Cro. 443 526. Hob. 180. Sid. 348. 1. Because the inferior Court not being of Record cannot hold Plea of a Trespass quare vi armis contra pacem but it was not allowed for Trespasses are frequently brought there and the Plaintiff may declare either vi armis or contra pacem Postea 2. The Defendant reciting the Proceedings below saith taliter processum fuit whereas he ought particularly to set forth all that was done because not being in a Court
as much as is required by Law 'T is true a Subject is bound to serve the King in such capacity as he is in at the time of the Service commanded but he is not obliged to qualifie himself to serve in every capacity Neither doth it appear in this Case that the Defendant was able to remove this Incapacity and that should have been shewn on the other side and all Iudges are to judge upon the Record The intent of the Statute is That if persons will not qualifie themselves they shall not execute any Office and it was made to keep Roman Catholicks out of Places but not to force them to accept of Offices of Trust in the Government and it designs no punishment for quitting but for executing of a place contrary to the Law but if this be an Offence this Information will not lie and for that 2. It was argued That if a thing be either commanded or forbidden by a Statute the transgression in either Case is an Offence punishable by Information 25 H 6. pl. 9. b. 7 H. 4. 5. but when an Act doth not generally command a thing but only sub modo the party offending is punishable no otherwise than designed by that Law as where the Statute of 18 H. 6. cap. 11. prohibits any Man from being a Iustice of the Peace unless he have 40 l. ê‘ AnÌ„ and the Statute of 5 6 E. 6. cap. 16. which makes such Bargains as are therein mentioned about buying of Offices void if such Office be forfeitable then an Information will lie but when 't is ipso facto void as in both the former Cases then 't is otherwise because the punishment is executed by the Statute it self and therefore where the avoidance is made by the Act there is no need of an Information And the Objection of impotentia voluntatis is not material to this purpose because Symony buying of Offices not subscribing the 39 Articles according to the Statute of the Queen these are all voluntary Acts yet no Information lies against such Offenders because the Statutes execute the punishment The intent of the Parliament is here declared the disability of the person makes the Office void void to all intents for the Right of Infants or Men in Prison is not saved so that admitting it to be an Offence if the Duty be not performed yet if such a qualification be requisit to make a Man to act in such an Office or perform such a Duty if that qualification be wanting the Party is only punishable by the loss of the Office The Act doth not distinguish between Offices of Trust and Profit And as to the other Objection viz. That 't is in the power of the Defendant to qualifie himself the same might as well be objected against all the Popish Recusants upon the Statute of 3 Jac. and if a Statute doth disable persons or abridge the King of their Services there is no injury done because the King himself is party to the Act but if mischiefs were never so great since they are introduced by a Law they cannot be avoided till that Law is changed 3. But admitting the Information to be good and that this is an Offence for which it will lie yet the Excommunication is a sufficient excuse it appears by the Verdict that the Defendant was absolutely disabled to be Sheriff for if he is to take the Oath and receive the Sacrament in order to it if he cannot be admitted to the Sacrament as being under the Sentence of Excommunication that is an excuse The Defendant is only argued into a Guilt for the Iury have not found any they do not say that it was in his power to yield Obedience or that he might have enabled himself they only find his incapacity and though it was a voluntary Act which was the cause of his disability yet in such Cases the Law doth not look to Causes so remote If a Man be in Prison for Debt it is his own Act for contracting it and not paying but yet an Outlary against him whilst in Prison shall be reversed because the immediate Cause viz. the Imprisonment and the Iudgment was in invitum and the Law looks no farther and so Iudgment was prayed for the Defendant But the Court were all of Opinion that this Information would lye and that the Defendant was punishable for not removing the disability it being in his power to get himself absolved from the Excommunication And so Iudgment was given against him and a Writ of Error brought c. Godfrey versus Godfrey In Communi Banco Intrat ' Hill ult Rot. 321. DEBT upon a Bond for performance of an Award Award of a lesser Sum in satisfaction of a greater and good in which the Arbitrators had taken notice of 72 l. in controversie and had awarded 50 l. in satisfaction The Defendant pleads Nullum fecerunt Arbitrium the Plaintiff replies an Award and sets it forth and assigns a Breach to which the Defendant demurred because it appeared by the Award that 72 l. was in controversie for Rent due and that 50 l. was awarded in full satisfaction of 72 l. and general Releases to be given but it did not appear that any other Matter was in Controversie between the Parties though the Submission was general and Arbitrators may reduce incertain things to a certainty but they cannot make a Debt certain to be less except there were other differences for which likewise this Release was to be given 10 H. 7. 4. But the whole Court were of Opinion that the Award was good Curia for that the Arbitrators might consider other Matters between the Parties neither did it appear by the Award that the 72 l. was due but in demand only and 't is unreasonable for him to find fault with his own case for he alledges that he ought to pay 72 l. and complains because the other Party is contented with 50 l. and demands no more Iudgment for the Plaintiff Wright versus Bull. Condition where 't is disjunctive 't is in the Election of the Party to have either DEBT upon a Bond for payment of 40 l. The Condition whereof was That if the Defendant should work out the said 40 l. at the usual Prices in packing when the Plaintiff should have occasion for himself or his Friends to imploy him therein or otherwise shall pay the 40 l. then the Bond to be void The Defendant pleads that he was always ready to have wrought out the 40 l. but that the Plaintiff did never imploy him and upon Demurrer the Plea was held ill because the Defendant did not averr that the Plaintiff had any occasion to make use of him and for that it was at his Election either to have Work or Mony Basket and Basket Antea and not having imployed him but brought his Action that is a request in Law and so he hath determined his Election to have the Mony and Iudgment was accordingly given for the
Anno 30 Car. II. in Communi Banco The Case of one Randal and his Wife an Administrator c. Judgment may be avoided without a Writ of Error by a Plea where the Party is a Stranger to it DEBT upon a Bond against the Defendant as Administrator They plead a Iudgment recovered against the Intestate in Hillary Term 26 27 Car. 2. and that they had not Assets ultra The Plaintiff replies that there was an Action against the Intestate but that he dyed before Iudgment and that after his death Iudgment was obtained and kept on foot per fraudem The Defendant traversed the Fraud but did not answer the death of the Intestate and upon a Demurrer it was said for the Plaintiff that the Iudgment was ill and that he being a Stranger to it could neither bring a Writ of Error or Deceit and had no other way to avoid it but by Plea and that 't is put as a Rule That where Iudgment may be reversed by a Writ of Error the Party shall not be admitted to do it by Plea but a Stranger to it must avoid it by Plea because he is no Party to the Iudgment as if a Scire Facias be brought against the Bail 't is a good Plea for them to say that the Principal was dead before Iudgment given by way of excusing themselves to bring in the Body but 't is not good to avoid the Iudgment because 't is against the Record Cro. Eliz. 199. which must be avoided by Writ of Error 1 Roll. Abr. 449 742. The Court were of Opinion that the Plaintiff might avoid the Iudgment without a Writ of Error especially in this Case where 't is not only erroneous but void Hill versus Thorn IN an Arbitrament it was held by the Court Rules in an Award that if two things be awarded the one within and the other not within the Submission the later is void and the breach must be assigned only upon the first 2. If there be a Submission of a particular difference and there are other things in Controversie if in such Case a general Release is awarded 't is ill and it must be shewed on the other side to avoid the Award for that cause 3. If the Submission be of all differences till the 10th day of May 1 Sand. 33. and a Release awarded to be given of all differences till the 20th day of May if there be no differences between those two days the Award is good if any it must be shewed in Pleading 1 Roll. Abr. 257. otherwise the Court will never intend it 4. Smith and Shelbury Antea That reciprocal Covenants cannot be pleaded in barr of another and that in the assigning of a Breach of Covenant 't is not necessary to averr performance on the Plaintiffs side Staples versus Alden DEBT upon a Bond conditioned to deliver forty pair of Shooes within a Month at Holborn-Bridge to Henry Knight a Common Carrier to G. for the use of the Obligee Tender of Goods to the Man shall be a Tender to the Master The Defendant pleaded that in all that space of a Month Henry Knight did not come to London but that such a day at Holborn-Bridge he delivered forty pair of Shooes to A. G. the Carriers Porter To this Plea the Plaintiff demurred for that the Condition being to do something to a Stranger the Defendant at his peril ought to perform it 33 H. 6. 13. 4 H. 7. 4. like the Case where the Action of Debt was brought upon a Bond conditioned that the Defendant should give such a Release as the Iudge of the Prerogative Court should think fit the Defendant pleaded that the Iudge did not appoint any Release and it was adjudged no good Plea because the Obligation is on his part and he ought to tender a Release to the Iudge Cro. Eliz. 716. But on the other side it was said that a delivery to the Servant is a delivery to the Master himself and if parcels of Goods are delivered to the Porter and lost an Action lies against the Master Curia The Court absente North Chief Iustice held the Plea to be good and that such a Construction was to be made as was according to the intent of the Parties and that a delivery to the Man was a delivery to the Master whereupon Iudgment was given for the Defendant Gillmore versus Executor of Shooter In Banco Regis A new Act shall not take away an Action to which the Plaintiff was entituled at the Commencement of the Act. INdebitatus Assumpsit There was a Treaty of Marriage between the Plaintiff who was of kin to the Testator and the Daughter of one Harris with whom he afterwards had 2000 l. as the Marriage Portion and Mr. Shooter in his Life time promised to give the Plaintiff as much or to leave him worth so much by his Will This Promise was made before the 24th day of June before this Action brought the Marriage took effect Harris paid the 2000 l. and Shooter dyed in September following having made no payment of the Mony or any Provision for the Plaintiff by his Will This Action was commenced after Shooter's death and upon the Tryal a Special Verdict was found upon the Act of Frauds and Perjuries 29 Car. 2. c. 29 Car. 2. which Enacts That from and after the 24th day of June in the year 1677. no Action shall be brought to charge any person upon any Agreement made in consideration of Marriage c. unless such Agreement be in Writing c. And that this was a bare Promise without Writing And by Wyld and Jones absente Twisden Iudgment was given for the Plaintiff for it could not be presumed that the Act had a retrospect to take away an Action to which the Plaintiff was then intituled For if a Will had been made before the 24th day of June and the Testator had dyed afterwards yet the Will had been good though it had not been in pursuance of the Statute Aster versus Mazeen In C. B. IN Covenant Breach assigned did relate to three Covenants the Declaration concludes sic fregit Conventionem and good the Plaintiff declared upon an Indenture in which the Defendant had covenanted that he was seised in Fee c. and would free the Premisses from all Incumbrances in which there was also another Covenant for quiet Enjoyment and the Breach assigned was upon an Entry and Eviction by another and concludes sic Coventionem suam praedictam fregit in the singular Number And upon a Demurrer to the Declaration Maynard Serjeant said That the Breach did relate to all the three Covenants and therefore the Conclusion was ill because he did not shew what Covenant in particular and if he should obtain a Iudgment upon such a Declaration the Recovery could not be pleaed in Barr to another Action brought upon one of the other Covenants But Conyers for the Plaintiff said that Conventio is
Barr. COnspiracy Rozal declares That a Replevin was brought against him and others and that the Defendant Lampen appeared for him without any Warrant and avowed in his Name and suffered Iudgment to pass against him and that 22 l. 10 s. Damages were recovered against him at such a place Lampen pleads a Recovery in a former Action brought by the now Plaintiff the Record of which being recited in the Plea appears to be the same with this but only here the place is mentioned where the Damages were recovered which was omitted in the former Action to which Lampen had pleaded a Reteiner by one of the then Defendants in Replevin and upon a Demurrer had Iudgment But the truth of the Case was That Iudgment was not then given for him that his Plea was good for the Court were all of Opinion that it was naught but because the Declaration was not good for want of mentioning the place where the Damages were recovered which the Plaintiff had amended now The Plaintiff demurred again because of this Variance between the two Actions upon the Defendants own shewing Ex parte Quer. Post Rose and Standen Putt and Roster Sir Robert Shaftoe for the Plaintiff insisted That a Recovery in an Action is no barr where there is a substantial variance as here there is and that so it has been adjudged in the Case of Leach and Thompson 1 Roll. Abr. 353. lit B. pl. 1. where the Plaintiff declared That he at the Defendants request having promised to Marry the Defendant's Daughter he promised to pay him 1000 l. Vpon Non Assumpsit pleaded Iudgment was given for the Defendant And the Plaintiff brought another Action for the same Sum and then laid the promise to pay 1000 l. cum inde requisitus esset and it was adjudged that the former Iudgment was no bar to the last Action because there was a Material difference between the two Promises one being laid without Request and so the Money was to be paid in a convenient time and in the last the Request is made part of the Promise and must be specially alledged with the time and place where it was made So in this Case The Plaintiff had not declared right in his first Action which he had amended now and therefore the former Iudgment shall be no barr to him In Robinson's Case there was a Mistake in the Writ viz. A Formedon in Remainder for that in Reverter and held no barr so by a parity of reason there shall be no barr here because the first Declaration was mistaken Stat. 3 H. 7. c. 1. Syd 316. and it was vitium Clerici Vide 2 Cro. 284. Level versus Hall Barton Serjeant contra This is no new Action Ex parte Def. for the ground of it is not where the Damages was done or recovered but the appearing without a Warrant and so having pleaded a Reteiner and had Iudgment and now pleading that Iudgment to this Action and averring 't was for one and the same thing 't is a good barr which the Plaintiff by his Demurrer hath confessed Adjornatur Milward versus Ingram INdebitatus Assumpsit for 50 l. and quantum meruit One promise pleaded in discharge of another good before the breach Mod. Rep. 205. the Defendant confesses both but pleads That after the promise made and before the Action brought they came to an Accompt concerning divers Sums of Money and that he was found in arrear to the Plaintiff 30 s. whereupon in consideration the Defendant promised to pay him the said 30 s. the Plaintiff likewise promised to release and acquit the Defendant of all Demands The Plaintiff demurred Seys Serjeant argued for the Plaintiff Ex parte Quer. that though one promise may be discharged by another yet a duty certain cannot as in this Case where a demand was of a Sum certain by the Indebitatus besides this Plea is in nature of an Accord which cannot be good without an averment of satisfaction given Broke Accompt 46 48. Neither is it said that the Plaintiff promised in consideration that the Defendant ad instantiam of the Plaintiff had promised Ex parte Def. But it was answered by Serjeant Hopkins and admitted to be true That where a Matter is pleaded by way of accord it must be averred to be executed in all Points but that was not the present Case ◠Cro. 100. The Defendant hath pleaded that he and the Plaintiff had accounted together and so the Contract is gone by the Accompt 2. That he was discharged of the Contract by parol both which the Plaintiff had now admitted by his Demurrer And it will not be denied that a Parol discharge of an Assumpsit is good as if A. promises to perform such a Voiage within a time limited and the breach assigned was that he did not go the Voiage The Defendant pleads that the Plaintiff exoneravit eum and upon Demurrer it was held good 22 Ed. 4. 40. 3 H. 6. 37. Object If it be objected that 't is no Consideration to pay a just Debt for if 30 s. were due of right it ought to be paid and that can be no reason upon which to ground a Promise Answ 'T is a good Consideration to pay Mony on the day which the party is bound to upon Bond because it is paid without Suit or Trouble which might be otherwise a loss to the Plaintiff But in this Case here is an express Agréement and before there was only a Contract in Law Cro. Car. 8. Flight versus Crasden Curia North Chief Iustice It has béen always taken that if there be an Assumpsit to do a thing and there is no breach of the promise that it may be discharged by Parol but if it be once broken then it cannot be discharged without Release in a writing In this Case there are two Demands in the Declaration to which the Defendant pleads an Accompt stated so that the Plaintiff can never after have recourse to the first Contract which is thereby merged in the Accompt If A. sells his Horse to B. for 10 l. and there being divers other dealings between them if they come to an accompt upon the whole and B. is found in arrear 5 l. A. must bring his insimul computasset for he can never recover upon an Indebitatus Assumpsit and of the same Opinion were the other three Iustices and though it was not said ad instantiam of the Plaintiff that he promised yet it was adtunc ibidem and so should be intended that the Defendant made the Promise at the instance of the Plaintiff and so Iudgment was given for the Defendant Daws versus Sir Paul Pindar COvenant to pay a Sum of Mony within a year after one Nokes shall be admitted to the Office of Secretary to the Governour of Barbadoes Barbadoes whether governed by the Laws of England so that the Statute of buying Offices extends to it The Defendant pleads that that the
de se by Inquisition and then comes an Act of Indempnity that shall not divest the King of his Right But where nothing Vests before the Office found a Pardon before the Inquisition extinguishes all Forfeitures as it was resolved in Tomb's Case So if the Pardon in this Case had come before the Presentation the Party had been restored Statu quo c. The King can do no more the Bishop is to do the rest neither is the Presentation revoked by this Act it might have been revoked by implication in some Cases as where there is a second Presentation but such a general revocation will not do it and Iudgment was given for the Plaintiff and a Writ of Error brought but the Cause was ended by Agreement Hill versus Pheasant Gaming at several meetings whether within the Statute AN Action of Debt was brought upon the Statute of 16 Car. 2. cap. 7. made against deceitful and disorderly Gaming which Enacts That if any person shall play at any Game other than for ready Mony and shall lose any Sum or other thing played for above the Sum of 100 l. at any one time or meeting upon Tick and shall not then pay the same that all Contracts and Securities made for the payment thereof shall be void and the person winning shall pay treble the Mony lost It happened that the Defendant won 80 l. at one meeting for whcih the Plaintiff gave Security and another meeting was appointed and the Defendant won 70 l. more of the Plaintiff being in all above 100 l. And if this was within the Statute was the Question The like Case was in the Kings-Bench Trin. 25 Car. 2. Rot. 1230. between Edgberry and Roseberry and in Michaelmas Term following this Case was argued and the Court was divided which the Plaintiff perceiving Anonymus Postea desired to discontinue his Action but the better Opinion was that it was not within the Statute though if it had been pleaded That the several meetings were purposely appointed to elude the Statute Sid. 394. in might be otherwise Calthorp versus Heyton Traverse not good viz. Absque hoc quod legitimo modo oneratus IN Replevin The Defendant avowed for that the King being seised in Fee of a Mannor and of a Grange which was parcel of the Mannor granted the Inheritance to a Bishop reserving 33 l. Rent to be yearly issuing out of the whole and alledges a Grant of the Grange from Sir W. W. who claimed under the Bishop to his Ancestors in Fee in which Grant there was this Clause Viz. If the Grantee or his Heirs shall be legally charged by Distress or with any Rent due to the King or his Successors upon account of the said Grange that then it should be lawful for them to enter into Blackacre and distrein till he or they be satisfied And afterwards the Grantee and his Heirs were upon a Bill Exhibited against them in the Exchequer decreed to pay the King 4 l. per Annum as their proportion out of the Grange for which he distreined and so justified the taking The Plaintiff pleads in barr to the Avowry and traverseth that the Defendant was lawfully charged with the said Rent and the Defendant demurred Baldwyn Serjeant maintained the Avowry to be good Ex parte Def. having alledged a legal charge and that the Barr was not good for the Plaintiff traverseth quod Defendens est ligitimo modo oneratus which being part matter of Law and part likewise matter of Fact is not good and therefore if the Decree be not a legal charge the Plaintiff should have demurred But on the other side it was argued by Seys Serjeant Ex parte Quer. That the Avowry is not good because the Defendant hath not set forth a legal charge according to the Grant which must be by Distress or some other lawful way and that must be intended by some execution at Common Law for the coactus fuit to pay is not enough a Suit in Equity is no legal disturbance Moor 559. The same Case is Reported in 1 Brownl 23. Selby versus Chute Besides the Defendant doth not shew any Process taken out or who were Parties to the Decree and a Que estate in the Case of a Bishop is not good for he must pass it by Deed. North and the whole Court A Rent in the Kings Case lies in Render and not in Demand and after the Rent day is past he is oneratus and the Decree is not material in this Case for the charge is not made thereby but by the Reservation for payment whereof the whole Grange is chargeable The King may distrain in any part of the Land he is not bound by the Decree to a particular place that is in favour only to the Purchasor that he should pay no more than his proportion As to the Que estate the Defendant hath admitted that by saying bene verum est that Sir W. W. was seised The Traverse is ill and Iudgment was given for the Avowant Vaughan versus Wood. Trespass justified for taking corrupt Victualls Mod. Rep. 202. TRespass for taking Beef The Defendant pleads a Custom to choose Supervisors of Victuals at a Court Leet That he was there chosen and having viewed the Plaintiffs Goods found the Beef to be corrupt which he took and burned The Plaintiff demurrs for that the Custom is unreasonable and when Meat is corrupt and sold there are proper remedies at Law by Action on the Case or presentment at a Leet 9 H. 6. 53. 11 Ed. 3. 4. 6. Vide Stat. 18 Eliz. cap. 3. But the Court held it a good Custom and Iudgment was given for the Defendant the Chief Iustice being not clear in it Chapter of Southwel versus Bishop of Lincoln Grant of next Avoidance not bind the Successor Mod. Rep. 204. IN a Quare Impedit the Question upon pleading was Whether the Grant of the next Avoidance by the Chapter was good or not to bind the Successor The doubt did arise upon the Statute of 13 Eliz. cap. 10. which was objected not to be a publick * Yelv. 106. Act because it extends only to those who are Ecclesiastical persons or if it should be adjudged a publick Law yet this is not a good Grant to bind the Successor for though the Grant of an Avoidance is not a thing of which any profit can be made yet it is an * Cro. Eliz. 441. Hereditament within the meaning of that Statute by which among other things 't is Enacted That all Grants c. made by Dean and Chapter c. of any Lands Tythes Tenements or Hereditaments being parcel of the Possessions of the Chapter other than for the Term of 21 Years or 3 Lives from the time of the making the said Grant shall be void But it was agreed by the Court to be a general Law like the Statute of Non Residency which hath been so ruled and that this Presentment or Grant
Case of * Sid. 233. the Marquess of Dorchester He is no more to be valued than the Black Dog which lies there which were Words of disesteem and only the Opinion of the Defendant in which Case Iudgment was affirmed in a Writ of Error Object If it be objected to what purpose this Statute was made if no Action lies upon it but what lay at the Common Law Answ The Plaintiff now upon the Statute must prosecute tam pro Domino Rege quam pro seipso which he could not do at the Common Law And it has beén held in the Starr-Chamber that if a Scandalum Magnatum be brought upon this Statute the Defendant cannot justifie because 't is brought qui tam c. and the King is concerned but the Defendant may explain the Words and tell the occasion of speaking of them if they are true they must not be published because the Statute was to prevent Discords Object These Words carry in them no disesteem Answ According to a Common Vnderstanding they are Words of disrespect and of great disesteem for 't is as much as to say that the Plaintiff is a Man of no Honour he is one who lives after his own Will and so is not fit to be employed under the King if any precedent discourse had qualified the speaking these Words it ought to have been shewn by the Defendant which is not done and therefore he concluded that the Words notwithstanding what was objected were actionable and so by the Opinion of him Wyndham and Scroggs Iustices Iudgment was given for the Plaintiff Atkins Iustice of a contrary Opinion Anonymus AN Action of Assault Battery Amendment after a Demurrer joyned and before Judgment given good Wounding and false Imprisonment for an hour was brought against the Defendant who pleads quoad venire vi armis Not-Guilty and as to the Imprisonment he justified as Servant to the Sheriff attending upon him at the time of the Assize from whom he received a Command to bring the Plaintiff being another of the Sheriffs Servants from the Conventicle where finding of him he to wit the Defendant did molliter manus imponere upon the Plaintiff and brought him before his Master quae est eadem transgressio To this the Plaintiff demurred and shewed for Cause 1. That the Substance of the Iustification is not good 2 Cro. 360. because the Servant could not thus justifie though his Master might for the Lord may beat his Villain without a Cause but if he command another to do it an Action of Battery lies against him 2 H. 4. 4. But though this might have been good if well pleaded yet 't is not good as pleaded here for 2. The Defendant saith quoad venire vi armis Not-Guilty Harding and Ferne Postea but saith nothing of the wounding which cannot be justified and therefore this Plea is not good for which reason it was clearly resolved that the Plea was ill but the Court inclined that the Substance of the Plea was well enough The Chief Iustice and Iustice Scroggs were of Opinion that a Man may as well send for his Servant from a Conventicle as from an Alehouse and may keep him from going to either of those places And the Chief Iustice said that he once knew it to be part of a Marriage Agreement that the Wife should have leave to go to a Conventicle But in this Case Leave was given to amend the Plea Sid. 107. and put in quoad vulnerationem Not-Guilty and it was held that though the Parties had joined in Demurrer yet the Defendant might have Liberty to amend before Iudgment given Singleton versus Bawtree Executor Traverse must be where the Charge in the Declaration is not fully answered ASsumpsit against the Defendant as Executor who pleads the Testator made one J. S. Executor who proved the Will and took upon him the Execution thereof and administred the Goods and Chattels of the Testator and so concludes in Abatement Et petit Judicium de Brevi with an Averment that J. S. Superstes in plena vita existit To this Plea the Plaintiff demurred because the Defendant ought to have traversed absque hoc that he was Executor or administred as Executor and so are all the Pleadings 9 H. 6. 7. 4 H. 7. 13. 7 H. 6. 13. But Serjeant Pemberton for the Defendant said that there is a difference when Letters of Administration are granted in case the Party die intestate and when a Man makes a Will and therein appoints an Executor for in that Case the Executor comes in immediately from the death of the Testator but when a Man dies intestate the Ordinary hath an Interest in the Goods and therefore he who takes them is Executor de son tort and may be charged as such but 't is otherwise generally where there is a Will and a rightful Executor who proveth the same for he may bring a Trover against the Party for taking of the Testators Goods though he never had the actual possession of them and therefore the taking in such case will not make a Man Executor de son tort because there is another lawful Executor but 't is true that if there be a special Administration 't is otherwise as if a Stranger doth take upon him to pay Debts or Legacies or to use the Intestates Goods such an express Administration will make him Executor de son tort and liable as in Read's Case 5 Co. So in this Case the Defendant pleads that J. S. was Executor which prima facie discharges him for to make him chargeable the Plaintiff ought in his Replication to set forth the special Administration that though there was an Executor yet before he assumed the Execution or proved the Will the Defendant first took the Goods by which he became Executor of his own Wrong and so to have brought himself within this distinction which was the truth of this Case and that would have put the matter out of dispute which not being done he held the Plea to be good and so prayed Iudgment for the Defendant The Court were of Opinion that prima facie this was a good Plea for where a Man * 2 Sand. 28. confesses and avoids he need not traverse and here the Defendant had avoided his being chargeable as Executor de son tort by saying that there was a rightful Executor who had administred the Testators whole Estate but the Surmise of the Plaintiff and the Plea of the Defendant being both in the * 2 Cro. 579. pl. 9. Sid. 341. 1 Sand. 338. affirmative no Issue can be joined thereon and therefore the Defendant ought to have traversed that he was Executor or ever administred as Executor the rather because his Plea gives no full Answer to the Charge in the Declaration being charged as Executor who pleads that another was Executor and both these matters might be true and yet the Defendant liable as Executor de son tort which
Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards
inconvenient that the Capias against the Defendant should be delivered to the new Sheriff and not the Supersedeas which was to admit the Charge and not the Discharge Westby's Case 3 Co. 73. And it was the constant practice not only to deliver the Supersedeas but the very Book in which 't is allowed and this he said appeared by the Certificates of many Vnder-Sheriffs which he had in his hand 2. If the Sheriff hath an Exigent against B. who appears and brings a Supersedeas to the old Sheriff and then a new Sheriff is made if he hath not the Supersedeas he may return him outlawed by vertue of the Exigent so in the Case of a Iudgment set aside for Fraud or Practice and a Supersedeas granted and the like in the case of an Estrepment which is never returned and it would be an endless work upon the coming in of every Sheriff to renew this Writ As to the Objection that the old Sheriff may have occasion to plead it As often as such occasion happens he may have recourse to it in the Office of the new Sheriff and he can have no Title to it by the direction of the Writ for that is Vicecomiti Berks and not to him by express Christian and Sirname and of that Opinion was all the Court and Iudgment was given accordingly nisi causa c. Hamond versus Howel Recorder of London An Action will not lie against a Judge for what he doth judicially tho' erroniously Mod. Rep. 184. FAlse Imprisonment The Defendant pleads specially the Substance of which was that there was a Commission of Oyer and Terminer directed to him amongst others c. and that before him and the other Commissioners Mr. Penn and Mr. Mead two Preachers were indicted for being at a Conventicle to which Indictment they pleaded Not-Guilty and this was to be tried by a Iury whereof the Plaintiff was one and that after the Witnesses were sworn and examined in the Cause he and his Fellows found the Prisoners Penn and Mead Not-Guilty whereby they were acquitted quia the Plaintiff male se gesserit in acquitting them both against the direction of the Court in Matter of Law and against plain Evidence the Defendant and the other Commissioners then on the Bench fined the Iury 40 Marks a-piece and for Non-payment committed them to New-gate c. The Plaintiff replies de injuria sua propria absque hoc that he and his Fellows acquitted Penn and Mead against Evidence and to this the Defendant demurred Serjeant Goodfellow who would have argued for the Defendant said that he would not offer to speak to that Point whether a Iudge can fine a Iury for giving a Verdict contrary to Evidence since the Case was so lately and solemnly resolved by all the Iudges of England in * Vaugh. 146. Bushel's Case that he could not fine a Iury for so doing But admit a Iudge cannot fine a Iury yet if he doth no Action will lie against him for so doing because 't is done as a Iudge 12 H. 4. 3. 27 Ass pl. 12. 1 Roll. Abr. 92. Liter Q. pl. 1. But the Court told him that he neéd not to labour that Point but desired to hear the Argument on the other side what could be said for the Plaintiff Serjeant Newdigate argued that this Action would lie 1. It must be admitted that the Imprisonment of the Iury was unlawful and then the consequence will be that all that was done at that time by the Commissioners or Iudges was both against Magna Charta and other Acts of Parliament the Petition of Right c. and therefore their Proceedings were void or at least very irregular to imprison a Iury-man without Presentment or due Process in Law and consequently the party injured shall have an Action for his false Imprisonment In 10 H. 6. f. 17. In an Action brought for false Imprisonment the Defendant justifies the Commitment to be for Suspicion of Felony but because he did not shew the ground of such Suspicion the Iustification was not good The Trial of Penn and Mead and all incidents thereunto as swearing the Iury examining of the Witnesses taking of the Verdict and acquitting the Prisoner were all within the Commission but the fining of the Iury and the imprisoning of them for Non-payment thereof was not justifiable by their Commission and therefore what was done therein was not as Commissioners or Iudges If this Action will not lie then the Party has a Wrong done for which he can have no remedy for the order for paying of the Fine was made at the Old-Bayly upon which no Writ of Error will lie and though the Objection that no Action will lie against a Iudge of Record for what he doth quatenus a Iudge be great the Reason of which is because the King himself is de jure to do Iustice to his Subjects and because he cannot distribute it himself to all persons he doth therefore delegate his Power to his Iudges and if they misbehave themselves the King himself shall call them to account and no other person 12 Co. 24 25. But that concerns not this Case because what was done here was not warranted by the Commission and therefore the Defendant did not act as a Iudge and this difference hath beén taken and allowed that in the Case of an Officer if the Court hath Iurisdiction of the Cause no Action will lie against him for doing what is contrary to his Duty but if all the Proceédings are coram non Judice and so void an Action doth lie 10 Co. 77. So in the Case of a Iustice of the Peace or Constable where he excéeds his particular Iurisdiction so if a Iudge of Nisi Prius doth any thing not warranted by his Commission 't is void And that the Commissioners here had no power to impose this Fine he argued from the very nature of the pretended Offence which was neither a Crime or in any wise punishable because what the Plaintiff did was upon his Oath and for that reason it hath béen adjudged in the Case * Bridgman 131. Agard and Wild that an Action would not lie against one of the Grand Iury after an acquittal for procuring one to be indicted for Barretry because he is upon his Oath and it cannot be presumed that what he did was in Malice The Habeas Corpus gives the Party Liberty but no Recompence for his Imprisonment that must be by an Action of False Imprisonment if otherwise there would be a failure of Iustice and it might encourage the Iudges to act ad libitum especially in inferior Courts where Mayors and Bayliffs might punish Iuries at their pleasures which would not only be a grievance to the Subject but a prejudice to the King himself because no Iuries would appear where they are subject to such arbitrary Procéedings An Action on the Case lies against a Iustice of the Peace for refusing to take an Oath of a Robbery committed 1 Leon. 323.
there hath put down these feigned Attachers for Examples sake from whence the Sheriff in this Case might inferr that they need not be real persons as in truth they ought both upon the Summons Pone and Distress and he cited a Case lately adjudged where the like Return was made upon the Grand Cape and the Iudgment set aside and of this Opinion was the whole Court and said Where the Process is so fatal the Party ought to be duly served and that the Sheriff ought to have gone to the Church and to have seised the Profits and if there be nothing to return a Nihil and though the Iudgment was given before the Term or long since yet when 't is Irregular 't is to be set aside and so it was now and being moved again the Court continued of their former Opinion The like Case was moved in Michaelmas-Term following between Fleming and Lee where the Patron Defendant was thus summoned and never appeared and the Incumbent did cast an Essoign and a Case was cited betwéen Vivian and the Bishop of London Mich. 23 Car. 2. in C. B. where the like Iudgment was set aside But on the other side it was objected that leaving due notice upon the Summons was as much as was required for the other Writs are only to give the Defendant time to plead and therefore 't is not necessary that notice should be given upon every one of the Writs for if once served 't is enough 11 H. 6. 3 4. 36 H. 6. 23. 8 H. 6. 8. Long 5 to E. 4. 26. 29 E. 3. 42 43. Doctor and Stud. 125 126. 21 H. 6. 56. But the Court were of Opinion that the Defendant having not appeared nor cast an Essoign and Iudgment final being given Curia it was reason that all the Process should be served really of which there had been no occasion if he had either appeared or essoined and therefore the Process not being duly served Iudgment was set aside Rast Ent. 217. And they held that the Essoign of the other Defendant was no wise binding to the Patron Defendant because they may sever in Pleading and so that Iudgment was likewise set aside DE Term. Sancti Mich. Anno 29 Car. II. in Communi Banco Sir John Otway versus Holdips Executor c. Bond to pay 40 l. when an Accompt shall be stated 't is a Covenant and not a Solvendum DEBT upon Bond brought by the Plaintiff against the Defendant as Executor wherein the Testator did acknowledge himself to be indebted to the Plaintiff in 40 l. which he thereby did covenant to pay when such a Bill of Costs should be stated by two Attornies indifferently to be chosen between them and sets forth in his Declaration that he named one Attorny and desired the now Defendant to name another which he refused and so intitles himself to this Action The Defendant pleads Non detinet to which the Plaintiff demurred But the Plea was not offered to be maintained because the Executor cannot plead Non detinet but where the Testator himself might plead Nil debet which in this Case he could not do But it was insisted that the Declaration is not good because the Mony was to be paid upon an accompt stated which not being done by the Plaintiffs own shewing 't is not yet due and this ought to be taken as penned viz. Solvendum and not an express Covenant But on the contrary it was held not to be a Solvendum but a Covenant to pay the Mony the Debt and the Duty being in the first place ascertained but if it be a Solvendum and repugnant to the Obligatory Clause 't is void 21 Ed. 4.36 As the Defendant would have it expounded it would be in his power totally to defeat the Bond either way for if he would never chuse an Attorny there could be never any thing due The whole Court were of Opinion that it was not a Solvendum but a Covenant which did not take away the Duty ascertained by the Obligation and if it should not be a Covenant but an entire Bond then it would be in the Power of the Obligor whether ever it shall be payable but be it either the one or the other the Plaintiff having named an Attorny ought to recover and Iudgment was accordingly given for him Dunning versus Lascomb DEBT on a Bond the Condition was to pay Mony when a Ship should go from A. to C. and from thence to Bristol and should arrive there or at any other Port of discharge in England the Ship going from A. to C. took in Provisions at Bristol but not to be discharged there but proceeded in her Voiage to Cales and was cast away And by the Opinion of the Court the Mony was not payable but if he had never intended to perform the Voyage it might have been otherwise 1 Roll. Abr. 142. 39 H. 6.10 Iudgment for the Defendant nisi Atkins versus Bayles AN Information was exhibited against the Defendant Outlary pleaded to an Information good being a Iustice of the Peace for refusing to grant his Warrant to suppress a Conventicle The Defendant pleads an Outlary in disability and the Plantiff demurred 1. 3 Inst 194. This Plea is not good because the King is interested qui tam c. and therefore where the Informer dies the Attorny General may proceed 2. The Statute gives power to any person to inform c. by which general Words the Disability of this person is removed But the Court held that there was no colour in either of these Objections 3. 'T is not pleaded sub pede sigilli sed non allocatur for it need not be so pleaded being in the same Court 4. 'T is not averred that the Plaintiff was the same person who was outlawed but it was answered that the praedictus makes that certain and that though the King be interessed yet the Informer only is Plaintiff and intituled to the benefit and that though he was disabled yet he might sue for the King Moor 541. Dyer 227. b. Cro. Eliz. 583. but not for himself and therefore Iudgment was given that the Plea was good Harwood Bincks versus Hilliard c. Notice where 't is agreed to be in writing must be so pleaded BY an Agreement between the Plaintiffs and the Testator of the Defendant a parcel of Lands was to be sold for 400 l. but if it did not arise to so much then they covenanted with each other to repay proportionable to the Abatement and the Defendant's Testator covenanted for himself and his Executors to pay his proportion to the Plaintiffs so as the Plaintiffs gave him notice in writing of the said Sale by the space of ten days but doth not say that such notice was to be given to his Executors or Administrators And now the Plaintiffs averred that they gave notice accordingly to the Defendant who was Executor and the breach assigned was that he hath not paid c. The
the space of 14 days after complaint made then the Sub-Commissioners of the Excise are to determine the same from whom no Appeal doth lye to the Justices of the Peace at their next Sessions which Commissioners of Excise Justices of the Peace and Sub-Commissioners amongst other things are inabled by the said Act to Issue out Warrants under their Hands c. to levie the Forfeitures and so justified the Entry under a Warrant from the Sub-Commissioners three Iustices having refused to hear and determine this Offence To this Plea the Plaintiffs demurred and had Iudgment in the Court of Kings-Bench and a Writ of Inquiry of Damages was Executed and 750 l. Damages given and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given because the Writ of Inquiry was executed the last day of the Term and the Court did immediatly rise and that he could not move the next Term because the Iudgment was given the Term before the Writ of Error was brought The Attorny General therefore said that this was a hard Case and desired a Note of the Exceptions to the Plea which he would endeavour to maintain which Mr. Pollexfen gave him and then he desired time to answer them The Exception to the Plea upon which the Iudgment was given was this Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences and so to issue out Warrants for the Forfeitures but where the Iustices or any two of them refuse And though it was said by the Defendant that three refused yet it was not said that two did refuse for there is a great difference between the allegation of a thing in the Affirmative and in the Negative for if I affirm that A. B. C. did such a thing that affirmation goes to all of them but negatively it will not hold for if I say A. B. C. did not such a thing there I must add nec eorum aliquis So if an Action be brought against several Men and a Nolle prosequi is entred as to one and a Writ of Enquiry awarded against the rest which recites That the Plaintiff did by Bill implead naming those only against whom the Inquiry was awarded and leaves out him who got the Nolle prosequi this is a variance for it should have been brought against them all 'T is true where a Iudgment is recited 't is enough to mention those only against whom it is had but the Declaration must be against all so in a Writ of Error if one is dead he must be named and so the Iustices ought all to be named in this Case viz. that the three next Iustices did not hear and determine this Offence nec eorum aliquis Wells versus Wright In Communi Banco DEBT upon Bond conditioned Bond with an insensible Condition good that if the Obligée shall pay 20 l. in manner and form following that is to say 5 l. upon four several days therein named but if default shall be made in any of the Payments then the said Obligation shall be void or otherwise to stand in full force and vertue The Defendant pleads that tali die c. non solvit 5 l. c. and upon this the Plaintiff demurred Barrel Serjeant The first part of the Condition is good which is to pay the Mony and the other is surplusage void and insensible but if it be not void it may be good by transsposing thus viz. If he do pay then the Obligation shall be void if default shall be made in Payment then it shall be good and for Authority in the Point the Case of Vernon and Alsop was cited Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill 14 Car. 2. Rot. 1786. in B. R. Where the Condition was that if the Obligée pay 2 s. per Week until the Sum of 7 l. 10 s. be paid viz. on every Saturday and if he fail in Payment at any one day that the Bond shall be void and upon the like Plea and Demurrer as here it was adjudged that the Obligation was single and the Condition repugnant The Court were all of Opinion that Iudgment should be given for the Plaintiff and the Chief Iustice said that he doubted whether the Case of 39 H. 6. 9 10. was Law Brittam versus Charnock Where the the Heir takes by the Will with a Charge he is a Purchaser and the Lands shall not be Assets DEBT upon Bond against the Defendant as Heir Vpon Riens per discent pleaded the Iury found a Special Verdict in which the Case was viz. The Father was seized of a Messuage and thrée Acres of Land in Fee and devised the same to his eldest Son the Defendant and his Heirs within four years after his decease provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts and then he deviseth his other Lands to be sold for payment of Debts c. The Father dies the Son pays the 20 l. and if this Messuage c. was Assets in the Hands of the Defendant was the Question Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets it was said because the Heir shall not take by descent but by Purchase for the Word Paying is no Condition if it should the Heir is to enter for the breach and that is the Defendant himself and for that reason it shall be a Limitation Southcot and Stowel Antea 'T is true where there is no alteration of the Estate the Heir must take by descent but in this Case there is an alteration of the Estate from what is directed by the Law viz. the manner how he shall come by the Estate for no Fee passeth to him during the four years But this was denyed by Serjeant Pemberton for he said if a Devise be of Land to one and his Heirs within four years it is a present Devise and if such be made to the Heir 't is a descent in the mean time and those Words within four years are void so that the Question will be whether the Word Paying will make the Heir a Purchaser and he held it would not He agreed that it was usual to make that a Word of Limitation and not a Condition when the Devise is to the Heir and therefore in a Devise to the Heir at Law in Fée he shall take by descent Styles Rep. 148. But if this be neither a Condition or Limitation 't is a Charge upon the Land and such a Charge as the Heir cannot avoid in Equity North Chief Iustice and Atkins Where the Heir takes by a Will with a Charge as in this Case he doth not take by Descent but by Purchase and therfore this is no Assets Moor versus Pit SPecial Verdict in Ejectment The Case was this Surrender of a Copyhold to a Disseisor whether good to extinguish the Right viz. A Copyholder for Life the Remainder for Life he in
new Will and the Grandson should take by the Name of Son And Iustice Atkins relied on the Case of Brett and Rigden in the Commentaries where new purchased Lands passed by a Republication but a Writ of Error being brought upon this Iudgment in the Kings Bench it was reversed Anonymus In Banco Regis MR. Sanders moved for a Prohibition to the Spiritual Court in the Case of the Children of one Collet and Mary his Wife to stay Proceedings there upon a Libel against them that the said Collet had married Anne the Sister of the said Mary They both appear and confess the Matter upon which a Sentence of Divorce was to pass whereas in truth Collet was never married to Ann but it was a contrivance between him and his Wife to get themselves divorced and the Marriage declared void ab initio to defeat their Children of an Estate settled upon them in Marriage with Remainders over by bastardizing them after they had been married and lived together 16 years The Reason why a Prohibition was prayed was because Marriage or no Marriage was to be tried in pais for that the Inheritance and Freehold of Land were concerned in this Case The Court directed that they should suggest this Matter Curia and that it was a Contrivance to obtain a Sentence of Divorce to defeat them of their Estate entailed on them and then to move for a Prohibition Smallwood versus Brickhouse THE Suggestion was Spiritual Courts are proper to determine where a person is capable of making a Will Godolph 276. that B. being under the Age of sixteen years had made a Will and that the Prerogative Court proceeded to the proof of it whereas by the Common Law a person is not capable till 17 years and therefore a Prohibition was prayed And that the Common Law hath determined the time my Lord Coke's Comment upon Littleton was cited 1 Inst 89. b. where 't is said That at 18 years of Age he may make his Testament and constitute Executors and the Age of a person is triable also in pais But the Court said Curia that the Proof of Wills and the Validity of them doth belong to the Ecclesiastical Court and if they adjudge a person capable the Court will not intermeddle for 't is within their Iurisdiction to adjudge when a person is of Age to make a Will and sometimes they allow Wills made by persons of 14 years of Age and the Common Law hath appointed no time it depends wholly on the Spiritual Law and therefore a Prohibition was denied Joan Bailies Case NOTA. One Joan Bayly being in Execution Administration was committed to the Debtor in Execution the Plaintiff dyed intestate and the Right of Administration came to her and a Motion was made for a Habeas Corpus to bring her from the Compter into this Court for that having administred to her Creditor she might be discharged but it was denyed for she could not be thus discharged because non constat de persona neither can she give a Warrant of Attorny to acknowledge satisfaction therefore let her renounce the Administration and get it granted to another and then she may be discharged by a Letter of Attorny from such Administrator Anonymus Mandamus MAndamus to swear one who was elected to be one of the Eight Men of Ashburn Court it was denyed because it is incertain for it ought specially to be inserted what the Office is and what is the place of one of the Eight Men of Ashburn Court that it may appear to the Court to be such a place for which a Mandamus doth lye and though such a Writ hath been granted for one of the approved Men of Guilford yet it was specially set forth what his Office was Birch versus Lingen Trin. 34 Car. 2. in B. R. Discontinuance where amendable JVdgment was obtained upon a Bond 25 years since and in one of the Continuances from one Term to another there was a blank The Executors of the Defendant now brought a Writ of Error and the Plaintiff in the Action got a Rule to amend and insert the Continuance suggesting to the Court that it was a Iudgment of a few Terms and so aided by the Statute of 16 17 Car. 2. cap. 8. Hughes Abr. tit Costs 480. 2 Sand. 289. Moor 710. Cro. Eliz. 320 489 553 619. Cro. Jac. 211 353 528. Vpon this Rule the Plaintiff fills up the Blank and the Record was certified so filled up into the Exchequer-Chamber And Mr. Pollexfen moved for the Defendant that the Record might stand as it did at first and that the Rule was got by a trick and on a false Suggestion it being a Iudgment before the Restoration of this King and a Discontinuance not amendable for 't is the Act of the Court and for an Authority in the Point the Case of Friend and Baker was cited where after a Record certified Stiles 339. a Motion was made to amend it because day was given over to the Parties from Easter to Michaelmas-Term and so Trinity-Term left out where by the Opinion of Roll Chief Iustice that the giving of a day more than is necessary is no Discontinuance but where a day is wanting 't is otherwise But Sanders for the Plaintiff said that this was only a Misprision of the Clerk and no Discontinuance but amendable The Clerks commonly leave Blanks in the Venires and if they neglect to fill them up 't is only a Misprision and amendable by the Court and the Record being now filled up by the Rule of the Court ought not to be razed to make an Error The Chief Iustice was of Opinion That this was not a discontinuance but an insufficient continuance and an omission of the Clerk only who if he had filled up this Blank himself without Rule it could not afterwards be set aside But Iustice Jones was of another Opinion That it was such a misprision of the Clerk as was not amendable by the Statute of H. 6. since it was not the same Term and all the Proceedings being in the Breast of the Court only during the Term it ought not to be altered but left in Blank as it was for where Iudgment is entred for the Plaintiff the Court may upon just cause alter it the same Term for the Defendant but not of another Term the whole Term being but one day in Law And though the Writ of Error be returned into the Exchequer that will make no alteration for the Record it self remains still here and 't is only a Transcript that is removed thither Sed Adjornatur Anonymus TRespass for breaking of his Close The Defendants plead Power where 't is coupled with an Interest is assignable That the place where were c. the Lands of one Martin who made a Lease thereof to the Plaintiff and did thereby except the Trees growing on the same In which Lease the Plaintiff did Covenant with the said Martin his
Habens legale jus titulum need not shew what Title the disturber had after Verdict 213 In a Bond to pay 40 l. when an Accompt is stated by two Attornies to be chosen between the Parties 't is a Covenant and not a solvendum 266 Breach is assigned relating to three Covenants and concludes sic Conventionem fregit 't is good 311 Where an Agreement to pay will amount to a Covenant 269 Covenants reciprocal cannot be pleaded in bar to each other 34 75 76 309 Breach where assigned and not necessary to aver performance on the part of the Plaintiff 309 Court Inferiour the cause of Action must arise within the Jurisdiction 30 Judgment therein arrested because the Damages were laid to 30 l. 101 102 For not saying that the Jurors were electi ad triand ' 102 Taliter processum fuit and the proceedings not set forth at large well enough in a Plea but not in a Writ of Error 102 195 Vi armis contra pacem whether good or not 102 Cannot hold Plea for work done without the Jurisdiction though the Promise be made within 141 Cause of Action must appear to be within the Jurisdiction to oust the Courts above 197 Where it doth not appear that the Court was held either by Grant or Prescription good 197 198 If the cause of Action doth not appear to be within the Jurisdiction though there is a Judgment recovered below yet an Action of Trespass will lye and false Imprisonment upon the taking out of that Judgment 197 If upon Evidence it appear that the cause of Action did arise extra Jurisdictionem the Plaintiff must be non-suit 273 If Jurisdiction be admitted in pleading and Verdict and Judgment thereon t is too late for a Prohibition Ibid. Court Ecclesiastical In what Case a Bishop shall administer an Oath in Temporal Matters 118 Custom One cannot be pleaded in bar to another 105 In pleading it must be strictly alledged 41 Where 't is a reasonable Custom for the Lord to have derelict Lands 107 D. Day Vide Plea WHere 't is excluded being alledged in the Declaration it makes the Plea ill 146 'T is but punctum temporis and of no consideration in the Law 281 Release of all demands usque 26 April a Bond dated that day is not released 281 Debt Upon the Sheriffs Bond will be good though the Statute be not pleaded 36 Will lye upon the Contract where the whole Term is assigned 174 175 176 Whether it will lye for a Fine set by a Steward for 't is ex quasi contractu 230 It must be upon the Contract or ex quasi contractu 262 Deed. Where 't is lost the Party must make Oath of it to entitle himself to a Bill in Equity to have it performed in Specie 173 Demand Must be made where an Interest is to be determined 264 Devise To a Man and his Heirs if the Devisee die in the Life time of the Devisor his Heir takes nothing 313 Republication makes it a new Will ibid. To the Heir at Law makes a Limitation and not a Condition 7 To an Infant in ventre sa mere if there is a sufficient description of him 't is good 9 Where the word paying makes a Fee where not 26 To him till he be of Age then to him in Fee he dyed within Age yet a Free-hold vested in him presently 289 To him in Fee when of Age if he dye before then to the Heirs of the Body of R. and their Heirs he died living R. within Age his Sister and Heir shall take by way of Executory devise 289 Executory devise how it differs from a contingent Remainder at Common Law ibid. Construction of words therein 290 Departure From his Plea 31 Disability By a Statute where it ought to be removed by the Party to enable himself to execute an Office 299 Discharge By Parol good before the breach of promise but not afterwards 259 Discontinuance Where amendable 316 In pleading the Plaintiff declared of taking several things the Defenant justifies as to part and saith nothing of the residue 259 In the Adjournment of a Court where a day certain is not given 59 Distress Cannot be of Sheaves of Corn in Shocks for Rent 61 Distribution Shall be equally made amongst the Children of the whole and half Blood 204 205 206 Disturbance Coactus fuit to pay is a sufficient Disturbance 55 E. Escape THE Plaintiff declared upon Process in an Inferiour Court and the Bond was not made infra Jurisdictionem the Action would not lye 29 30 Debt thereon lies against the Warden of the Fleet as Superior where the Grantee for Life is insufficient 119 After an Escape the Plaintiff may have a Capias ad satisfaciendum or Scire facias at his Election 136 Whether it will lye against the Sheriff for taking insufficient Bail 181 Election In disjunctive Conditions where the Election is in the Obligor 201 304 'T is at the Plaintiffs Election to have a Ca. Sa. or Scire facias after an Escape 136 Enclosure Where a Custom is good to Enclose in a Common Field 105 Entry Not necessary to avoid an Estate in case of a Limitation 7 Error Where a Writ of Error will lye upon a Fine in the Old Bayly 219 Error in Fact cannot be assigned in the Exchequer-Chamber 194 If one be dead after the Judgment he must be named in a Writ of Error 285 Where a Judgment shall be avoided by a Plea without a Writ of Error 276 Estate Where the word Body makes an Estate for Life and no Tail 16 Estoppel Good by a Fine levied by a Remainder man in Tail 90 No Uses can be declared of a Fine by Estoppel 90 One who has no Estate levies a Fine 't is good by Estoppel 115 Evidence A Decree in Chancery or Sentence in in the Ecclesiastical Court read as Evidence of the fact 231 232 Excuse If one Man doth not perform his Covenant 't is no Excuse for the breach on the other side 75 76 What is a good Plea by way of Excuse and what not 27 28 29 Executor De son tort cannot retain 51 Where the Judgment shall be de bonis Testatoris 108 What is requisite to make an Executor 147 What must be done when he refuseth Ibid. De son tort where he may be of a Term but not of a Term in futuro because he cannot enter 175 Cannot plead non detinet where the Testator could not plead nil debet 266 Executor of an Executor de son tort where not liable at Law 293 294 Where he pleads a Judgment kept on Foot by fraud 36 Explain A Man grants Tenementa praedicta then follows totum quicquid habet whether these subsequent words shall explain or enlarge the Grant 112 113 c. Execution Payment of the Mony to the Marshal the Defendant may be taken again in Execution at the Suit of the Plaintiff 212 213 Executory Decree Is of no force in Equity 232 Existen
Case there are general Words and the same as in * 10 Co. 63. Postea Atturney General against Turner Whistler's Case yet this differs from that for here 't is granted adeo plene as the Abbot had it by those Words it doth not pass for then it was appendant but now it is in gross and if the King intended to pass an Advowson as appendant when 't is in gross the Grant is void Hob. 303. In Whistler's Case there are the Words Adeo plene as in this and the Advowson was appendant still but yet there are general Words here that will pass it Adeo plene as the Archbishop had it will not serve because he never had it neither will Adeo plene as the Abbot had it pass this Advowson because he had it in gross but Adeo plene as the King had it by any ways or means whatsoever those general Words are sufficient to pass it The King grants the Mannor and the Advowson of the Church of Laburn which is certain and by particular Name part of what follows as spectan ' to the Archbishop is false for it never belonged to him because it was excepted in the Grant of the Mannor to him but the first discription being full and certain the falsity of the other shall not avoid the Grant especially when the King is not deceived in his Title nor in the Value and when there is a certainty of the thing granted Some false suggestions may make his Grant void as if he grant the Mannor of D. reciting that it came to him by Attainder when it came by Purchase Hob. 229. Lane 11. But if the mis-recital concerns not the Kings Title or Profit it doth not vitiate the Grant 10 H. 2. 4. Sir John Lestrange's Case where the King by Office found had the Wardship of a Mannor and makes a Grant thereof reciting Quod quidem Manerium in manus nostras seisit̄ c. which was not true yet the Grant was held good because it was only to make that certain which was certain enough before by a particular description So in Legat's Case 10 Co. 113. wherein is cited the Case of the Earl of Rutland and Markham to whom the Queén had granted the Office of Parkership c. quod quidem Officium the late Earl of Rutland habuit when in truth the Earl never had it before yet the Grant was held good So also if he grants for and in consideration of Service done or Mony paid if false it avoids not the Grant because such Considerations when past are not material whether they are true or false Cro. Jac. 34. If the King let the Mannor of D. of the value of 4 l. per annum if it be more it is ill but if he let it by a particular Name and then adds Quod quidem Manerium is of such a value 't is good because the * 2 Cro. 34. Quod quidem is but the addition of another certainty so here the Advowson is granted by special and express Name but the Clause that follows Dudum spectan̄ to the Archbishop implies a mistake and had there beén no more in the Case this falsity would never have avoided the Grant But when the King had enumerated several ways by which he thought he might be intitled at last as a proof that he was resolved to pass it he adds these Words viz. as it is in our hands by any way or means whatsoever Atkins Iustice of the same Opinion Where the thing is not granted by an express Name there if a falsity is in the description of that thing the Grant is void even in the case of a common person as if he grant Lands lately let to D. in such a Parish and the Lands were not let to D. were also in another Parish the Grant is void because the Lands are not particularly named Anders 148. Heywood's Case A fortiori in the Case of the King as if he grant omnia illa tenementa situata in Wells when in truth the Lands did not lie there for this reason the Grant was void because it was general and yet restrained to a particular Town and the Pronoun illa goes through the whole sentence But if a thing is granted by an express Name though there is a Falsity in the description yet in the Case of a common person 't is good As when the Subchantor and Vicars Choral of Lichfield made a Grant to Humfrey Peto of 78 Acres of Glebe and of their Tythes Predial and Personal and also of the Tythe of the Glebe All which late were in the occupation of Margaret Peto which was not true yet the Grant was adjudged good for the Words All which are not Words of restriction unless when the Clause is general and the Sentence entire but not when it is distinct Cro. Car. 548. But in the Case of the King if there is a falsity by which the King hath a prejudice and a Falsity upon the suggestion of the Party it will make the Grant void but every Falsity will not avoid his Grant if it be not to his prejudice But let the Falsity in this Case be what it will the Adeo plene as it is in our hands helps it and though it hath been objected that these Words will not help the Grant because nothing new is granted that being done before 't is true there is nothing new granted but that which was before was not well granted till this Clause came which supplies and amends the Falsity for now 't is apparent that the King intended to pass the Advowson as well as the Mannor and therefore at last grants it be his Title what it will In all Cases where the Kings Grant is void because of any mistake in his Title 't is to be intended the King would not make the Grant unless the Title were so as 't is recited but here 't is apparent the King resolved to grant it Judgment Wyndham Iustice agreéd and Iudgment was given accordingly Wilcox versus the Servant of Sir Fuller Skipwith Replevin Justification for an Herriot IN Replevin the Defendant justifies the taking of the Cattle for a Herriot which he alledges to be due upon every Alienation without notice The Plaintiff denies the Herriot to be due upon Alienation And thereupon Issue is joyned The Special Verdict finds the Tenure to be by Fealty and the Rent of 3 s. 1 d. though the Defendant in his Avowry had alledged the Rent to be 12 s. 4 d. and the Plaintiff in his Barr to the Avowry had confessed it to be so Suit of Court and an Herriot which was payable upon every Alienation with or without notice And whether upon this Special Verdict Iudgment should be given for the Plaintiff or the Avowant was the doubt Ex parte Def. Vpon the point of Pleading Serjeant Jones for the Defendant said it had béen objected that the Avowry was ill for ut Ballivus c. bene cogn̄ captionem in
praedicto loco c. but doth not say tempore quo c. for a Herriot tempore quo c. being left out and so doth not say a Herriot was due at the time of the taking of the Goods But he answered That that was usual and common and of that Opinion were all the Iustices and so it was held good It was farther objected That here is a variance between the Avowry and the finding in the Special Verdict The Avowant says that the Rent was 12 s. and 4 d. and the Iury find that it was but 3 s. and 1 d. He also saith that the Herriot was due upon every Alienation without notice and they find it due with or without notice But to that he said the Iury have doubted only of the last Point for the Avowry was not for Rent but for the Herriot so the substance is whether he had good cause to distrein for the Herriot or not Postea And as to that the Substance is sufficiently found like the Case in Dyer 115. Debt upon Bond for performance of Covenants and not to do waste the Breach assigned was that the Defendant felled twenty Oakes who pleads Non succidit viginti quercus praed ' nec earum aliquam the Iury find he cut down ten yet the Plaintiff recovered for though the intire Allegation of the Breach was not found because ten did not prove the issue of twenty literally yet the Substance is found which is sufficient to make the Bond forfeited So in Trespas where the Plaintiff makes a Title under a Lease which commenced on Lady-day Habendum à Festo c. and the Issue was non demisit modo forma the Iury found the Lease to be made upon Lady-day Habendum à confectione and so it commenced upon Lady-day and not à Festo c. which must be the day after the Feast yet 't was adjudged for the Plaintiff because the * Moor 868. Yelv. 148. Substance was whether or no the Plaintiff had a Lease to intitle himself to commence an Action Hob. 27. But in Ejectment or Replevin such a Declaration had been naught because therein you are to recover the Term and therefore the Title must be truly set out and in Replevin you are to have a Retorn̄ habend ' but in Trespas 't is only by way of excuse Sed quaere A second Reason is because both Plaintiff and Defendant in pleading have agréed the matter in this particular for both say the Rent was 12 s. and 4 d. 'T is a Rule in Law That what the Parties have agreed in pleading shall be admitted though the Iury find otherwise 2 Ass pl. 17. 18 E. 3. 13. b. 2 Co. 4. Goddard's Case Iurors are not bound by Estoppel ad dicend ' veritatem for they are sworn so to do unless the Estoppel be within the same Record but here that which is confessed cannot be matter of Issue not being Lis contestata It has beén objected that in 33 H. 6. 4. b. the Plaintiff brought Debt for 20 l. the Iury found the Defendant only owed 10 l. and the Plaintiff could never recover But that must be intended of a Debt due upon Contract and there the least variance will be fatal 38 H. 6. 1. As to the second variance 't is not material for 't is not true as the Avowant hath said for if the matter in issue be found the finding over is but surplusage both the Verdict and the Avowry agree that the Defendant may take a Distress in case of Alienation without notice And so he prayed Iudgment for the Defendant Judgment for the Defendant The Court were all of Opinion that Iudgment should be given for the Defendant for what is agréed in pleading though the Iury find contrary the Court is not to regard and here the substance of the Issue as to the second Point is well found for the Defendant Iudge Atkins told Serjeant Wilmot who argued for the Plaintiff that he had cited many Cases which came not up to the matter and so did magno conatu nugas agere for which reason I have not reported his Argument Smith versus Feverel Case for surcharging a Common THE Plaintiff brought an Action on the Case against the Defendant setting forth that he had right of Common in A. and that the Defendant put in his Cattel viz. Horses Cows Hogs c. ita quod Communiam in tam amplo modo habere non potuit The Defendant pleads a Licence from the Lord of the Soil to put in Averia sua which was agreéd to comprehend Hogs as well as other Cattle in the most general sense The Defendant demurs and after Argument the Court were all of opinion that Iudgment should be given for the Plaintiff because the Defendant in his Plea hath not alledged that there was sufficient Common left for the Commoners for the Lord cannot let out to pasture so much as not to leave sufficient for the Commoners And though it was objected that the Plaintiff might have replyed specially and shewn there was not enough yet it was agreed by the Court that in this Case he need not because his Declaration to that purpose was full enough and that being the very Gist of the Action the Defendant should have pleaded it It was held indéed that in an Action upon the Case by the Commoner against the Lord he must particularly shew the Surcharge but if the Action be brought against a Stranger such a shewing as is here is sufficient North Chief Iustice said and it was admitted that the Licence being general ad ponend ' averia it should be intended only of Commonable Cattel and not of Hogs Sed contra if the Licence had been for a particular time Anonymus A Man devises Land to A. his Heir at Law Devise and devises other Lands to B. in Fee and saith If A. molest B. by Suit or otherwise he shall lose what is devised to him and it shall go to B. The Devisor dies A. enters into the Lands devised to B. and claims it the Court were of Opinion that this Entry and Claim is a sufficient breach to entitle B. to the Land of A. It was also agreed that these words If A. molest B. by Suit c. make a Limitation and not a Condition Pl. Com. 420. the Devise being to the Heir at Law for if it were a Condition it descends to him and so 't is void because he cannot enter for the breach 3 Co. 22. Cro. Eliz. 204. Wellock and Hamonds Case Paying in the case of the eldest Son makes a Limitation Owen 112. So in the Case of Williams and Fry in an Ejectione firmae in B. R. lately for Newport-House A. deviseth to his Grand-daughter Provided and upon Condition that she marry with the consent of the Earl of Manchester and her Grandmother 't is a Limitation 2dly It was agreed That an Entry and Claim in this Case was a sufficient molestation for when the
Heir enters and claims generally it shall be intended as Heir and the words that he shall not molest by Suit or otherwise are to be intended occasione praemissorum 3dly There is no néed of Entry to avoid an Estate in case of a Limitation because thereby the Estate is determined without Entry or Claim and the Law casts it upon the Party to whom it is limited and in whom it vests till he disagrées to it A. devises Land to B. and his Heirs and dies 't is in the Devisee immediately but indeed till Entry he cannot bring a possessory Action as Trespass c. Pl. Com. 412 413. 10 Co. 40. b. where a Possession vests without Entry a Reversion will vest without Claim Nota. Curtis versus Davenant Prohibition A Bishop cannot appoint Commissioners to tax the Parish for building or repairing a Church IN a Prohibition the Question was whether if a Church be out of repair or being so much out of order that it must be re-edified whether the Bishop of the Diocess may direct a Commission to impower Commissioners to tax and rate every Parishioner for the re-edifying thereof The Court did unanimously agree such Commissions were against Law and therefore granted a Prohibition to the Spiritual Court to stop a Suit there commenced against some of the Parishioners of White-Chappel for not paying the Tax according to their proportions It was agréed that the Spiritual Court hath power to compel the Parish to repair the Church by their Ecclesiastical Censures but they cannot appoint what Sums are to be paid for that purpose because the Churchwardens by the consent of the Parish are to settle that As if a Bridge be out of repair the Iustices of Peace cannot set Rates upon the persons that are to repair it but they must consent to it themselves These Parishioners here who contribute to the charge of repairing the Church may be spared but as for those who are obstinate and refuse to do it the Spiritual Court may proceed to Excommunication against them but there may be a Libel to pay the Rates set by the Church-wardens Nurse versus Yearworth in Cancellaria Bill in Cancellaria for the Assignment of a Term. RIchard Yearworth being seised of Lands in Fee makes a Lease to the Defendant Christopher Yearworth for 99 years to such use as by his last Will he should direct Afterward he makes his Will in writing having then no Issue but his Wife grossement enseint and thereby devises the same Land to the Heirs of his Body on the Body of his Wife begotten and for want of such Issue to the said Christopher the Defendant and his Heirs Richard dies and about a month after a Son is born the Son by vertue of this Devise enjoys the Land but when he attains his full age of one and twenty years he suffers a Common Recovery and afterwards devises the Land to the Complainant Nurse and dies The Complainant exhibits a Bill against the Defendant to have the Lease for 99 years assigned to him and whether he should have it assigned or not was the Question 1. It was pretended that an Estate in Fée being limited by the Will to Christopher who was Lessee for 99 years the Term is thereby drowned 2. It was objected that the Devise by Richard to the Infant in ventre la mere was void and then the Complainant who claimed by a Devise from the Posthumus could have no Title but that the Defendant to whom an Estate was limited by the Will of Richard in Remainder should take presently But notwithstanding what was objected the Lord Keeper Finch decréed that the Lease which was in Trust should be assigned to the Complainant Nurse He said that at the Common Law without all question a Devise to an Infant in ventre sa mere of Lands devisable by Custom was good so that the doubt arises upon the Statute of H. 8. Roll. Abr. tit Devise 609. lit H. pl. 2. Godb. 385. 11 H 6. 13. dubitatur which enacts That it shall be lawful for a Man by his Will in writing to devise his Lands to any person or persons for in this Case the Devisée not being in rerum naturâ in strictness of spéech is no person and therefore it hath beén taken that such a Devise is void Moor's Rep. and 't is left as a Quaere in the Lord Dyer 304. But in two Cases in the Common Pleas one in the time when the Lord Chief Iustice Hale was Iudge there the other in the Lord Chief Iustice Bridgman's time it hath been resolved that if there were sufficient and apt words to describe the Infant though in ventre sa mere the Devise might be good But in the King's Bench the Iudges since have been divided upon this Point that as the Law stands now adjudged this Devise in our Case seems not to be good But should the Case come now in question he said he was not sure that the Law would be so adjudged for 't is hard to disinherit an Heir for want of apt Words to describe him and 't is all the reason in the World that a Mans intent lying in extremis when most commonly he is destitute of Council should be favoured Whitrong versus Blaney Process into Wales THIS Term the Court delivered their Opinions in this Case North Chief Iustice who had heard no Arguments herein being absent The Case was this The Plaintiff upon a Iudgment in this Court sues out a Scire facias against the Heir and the Ter-tenants which was directed to a Sheriff of Wales the Defendant is returned Tertenant but he comes in and pleads Non tenure generally and traverses the Return the Plaintiff demurs Two Points were spoke to in the Case 1. Whether the Defendant can traverse the Sheriffs Return And all the three Iustices agreéd that he cannot 2. Whether a Scir̄ Fac̄ Ca. Sa. Fi. Fa. c. would lie into Wales on a Iudgment here at Westminster And they agréed it would well lie An Indictment may be removed 2 Cro. 484. Ellis Iustice agreéd If Iudgment be given in Wales it could not be removed into the Chancery by Certiorari and sent hither by Mittimus and then Execution taken out upon that Iudgment here because such Iudgments are to be executed in their proper Iurisdictions and such was the Resolution of the Iustices and Barons Cro. Car. 34. But on a Iudgment obtained here Execution may go into Wales No Execution can go into the Isle of Man because 't is no part of England but Wales is united to England by the Statute of 27 H. 8. c. 26. And therefore in Bedo and Piper's Case 2 Bulstr 156. it was held that such a * Het 20. 2 Cro. 484. The Opinion of Dodderidge Roll. 395. 2 Sand. 194. Twisden denied it Writ of Execution goes legally into Wales He said he had a Report of a Case in 11 Car. 2. where a Motion was made to quash an Elegit into Wales
but it was denied for the Court agréed the Writ well issued Some have made a difference between the King's Bench and the Common Pleas as if an Execution might go into Wales upon a Iudgment obtained in the King's Bench but aliter if in the Common-Pleas But the Law is the same in both Courts Mich. 1653. betwéen Wyn and Griffith this very Case came in question and there it was held that Execution goes into Wales as well as into any part of England upon a Iudgment in the Courts of Westminster In 2 Bulstr 54. Hall versus Rotheram it was held that a Ca. sa shall go into Wales against the Bail upon a Iudgment recovered in the Kings-Bench here against the Principal Of the same Opinion was Iustice Atkins and that the Defendant cannot averr against the Sheriffs Return nor a Bishops Certificate and the true reason is given by my Lord Coke in 2 Inst 452. for the Sheriff is but an Officer and hath no day in Court to justifie his Return In special Cases Exception may be made to the Sheriffs Return but this is by reason of the special provision that is made for the doing of it by the Statute of W. 2. cap. 39. as in case too small Issues be returned or that the Sheriff return a Rescous the Party in his Averment must alledge of what value the Issues are 2dly That notwithstanding the common saying Breve Domini Regis non currit in Walliam yet a Fi. Fa. Ca. Sa. or any Execution whatsoever may issue into Wales upon a Iudgment obtained here And to prove this he considered 1. How Wales formerly stood in relation to England 2. How it stood before it was united by the Statute of H. 8. 3. How it now stands since the Vnion 1. And as to the first of these England and Wales were once but one Nation they used the same Language Laws and Religion and so continued till the time of the Roman Conquest before which they were both comprehended under one name viz. The Isle of Great Britain But when the Romans came those Britains who would not submit to their yoak betook themselves to such places where they thought themselves most secure which were the Mountains in Wales and from whence they came again soon after the Romans were drove away by their dissentions here and then these Britains enjoyed their ancient Rights as before After this came the Saxons and gave them another disturbance and then the Kingdom was divided into an Heptarchy and then also and not till then began the Welsh to be distinguished from the English but yet at that time they had great Possessions in England viz. Gloucester part of Worcester Hereford Shrewsbury which they kept till King Offa drove them out of the plaine Countries and made them fly for shelter into those Mountainous parts in Wales where they now continue Cambden 15. And 't is observable that though Wales had Kings and Princes yet the King of England had Superiority over them for to him they were Homagers Cambden 67. The Word Princeps implying a Subordinate Dignity Selden's Titles of Honor 593. 2dly During the time of the Separation Wales had distinct Laws and Customs from those in England whence that saying took its effect viz. Breve Domini Regis non currit in Walliam yet the Parliament of England before that time made Laws to bind Wales As the Act of 25 Edw. 1. for confirmation of the old great Charter of the Liberties of England and of the Forests which enacts That certain Duties shall be paid for every Sack of Wool c. exported out of Wales 2 Inst 531. So the Statute 3 Edw. 1. cap. 17. which gives remedy if a Distress be taken and detained in a Castle and upon deliverance demanded by the Sheriff if the Lord of the Castle should refuse he might raise the Posse Comitatus and beat down the Castle and if such detainer or refusal be in the Marches of Wales the King as the Statute saith is Soveraign Lord of all and shall do right upon complaint and the Conquest was not made till 9 E. 1. so that at that time likewise though Wales had Princes of its own Vaugh. 400. yet the Kings of England were Sovereigns to those Princes and though they had Laws of their own yet were they bound by those that were made here and though their Princes had ordinary remedial Writs yet in Cases extraordinary the Kings Writs here run into Wales and it was not for want of power but because there was no need for that it went so seldom and when the Kings Writ did issue it was necessary to direct it to the Sheriff of an English County for Wales was not then divided into Shires but afterwards by the Act called Statutum Walliae 12 Edw. 1. * 2 Inst 195. 4 Inst 239. it was divided into six Counties and then again by the Act of 27 H. 8. cap. 26. it was divided into the other six Counties But during this time there were frequent Hostilities between England and Wales until by the Conquest in Edw. 1. time they were united 'T is pretended that H. 3. Father to Edw. 1. was the Conqueror and 't is probable something considerable might be done in his time yet the absolute Conquest of the whole Dominion was made by Edw. 1. in whose time the aforesaid Statutum Walliae was made Vaugh. 414 415. and after that the Statute of 27 H. 8. to compleat the Vnion the end of which is declared to bring the Subjects of both to an entire Vnity and that it may be done with effect 't is enacted That the Laws of England be executed there ◠Bulst 54. for which reason it is held in 5 Co. Rep. Vaughan's Case fol. 49. that the Statutes of Jeofails do extend to Wales and in 2 Bulstr 156. * This was a Resolution upon no Debate the Sheriff of Radnor upon a Scire Fac̄ directed to him returned Breve Domini Regis non currit c. and was amerced 10 l. for his false Return Vide 19 H 6. 20. Fitzherb Trial pl. 40. tit Jurisdiction 13 E. 3. 23 24 34. idem Brief 621. Assize 382. It was objected That by express provision in 1 E. 6. cap. 10. Exigent and Proclamations shall be awarded out of the Courts of Westminster into Wales which if they might before this Law was then needless 'T is true the Opinion of the Parliament seems to be that had it not beén for this particular provision such Proclamations might not have issued for by 6 H. 8. cap. 4. Vaugh. 414. such Proclamations went but to the next County but they do not declare so and perhaps they might ground themselves upon that vulgar Error Breve Domini Regis non currit in Walliam which is not true unless the Clause be limited to original Writs only Objection That the Statute of 5 El. cap. 23. which enacts that the Excommunicato Capiendo shall be returned in the Kings-Bench
Termino Paschae Anno 27 Car. II. in Communi Banco Naylor versus Sharpless and other Coroners of Lancashire AN Action on the Case was brought for a False Return in which the Plaintiff sets forth Case for a false Return Mod. Rep. 198. that upon a Writ issuing out of this Court to the Chancellor of the Dutchy of Lancaster Process was directed to six Coroners being the Defendants which was delivered to one of them being then in the presence of the Party who was to be arrested but he did not execute it and afterwards at the Return of the Writ they all returned Non est inventus This Action was laid in Middlesex and upon Not-Guilty pleaded the Cause came to Tryal and there was a Verdict for the Plaintiff Baldwyn Serjeant moved in arrest of Iugdment 1. Except That the Action ought not to be laid in Middlesex but in Lancashire where the Tort was committed But as to that it was answered by Serjeant Turner when two Matters both of which are material and are laid in two Counties the Action may be brought in either as if two libel in the Admiralty for a Contract made at Land in Dorsetshire and for which the Plaintiff brings an Action in London against one of them it has been adjudged the Action lies in either County 2. Except The Action will not lie against the six Coroners for the Tort was done by one alone As to that it was said all the Coroners are but one Officer so if one Sheriff suffer an Escape both are liable but in this Case it had been ill to have brought the Action only against one because the ground of it is the false Return which was made by six Coroners And as to the first Exception there could be no doubt now since after Verdict 't is * Stat. 16 17 Car. 2. c. 8. helped though the Trial be in a wrong County But the Court said that Statute helps a Mistrial in the proper County but not where the County is mistaken and inclined likewise that this Action was well brought against the six for this Tort committed by one Coroner but if it had béen for not arresting the Party in such a Case it ought to have been brought against the Coroner who was present with the person to be arrested for that had béen a personal Tort which could not have been charged upon the rest Edwards versus Roberts That he did totally forbear and doth not say hucusque good THE Plaintiff declares that the Defendant promised to pay him so much Mony in consideration that he would forbear to sue him and then he avers that he did extunc totaliter abstinere c. Vpon Non Assumpsit pleaded a Verdict was found for the Plaintiff And it was now moved by Turner Serjeant in Arrest of Iudgment 1. Except The consideration intends a total forbearance and the averment is that from the making of the promise he did totally forbear but doth not say hucusque Sed non allocatur for that shall be intended And it was the Opinion of the whole Court that if the Consideration be as in this Case wholly to forbear the Plaintiff by an Averment that from the making the promise hucusque he did forbear is well entituled to an Action A like Case was this Term where the Consideration was as before and the Averment was that he forbore seven Months and being moved in Arrest of Iudgment by Serjeant Baldwyn because 't is not said hucusque which implies that after the seven Months he did not forbear it was notwithstanding held good it being a reasonable time and the rather because if the Action had been brought within the seven Months and the Plaintiff had averred that hucusque he forbore it had been good enough Quaere Reed versus Hatton IN a special Verdict in Ejectment the Question did arise upon the construction of the Words in a Will Devise paying 5 l. per annum 't is a Fee The Case being this John Thatcher was seised in Feé of the Houses in question and did devise them to his Son Robert in which Will there was this Clause viz. Which Houses I give to my Son Robert upon this Condition that he pay unto his two Sisters five pounds a year the first payment to begin at the first of the four most usual Feasts that shall next happen after the death of the Testator so as the said Feast be a Month after his death with a Clause of Entry for Non-payment The Testator dies the Houses are worth 16 l. per annum and whether Robert the Son shall have an Estate for Life only or in Fee was the Question This was argued by Jones Serjeant for the Plaintiff and by Seys Serjeant for the Defendant And for the Plaintiff it was said Ex parte Quer. that Robert had but an Estate for Life 'T is true in most Cases the Word paying makes a Fee where there is no express Fee limited but the difference is viz. where the Mony to be paid is a Sum in gross let it be equivalent or not to the value of the thing devised the Devisee shall have a Fee though the Estate be not devised to him and his Heirs but if it be an annual payment out of the thing devised as in this Case it will not create a Fee without apt words because the Devisée hath no loss and therefore it hath beén held that if a Devise be made to two Sons to the intent that they shall bear equal share towards the payment of 40 l. to his Wife for Life the Sons had only an Estate for Life because 't is quasi an annuel Rent out of the Profits and no Sum in gross * Jones 211. Cro. Car. 157. Broke Abr. tit Estate 78. And * 6 Co. 16. Colliers Case was much relied on where this very difference was taken and allowed that paying 25 l. in gross makes a Fee but paying 50 s. per annum creates only an Estate for Life All Devises are intended for the benefit of the Deviseé and therefore where a Sum in gross is devised to be paid which is done accordingly in such Case if the Deviseé should die soon after the Mony would be lost if he should have only an Estate for Life but in the Case at Bar the Testator by a nice calculation had appointed when the first payment should be made viz. not until a Month after his decease which hath prevented that damage which otherwise might have happened to the Devisee if no such provision had béen made Vide Hob. 65. Green's Case Ex parte Def. But on the other side it was said that Robert had a Fée for though here is a Sum to be paid annually 't is a Sum in gross and Collier's Case was also relied upon on this side It was agreed where payment is to be made by which the Devisee can sustain no loss the Word Paying there will not make a Fée but if there
be any possibility of a loss there it will create a Fee which is the express resolution in Collier's Case Here the five pounds is payable quarterly and the first payment is to be made the next Quarter after the death of the Testator so as it be a Month after his decease if then he should die a Month before Christmas the Deviseé is to pay the whole quarterly payment at Christmas So that if he should dye the next day after instead of having any benefit he would lose by this Devise in case it should be construed that he had an Estate only for Life The Court were of Opinion that a Legacy or Devise is always intended for the benefit of the party so that 't is reasonable to make such construction of the Will that he may have no possibility of a loss And it hath been resolved where a Devise was to A. upon Condition to pay a Sum of Mony to B. and in case of failure that B. may enter 't is no Condition but an Executory Devise and that * 10 Co. 36. Mary Portington's Case was denyed to be Law in the Resolution of Fry and Porter's Case in the King 's Bench. Judgment And afterwards in this Term Iudgment was given for the Defendant For if there be a Devise to one upon Condition to pay a Sum of Mony if there be a possibility of a loss though not very probable that the Devisee may be damnified it shall be construed a Fee and such Construction hath been always allowed in Wills If A. devise 100 l. per annum to B. paying 20 s. 't is not likely that the Devisee should be dampnified but 't is possible he may and therefore the Estate in this Case being limited to Robert and charged with payments to the Sisters during their Lives doth plainly prove the intent of the Testator was that the Devisee should have an Estate in Fee simple and Iudgment was given accordingly Bridges versus Bedingfield DEBT was brought upon a Bond of Award Arbitrament Where the thing awarded is hindred to be done by the Act of a Stranger and the breach assigned was for not delivering of quiet possession to the Plaintiff of Seats in a Church The Defendant craves Oyer of the Bond and Condition which was for performance of an Award to be made de praemissis vel aliquâ parte inde and if there should be no Award made then for the performance of an Umpirage and pleads that the Arbitrators made no Award de praemissis but the Vmpire awarded that the Plaintiff should abinde upon all occasions hold two Seats quietly and peaceably in such a Church without any disturbance made by the Defendant and that on the first day of November following the Defendant should deliver up the Seats to the Plaintiff and that each should bear his own charge and by his Plea he farther sets forth that the Plaintiff enjoyed the Seats prout till the 30th day of October next following on which day the Seats were pulled down without his knowledge or consent per quod he could not deliver them to the Plaintiff on the said first day of November The Plaintiff demurred Ex parte Quer. and Serjeant Jones maintained the Demurrer and said that the Pleading of nullum fecerunt Arbitrium is not good for 't is said de praemissis only whereas it should have been nec de aliqua parte inde for if a Bond be to perform an Award of two persons or either of them it will not be sufficient to plead that those two persons made no Award without adding nec eorum aliquis But if an Award be to be made of the Mannors of Dale and Sale or either of them and the Award is made only of Dale 't is well enough 2. Except Viz. The Vmpirage is that the Plaintiff should hold the Seats abinde which is for ever and the Defendant pleads that the Plaintiff enjoyed them till the thirtieth day of October 3. Except Viz. The Seats were to be delivered to the Plaintiff on the first day of November and the Defendant pleads that they were pulled down before that day without his privity which is not a good Plea by way of excuse for being bound to deliver the Seats he is to prevent what may hinder the performance of the Condition 'T is agreed that if a thing be possible and afterwards by the Act of * Jones 179. Win's Case God becomes impossible to be done that will be a good excuse as if I promise to deliver a Horse at such a day and he dies before the day I am excused 21 E. 4. 70. b. So if a Scire Fac̄ be brought against the Bail and they plead that before the Writ brought the Principal was dead this was held not good upon Demurrer unless he is alledged to be dead before the Capias awarded against him Cro. Jac. 97. But if the Action of a Stranger interpose which makes the thing impossible that is no excuse 22 E. 4. 27. And therefore 't is no Plea for the Bail to say that the Principal was arrested at another Mans Suit and had to Prison for which reason he could not render him Cro. Eliz. 815. So if I deliver Goods to the Defendant and in Action of Detinue brought he pleads they were stole 't is no good Plea because the delivery charges him at his peril unless he undertake to keep them as his own 4 Co. * Cro. El. 815. Southcot's Case So if an Escape be brought against a Goaler he is not excused by alledging that Traitors broke the Prison Roll. Abr. 1. part 808. Et sic de similibus Ex parte Def. Seys Serjeant contra As to the first Exception nullum fecerunt Arbitrium de praemissis is well enough for that implies nec de aliqua inde parte especially if the contrary is not shewn in the Replication and therefore it shall never be intended that an Award was made of some part 2. 'T is said he enjoyed the Seats till the thirtieth of October and then they were taken down so not being in rerum natura they could not be enjoyed longer 3. And this is a good excuse for not delivering them to the Plaintiff on the first day of November and so a good performance of the Award Co. Lit. 206. b. If A. be bound to B. that C. shall marry Jane such a day and B. the Obligee doth marry her himself before that day the Obligor is excused because by his means the Condition could not be performed There is a difference taken where a Man is bound to deliver things which are in his Custody and other things which are not in his possession as in the first Case to deliver my Horse or Dog for such I may secure in my Stable from casualties But in this Case it is expresly said in the Award that the Property of the Seats was in the Plaintiff and that they were fixed in the Church so that he
could not possibly secure them in his own House without subjecting himself to an Action and an Award that one Man shall take the Goods of another is void But if the Plea is not good yet if the Vmpirage be naught Iudgment is to be given for the Defendant for the advantage is saved to him upon the Demurrer And as to that the Vmpirage is but of one side for the Plaintiff is to do nothing nor is the Defendant to be acquitted of all Suits To which it was answered by the Plaintiff's Council That the Vmpirage was of both sides for there being Suits depending 't is awarded that each shall bear his own Charges which is a benefit to the Defendant for otherwise seing the right was in the Plaintiff the Defendant should have paid the Plaintiffs Costs as well as his own for which he cannot now sue without forfeiting his Bond Curia advisare vult Squibb versus Hole THE Plaintiff brought an Action of Escape Escape Action of Escape the Process was upon Bond not made within the Jurisdiction of an Inferiour Court and therefore no Escape and declares That he prosecuted one J. S. in the court of Ely upon a Bond made infra Jurisdictionem of that Court upon which he was taken and the Defendant suffered him to Escape Vpon Not Guilty pleaded the Iury found a special Verdict to this effect viz. That there was such a Bond upon which there was such a prosecution and such an Escape as in the Declaration but they find farther that this Bond was not made infra Jurisdictionem Curiae Maynard Serjeant who Argued for the Plaintiff said that this Action was commenced in an Inferiour Court upon a Bond which the Plaintiff sets forth to be infra Jurisdictionem Curiae and that the Defendant was Arrested and suffered to Escape and whether if in truth the Bond was not made infra Jurisdictionem an Action of Escape would lye or whether all the proceédings are coram non Judice was the doubt He took a difference where an Inferiour Court hath an Original Iurisdiction of the Cause and hath conusance of such a Suit as is brought there for in such Cases the proceedings are not extra-judicial but if an Action is brought where properly no Action doth lye all the proceedings there are coram non Judice At the Common Law one who had a particular Iurisdiction to hold Pleas within a Liberty could not hold any Plea of a thing which did arise out of the Liberty for though it was transitory in its nature yet being alledged not within his Iurisdiction it was ill 2 Inst 231. But when the cause of Action arises infra Jurisdictionem that gives them Authority to proceed and therefore it would be hard that the Iudge and Officer should be punished by a construction to make all extra judicial when they have no possible way of finding whether in truth the Cause did arise within the * Post Crowder and Goodwin Iurisdiction of the Court or not But the Officer is bound to obey the Process of the Court if it appear as in this Case that they had conusance of it the Iudge is likewise bound to grant the Process otherwise he is subject to the Plantiffs Action for his refusal In some Cases the Plaintiff himself may not know where the Bond was made as if he be Executor of the Obligee c. Besides in this Case 't is set forth That in the Action below the Defendant pleaded non est factum and so had admitted the Iurisdiction or at least had waived it and it would be an insufferable mischief if after all this labour and charge the Defendant might avoid all again North Chief Iustice said That if this Cause had been tryed before him he would have Non-suited the Plaintiff because he had not proved the truth of what he laid down in his Declaration viz. That the Bond was made infra Jurisdictionem Curiae But as to the Matter as it stood upon the special Verdict he inclined that as to the Plaintiff who knew where the Bond was made all the proceedings were coram non Judice but as to the Officer it was otherwise for the Pleint and Process would be a good Excuse for him in an Action of false Imprisonment Judgment And afterwards by the Opinion of three Iudges viz. the Chief Justice Wyndham and Atkyns Iustices Iudgment was given for the Defendant That this was no Escape and that though the Party had admitted the Iurisdiction by his Plea of non est factum below yet that could not give the Court any Iurisdiction which had not any originally in the Cause and the Case of * Roll. Abt. tit Escape 809 pl. 45. Richardson versus Bernard was cited as an Authority in point where the Plaintiff in an Action brought against an Officer declared in Hull upon a Bond made at Hallifax and had Iudgment and Execution and the Defendant escaped And in an Action brought for this Escape the Declaration was held ill because it did not alledge the Bond to be made infra Jurisdictionem Curiae Ellis Iustice of a contrary Opinion in omnibus Sams versus Dangerfield THE Plaintiff being Collector of the Hearth-Mony Departure brought an Action of Debt upon a Bond against his Sub-Collector conditioned to pay such Sums as he should receive within 14 days after receipt at such a place in the City of Worcester as the Plaintiff should appoint The Defendant pleads payment The Plaintiff assigns a breach in non-payment of such a Sum received at a place by him appointed The Defendant rejoyns that the Plaintiff appointed no place and the Plaintiff demurr'd And after Argument for the Plaintiff by Jones Serjeant this was adjudged a departure because the Defendant ought to have pleaded first that he had paid all but such a Sum for which as yet the Plaintiff had appointed no place of payment and Iudgment was given accordingly Smith versus Hall IN an Action brought against the Defendant for false Imprisonment he justified by virtue of a Latitat False Imprisonment doth not lye but an Action on the Case against the Sheriff for refusing sufficient Bail which the Plaintiff agreed in his Replication but farther set forth that after the Arrest and before the Return of the Writ he tendered sufficient Bail which the Defendant refused and Issue was joyned upon the tender which was found for the Plaintiff Newdigate Serjeant moved in Arrest of Iudgment 1. Though it was an Offence in the Defendant who was the Sheriff's Bayliff to refuse good Bail when tendred yet 't is not an Offence within the Statute 23 H. 6. cap. 10. because a Sheriffs Bayliff is not an Officer intended in that Statute neither will this Offence make him a Trespasser ab initio because the taking was by lawfull Process Cro. Car. 196. * Roll. Abr. 2 part 561. pl. 9. Salmon versus Percival The Defendant as Bayliff to the Sheriff is not the proper Officer to
ought to bring his Action Pemberton Serjeant for the Plaintiff Ex parte Quer. That this Covenant is not conditional for the words paying and performing signifie no more than that he shall enjoy c. under the Rents and Covenants and 't is a Clause usually inserted in the Covenant for quiet Enjoyment Indeed the word paying in some Cases may amount to a Condition but that is where without such construction the party could have no remedy But here are express Covenants in the Lease and a direct reservation of the Rent to which the party concerned may have recourse when he hath occasion A liberty to take Pot-water paying so many Turns c. 't is a Condition The Words paying and yielding make no Condition Cook and Herle Postea Vaugh. 32. nor was it ever known that for such Words the Lessor entred for Non-payment of Rent and there is no difference between these Words and the Words paying and performing Bennet's Case in B. R. ruled no Condition Duncomb's Case Owen Rep. 54. Barrel Serjeant for the Defendant said Ex parte Def. that the Covenant is to be taken as the parties have agreéd and the Lessor is not to be sued if the Lessée first commit the breach Modus Conventio qualifie the general Words concerning quiet Enjoyment The Court took time to consider and afterwards in this Term Iudgment was given for the Plaintiff Sid. 266 280. that the Covenant was not conditional Atkins Iustice doubted Simpson versus Ellis Debt by a Bailiff of a Liberty DEBT upon Bond by the Plaintiff who was chief Bailiff of the Liberty of Pontefract in Yorkshire but he did not declare as Capital Ballivus but yet by the whole Court it was held good for otherwise the Defendant might have craved Oyer and have it entred in haec verba and then have pleaded the Statute of 23 H. 6. that it was taken * Sand. 161. Sid. 383. Latch 143. colore Officii but now it shall be intended good upon the Demurrer to the Declaration And Ellis Iustice said that so it was lately resolved in this Court in the Case of one Conquest And Iudgment was given for the Plaintiff Mason versus Stratton Executor c. Judgment kept on foot per Fraudem 2 Cro. 35 102. Vaugh. 103 104. DEBT upon Bond. The Defendant pleads two Iudgments had against his Testator and sets them forth and that he had but 40 s Assets towards satisfaction The Plaintiff replies that the Defendant paid but so much upon the first Iudgment and so much upon the second and yet kept them both on foot per Fraudem Covinam And the Defendant demurred specially 1 Roll. Abr. 802. 2 Cro. 626 Because the Replication is so complicated that no distinct Issue can be taken upon it for the Plea sets forth the Iudgments severally but the Plaintiff puts them both together when he alledges them to be kept per Fraudem But on the other side it was said that all the Presidents are as in this Case Sid. 333. 8 Co. Turner's Case 132. 9 Co. Meriel Tresham's Case 108 And of that Opinion was all the Court that the Replication was good And Iudgment was given for the Plaintiff Suffeild versus Baskervil No Breach can be assigned upon a Promise DEBT upon Bond for performance of all Covenants Payments c. In an Indenture of Lease wherein the Defendant for and in consideration of 400 l. lent him by the Plaintiff granted the Land to him for 99 years if G. so long lived provided if he pay 60 l. per annum quarterly during the Life of G. or shall within two years after his death pay the said 400 l. to the Plaintiff then the Indenture to be void with a Clause of Reentry for Non-payment The Defendant pleads performance The Plaintiff assigns for breach that 30 l. for half a year was not paid at such a time during the Life of G. The Defendant demurrs For that the breach was not well assigned because there is no Covenant to pay the Mony only by a Clause Liberty is given to re-enter upon Non payment The Court inclined that this Action would not lie upon this Bond in which there was a Proviso and no express Covenant and therefore no Breach can be assigned Benson versus Idle AUdita Querela The Case upon Demurrer was Estoppel not well pleaded with a Traverse That before the Kings Restauration the now Defendant brought an Action of Trespass against the Plaintiff for taking his Cloath who then pleaded that he was a Souldier and compelled by his Fellow Souldiers who threatned to hang him as high as the Bells in the Belfry if he refused To this the Plaintiff then replied de injuriâ suâ propriâ c. And it was found for him and an Elegit was brought and the now Plaintiffs Lands extended Then comes the Act of * 12 Car. 2. cap. 11. Indempnity which pardons all Acts of Hostility done in the Times of Rebellion and from thenceforth discharges personal Actions for or by reason of any Trespas comitted in the Wars and all Iudgments and Executions thereon before the first day of May 1658. but doth not restore the party to any Sums of Mony mean Profits or Goods taken away by virtue of such Execution or direct the party to give any account for the same which Act made by the Convention was confirmed by 13 Car. 2. cap. 7. And upon these two Acts of Parliament the Plaintiff expresly averring in his Writ that the former Recovery against him was for an Act of Hostility now brought this Audita Querela The Defendant pleads the former Verdict by way of Estoppel and concludes with a Traverse absque hoc that the taking of his Goods was an Act of Hostility This was argued by Holloway Serejant for the Plaintiff and by Jones Serjeant for the Defendant who chiefly insisted That the Defendant having pleaded the substance of this Matter before and being found against him that he being now Plaintiff could not averr any thing against that Record But the Court were all of Opinion that Iudgment should be given for the Plaintiff for his remedy was very proper upon the Convention and without the Statute of Confirmation and here is no Estoppel in the Case for whether this was an act of Hostility or not is not material neither was it or could it be an Issue upon the former Tryal because all the Matter then in Question was concerning the Trespass which though found against the now Plaintiff yet it might be an act of Hostility but if it were an Estoppel 't is not well pleaded with a Traverse and the Court hath set it at large DE Term. Sanctae Trin. Anno 27 Caroli II. in Communi Banco Mayor and Cominalty of London versus Gatford IN an Action of Debt brought by the Plaintiffs Construction of an Act of Parliament for a Fine of 13 l. 6 s. 8 d. set upon the
by Serjeant Jones that they should not pass for though Lands would pass so by a Fine because it was the Agreement of the Parties yet in a Recovery 't is otherwise because more certainty is required therein But in Fines no such Certainty is required and therefore a Fine de Tenementis in Golden-Lane hath beén held good though neither Vill Parish or Hamlet is mentioned Cro Eliz. 693. Cro. Jac. 574. Addison and Ottoway Postea But there being a Vill called Walton in the Parish of Street and a Fine being levyed of Land in Street the Lands in Walton did not pass unless Walton had béen an Hamlet of Street and the Fine had beén levied of Lands in the Parish of Street And the reason of this difference is because in Fines there are Covenants which though they are real in respect of the Land yet 't is but a personal Action in which the Land is not demanded ex directo but in a Recovery greater preciseness is required that being a Praecipe quod reddat where the Land it self is demanded and the Defendant must make Answer to it Cro. Jac. 574 5 Co. 40. Dormer's Case The Word * Antea 41. Liberty properly signifies a Right Priviledge or Franchise but improperly the extent of a place Hill 22 23 Car. 2. Rot. 225. B. R. Waldron's Case Hutton 106. Baker and Johnson's Case Liberties in Iudgment of Law are incorporeal and therefore 't is absurd to say that Lands which are corporeal shall be therein contained They are not permanent having their existence by the Kings Letters Patents and may be destroyed by Act of Parliament they may also be extinguish'd abridged or increased and a Vinire fac of a * Rast Ent. 267. Liberty or Franchise is not good 't is an equivocal Word and of no signification that is plain and therefore is not to be used in real Writs Rast Entr. 382. There is no Praecipe in the Register to recover Lands within a Liberty neither is there any authority in all the Law Books for such a Recovery and therefore if such a thing should be allowed many inconveniences would follow for a good Tenant to the Praecipe would be wanting and the intent of the Parties could not supply that But Barton Serjeant said that this Recovery would pass the Lands in Cotton for as to that purpose there was no difference betweén a Fine and a Recovery Postea 2 Roll. Abr. 20 Godb. 440. they are both become Common Assurances and are to be guided by the agreément of the Parties Cro. Car. 270 276. 'T is true a Fine may be good of Lands in an Hamlet Lieu conus or Parish 1 H. 5. 9. Cro. Eliz. 692. Jones 301. Cro. Jac. 574. Monk versus Butler Yet in a * Godb. 440. contra Scire Fac̄ to have Execution of such Fine the Vill must be therein mentioned Bro. Brief 142. The demand must be of Lands in a Vill Hamlet or at farthest in a Parish Cro. Jac. 574. And of that Opinion was the whole Court absente Ellis who was also of the same Opinion at the Argument and accordingly in Michaelmas Term following Iudgment was given that by this Recovery the Lands in Cotton did well pass And North Chief Iustice denied the Case in Hutton 106. Postea to be Law where 't is said A Common Recovery of Lands in a Lieu conus is not good and said that it had béen long disputed whether a Fine of Lands in a Lieu conus was good and in King James his time the Law was settled in that Point that it was good and by the same reason a Recovery shall be good for they are both amicable Suits and Common Assurances and as they grew more in practice the Iudges have extended them farther A Common Recovery is held good of an Advowson and no Reasons are to be drawn from the Visne or the Execution of the Writ of Seisin because 't is not in the Case of adversary Procéedings but by Agréement of the Parties where 't is to be presumed each knows the others meaning Indeed the Cursitors are to blame to make the Writ of Entry thus and ought not to be suffered in such practice Where a Fine is levied to two the Fée is always fixed in the Heirs of one of them but if it be to them and their Heirs yet 't is good though incertain but a Liberty is in the nature of a Lieu conus and may be made certain by Averment The Iury in this Case have found Cotton to be a Vill in the Liberty of Shrewsbury and so 't is not incorporeal Alford versus Tatnel JVdgment against two who are both in Execution Mod. Rep. 170. and the Sheriff suffers one to escape the Plaintiff recovers against the Sheriff and hath satisfaction the other shall be discharged by an Audita Querela Osbaston versus Stanhope General Replication good DEBT upon Bond against an Heir who pleaded that his Ancestor was seised of such Lands in Fee and made a Settlement thereof to Trusteés by which he limited the Vses to himself for Life Remainder to the Heirs Males of his Body Remainder in Feé to his own right Heirs with power given to the Trusteés to make Leases for threé Lives or 99 years The Trustées made a Lease of these Lands for 99 years and that he had not Assets praeter the Reversion expectant upon the said Lease The Plaintiff replies protestando that the Settlement is fraudulent pro placito saith that he hath Assets by discent sufficient to pay him and the Defendant demurrs Ex parte Def. Newdigate Serjeant The Barr is good for the Plaintiff should not have replied generally that the Defendant hath Assets by discent but should have replyed to the praeter Hob. 104. Like the Case of Goddard and Thorlton Yelv. 170. where in Trespas the Defendant pleaded that Henry was seised in Fee who made a Lease to Saunders under whom he derived a Title and so justifies The Plaintiff replies and sets forth a long Title in another person and that Henry entred and intruded The Defendant rejoyns that Henry was seised in Fée and made a Lease ut prius absque hoc that intravit se sic intrusit and the Plaintiff having demurred because the Traverse ought to have been direct viz. absque hoc quod intrusit and not absque hoc that Henry intravit c. it was said the Replication was ill for the Defendant having alledged a Seisin in Fée in Henry which the Plaintiff in his Rejoynder had not avoided but only by supposing an intrusion which cannot be of an Estate in Fée but is properly after the death of Tenant for Life for that reason it was held ill Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Replication to be good The Defendants Plea is no more than Riens per descent for though he pleads a Reversion 't is not chargeable because 't is a Reversion after
an Estate Tail and therefore the pleading the Lease is not material for if it were a Lease expired yet the Plaintiff could not recover and therefore the praeter is wholly idle and insignificant of which the Plaintiff ought not to take notice because the Lands which come under the praeter are not chargeable The Plaintiff hath traversed as he ought what is material and is not bound to take notice of any thing more And of that Opinion was the whole Court and held the praeter idle and the general Replication good and Iudgment was given for the Plaintiff Prince versus Rowson Executor of Atkinson EXecutor de son tort cannot retain Executor de son tort cannot retain The Defendant in this Case pleaded that the Testator owed his Wife dum sola 800 l. and that he made his Will but doth not shew that he was thereby made Executor and therefore having no Title he became Executor de son tort for which cause his Plea was held ill and Iudgment was given for the Plaintiff Norris versus Palmer THE Plaintiff brought an Action on the Case against the Defendant for causing him falso malitiose to be indicted for a Common Trespass in taking away one hundred Bricks Case after an acquittal upon an Indictment for Trespas by which means he was compelled to spend great Sums of Mony and that upon the Trial the Iury had acquitted him The Defendant demurred to the Declaration and Barrel Serjeant said for him that the Action would not lie and for a President in the Case he cited a like Iudgment between Langley versus Clerk in the King's Bench Trin. 1658. 2 Sid. 100. In which Action the Plaintiff was indicted for a Battery with an intent to ravish a Woman and being acquitted brought this Action and the Court after a long Debate gave Iudgment for the Plaintiff but agréed that the Action would not lie for a Common Trespass as if it had beén for the Battery only but the Ravishing was a great scandal and for that reason the Plaintiff recoverd there but this is an ordinary Trespass and therefore this Action will not lie But Pemberton Serjeant held that the Action would lie because it was in the nature of a Conspiracy Sid. 463 464. 1 Cro. 291. and done falsly and malitiously knowing the contrary and thereby the Plaintiff was put to great Charges all which is confessed by the Demurrer And the Case cited on the other side is express in the Point for the Court in that Case could take notice of nothing else but the Battery for the intent to ravish was not traversable and therefore it was idle to put it into the Indictment It is now settled that an Action on the Case will lye for a malitious Arrest where there is no probable cause of Action and this Case is stronger than that because in the one the party is only put to Charges and in the other both to Charges and Disgrace for which he hath no remedy but by this Action The Court agreéd that the Action would lie after an acquittal upon an Indictment for a greater or lesser Trespass The like for citing another into the Spiritual Court without cause 3 Ass 13. 1 Rol. Abr. 112. pl. 9. Postea F. N. B. 116. D. 7 E. 4. 30. 10 H. 4. Fitz. Conspiracy 21. 13. 3 E. 3. 19. The Defendants Council consented to wave the Demurrer and plead and go to Tryal The King versus Turvil The King presented being intituled by a Simoniacal Contract his Presentee shall not be removed though the Symony is pardoned QUare Impedit The King was intituled to a Presentation by the Statute of 31 Eliz. cap. 6. because of a Simoniacal Contract made by the rightful Patron and he accordingly did present Then comes the Act of General Pardon 21 Jac. cap. 35. by which under general Words it was now admitted that Symony was pardoned In which Act there is a beneficial Clause of Restitution viz. The King giveth to his Subjects all Goods Chattels Debts Fines Issues Profits Amerciaments Forfeitures and Sums of Mony forfeited by reason of any Offence c. done And whether the Kings Presenteé or the Patron had the better Title was the Question This Case was only mentioned now but argued in Michaelmas Term following by Serjeant Jones that the Kings Presenteé is intituled he agreed that Symony was pardoned but not the consequences thereof for 't is not like the Case where a Stroak is given at one time and death happens at another if the Stroak which is the first offence is pardoned before the death of the party that is a Pardon likewise of the Felony for 't is true the Stroak being the cause of the death and that being pardoned all the natural Effects are pardoned with the Cause But legal Consequences are not thus pardoned as if a Man is outlawed in Trespass and the King pardons the Outlawry the Fine remains 6 E. 4. 9. 8 H. 4. 21. 2 Roll. Abr. 179. In this Act of Pardon there are words of Grant but the Presentation is not within the Clause of Restitution for 't is an Interest and not an Authority vested in the King and therefore a thing of another nature than what is intended to be restored because it is higher and shall not be comprehended amongst the general words of Goods and Chattels c. which are things of a lower nature and are all in the personality Cro. Car. 354. Conyers Serjeant argued for the Title of the Patron Ex parte Def. and said that there were three material Clauses in this Act. 1. A Pardon of the Offences therein mentioned in general and particular words 2. That all things not excepted shall be pardoned by general words as if particularly named 3. The Pardon to be taken most favourably for the Subject upon which Clauses it must necessarily follow that this Offence is pardoned and then all the consequences from thence deduced will be likewise pardoned and so the Patron restored to his Presentation for all Charters of Restitution are to be taken favourably Pl. Com. 252. The Presentation vests no legal Right in the Presentee for in the Case of the King 't is revocable after Institution and before Induction Co. Lit. 344. b. So likewise a second Presentation will repeal the first Rolls 353. And if the Kings Presentee dies before Induction that is also a Revocation if therefore the Party hath no legal Right by this Presentation and the King by the Simony had only an authority to present and no legal Interest vested then by this Act he hath revoked the Presentation and the right Patron is restored to his Title to present The Court were all of Opinion absente Ellis That the Kings Presentee had a good Title and by consequence the Patron had no right to Present this turn for here was an Interest vested in the King like the Case where the King is intituled to the Goods of a Felo
of the next Avoidance was not good because it was made by those who were not Head of the Corporation and it must be void immediately or not at all and Iudgment was given accordingly Threadneedle versus Lynam THere being two Mannors usually let for 67 l. 1 s. 5 d. by the year Lease by a Bishop and more than the old Rent reserved good Mod. Rep. 203. a Bishop lets one of them for 21 years reserving the whole Rent and whether this was a good Lease within the Statute of 1 Eliz. cap. 19. was the Question which depended upon the construction of the Words therein viz. All Leases to be void upon which the old accustomed Rent is not reserved and here is more than the old Rent reserved and this being a private Act is to be taken literally North Chief Iustice agreed that private Acts which go to one particular thing are to be interpreted literally but this Statute extends to all Bishops and so may be taken according to Equity and therefore he and Wyndham and Atkins Iustices held the Lease to be good But this Case was argued when Vaughan was Chief Iustice and he and Iustice Ellis were of another Opinion DE Term. Sancti Mich. Anno 27 Car. II. in Communi Banco Thorp versus Fowle No more Costs than Damages NOTA. In this Case the Court said that since the Statute which gives no more Costs than Damage 't is usual to turn Trespass into Case Cooper versus Hawkeswel Words IN an Action upon the Case for these Words I dealt not so unkindly with you when you stole a Stack of my Corn Per Curiam the Action lies Escourt versus Cole Words IN an Action on the Case for Words laid two ways the last Count was Cumque etiam which is but a recital and dubitatur whether good Sharp versus Hubbard Six Months for proving of a Suggestion THE six Months in which the Suggestion is to be proved must be reckoned according to the Calendar Months and 't is so computed in the Ecclesiastical Court Crowder versus Goodwin Justification by Process out of inferiour Court IN Assault and Battery and false Imprisonment as to the Assault c. the Defendant pleads Not-Guilty and as to the Imprisonment he justifies by a Process out an inferiour Court and upon Demurrer these Exceptions were taken to his Plea 1. The Defendant hath set forth a Precept directed Servienti ad Claven and 't is not said Ministro Curiae 2. 1 Rol. 484. Cro. Car. 254. Dyer 262. b. It was to take the Plaintiff and have him ad proximam Curiam which is not good for it should have beén on a day certain like Adams and Flythe's Case * Cro. Jac. 571. Mod. Rep. 81. where a Writ of Error was brought upon a Iudgment in Debt by Nil dicit in an inferiour Court and the Error assigned was That after Imparlance a day was given to the Parties till the next Court and this was held to be a Discontinuance not being a day certain 3. 'T is not said ad respondend ' alicui 4. Nor that the Action arose infra Burgum 5. The Precept is not alledged to be returned by the Officer To all which it was answered That a Pleint is but a Remembrance and must be short Rast 321. and when 't is entred the Officer is excused for he cannot tell whether 't is infra * Squibb versus Hole antea 29. Jurisdictionem or not And as to the first Exception a Precept may be directed to a private person and therefore Servienti ad Clavem is well enough Then as to the next Exception 't is likewise well set forth to have the Plaintiff ad proximam Curiam for how can it be on a day certain when the Iudge may adjourn the Court de die in diem Then ad respondendum though 't is not said alicui 'tis good though not so formal and 't is no Tort in the Officer but t is to be intended that he is to answer the Plaintiff in the Plaint As to the fourth Exception the Defendant sets forth that he did enter his Plaint secundum consuetudinem Curiae Burgi and when the Plaintiff declared there he shewed that the Cause did arise infra Jurisdictionem And as to the last The Officer is not punishable though he do not return the Writ The end of the Law is that the Defendant should be present at the day and if the Cause should be agreed or the Plaintiff give a Release when the Defendant is in custody no Action lies against the Officer if he be detained afterwards But the Chief Iustice doubted that for the second Exception the Plea was ill for it ought to be on a day certain and likewise it ought to be alledged infra Jurisdictionem But the other threé Iustices held the Plea to be good in omnibus and said that the inferior Court had a Iurisdiction to issue out a Writ and the Officer is excusable though the cause of Action did not arise within the Iurisdiction which ought to be shewn on the other side And so Iudgment was given for the Defendant Snow and others versus Wiseman Traverse necessary where omitted is substance TRespass for taking of his Horse The Defendant pleads that he was seised of such Lands and intitles himself to an Herriot The Plaintiff replies that another person was jointly seised with the Defendant Et hoc paratus est verificare The Defendant demurs generally because the Plaintiff should have traversed the sole Seisin But it was said for him that the sole Seisin néed not be traversed Sid. 300. because the matter alledged by him avoids the Barr without a Traverse In a Suggestion upon a Prohibition for Tythes the Plaintiff entituled himself by Prescription under an Abbot and shews the Vnity of Possession by the Statute of 31 H. 8. by which the Lands were discharged of Tythes Yelv. 231. Pl. Com. 230. 231. The Defendant pleads that the Abbey was founded within time of Memory and confesseth the Vnity afterwards and the Plea was held good for he néed not traverse the Prescription because he had set forth the Foundation of the Abbey to be within time of Memory which was a sufficient avoiding the Plaintiffs Title Yelv. 31. The Plaintiff therefore having said enough in this Case to avoid the Barr if he had traversed it also it would have made his Replication naught Cro. Jac. 221. like the Case of * Bedel and Lull where in an Ejectment upon a Lease made by Elizabeth the Defendant pleads that before Elizabeth had any thing in the Lands James was seised thereof in Fee and that it descended to his Son and so derives a Title under him and that Elizabeth was seised by Abatement The Plaintiff confesses the Seisin of James but that he devised it to Elizabeth in Fee and makes a Title under her absque hoc that she was seised by Abatement and upon a Demurrer the
after the Partition 2. The Rejoynder is a departure from the Plea which is that the Plaintiff never had any thing but joyntly with others and the Rejoynder is that at the time of the conversion he was joyntly possessed which is a manifest difference in point of time and such as will make a Departure 33 H. 14. Bro. Departure 28. 13. Ex parte Def. It was argued by Serjeant Hopkins for the Defendant that the Replication was not good for the Plaintiff therein had alledged a Partition by Deed and doth not say hic in Curia prolat̄ And in all Cases where a Man pleads a Deed by which he makes himself either party or privy he must produce it in Court As where the Defendant justifies in Trespass that before the Plaintiff had any thing One Purfrey was seised in Fee of the place where c. And by Indenture c. demised it to Corbet excepting the Wood c. Habendum for the Life of Ann and covenanted quod licitum foret for the said Corbet to take House-boot c. That he assigned his Interest to Ann and that the Defendant as her Servant took the Trees and upon Demurrer the Plea was held naught because though a Servant having justified by force of a Covenant he did not shew the Indenture 2 Cro. 291. Purfrey versus Grimes 6 Rep. Bellamy's Case 1 Leon. 309. Rol. Rep. 20. If a thing will pass without a Deed yet if the Party pleads a Deed and makes a Title thereby he must come with a * profert hic in Curia As to the Objection That there was a Departure he argued to the contrary For the Defendant in his Rejoynder insists only on that which was most material and the Plaintiff in his Replication had given him occasion thus to Rejoyn and though he had left out some of the time mentioned in the Bar yet the would hurt the Pleadings because a fair Issue was tendred for if at the time of the conversion he was joyntly seised he could not be entituled to the Action alone Judgment And afterwards in Trinity-Term following the Chief Iustice delivered the Opinion of the Court That the Plea was good in Barr though pleaded in Abatement and the Defendant hath election to plead either in Barr or Abatement the nature of a Plea in Abatement is to intitle the Plaintiff to a better Writ but here the Defendant shews that the Plaintiff hath no cause of Action and so it shall be taken to be in Barr And it hath been expressly resolved That where the Plea is in Abatement if it be of necessity that the Defendant must disclose matter of barr he shall have his election to take it either by way of Barr or Abatement 2 Roll. Rep. 64. Salkil versus Shilton So where Waste was brought in the tenet the Tenant pleads a Surrender to the Lessor and demands Iudgment if he should be charged in the tenet because it should have been in the tenuit and this was held a good Plea 10 H. 7.11 Whereupon Iudgment was given for the Defendant the Chief Iustice at first doubting about the Departure and advised the Plaintiff to wave his Demurrer and to take issue upon payment of Costs Daws versus Harrison THE Plaintiff intitles himself as Administrator to Daws Administration pleaded and not loci istius ordinarius good and shews that Administration was granted to him by the Official of the Bishop of Carlisle but did not alledge him to be loci istius Ordinarius And Jones Serjeant demurred to the Declaration because it did not appear that the Official had any Iurisdiction Pl. Com. 277. a. 31. H. 6. 13. Fitz. Judg. 35. 22 H. 6. 52. 36 H. 6. 32 33. Sed non allocatur For the whole Court were of Opinion That the Declaration was good and that he shall be intended to have Iurisdiction but if it had been in the Case of a Peculiar Cro Jac. 556. Palm 97. Sid. 322. it cannot be intended that they have any authority unless set forth And so Iudgment was given for the Plaintiff Mason versus Caesar IN Trespass for pulling down of Hedges Commoner may abate Hedges made upon his Common the Defendant pleads that he had right of Common in the place where c. and the Hedges were made upon his Common so that he could not in ea parte enjoy his Common in tam amplo modo c. and so justifies the pulling them down And they were at issue whether the Defendant could enjoy the Common in tam amplo modo c. and there was a Verdict for the Defendant and Iudgment being staied 'till moved on the other side Scroggs Serjeant moved in Arrest of Iudgment because the Plea was ill and the Issue frivolous for 't is impossible that he should have Common where the Hedges are 5 Rep. 100. 9 Rep. 55. And therefore the Defendant ought to have brought an Action upon the Case or a quod permittat He cannot abate the Hedges though he might have pulled down so much as might have opened a Way to his Common 2 Cro. 195 229. The Lord hath an Interest in the Soil and a Commoner hath no authority to do any thing but to enter and put in his Beasts and not to throw down Quick-Set Hedges for that is a shelter to his Beasts But the Court were of Opinion That the Defendant might abate the Hedges for thereby he did not meddle with the Soil but only pulled down the erection and the Book of 29 E. 3. 6. was express in this point Vide 17 H. 7. 10. 16 H. 7. 8. 33 H. 6. 31. 2 Ass 12. And nothing was said concerning the Plea and so the Defendant had Iudgment Hocket and his Wife versus Stiddolph and his Wife Verdict cured a bad Declaration IN an Action of Assault and Battery brought by the Plaintiff and his Wife against the Defendant and his Wife the Iury found quoad the beating of the Plaintiffs Wife only that the Defendants are Guilty and quoad resid ' they find for the Defendants And it was moved in arrest of Iudgment by Scroggs Serjeant That the Declaration is not good because the Husband * Yelv. 106. Drury versus Dennis Sid. 376. joyns with the Wife which he ought not to do upon his own shewing for as to the Battery made upon him he ought to have brought his Action alone and the finding of the Iury will not help the Declaration which is ill in substance and thereupon Iudgment was staied but being moved again the next Term the Court were all of Opinion That the Declaration was cured by the Verdict and so Iudgment was given for the Plaintiff Goodwin qui tam c. versus Butcher AN Information was brought upon the Statute of 32 H. 8. Buying a pretended Title cap. 9. made against buying pretended Titles which gives a Forfeiture of the value of the Land purchased unless the Seller was in possession within a
year before the Sale After Verdict for the Plaintiff it was moved in arrest of Iudgment by Serjeant Barrell because the Information had set forth the right of these Lands purchased to be in J. S. and that the Son of J. N. had conveyed them by general words 2 Anders 57. as descending from his Father which Title of the Son the Defendant bought whereas if in truth the Title was in J. S. then nothing descended from the Father to the Son and so the Defendant bought nothing Sed non allocatur for if such construction should be allowed there could be no buying of a pretended Title within the Statute unless it was a good Title but when 't is said as here that the Defendant entred and claimed colore of that Grant or Conveyance which was void yet 't is within the Statute so the Plaintiff had his Iudgment Wine versus Rider al. TRespass against five Quare clausum fregerunt Traverse immaterial and took Fish out of the Plaintiffs Several and Free-Fishery Four of them pleaded Not Guilty and the fifth justified for that one of the other Defendants is seised in Fee of a Close adjoyning to the Plaintiffs Close and that he and all those c. have had the sole and separate Fishing in the River which runs by the said Closes with liberty to enter into the Plaintiffs Close to beat the Water for the better carrying on of the Fishing and that he as Servant to the other Defendant and by his Command did enter and so justified the taking absque hoc that he is Guilty aliter vel alio modo The Plaintiff replies That he did enter de injuria sua propria absque hoc That the Defendants Master hath the Sole Fishing The Defendant demurs Ex parte Def. and Newdigate Serjeant argued for him That the Iustification is good for when he had made a local justification 2 Cro. 45 372. he must traverse both before and after as he has done in this Case 2. The Plaintiffs Replication is ill for he ought not to have waved the Defendants Traverse and force him to accept of another from him because the first is material to the Plaintiffs Title and he is bound up to it Hob. 104. 3. There was no occasion of a Traverse in the Replication for where a Servant is Defendant de injuria sua propria is good with a Traverse of the Command Ex parte Quer. But on the Plaintiffs side Serjeant Baldwin held the Defendants Traverse to be immaterial for having answered the Declaration fully in alledging a Right to the sole fishing and an Entry into the Plaintiffs Close 2 Cro. 372. 't is insignificant afterwards to traverse that he is guilty aliter vel alio modo Then the matter of the Plea is not good because the Defendant justifies by a Command from one of the other Defendants who have all pleaded Not-guilty and they must be guilty if they did command him for a Command will make a Man a Trespasser Curia The Court were all of Opinion that Iudgment should be given for the Plaintiff For as to the last thing mentioned which was the Matter of the Plea they held it to be well enough for the * Mires and Solebay Post Servant shall not be ousted of the advantage which the Law gives him by pleading his Masters Command Then as to the Replication 't is good and the Plea is naught with the Traverse for where the Iustification goes to a time and place not alledged by the Plaintiff there must be a Traverse of both In this Case the Defendant ought to have traversed the Plaintiffs free fishing as alledged by him in his Declaration which he having omitted the Plea for that reason also is ill and so Iudgment was given for the Plaintiff DE Termino Paschae Anno 28 Car. II. in Communi Banco Lee versus Brown IN a Special Verdict in Ejectment The Case was this Where reputed Lands shall pass under general words viz. There were Lands which re vera were not parcel of a Mannor and yet were reputed as parcel A Grant is made of the Mannor and of all Lands reputed parcel thereof and whether by this Grant and by these general Words those Lands would pass which were not parcel of the Mannor was the Question This Term the Lord Chief Iustice delivered the Opinion of the Court That those Lands would pass Postea Cro. Car. 308. and they grounded their Opinions upon two Authorities in Co. Entr. fol. 330 384. The King versus Imber Wilkins If the Iury had found that the Lands in question had beén reputed parcel of the Mannor it would not have passed had they found no more because the Reputation so found might be intended a Reputation for a small time so reputed by a few or by such as were ignorant and unskilful But in this Case 't is found that not only the Lands were reputed parcel but the reason why they were reputed parcel for the Iury have found that they were formerly parcel of the Mannor and after the division they were again united in the possession of him who had the Mannor which being also Copyhold have since béen demised by Copy of Court Roll togethet with the Mannor and these were all great marks of Reputation and therefore Iudgment was given that the Lands did well pass 2 Roll. Abr. 186. Dyer 350. Wakeman versus Blackwel Common Recoveries how to be pleaded QUare Impedit The Case was The Plaintiff entituled himself to an Advowson by a Recovery suffered by Tenant in Tail in pleading of which Recovery he alledges two to be Tenants to the Praecipe but doth not shew how they came to be so or what Conveyance was made to them by which it may appear that they were Tenants to the Praecipe and after search of Presidents as to the form of pleading of Common Recoveries the Court inclined that it was not well pleaded but delivered no Iudgment Searl versus Bunion Justification where good IN Trespass for taking of his Cattel The Defendant pleads that he was possessed of Blackacre pro termino diversorum annorum adtunc adhuc ventur̄ and being so possessed the Plaintiffs Cattle were doing damage and he distrained them Damage fesant ibidem and so justifies the taking c. The Plaintiff demurrs and assigns specially for cause that the Defendant did not set forth particularly the commencement of the Term of years but only that he was possessed of an Acre for a Term of years to come and regularly where a Man makes a Title to a particular Estate in pleading he must shew the particular time of the Commencement of his Title that the Plaintiff may replie to it Curia The Chief Iustice and the whole Court held that the Plea was good upon this difference where the Plaintiff brings an Action for the Land or doing of a Trespass upon the Land he is supposed to be in possession
but if he will justifie by vertue of any particular Estate he must shew the Commencement of that Estate and then such pleading as here will not be good But when the Matter is * Yelv. 75. Cro. Car. 138. collateral to the Title of the Land and for any thing which appears in the Declaration the Title may not come in question such a Iustification as this will be good In this Case no Man can tell what the Plaintiff will reply 't is like the Cases of Inducements to Actions which do not require such certainty as is necessary in other Cases So where an Action is brought for a Nusance and he intitles himself generally by saying he is possessionat ' pro termino annorum 't is well enough and he need not to set forth particularly the Commencement because he doth not make the Title his Case for which reason Iudgment was given for the Defendant Crosier versus Tomlinson Executor IN an Action on the Case Statute of Limitations of personal Actions extends to Indebitatus Assumpsit The Plaintiff declared that the Defendants Testator being in his Life time viz. such a day indebted to the Plaintiff in the Sum of 20 l. for so much Mony before that time to his use had and received did assume and promise to pay the same when he should be thereunto required and that the Testator did not in his Life time nor the Defendant since his death pay the Mony though he was thereunto required The Defendant pleads that the Testator did not at any time within six years make such promise The Plaintiff replies that he was an Infant at the time of the promise made and that he came not to full Age till the year 1672. and that within six years after he attained the Age of one and twenty years he brought this Action and so takes advantage of the promise in the Statute of * 21 Jac. c. 16. Limitations that the Plaintiff shall have six years after the disability by Infancy Coverture c. is removed And the Defendant demurred by Serjeant Rigby Ex parte Def. and the reason of his Demurrer was because in the said Proviso Actions on the Case on Assumpsit are omitted This Act was made for quieting of Estates and avoiding of Suits as appears by the Preamble and therefore shall be taken strictly there is an enumeration of several Actions in the Proviso and this is Casus omissus and so no benefit can be taken of the Proviso In a Writ of Error upon a Iudgment brought 4 Car. 1. in the Court of Windsor the Iudges held that an Action on the Case for * Cro. Car. 163 513 535. Debt upon Escape is out of the Statute 1 Sand 37. But an Action for Escape is not Sid. 305. So is Debt for not setting out of Tithes for these are not grounded upon any Contract Cro. Car. 513. Hut 109. slandering of a Mans Title is out of this Act because such an Action was rare and not brought without special damages But Hide Chief Iustice doubted 1 Cro. 141. The Law-makers could not omit this Case unadvisedly because 't is within those sorts of Actions enumerated by this Act. This Promise was made to the Plaintiff when he was but a day old and it would be very hard now after so many years to charge the Executor Ex parte Quer. But Turner Serjeant argued that though an Indebitat̄ assumpsit is not within the express words of the Proviso yet 't is within the intent and meaning thereof and so the Rule is taken in 10 Co. 101. in Bewfages Case quando verba statuti sunt specialia ratio autem generalis statutum intelligendum est generaliter And this is a Statute which gives a general remedy and the mischief to the Infant is as great in such Actions of Indebitatus assumpsit as other Actions and therefore 't is but reasonable to intend that the Parliament which hath saved their Rights in Debts Trovers c. intended likewise that they should not be barred in an Indebitatus Assumpsit In 2 Anders 55. Smith versus Colshil Debt was brought upon a Bond the Defendant there pleaded the Statute of the 5 E. 6. of selling of Offices the words of which are viz. That every Bond to be given for money or profit for any Office or Deputation of any Office mentioned in the Statute shall be void against the Maker In that case the Bond was given to procure a Grant of the Office and also to exercise the same now though this was not within the express words of the Statute yet the Bond was held void and if it should be otherwise the mischiefs which the Statute intended to remedy would still continue and therefore the intent of the Law-makers in such cases is to be regarded for which reason if Actions of Indebitatus Assumpsit are within the same mischief with other Actions therein mentioned 2 Anders 123 150. Cor. Car. 533. 19 H. 8. 11. such also ought to be construed to be within the same remedy But he took the Case of * Cro Car. 245. Swain versus Stephens to rule this Case at Bar in which Case this very Statute was pleaded to an Action of Trover and the Plaintiff replied that he was beyond Sea and upon a Demurrer to the Replication the Court held Trover to be within the Statute it being named in the Paragraph of Limitation of personal Actions which directs it to be brought within the time therein limited that is to say all Actions on the Case within six years and then enumerates several other Actions amongst which Trover is omitted yet the Court were then of Opinion that Trover is implied in those general words Curia And of that Opinion was the Chief Iustice and Wyndham and Atkyns Iustices That upon the whole frame of the Act it was strong against the Defendant for it would be very strange that the Plaintiff in this Case might bring an Action of Debt and not an Indebitatus Assumpsit When the Scope of an Act appears to be in a general sense the Law looks to the meaning and is to be extended to particular Cases within the same reason and therefore they were of Opinion That Actions of Trespass mentioned in the Statute are comprehensive of this Action because 't is a Trespass upon the Case and the words of the Proviso save the Infants Right in Actions of Trespass And therefore though there are not particular words in the enacting Clause which relate to this Action yet this Proviso restrains the severity of that Clause and restores the Common Law and so is to be taken favourably and this Action being within the same reason with other Actions therein mentioned ought also to be within the same remedy But Iustice Ellis doubted whether Actions of Trespass could comprehend Actions on the Case and that when the Parliament had enumerated Actions of Trespass Trover Case for Words c. If they had intended
Case could not be supposed to prevent the Forfeiture because if that had been the Iury would have found it the meaning of the Parties must make a Construction here and that seems very strong that 't is a good Lease but they gave no Iudgment Wilkinson versus Sir Richard Lloyd Where the Parties shall join in an Action where not THE Defendant covenanted that he would not agreé for the taking the Farm of the Excise of Beer and Ale for the County of York without the Consent of the Plaintiff and another and the Plaintiff alone brought this Action of Covenant and assigns for breach the Defendants agréeing for the said Excise without his Consent upon which the Plaintiff had a Verdict and 1000 l. damages given And Serjeant Pemberton moved in Arrest of Iudgment for that an Action of Covenant would not lie in this Case by the Plaintiff alone because he ought to have joined with the other both of them having a joint Interest and so is Slingsby's Case 5 Co. If a Bond is made to two joyntly and severally they must both join in an Action of Debt so here 't is a joint contract and both must be Plaintiffs So also if one covenants with two to pay each of them 20 l. they must both join 'T is true in Slingsbies Case 't was held if an Assurance is made to A. of White Acre and to B. of Black Acre and to C. of Green Acre and a Covenant with them and every of them these last Words make the Covenant several But here is nothing of a several interest no more than that one covenants with two that he will not join in a Lease without their Consent so that their Interest not being divided the Covenant shall be entire and taken according to the first Words to be a joint Covenant and the rather because if the Plaintiff may maintain this Action alone the other may bring a second Action and the Defendant will be subject to entire damages which may be given in both Judgment But the Court was of another Opinion that here was no joint Interest but that each of the Covenantees might maintain an Action for his particular damages or otherwise one of them might be remediless for suppose one of them had given his Consent that the Defendant should farm this Excise and had secretly received some satisfaction or recompence for so doing is it reasonable that the other should lose his remedy who never did consent For which reason the Plaintiff had his Iudgment Page versus Tulse Mil ' alios Vic' Midd ' THE Plaintiff brought an Action on the Case against the Sheriff for a false Return Case lies not against the Sheriff for returning a Cepi Corpus paratum habeo though the Party doth not appear Mod. Rep. 239. Ellis and Yarborough post setting forth that he sued a Capias out of this Court directed to the Sheriff of Middlesex by vertue whereof he arrested the Party and took Bail for his appearance and at the day of the Return of the Writ the Sheriff returned Cepi corpus paratum habeo but he had not the Body there at the Return of the Writ but suffered him to escape The Defendant pleads the Statute of 23 H. 6. cap. 10. and saith that he took Bail viz. two sufficient Sureties and so let him go at large c. The Plaintiff demurrs and whether this Action lies against the Defendant was the Question who refused to proceed against him by way of Amerciament or to take an Assignment of the Bail-Bond This Case depended in Court several Terms It was argued by Serjeant Pemberton and Serjeant Coniers for the Plaintiff and by Serjeant George Strode for the Defendant and Iudgment was given in Easter Term in the 29th year of this King In the Argument for the Defendant that this Action would not lie it was considered Ex parte Def. 1. What the Common Law was before the making of this Statute 2. What alteration thereof the Statute had made At the Common Law Men were to appear personally to ansswer the Writ the Form of which required it and no Attorney could be made in any Action till Edw. 1. de gratia speciali gave leave to his Subjects to appoint them and commanded his Iudges to admit them 2 Inst 377. After the Arrest the Sheriff mighttie the Party to what Conditions he pleased and he might keep him till he had complied with such Conditions which often ended in taking extravagant Bonds and sometimes in other Oppressions for remedy whereof this Statute was made in which the Clause that concerns this Case is viz. If the Sheriff return upon any person Cepi Corpus or Reddidit se that he shall be chargeable to have the Body at the day of the Return of the Writ in such form as before the making the Act so that as to the Return of the Writ this Statute hath made no alteration the Sheriff being bound to have the Party at a day as before All the alteration made of the Common Law by this Statute is that the Sheriff now is bound to let the Party out of Prison upon reasonable Sureties of sufficient persons which before he was not obliged to do and it would be a Case of great hardship upon all the Sheriffs of England if they being compellable to let out the Party to Bail should also be subject to an Action for so doing because they have him not at the day so that the intent of the Law must be when it charges the Sheriff to have the Body at the Return that he should be liable to a Penalty if the Party did not then appear not to be recovered by Action but by Amerciament Cro. Jac. 286. The Security directed by this Act is to be taken in the Sheriffs own Name 't is properly his business and for his own Indempnity and therefore it is left wholly in his power for which reason no Action will lie against him for taking insufficient Bail that being to his own prejudice in which the Plaintiff is no wise concerned for if that had beén intended by the Act some Provision would have beén made as to his being satisfied in the sufficiency of the Persons When the Security is thus taken if the Defendant doth not appear at the Return of the Writ the Plaintiff by Amerciaments shall compel him to bring in the Body or to assign the Bond either of which is a full satisfaction and as much as is required If the Sheriff refuse to take 2 Sand. 59 154 1 Roll. Abr. 807 808. Cro. Eliz. 460 852. Noy 39. Moor 428. Sid. 23. sufficient Sureties when offered he is liable to an Action on the Case at the Suit of the Defendant for his refusal and it would be very unreasonable to enforce him to have the Party in Court at the Return when he is obliged under a Penalty to let him at large This Action is grounded upon a false Return when in
truth there is no Return made or if any 't is a very imperfect Return till the Body be in Court and this is the reason why the Court will not allow it but amerce the Sheriff till he make the Party appear 't is not like a compleat Return as a Non est inventus or the Return of Nulla Bona upon a Fi. Fa. The Case of * ◠Roll Abr. 93 pl. 17. Postea Bowls and Lassels is full in the Point where it was adjudged that this Action would not lie because the Sheriff had not done any thing unjustly but what he was commanded to do by the Statute and therefore he is to be amerced if the Defendant doth not appear Ex parte Quer. But for the Plaintiff it was said that unless this Action lye he is remediless and that for two Reasons 1. Because the Assignment of the Bail Bond is at the discretion of the Court and not demandable by the Plaintiff in foro 2. The Plaintiff hath no benefit by the Amerciaments because they go to the King and in some places are granted to Patenteés now 't is agreéd that the Sheriff may be amerced and certainly if an Action be brought against him he is but in the same Case for still he is to pay And if it be objected that the Amerciaments may be compounded cheaper then the Plaintiff hath not so good remedy nor is so likely to recover his Debt as if the Action would lie which would be a greater penalty upon him than the Amerciaments on the Sheriff Neither will it follow that because the Sheriff may be amerced therefore no Action will lie against him for in many Cases he may be amerced and yet an Action on the Case will lie against him at the Suit of the Party 41 Ass pl. 12. fol. 254. Latch 187. That this Action will not lie is against the very end of the Statute and the reasonable construction thereof in the last Clause which Enacts That if the Sheriff return a Cepi Corpus he shall be charged to have the Body at the Return as before the making of the Statute now before this Law he was lyable to an Action if after such a Return made the Party did not appear and therefore this Action being grounded upon the Common Law is still preserved since no alteration hereof hath beén made by this Statute 'T is true an Action of Escape is taken away but not an Action on the Case for a false Return and upon this difference are all the Authorities cited on the other side as Cro. Eliz. 416 621. Cro. Jac. 286. Moor 428. and the Case of Bowls and Lassels And for an Authority in Point is the Case of Franklin and Andrews 24 Car. 1. where Iudgment was given for the Plaintiff in an Action brought for a false Return of Cepi Corpus and the Statute pleaded as in this Case It has béen objected that Iudgment was there given upon the defect of Pleading because the Traverse was naught 't is true there was a Traverse absque hoc quod the Defendant retornavit aliter vel alio modo but that was held good because it answered the falso alledged in the Plaintiffs Declaration In this Case there is no Traverse but 't is confessed by the Demurrer that he did falsly and deceitfully return Cepi Corpus and so the Plaintiff is at apparent damage and hath no remedy without this Action and the Defendant is at no prejudice but hath his remedy over on the Bail Bond. North Chief Iustice Wyndham and Atkins Iustices Judgment held that the Action would not lie for when the Sheriff returns Cepi Corpus paratum habeo though he have him not in Court 't is no false Return for if he hath taken Bail he hath done what by Law he ought to do if he Arrest a Man in Yorkshire the Law will not compel him to bring the Party hither to the Bar because of the charge if he make an insufficient Return neither the Party or the Court are deluded because the common method in such cases must be pursued by which the Party will have remedy This Return is true and Iustice Atkyns held that the Sheriff was not obliged by the Statute to return only a Cepi Corpus paratum habeo but might return that he took Bail for the Statute provides that if he return a Cepi Corpus he shall be chargable as before but doth not enjoyn him to make such return the Case of Bowles and Lassels is full in this point and therefore Iudgment was given for the Defendant But Iustice Scroggs was of another Opinion says he this Action being brought because the Defendant said he had the Body ready when in truth he had not was an apparent injury to the Plaintiff of whom the Statute must have some consideration for it doth not require the Sheriff to say Cepi corpus paratum habeo but he must make his Return good or otherwise those words are very insignificant and if the Statute obliges him to let the party to Bail and nothing more is thereby intended for the benefit of the Plaintiff why doth the Court amerce the Sheriff and punish him for doing what the Statute directs Therefore if the Plaintiff brings a Habeas Corpus upon the Cepi and the Defendant doth not appear the Plaintiff is then well entituled to this Action Hollis versus Carre in Cancellaria Decree of the Execution of a Fine in specie THE Lord Chancellor Finch having called to his assistance Iustice Wild and Iustice Windham to give their Opinions what relief the Plaintiff was to have for the recovering of 6000 l. which was his Ladys Portion After those Iudges had spoken shortly to the matter he put the Case Viz. The Plaintiff by his Bill demands 6000 l. due to him for his Wives Portion with Interest for non-payment according to the purport of certain Articles of Agreement dated in August 1661. and mentioned to be made between old Sir Robert Carr the Defendants Father his Lady and Son the now Defendant and Lucy Carr his Daughter on the one part and my Lord Hollis and Sir Francis his Son the now Plaintiff on the other part The Articles mention an Agreement of a Marriage to be had between the said Sir Francis Hollis and Lucy Carr with Covenants on the Plaintiffs side to settle a Ioynture c. and on the other side to pay 6000 l. and 't is agreed in the Articles that a Fine was intended to be levied of such Lands c. for securing the payment of 6000 l. c. The Marriage takes effect but old Sir Robert Carr did never Seal these Articles the Lady Carr Seals before and the Defendant after Marriage Sir Francis had Issue on his Lady Lucy one Child since dead the Lady is likewise dead the Ioynture was not made nor the Portion paid Afterward viz. Anno 1664. an Act of Parliament was made for setling old Sir Robert Carr's Estate whereby the
thing and the other side another thing was it ever imagined that upon these words Whereas a Marriage is intended c. that an Action of Covenant might be brought to enforce the Marriage And yet there is as much reason for the one as the other therefore since the Parties have neither made nor intended it for a Covenant 't is not necessary that it should be so construed If this is a Covenant the Parties at Common Law could only bring an Action of Covenant and recover damages for not levying of the Fine and that the Plaintiff may do now upon the express Covenant for non-payment of the Money but then the breach must be assigned according to the words viz. That the Defendant did not levy a Fine as intended who may plead that a Fine was never intended to be levied and by what Iury shall this be tryed It may be objected that every Article stands upon its own bottom and the Title of them being Articles of Agreement extends to every Paragraph But as to that each of these Articles is to be considered by it self and every Paragraph begins viz it is Covenanted c. which shews it was never intended to make it a Covenant by the Title of the Articles and the rather because 't is unreasonable to make such a construction for it is not to be supposed that a Man will covenant that a Fine shall be levied as in this Case by A. and B. and himself when 't is not in his power to compel another 2. Admitting it to be a Covenant yet it would be very hard to decree the execution of a Fine in Specie for the Father of the Defendant was alive when he executed the Deed and the Father being Tenant in Tayl who never sealed the Son could have no present Right who did Seal and if matters had stood now as then how could a Court of Equity Decree a Fine by which a Right might be extinguished but could never be transferred and by which no use could be declared For though such a Fine be good by Estoppel before the Tayl descends to the Issue yet no use can be declared thereupon nor upon any Fine by Estoppel and there is no reason why length of time should put the Plaintiff into a better condition than he was when the Articles were executed 3. And lastly since here is a particular relief prayed in no wise concerning the levying of this Fine but only a Relief in the Execution of the Trust this Court cannot Decree the Defendant to levy one it being against the constant course and rules thereof But on the other side it was said by the Plaintiffs Council that the words do declare the intent of the Parties Ex parte Quer. that a Fine shall be levied and 't is the Intent which makes the Agreement and where there is an Agreement an Action of Covenant will lye If a Man Covenant to do such a thing in consideration of a Marriage and then there is this Clause viz. Whereas it is intended that he shall Marry before Michaelmas that then c. certainly upon the whole Deed here is a good Covenant to marry before Michaelmas In this Case 't is Covenanted that 6000 l. shall be paid and that it shall be secured as herein is after mentioned then 't is declared that a Fine is intended to be levied for that purpose this is a good Covenant to make a Security by a Fine But if the particular manner how the the Security was to be made had been omitted yet upon the words Covenant to secure it the Court hath a good ground to make a Decree to levy a Fine that being the only way to secure it 2. As to the Objection that the Defendant had but a possibility of having the Estate when he entred into this Couenant admitting it to be so yet why should that be a reason to hinder him from making good the Security when he hath it if Father and Son Covenant to make an Assurance the Father who had the Estate in possession dies the Decree must then operate upon that Estate in the hands of the Son 3. Here is a general prayer for a proper relief in which the Plaintiffs Case is included and therefore prayed Iudgment for him The Lord Chancellor Curia presently after the Arguments on each side delivered his Opinion That upon the whole frame of the Articles there was a Covenant to levy a Fine for wherever there is an Agreement under Hand and Seal Covenant lies that in this Case there was a plain Covenant if the first Article of giving farther security be coupled to that Paragraph of intending to levy a Fine for that is the farther security intended so that the meaning of the Parties runs thus I do intend to levy a Fine which is for the Securing of 6000 l. and this appears to be their Agreement Now there are many Cases where words will make a Covenant because of the Agreement when the general words of Covenant Grant c. are wanting as * Hays versus Bickerstaff Antea Postea Cook versus Herl Yielding and Paying will make a Covenant for the reasons aforesaid And therefore the Party having provided himself of real as well as personal Security by these Articles he said he would not deprive him of it especially when it might be more trouble to bring an Action of Covenant for the not levying of the Fine for upon that many Questions might arise as who should do the first act c. for which reasons he decreed the execution of the Fine in Specie DE Term. Sanctae Trin. Anno 28 Car. II. in Communi Banco Ingram versus Tothill REplevin The Case was Justification ill 1 Vent 314. Mod. Rep. 216 Postea A Man made a Lease for 99 years if A. B. and C. should so long live rendring an Herriot after the death of each of them successively as they are all three named in the Deed the last named died first and if an Herriot should be paid was the Question Stroud Serjeant urged that it should not because the reservation is the Lessors Creature and therefore to be taken strongly against him As if Rent be reserved to him and his * Per North a Devisee is not Assignee to take Assigns or to him and his Executors the Heir shall not have it So is the Authority in 33 Eliz. Owen 9. Reddend to the Lessor his Executors and Administrators durante termino 21 Annorum c. the Heir shall not have the Rent because 't is not reserved to him 5 Co. 35. Latch 274. In this Case the Herriot is reserved if the three dye successively and the Lessor is contented to trust to that Contingency Reddend ' annuatim duran ' termino praedict ' to the Lessor and his Assigns the Heir shall have it though not named Latch 99. 2 Sand. 367. As to this Point the Court gave no Opinion but Iudgment was given for the Plaintiff
any other thing which lies in Grant and the Deed is lost or cancelled the Office or the thing granted falls to the ground for the Deed is the foundation and a Case was cited in the Lord Dyer If there be two Iointenants and one cancels the Deed it hath destroyed the Right of the other Quaere of these things But it was agreed that if two Men who have one Office for their Lives and the survivor of them if one surrenders to the other and then a new Grant is made to this other and a Stranger he hath debarred himself of the Survivorship and he and the Stranger are jointly seised Crossman versus Sir John Churchil IN a Quare Impedit the Plaintiffs Title was set forth in his Declaration which was also found in a Special Verdict Where an Agreement for a Presentation by turns is good that Sir George Rodney was seised of the Advowson in Fée and died seised leaving two Sisters who were his Coheirs that Sir John Rodney being also one of the same Family and pretending a Right to the Estate for preventing Suits that might happen they all enter into an Agréement by Indentures mutually executed by which it was agreed that Sir John Rodney shall hold some Lands in severalty and the Co-heirs shall hold other Lands in the like manner and as for this Advowson a temporary provision was made thereof that each of them should Present by turns and this was to continue till partition could be made then comes an Act of Parliament and confirms the Indenture and Enacts That every Agreement therein contained shall stand and that all the rest of the Lands not particularly named and otherwise disposed by the said Indenture should be held by these three in common one of the three who by Agréement was next to Present grants the next Avoidance the Church being then full to the Plaintiff and the Question was whether these threé persons were not Tenants in Common of the Advowson and if so then the Grant of the next Avoidance cannot be good by one alone because he hath not the whole Advowson but only a Right to the third part It was said that if Tenants in Common had made such an Agreément it would not have beén any division of their interest for there must be a partition to sever the Inheritance The Court were all of Opinion Curia that Iudgment should be given for the Plaintiff for there was an Agréement that there shall be a Presentation by turns and therefore for one turn each hath a Right to the whole Advowson by reason of the Act of Parliament by which that Agreement is confirmed and thereby an Interest is setled in each of them till Partition made but this Agreement would have vested no Interest in either of them without an Act of Parliament to corroborate it therefore there had been no remedy upon it but by an Action of Covenant This Case was argued four times and not one Authority cited The Earl of Shaftsbury versus Lord Digby In Banco Regis For Words upon the Statute of 2 R. 2. c. 5. Jones 49. SCandalum Magnatum The Plaintiff declares upon the Statute of 2 R. 2. cap. 5. for these Words viz. You are not for the King but for Sedition and for a Common-wealth and by God we will have your Head the next Sessions of Parliament After Verdict for the Plaintiff and 1000 l. damages given it was moved in Arrest of Iudgment and several Exceptions taken 1. As to the Recital of the Statute the Words of which are That no Man shall devise any Lies c. and the Plaintiff for the Word devise had used the Latin Word contrafacio in his Declaration which was very improper that being to counterfeit and not to devise for it should have béen machino or fingo those are more expressive Words of Devise 2. 'T is alledged that the Defendant dixit mendacia of the Plaintiff viz. haec Anglicana verba sequen̄ and doth not alledge that he spoke the Words 3. The most material Objection was a mistake in the Recital of the Statute the Words of which are That none shall speak any scandalous Words of any Dukes Earls c. the Justices of either Bench nor of any other great Officer of the Kingdom but the Plaintiff in his Declaration recites it thus viz. None shall speak any scandalous Words of any Dukes Earls c. Justices of either Bench great Officers of the Kingdom and leaves out the Words neque al so that it must be construed thus None to speak of any Dukes Earls c. being great Officers of the Kingdom and then 't is not enough that the Plaintiff is Comes but he also ought to be a great Officer of the Kingdom which is not set out in this Case But upon great Debate and Deliberation these Exceptions were overruled and the whole Court gave Iudgment for the Plaintiff As to the first Exception they said contrafacio is a legal Word and apt enough in this sense and so are all the Presidents and thus it was pleaded in the Lord Cromwel's Case As to the second Exception it was said the Mendacia which were told were the English Words which were spoken and the viz. haec Anglicana verba sequen̄ being in the Accusative Case are governed by the same Verb which governs the Words precedent viz. horribilia mendacia Besides for the supporting of an Action the viz. may be transposed and then it will be well enough viz. the Defendant spoke haec Anglicana verba viz. Lies of the Plaintiff As to the third Exception it was answered that the Plaintiff neéd not recite the Statute it being a * Sid. 348. general Law and admitting there was no necessity yet if he will undertake to recite it and mistake in a material Point 't is incurable but if he recites so much as will serve to maintain his own Action truly and mistakes the rest this will not vitiate his Declaration and so he hath done here by reciting so much of the Statute which Enacts That no Man shall speak any scandalous Words of an Earl which is enough he being an Earl to entitle him to an Action and he concludes prout per eundem Actum plenius liquet and the Court grounded themselves principally upon a Iudgment given in this Court which was thus viz. There was a Robbery committed and the Party brought an Action upon the Statute of Huy and Cry in which he recited incendia domorum 13 E. 1. cap. 1. the said Statute beginning Forasmuch as from day to day Robberies Murders burning of Houses c. and the Presidents are all so But the Parliament Roll is Incendia generally without domorum and it was strongly urged that it was a misrecital which was fatal But the Court were all of Opinion that the Plaintiffs Case being only concerning a Robbery for which the Statute was well recited and not about burning which was mistaken it was for that reason good
one Prescription is directly contrary to the other and for that reason one must be traversed but here the Defendant hath confessed that the Plaintiff hath a Right of Common but t is not an absolute but a qualified Right against which the Defendant may Enclose and here being two Prescriptions pleaded and one of them not being confessed it must from thence necessarily follow that the other is the Issue to be tryed which in this Case is whether the Defendant can enclose or not The Chief Iustice and the whole Court were of Opinion Curia that where there are several Free-holders who have Right of Common in a Common Field that such a Custom as this of enclosing is good because the remedy is reciprocal for as one may enclose so may another But Iustice Atkyns doubted much of the Case at Bar because the Defendant had pleaded this Custom to Enclose in barr to a Freeholder who had no Land in the Common Field where he claimed Right of Common but prescribed to have such Right there as appendant to two Acres of Land he had alibi for which reason he prayed to amend upon payment of Costs Attorny General versus Sir Edward Turner in Scaccario Exposition of the Kings Grant INformation The Case was Viz. The King by Letters Patents granted several Lands in Lincolnshire by express words and then this Clause is added upon which the Question did arise Nec non totum illud fundum solum terras suas contigue adjacen ' to the Premisses quae sunt aqua cooperta vel quae in posterum de aqua possunt recuperari and afterwards a great quantity of Land was gained from the Sea and whether the King or the Patentee was intituled to those Lands was the Question Devise of a possibility good by a common person 2 Cro. 509. pl. 21. 1 Bulst 194. Sawyer for the King argued that he had a good Title because the Grant was void he having only a bare possibility in the thing granted at the time But Levins on the other side insisted that the Grant of those Lands was good because the King may Grant what he hath not in possession but only a possibility to have it But admitting that he could not make such a Grant yet in this Case there is such a certainty as the thing it self is capable to have and in which the King hath an Interest and it is hard to say that he hath an Interest in a thing and yet cannot by any means dispose of it If it should be objected that nothing is to pass but what is contigue adjacen ' to the Premisses granted and therefore an Inch or some such small matter must pass and no more certainly that was not the intention of the King whose Grants are to be construed favourably and very bountifully for his Honour and not to be taken by Inches Postea Company of Ironmongers and Naylor If there are two Marshes adjoyning which are the Kings and he grants one of them by a particular name and description and then he grants the other contigue adjacen ' ex parte australi certainly the whole Marsh will pass and 't is very usual in pleading to say a Man is seised of a House or Close and of another House c. contigue adjacen ' that is to be intended of the whole House In this Case the King intended to pass something when he granted totum fundum c. but if such construction should be made as insisted on then those words would be of no signification 'T is true the word illud is a Relative and restrains the general words and implies that which may be shewn as it were with a Finger and therefore in Doddington's Case 2 Co. 32. a Grant of omnia illa Mesuagia scituate in Wells and the Houses were not in Wells but elsewhere the Grant in that Case was held void because it was restrained to a certain Village and the Pronoun illa hath reference to the Town but in this Case there could be no such certainty because the Land at the time of the Grant made was under Water But if the Patent is not good by the very words of the Grant the non obstante makes it good which in this Case is so particular that it seems to be designed on purpose to answer those Objections of any mistake or incertainty in the value quantity or quality of the thing granted which also supplies the defects for want of right instruction given the King in all cases where he may lawfully make a Grant at the Common Law 4 Co. 34. Moor pl. 571. Bozuns Case And there is another very general Clause in the Patent viz. Damus praemissa adeo plene as they are or could be in the Kings hands by his Prerogative or otherwise * Ante Adeo plene are operative words Whistlers Case 10 Co. And there is also this Clause omnes terras nostras infra fluxum refluxum maris 'T is true Sid. 149. these words praemissis praed ' spectan ' do follow from whence it may be objected that they neither did or could belong to the Premisses and admitting it to be so yet the Law will reject those words rather than avoid the Grant in that part In the Case of the Abbot of * 9 Co. 27. b. Strata Marcella the King granted a Mannor Et bona catalla felonum dicto Manerio spectan ' now though such things could not be appendant to a Mannor yet it was there adjudged that they did pass Such things as these the King hath by his Prerogative and some things the Subject may have by Custom or Prescription as Wrecks c. and in this very Case 't is said that there is a Custom in Lincolnshire that the Lords of Mannors shall have derelict Lands and 't is a reasonable Custom for if the Sea wash away the Lands of the Subject he can have no recompence unless he should be entituled to what he gains from the Sea and for this there are some Authorities as Sir Henry Constable's Case 2 Roll. 168. 5 Co. Land between High-Water and Low-Water Mark may belong to a Mannor But no Iudgment was given Morris versus Philpot in B. R. Release by an Executor before Probate THE Plaintiff as Executor to T. brings an Action of Debt against the Defendant as Administrator to S. for a Debt due from the said intestate to the Plaintiffs Testator The Defendant pleads that the Plaintiff released to him all Brewing Vessels c. and all other the Estate of S. lately deceased this Release was before probate of the Will to which Plea the Plaintiff demurred and whether this Release was a good Barr to the Plaintiffs Action was the Question Ex parte Quer. It was said for the Plaintiff that it was not for if a Conusee release to the Cognisor all his right and title to the Lands of the Cognisor and afterwards sues out
Execution yet he may extend the very Lands so released so if the Debtee release to the Debtor all his right and title which he hath to his Lands and afterwards gets a Iudgment against him he may extend a Moiety of the same Lands by Elegit the reason is because at the time of these Releases given they had no title to the Land but only an inception of a right which might happen to take place in futuro so here a Release by the Executor of the Debtee to the Administrator of the Debtor before Probate of the Will is not good because by being made Executor he had only a possibility to be entituled to the Testators Estate and no Interest 'till Probate for he might refuse to prove the Will or renounce the Executorship It is true a Release of all * Godol 145. pl. 4. Actions had been good by the Executor before Probate because a right of Action is in him and a Debt which consists meerly in Action is thereby discharged but in such case a Release of all right and title would not be good for the reasons aforesaid Ex parte Def. But for the Defendant it was insisted that this Release was a good Plea in Barr for if a Release be made by an Executor of all his right and title to the Testators Estate and then the Executor sues the Party Released as the Administrator is sued in this Case for a Debt due to the Testator the Release is good because if he had recovered in this Case the Iudgment must be de bonis Testatoris which is the subject matter and that being released no Action can lye against the Administrator Adjornatur DE Term. Sancti Mich. Anno 28 Car. II. in Banco Regis Piggot Lessee of Sir Thomas Lee versus the Earl of Salisbury Intrat ' Pasch 26 Car. 2. Rot. 609. IN Ejectment for fourteén Houses and some Gardens in the Parish of St. Martin in the Fields Warranty where by displacing of a Right by a Fine sur concessit it shall barr the Heir Jones 68. the Iury find as to all but one Moiety for the Defendant as for the other Moiety they find that these were formerly the Houses of one Nightingale who was seised thereof in Fée and made a Lease of them which commenced 1 Apr. 7 Jac. yet in being That the Reversion descended to Briget his Daughter and Heir who married William Mitton by whom she had a Daughter named Elizabeth That upon the Marriage of the said Elizabeth with Francis the Son of Sir Oliver Lee by Fine and other Settlements these Houses were settled to the use of the said Bridget for Life then to the use of Francis Lee and the said Elizabeth and the Heirs on the Body of the said Elizabeth to be begotten by Francis And for want of such Issue to William Mitton for Life and afterwards to the right Heirs of Bridget Mitton for ever William Mitton and Bridget his Wife before the expiration of the Term levy a Fine sur concesserunt to two Cognisees wherein the said Husband and Wife conced ' tenementa praed ' totum quicquid habent in tenementis praed ' cum pertin̄ for the Life of the said Husband and Wife and the Survivor of them with Proclamations They find that the Lessee for years attorned and that the Fine thus levied was in Trust for the Earl of Salisbury and that before the first day of February before the Action brought he entred by the direction of the two Cognizees and that he was seised prout Lex postulat That 1 Febr. 7 Jac. Sir Oliver Lee Francis Lee his Son and Heir and Elizabeth his Wife William Mitton and Bridget his Wife by Bargain and Sale convey the Premises to the Earl and his Heirs which was enrolled in Chancery in which Deéd there was a Warranty against Sir Oliver and his Heirs That in the same Term viz. Octab. Purificationis William Mitton and Bridget his Wife levyed a Fine sur Cognisance de droit come ceo c. to the Earl That Francis Lee was Son and Heir of Sir Oliver Lee. That Sir Oliver and Elizabeth died in the Life-time of Francis and that Francis died leaving Issue Sir Thomas Lee the now Lessor of the Plaintiff That the Warranty discended upon him being inheritable to the Estate Tail That the Estate of the Earl of Salisbury descended to the present Earl who was the Defendant That Sir Thomas Lee entred and made a Lease to the Lessor of the Plaintiff Question The Question upon this Special Verdict was if by the Fine sur concesserunt levied 7 Jac. the Estate which the Husband and Wife had in possession only passed or whether that and the Estate for Life which the Husband had after the Tail spent passed likewise If the latter then they passed more than they could lawfully grant because of the intervention of the Estate Tail and then this Fine wrought a * Co. Lit. 338. b displacing or divesting the Estate of William Mitton for Life in Reversion and turned it into a Right and if so then this collateral Warranty of Sir Oliver Lee will discend on Sir Francis and from him to the Plaintiff and will barr his Entry But if the Estate was not displaced and turned into a Right at the time of the Warranty then the Heir is not barred by this collateral Warranty of his Ancestor This Case was argued by Serjeant Pemberton for the Plaintiff and by Sir William Jones the Attorny General for the Defendant Ex parte Quer. And for the Plaintiff it was said that this Fine passed only the Estate which William Mitton and his Wife had in possession and no other and therefore worked no divesting and his Reasons were 1. Such a Construction seems most agreeable to the intention of all the Parties to the Fine 2. It may well stand with the Nature and the Words of the Fine 3. It will be most agreeable both to the Iudgments and Opinions which have formerly béen given in the like Cases And as to the first of these it will be necessary to consider what will be the effect and consequence of levying this Fine both on the one side and the other It cannot be denyed but that there was a Purchase intended to be made under this Fine and that the Parties were willing to pass away their Estate with the least hazard that might be to themselves neither can it be imagined that they intended to defeat this Purchase as soon as it was made which they must do if this Fine works a Forfeiture for then he in Remainder in Tail is entituled to a present Entry and so the Estates for Life which the Baron and Feme had are lost and there was a possibility also of losing the Reversion in Feé which the Tenant in Tail after his Entry might have barred by a Common Recovery And had not the Parties intended only to pass both the Estates which they lawfully might
pass why did they levy this Fine sur concessit They might have levyed a Fine sur Cognisance de droit come ceo c. and that had beén a Disseisin Besides what need was there for them to mention any Estate which they had in these Houses if they had intended a Disseisin But this being done such a Construction is to be made as may support the intent of the Parties and it would be very unreasonable that what was intended to preserve the Estate should now be adjudged to work a Dissesin so as to forfeit it and such a Disseisin upon which this collateral Warranty shall operate and barr the Estate in Remainder And therefore no more shall pass by this Fine than what lawfully may and rather than it shall be construed to work a Wrong the Estate shall pass by fractions for both the Estates of William Mitton for Life are not so necessarily joyned and united by this Fine that no room can be left for such a Construction 2. Such a Construction will not agreé with the Nature and Words of this Fine 'T is true a Fine as it is of the most solemn and of the greatest Authority so 't is of the greatest force and efficacy to convey an Estate and the most effectual Feoffment of Record where 't is a Feoffment and likewise the most effectual Release where 't is to be a Release But on a bare Agreément made in Actions betwéen the Demandant and Tenant at the Barr and drawn up there the Iudges will alter and amend such Fines if they did not in all things answer the intention of the Parties 24 Ed. 3. 36. Postea 'T is agreed that Fines can work a Disseisin when they can have no other Interpretation as if Tenant pur auter vie levy a Fine to a Stranger for his own Life 't is more than such a Tenant could do because his Estate was during the Life of another and no longer So a Fine sur Cognisance de droit c. implies a Fée which being levyed by any one who has but a particular Estate will make a Disseisin But this Fine sur concessit has beén always taken to be the most harmless of all others and can be compared to nothing else than a Grant of totum statum suum quicquid habet c. by which no more is granted than what the Cognisor had at the time of the Grant and so it hath been always construed Indéed there is a Fine sur concessit which expresses no Estate of the Grantor and this is properly levyed by Tenant in Fée or Tail but when particular Tenants pass over their several Estates they generally grant totum quicquid habent in tenementis praedictis being very cautious to express what Estate they had therein When this Fine sur concessit was first invented the Iudges in those days looked upon the Words quicquid habent c. to be insignificant and for that reason in Anno 17 E. 3. 66. they were refused The case was Two Husbands and their Wives levied such a Fine to the Cognisee and thereby granted totum quicquid habent c. which Words were rejected and the Iudge would not pass the Fine because if the Party had nothing in the Land then nothing passed and so is 44 Ed. 3. 36. By which it appears that the Iudges in those times thought these Fines did pass no more than what the Cognisor had and for this there are multitude of Authorities in the Year Books Now these Words cannot have a signification to enlarge the Estate granted they serve only to explain what was intended to pass for in the Case at the Barr if the Grant had béen totum quicquid habent in tenementis praedictis there would have been no question of the Estate granted but the Cognisors having granted tenementa praedicta they seem by these subsequent Words to recollect themselves viz. totum quicquid habent in tenementis praedictis Object But it may be objected that the Limitation of the Estate viz. durante vita eorum alterius eorum diutius viventis works a Disseisin because by those Words two Estates for Life pass entire in possession whereas in truth there was but one Estate for Life of the Husband in possession and therefore this was more than they could grant because the Estate Tayl came between the Estate which the Husband and Wife had for their Lives and for the Survivor of them and the Estate which the Husband had for his own Life And this is farther enforced by that Rule in Law That Estates shall not pass by fractions for otherwise there can be no reason why they should not thus pass Answ But this Rule is very fallible and not so much to be regarded 't is true the Rule is so far admitted to be true where without inconveniency Estates may pass without fraction but where there is an inconveniency it may be dispensed withal it being such an inconveniency as may appear to the Iudges to make the thing granted to go contrary to the intent of the Parties And that such Interpretations have been made agrees with the third Reason proposed in this Case viz. That it hath received countenance by judicial Opinions and determinations in former Iudgments 14 E. 4. 4. 27 H. 8. 13. 1 Co. 67. Bredons Case which was thus Tenant for life remainder in tayl to A. remainder in tayl to B. Tenant for life and he in the first remainder levied a Fine sur cognisance de droit come ceo 't was adjudged that this was no Discontinuance of either of the Remainders 1 Roll. Abr. lit I. pl. 4. 1 Inst 45. a. Cro. Car. 406. because each of them gave what he might lawfully viz. The Tenant for Life granted his Estate and the Remainder-man passed a Fee-simple determinable upon his Estate Tail and yet each of their Estates were still divided On the other side it was said that in all Cases where the person who hath a particular Estate takes upon him either by Feoffment in pais or by Fine which is a Feoffment on Record to grant a greater Estate than he hath as in this Case is done though possibly the Estate of the Grantée may determin before that of the Grantor yet 't is a displacing the Reversion as if a Man has an Estate for ten Lives and makes a Grant for the Life of another here is a possibility that the Estate which he granted may be longer than the Estate he had in the thing granted because one Man may survive the Ten and for that reason 't is a divesting 1. In this Case the Estate which the Husband and Wife had is to be considered 2. What they granted And by comparing of these together it will appear whether they granted more than they had The Husband and Wife had an Estate for the Life of the Wife and after the Estate Tail the Husband had an Estate for his own Life now they grant
Construction can be made of them but that an Estate in possession was thereby intended to pass 4. Object That this Fine and Grant must be construed to enure according to the intent of the Parties ut res magis valeat and they never intended to make a Forfeiture Answ Certainly no Man ever intended to make a Forfeiture of his own Estate those are generally the effects of Ignorance and not of the Will as the Case of Gimlet and Sands Cro. Car. * 1 Roll. Abr. 856. 391. where Tenant in Fee makes a Feoffment to two to the use of himself for Life then to the use of his Wife for Life Remainder in Tail to his Son and Heir Remainder to his own right Heirs and afterwards he made another Feoffment to Smith with Warranty the Mother and Son join in another Feoffment adjudged that this was a Forfeiture of her Estate for life though she had no notice of the Warranty made by her Husband for the Feoffment made by him was a publick Act upon the Land and she ought to have taken notice of it and though by her joining in the Feoffment with her Son she did not intend to forfeit her Estate yet the Law adjudges according to what is done But in the Case at Barr the intention of the Parties may be collected by the Act done and there is great reason to presume that the Parties thereby intended to displace the Reversion for the Husband joyning in the Fine and in the Warranty if it was no divesting the Warranty is of no use Another Objection has been only mentioned which is that admitting this should amount to a displacing if the Estate had been in possession yet in this Case it would not because it was prevented by the Lease for years in being But that cannot hinder the execution of this Fine 't is a Fine sur concessit which is executory in its nature and doth not pass any Estate or take any effect 'till executed and so is the Book 41 5. 3. 14. b. But in this Case the Fine was executed which may be by matter in pais as well as by Scire facias and as to this purpose may be executed by the entry of the Conusor 1 Rep. 106. Dyer 376. b. without suing out any Execution 38 Ed. 3. Brook tit Scire facias 199. If there had been a Fine executed there would have beén little doubt left in this Case and by the Attornment of the Lessee for years it must be admitted that this Fine was executed as 8 Ed. 3. f. 44. For a Fine of a Reversion may be executed to all purposes by the Attornment of the Lessee for years and if so when a Fine executory is once executed 't is as good as a Fine sur Conusance de droit come ceo to make a forfeiture of the particular Estate Where a Feoffment is made and a Lease for years is in being the Feoffment is not good because in such case there must be a present transposition of the Estate Postea Moor and Pitt which is hindred by the Lease But in case of a Fine which is a Feoffment upon Record a Lease for years is no impediment or displacing of the Reversion for if Tenant in Tayl expectant upon a Lease for years levy a Fine 't is a discontinuance of the Tayl and notwithstanding this Lease the Fine has such an operation upon the Free-hold that it displaces the Reversion in Fee Co. Lit. 332. And therefore if a Lease for years prevents not a Discontinuance it will much less hinder a displacing in this case But no Iudgment was given now in this Case another matter being debated whether the Plaintiff could have Iudgment because he was barred by the Statute of Limitations for it did not appear that he had been in possession for twenty years past and the Verdict hath not found any Claim or that the Plaintiff was within the Proviso of the Act. Waterfield versus the Bishop of Chichester Oath Ex Officio not to be administred A Prohibition was granted last Easter-Term to the Bishop of Chichester upon a Suggestion made by Waterfield that he being chosen Churchwarden of the Parish Church of Arundel in the County of Sussex the Bishop tendered him an Oath ex officio which was that he should Present every Parishioner who had done any Offence or neglected any Duty mentioned in certain Articles contained in a printed Book delivered to him some of which Articles concern the Church-warden himself and so in effect he was to swear against himself in case of any default which is expressly against the Statute of 13 Car. 2. Sid. 232 cap. 12. which prohibits any person having Ecclesiastical Iurisdiction to administer the Oath ex officio or any other Oath whereby the person to whom 't is administred may be charged to accuse himself of any criminal matter whereby he may be lyable to any Censure or punishment and because the Bishop had Excommunicated him for refusing such Oath he prayed a Prohibition which was granted quoad the compelling him to make any answer to the said Articles concerning himself and the Excommunication was discharged But now upon the motion of Serjeant Brampston a Consultation was awarded because it appeared by the Affidavit of the Commissary who tendred this Oath and likewise by the act of the Court that he was Excommunicated for refusing to take the Oath of a Church warden according to Law which was the only Oath tendred and therefore the ground of the Prohibition being false a Consultation was awarded In this Prohibition it was recited That the Bishop cannot give an Oath but in two cases viz. in matters Testamentary and Matrimonial whereas they have authority in many cases more 't is true also that until his Iurisdiction was increased by Act of Parliament he could hold Plea in none but those two causes 2 Inst 487 537. but by the Statute De circumspecte agatis and of Articuli Cleri he may now hold Plea in many other cases The Bishop informed the Lord Chief Iustice that the Plaintiff Waterfeild had caused 2000 of the Prohibitions to be printed in English and had dispersed them all over the Kingdom intituling them a true translated Copy of a Writ of Prohibition granted by the Lord Chief Iustice and other the Iustices of the Court of Common Pleas in Easter-Term 1676. against the Bishop of Chichester who had proceeded against and Excommunicated one Thomas Waterfield a Churchwarden for refusing to take the Oath usually tendred to persons in such Office by which Writ the Illegality of all such Oaths is declared and the said Bishop commanded to take off his Excommunication And this was declared by the Court to be a most seditious Libel and gave order to enquire after the Printer that he might be prosecuted Eleanor Plummer versus Sir Jeremy Whitchot Intr. Trin. 27 or 28 Car. 2. Rot. 301. in B. R. IN an Action of Debt for an Escape Vpon Nil debet
pleaded Debt for Escape lies against the Warden of the Fleet as superior the Grantee for life being insufficient Jones 60. 1 Vent 314. the Iury found a special Verdict upon which the Case was this Viz. That Sir Jeremy Whitchot was seised in Fee of the Office of Warden of the Fleet and of several Mesuages thereunto belonging and being so seised did make a Grant thereof to one Duckenfield for life and for the lives of three more Duckenfield by Rule of Court was admitted into the said Office being approved by the Court and esteemed a Man of an Estate He suffers a Prisoner afterwards to Escape and being not able to make the Plaintiff satisfaction this Action was brought against Sir Jeremy Whitchot the now Defendant and whether he was chargeable or not with this Action was the Question Wallop who argued for the Plaintiff said Ex parte Quer. That he would not take up any of their time to make a Narrative of Imprisonment for Debt or what remedy there was for Escapes at Common Law and what remedy by the Statute but supposing an Action of Debt will lye whether it be by the Statute of Westm 2. cap. 11. for at the Common Law before the making of that Act Sid. 306 397. an Action of Debt would not lye against the Goaler for an Escape but a special Action on the Case grounded on a Trespass or whether this Action lay against the Defendant by the Statute of 1 R. 2. 2 Inst 382. cap. 12. which gives it against the Warden of the Fleet who in this case had not the actual Free-hold in possession but the inheritance and not the immediate Estate but the Reversion is in Question The Office of the Warden of the Fleet may be taken in two capacities either as an Estate or common Hereditament wherein a Man may have an Inheritance and which may be transferred from one to another or as a publick Office wherein the King and the People may have a special Interest As 't is an Inheritance transferrable 't is subject to the Rules of Law in point of Descent and is demisable for Life in Fee Tayl Possession or Reversion and in many things is common and runs parallel with other Estates of Inheritance 'T is true he cannot grant this Office for years not for any disability in the Grantor but in respect of the matter and nature of the thing granted it being an Office of Trust and Personal for otherwise it would go to the Executor which is inconvenient 9 Co. 96. Sir George Reynell's Case To enquire what superiority the reversioner hath over the particular Estate is not to the point in Question but there is such an intimacy and privity between them that in Iudgment of Law they are accounted as one Estate And therefore Littleton Sect. 452 453 saith that a Release made to a Reversioner shall aid and benefit him who hath the particular Estate and likewise a Release made to the Tenant of the Freehold shall enure to him in Reversion because they are privies in Estate so that these two Estates in the Case at Bar make but one Office This is a publick Office of great Trust and concerns the Administration of Iustice and therefore 't is but reasonable to admit the Rule of Respondeat Superior lest the Party should be without remedy and the rather because Execution is the life of the Law 39 H. 6. 33. He who is in the Office as Superiour whether it be by droit or tort is accountable to the King and his People and this brings him within the Statute of Westm 2. cap. 11. or 1 R. 2. If the Defendant had granted the Office in Fee to Duckenfeild before any Escape had been and the Grantee had been admitted the Defendant then had been discharged or if he dye before or after the Action brought and before Iudgment moritur actio cum persona for if he had not reserved something he could not be charged and if he had parted with the Inheritance the privity had been gon but by reserving that he hath made himself liable for now he is Superiour he may exact Homage and Fealty and the particular Tenant is said to be attendant upon the Reversion and these are marks of Superiority And this Rule of respondeat superior holds not only between the principal Officer and his Deputy and between the Master and his Servant but in many other Cases one is to be answerable for another as 1. Where a Man has power to elect an Officer he is chargeable so the County hath power to elect Coroners and if they fail in their Duty the County shall be charged for by reason of the power they had to elect they are esteemed Superiours 4 Inst 314. 2 Inst 175. 2. Where one Man recommends another to an Office concerning the Kings Revenue the person who recommends is liable if the other prove insufficient and for this there is a notable Case 30 E. 3. 6. 'T is Porter's Case cited in the Case of the Earl of Devonshire 11 Co. 92. b. Where Porter being Master of the Mint covenanted with the King to deliver him Mony within 8 days for all the Bullion delivered ad Cambium Regis to Coyn which he did not perform Et quia Walwyn Picard duxerunt praesentaverunt the said Porter ideo consideratum est quod onerentur versus Dominum Regem 4 Inst 466. And why not the Defendant in this Case who praesentavit the said Duckenfeild to the Court tanquam sufficientem the reason being the same and the King is as much concerned in the ordering this Court of Iustice as in the ordering of his Coffers for as the Treasure is Nervus Belli so the execution of the Law is Nervus Pacis 3. In the Case of a dependant Officer though he is a proper Officer and no Deputy the person who hath the Reversion shall answer as in 32 H. 6. 34. 2 Inst 382. 9 Rep. 98. Dyer 278. b. The Duke of Norfolk who had the Inheritance of the Marshalsea was charged for an Escape suffered by one Brandon who was Tenant for Life in possession of the said Office and there is great reason it should be so for when a principal Officer may make an inferiour Officer who afterwards commits a Forfeiture the superiour shall take advantage of this Forfeiture and 't is as reasonable he should he answerable for his Miscarriage Cro. Eliz. 384. Poph. 119 The Earl of Pembrook against Sir Henry Berkley And therefore admitting the Defendant is out of the Statute yet he is within the Maxim of Respondeat Superior which is not grounded upon any Act of Parliament as appears in the Case of the Coroner and the Statute of Westm 2. And all other Acts which inculcate this Rule are but in affirmance of the Common Law and this is not only a Rule of the Common but also of the Civil Law which is served with the Equity of this Maxim in
Assurances c. of Land not being the Lands of the late King Queen Prince c. and not being Land sold for any pretended Delinquency since the first of June 1641. and all Statutes and Judgments suffered by the Offenders from being impeached from which it appears that the Parliament lookt upon entailed Lands as forfeited for if Estates made to others upon a valuable consideration had need of a Proviso to save them from Forfeiture à fortiori the Estates out of which those are derived have need of such a saving and therefore must be forfeit by the Act for which Reasons these Lands are forfeited As to the great Objection which hath been made and insisted on the other side and which is Trudgeons Case 22 Eliz. 1 Inst 130. Where Tenant in Tail was attainted in a Praemunire and it was adjudged that he should forfeit his Land but during his Life for though the Statue of 16 R. 2. cap. cap. 5. Enacts That in such Case their Lands Tenements Goods and Chattels shall be forfeited to the King yet that must be understood of such an Estate as he may lawfully forfeit and that is during his own life and therefore being general Words they do not take away the force of the Statute de donis so that his Lands in Fee-simple for life c. shall be forfeited but the Land entailed shall not during his life But the Answer is plain For in the Reign of R. 2. when the Statute of Praemunire was made Estates Tail were under a Perpetuity by the said Statute de donis which Statute is now much weakened in the Point of Alienation and the Law is quite altered since that time and 't is apparent by multitude of Presidents that such strict Constructions have not been made since that time to preserve Estates Tail from Forfeitures without special and particular Words 4 Co. 164. and therefore in the Case of Adams and Lambert which is a Case in Point the Iudges there construed Estates Tail to be forfeit for want of special Words in the Statute of 1 E. 6. cap. 14. to save it and that was only a Law made for suppressing of superstitious Vses upon a politick consideration but this is a much greater Offence intended to be punished by this Act in which there are demonstrations both from the Words and intent of the Law-makers to make this Estate forfeited to the Crown than in that Case so much relied on And Iudgment was given accordingly Wyld died before Iudgment was given but Iustice Twisden said he was of that Opinion and Jones Iustice concurred Basset versus Salter After an Escape the Plaintiff may have a Ca. Sa. or Sci. Fa. against the Sheriff IN an Action for an Escape the Question was whether the Plaintiff may take out a Ca. Sa. or have a Fi. Fa. against the Defendant after the Sheriff or Gaoler voluntarily suffer him to escape but the Court would not suffer it to be argued because it had been lately settled that it was at the Election of the Plaintiff to do either and upon a Writ of Error brought in the Exchequer-Chamber the Iudges there were of the same Opinion But in the Lord Chief Iustice Vaughan's time the Court of Common Pleas were divided but 't is since settled 1 Roll. Abridg. 901 902. If there be an Escape by the Plaintiffs consent though he did not intend it the Law is hard that the Debt should be thereby discharged as where one was in execution in the Kings Bench and some Proposals were made to the Plaintiff in behalf of the Prisoner who seeing there was some likelyhood of an Accomodation consented to a Meeting in London and desired the Prisoner might be there who came accordingly and this was held to be an Escape with the * If it had been by the consent of the Sheriff he could never take him again but the Plaintiff might Sid. 330. consent of the Plaintiff and he could never after be in Execution at his Suit for the same Matter Peck versus Hill In Communi Banco Bond good given in discharge of another Mod. Rep. 221. DEBT upon a Bond brought against the Defendant as Administrator who pleads that he gave another Bond in his own Name in discharge of the first Bond and upon Issue joined it was found for the Defendant and it was moved that Iudgment might not be entred hereupon because it was a bad Plea But North Chief Iustice and Wyndham and Scroggs Iustices were of Opinion that it was a good Plea because there was other Security given than what the Plaintiff had before for upon the first Bond he was only lyable de bonis Intestatoris but now he might be charged in his own Right Co. Lit. 122. b. which may be well said to be in full satisfaction of the first Obligation for where the Condition is for payment of Mony to the Party himself there if he accept any collateral thing in satisfaction 't is good If a Security be given by a Stranger it may discharge a former Bond and this in effect is given by such And 't is not like the Case in Hobert where a Bond was given by the same Party upon that very day a former Bond was payable and adjudged not a good discharge for the Obligee was in no better condition than he was before Iustice Atkins doubted but inclined that one Bond cannot be discharged by giving another though the Discharge be applied to the Condition of the Bond and for this he cited Cro. Car. 85. Cro. Eliz. 716 727. which was a Case adjudged so in Point and therefore this Plea upon Demurrer should have been over-ruled yet since Issue was taken upon it and a Verdict for the Defendant the Plea is helped by the Statute of Jeofails 32 H. 8. here being a direct Affirmative and Negative But as to that the Chief Iustice and Scroggs Iustice replied that an immaterial Issue no ways arising from the Matter is not helped as an Action of Debt upon a Bond laid to be made in London and the Defendant saith that it was made in Middlesex and this is tried 't is not aided by the Statute but there must be a Repleader But because it was sworn that the Obligor who was the intestate was alive four years after the time that the second Bond was given and for that reason it could not be given upon the accompt of the Defendants being liable as Administrator but must be intended a Bond to secure a Debt of his own therefore a new Trial was granted Cook and others versus Herle Covenant will lie in the personalty tho' the Grant be executed by the Statute of Uses which makes a Distress the proper remedy Mod. Rep. 223. IN Covenant the Case was this Charles Cook made a Iointure to Mary his Wife for life and died without Issue the Land descended to Thomas Cook his Brother and Heir who grants an Annuity or Rent Charge of 200 l. per
annum to the Plaintiffs in Trust for Mary and this was to be in discharge of the said Iointure Habendum to them their Heirs Executors Administrators and Assigns in Trust for the said Mary for Life with a Clause of Distress and a Covenant to pay the 200 l. per annum to the said Trustees for the use of the said Mary the Breach assigned was that the Defendant had not paid the Rent to them for the Use of Mary The Defendant demurred specially for that it appears by the Plaintiffs own shewing that here is a Grant of a Rent-Charge for life which is executed by the Statute of Vses and therefore there ought to have been a Distress for Non-payment which is the proper remedy given by the Statute and this Action will not lie in the personalty 2. 'T is said the Defendant did not pay it to the Plaintiffs for the use of Mary which is a Negative pregnant and implies that it was paid to them 3. 'T is not averred that the Mony was not paid to Mary and if 't is paid to her then the Breach is not well assigned Ex parte Quer. But Serjeant Baldwin for the Plaintiff replyed that it was not a Question in this Case whether this Rent Charge was executed by the Statute or not for quacunque via data an Action of Covenant will lie and that the Breach was assigned according to the Words of the Covenant and so prima facie 't is well enough for if the Defendant did pay the Mony to the Plaintiffs he may plead it and so he may likewise if he paid it to Mary Curia The Court were all of Opinion that this Rent-Charge was executed by the Statute of Vses by the express Words thereof which executes such Rents granted for Life upon Trust as this Case is and transfers all Rights and Remedies incident thereunto together with the possession to Cestuy que use so that though the power of distraining be limited to the Trustées by this Deéd yet by the Statute which transfers that power to Mary she may distrain also but this Covenant being collateral cannot be transferred The Clause of Distress by the express Words of the Act is given to the Cestuy que use but here is a double Remedy by Distress or Action for if the Lessée assign his Interest and the Rent is accepted of the Assignee yet a Covenant lies against the Lessée for Non-payment upon the express Covenant to * Hayes and Bickerstaff Hollis and Carr Antea pay so if a Rent be granted to S. and a Covenant to pay it to N. for his use 't is a good Covenant And it was agreed that the assignment of a Breach according to the Words of the Covenant is good enough and that if any thing be done which amounts to a performance the other side must plead it as in this Case the Defendant might have pleaded that the Mony was paid to Mary which is a performance in substance but it shall not be intended without pleading of it Whereupon Iudgment was given for the Plaintiff Read versus Dawson DEBT upon Bond against the Defendant as Executor Repleader after an immaterial Issue Issue was joyned whether the Defendant had Assets or not on the thirtieth day of November which was the day on which he had the first notice of the Plaintiffs original Writ and it was found for the Defendant that then he had not Assets It was moved for a Repleader because it was said this was an immaterial Issue for though he had not Assets then yet if he had any afterwards he is liable to the Plaintiffs Action But Barrel Serjeant moved for Iudgment upon this Verdict by reason of the Statute of 32 H. 8. which helps in Cases of Mispleading or insufficient Pleading 'T is true there are many Cases which after Verdict are not aided by this Statute as if there are two Affirmatives which cannot make an Issue or when after a Traverse Issue is joyned with an hoc petit quod inquiratur per patriam this is no Issue 2 Anders 6 7. Yelv. 210. Hob. 126. So if there be no Plea at all as if an Action is brought against Baron and Feme and she pleads only 2 Cro. 288. So if the Party puts himself super patriam where it should be tried by Record or if the Plea be nothing to the purpose or lie not in the Mouth of the Parties such immaterial Issues as these cannot be good The difference in Moor 867. is if the Plea on which the Issue is joyned hath no colourable pretence in it to barr the Plaintiff or if it be against an express Rule in the Law there the Issue is immaterial and so as if there was no Issue and therefore 't is not aided by the Statute but if it hath the countenance of a legal Plea though it want necessary matter to make it sufficient there shall be no Repleader because 't is helped after Verdict Here the Parties only doubt whether there were Assets at the time of the notice and 't is found there were none and so Iudgment was to be given accordingly and of that Opinion was the whole Court But Iustice Atkins was clear of Opinion that if the Parties join in an immaterial Issue there shall be no Repleader because 't is helped after Verdict by these Words in the Statute viz. any Issue 'T is not said an Issue joined upon a material Point and the intent of the Statute was to prevent Repleaders and that if any other Construction should be made of that Act he was of Opinion that the Iudges sate there not to expound but to make a Law for by such an Interpretation much of the benefit intended by the Act to the Party who had a Verdict would be restrained Curia The other Iustices were all of Opinion that since the making of this Statute it had been always allowed and taken as a difference that when the Issue was perfectly material there should be no Repleader but that it was otherwise where the Issue was not material And Iustice Scroggs asked merrily If Debt be brought upon a Bond and the Defendant pleads Robin Hood dwelt in a Wood and the Plaintiff joyns Issue that he did not this is an immaterial Issue and shall there not be a Repleader in such Case after Verdict Ad quod non fuit responsum Beaumont versus ........ Wager of Law THE Plaintiff brings an Action of Debt upon a Iudgment obtained against the Defendant in a Court Baron having declared there in an Action on the Case upon an Assumpsit and recovered The Defendant came to wage his Law and was ready to swear that he owed the Plaintiff nothing Sid. 366. but the Court held that he was not well advised for by the Recovery in the inferior Court it became now a Debt and was owing and being asked whether he had paid the Mony he answered that he owed nothing Whereupon the Court
concluded that he had not paid it and therefore they would not admit him to wage his Law without bringing sufficient Compurgators to swear that they believed he swore Truth but such not appearing the Defendant defecit de Lege and Iudgment had been given against him but he offered to bring the Mony recovered and the Costs into the Court and to go to a new Tryal it being a very hard Case upon him at the former Trial where the Demand was of a Quit-Rent of 18 d. per annum the Defendant promised that if the Plaintiff would shew his Title and satisfie him that he had a Right to demand it he would pay him the Rent and at the Tryal express Oath was made of a Promise to pay upon which the Verdict was obtained whereas it was then urged that the Freehold would come in question upon that Promise and so the inferior Court could have no Iurisdiction And afterwards the Chief Iustice said that it hath béen adjudged in the Kings Bench that an inferior Court cannot hold Plea on a quantum meruit for Work done out of the Iurisdiction though the Promise be made within and that he knew where a Person of Quality intending a Marriage with a Lady presented her with a Iewel and the Marriage not taking effect he brought an Action of Detinue against her and she taking it to be a Gift offered to wage her Law but the Court was of Opinion that the property was not changed by this Gift being to a specifical intent and therefore would not admit her to do it Quod nota Styleman versus Patrick AN Action on the Case was brought by the Plaintiff against the Defendant for eating of his Grass with his Sheep Costs allowed so that he could not in tam amplo modo enjoy his Common there was a Verdict for the Plaintiff and it was now moved that he should have no more Costs than Damages because this was a Trespass in its own nature and the Iudge of Assise had not certified that the Title of any Land was in question Bur the Court were all of Opinion Curia that this Case was not within the Statute For it was not a frivolous Action because a little damage done to one Commoner and so to twenty may in the whole make it a great Wrong if the Cause were frivolous the Iudge of Assize may mark it to be such by vertue of the Statute of 43 Eliz. cap. 6. and then there shall be no more Costs than Damages and though in this Case the Plaintiff hath in his Declaration set out a Title to his Common yet the Title of the Land cannot possibly come in question and therefore not to be certified as in Cases of Trespas neither is there any need of a Certificate if it appears by the Pleading that the Title of the Land is in question The Court being against the Defendant as to the Costs his Council then moved in Arrest of Iudgment because the Plaintiff sets forth his Right to the Common only by way of Recital with a cumque etiam Postea c. that he had a Right to Common in such a place sed non allocatur for 't is affirmative enough and afterwards he is charged with doing the Plaintiff damage and so the Case is not like to an Action of Trespas quare cum he did a Trespass for there the sense is imperfect DE Term. Sancti Hill Anno 28 29 Car. II. in Communi Banco James versus Johnson IN Trespass Que Estate where 't is pleadable Mod Rep. 231. the Defendant justified by a Prescription to have Toll and Issue being joyned thereupon the Iury found a special Verdict in which the Case upon the Pleadings was viz. Before the dissolution of Priories the Mannor now in the possession of the Defendant was parcel of the Priory of B. which came to the Crown by the said dissolution and the King made a Grant thereof to Sir Jervas Clifton in Fee together with the said Toll adeo plene as the Prior had it and the Defendant having brought down a Title by several mesne Assignments claims by vertue of a Lease from Sir Jervas for seven years then in being alledging that the said Sir Jervas and all those whose Estate he had might take Toll and whether this Pleading by a Que Estate to have Right of Toll was good in Law the Iury doubted Baldwin Serjeant for the Plaintiff Ex parte Quer. argued that the Iustification was not good because there are two sorts of Toll viz. Toll through and Toll traverse and is in the Kings High Way and the other in a Man 's own Soil and it doth not appear for which the Defendant hath justified If it be for the first then he ought to shew that he did make a Causeway or some other thing that might be an advantage to the Passengers to entitle himself to a Prescription but if it be for the other then he must also shew it was for passing upon his Soil which implies a Consideration 22 Assize Kelw. 148. Pl. Com. 236. Lord Berkley's Case 1 Cro. 710. Smith versus Sheppard by which Cases it appears that the justification ought to be certain Then as to the point in Question he said that Toll cannot be appurtenant to a Mannor and so the Pleading by a Que estate is not good but if that should be admitted yet the Mannor being vested in the Crown by the dissolution the Toll then became in gross and could never after be united to the Mannor or appurtenant thereunto But it was argued for the Defendant by Maynard Serjeant and the whole Court were clear of Opinion that the Issue was upon a particular point and the Title was admitted and that nothing remained in question but the Point in pleading And as to what had been objected That Toll cannot belong to a Mannor 't is quite otherwise for an Advowson a Rent a Toll or any Profit apprender may be appurtenant to it T is true a Man cannot prescribe by a Que Estate of a Rent Advowson Toll c. but he may of a Mannor to which these are appendant 't is likewise true that if the Defendant had said this was Toll for passing the Highway he must shew some cause to entitle himself to the taking of it as by doing something of publick advantage But this general way of pleading is the most usual and so are the Presidents and it ought to come on the other side and to be alledged that the Defendant prescribed for Toll in the High-way and in this Case though the Mannor came to the Crown the Toll remained appurtenant still and so it continued when it was granted out The difference is between a thing which was originally a Flower of the Crown and other things which are not as Catalla Felonum c. if such come again to the King they are merged in the Crown but 't is otherwise in cases of a Leet Park Warren
Toll c. which were first created by the King 9 Co. Abbot de Strata Marcella's Case So that this Toll is not become in gross by the dissolution whereupon Iudgment was given for the Defendant Sir William Turner's Case Amendment not after issue joyned DEbt qui tam c. for 100 l. against Sir William Turner being a Iustice of Peace in London for denying his Warrant to suppress a seditious Conventicle of one Mr. Turner in New-street This Cause was to be tried by Nisi prius this Term before the Chief Iustice And now the Plaintiff moved to amend one Word in the Declaration wherein he was mistaken for he had laid the Meeting to be at Turner's Mansion House and upon Enquiry he understood the place of Meeting was not at his Mansion House but at a little distance from it and so prayed the word Mansion might be struck out But the Chief Iustice said that after Issue joyned Curia and the Cause set down to be tried and this being a penal Statute no President could be shewn of an Amendment in such case and therefore would not make this the first and so Leave was given to the Plaintiff to discontinue upon payment of Costs Brown versus Johnson IN Accompt The Plaintiff declares against the Defendant Time where 't is made parcel of the issue not good for that upon the first of March 22 Car. 2. abinde to the first of May 27 Car. 2. he was his Bayliff and Receiver of 80 Piggs of Lead The Defendant pleads that from the said first day of March 22 Car. 2. to the first day of May 27 Car. 2. he was not the Plaintiffs Bayliff or Receiver of the said 80 Piggs of Lead hoc paratus est verificare To this the Plaintiff demurred and assigned specially for cause that the times from the first of March to the first of May are made parcel of the Issue which ought not to be because the Plaintiff in his Declaration must alledge a time for Form sake but the Defendant ought not to tye him up to such time alledged for he might have said he was not Bayliff modo forma And for this the Case of Lane and Alexander was cited where the Defendant by Ejectment makes a Title by Copy of Court Roll granted to him 44 Eliz. and the Plaintiff replies his Title by the like Grant 1 Junii 43 Eliz. The Defendant maintains his Barr and traverseth that the Queen 1 Junii 43 year of her Reign granted the said Land by Copy and upon Demurrer it was adjudged that the traversing of the day is matter of substance which being made part of the Issue is naught But on the other side it was objected that time is material and that in Actions of Accompt 't is proper to make it parcel of the Issue for a Man may be Bayliff for two but not for three years and a Release may be pleaded from such a time to such a time Fitz. Accompt 30. Rast Entry f. 8. 19 pl. 1. f. 20. pl. 6. f. 22. pl. 2. 1. Then Exceptions were taken to the Plea first for that the Plaintiff having charged the Defendant as Receiver of 80 Piggs of Lead the Defendant pleads and that he was not Receiver thereof but doth not say of any part thereof for which reason the Court held the Plea ill because he might retain 79 and yet not 80 Piggs but to plead generally ne unques Receptor is well enough though it was urged that if it had been found against him upon such an Issue that he had received any parcel of the Lead he should have accompted 24 H. 4. 21. 2 Roll. 3. 14. 32 H. 6. 33. Fitz. Accompt 16. Cro. Eliz. 850. Fitz. Accompt 14. Rast Entry 18 19 20. 2. The Defendant concludes hoc paratus est verificare whereas it should be de hoc ponit se super patriam but the Court doubted of this because it was not specially assigned Postea 3. The Plaintiff charged the Defendant as his Bayliff upon the first of March and the Defendant pleads that he was not his Bayliff from the first of March so he excludes that day and this the Court held to be incurable and likewise that the time ought not to be made parcel of the Issue 2 Sand. 317 318. and so Iudgment was given quod computer Abraham versus Cunningham Administrator sells a Term afterwards an Executor appears and renounces yet the Sale was adjudged void Jones 72. 1 Vent 303. IN a special Verdict in Ejectment the Case upon the Pleadings was Viz. Sir David Cunningham being possessed of a Term for years made his Will and therein appointed his Son Sir David Cunningham to be his Executor and dyed Sir David the Executor in the year 1663. made his Will also and therein appointed David Cunningham his Son and two others to be his Executors and dyed those two Executors dye and B. a Stranger takes out Administration cum Testamento annexo and continues this Administration from the year 1665. to the year 1671. in which time he made an Assignment of this Term to the Lessor of the Plaintiff for which he had received a thousand Pounds And in the year 1671. the surviving Executor of Sir David the Executor made Oath in the Archbishops Court that he never heard of his Testators Will 'till then nor ever saw it before and that he had not medled with the Estate nor renounced the Executorship 6 Co. Packmans Case Then a Citation goes to shew cause why the Administration should not be repealed and Sentence was given that it should be revoked upon which the Executor enters and the Lessor of the Plaintiff entred upon him This Case was argued by Saunders for the Plaintiff Ex parte Quer. and Levints for the Defendant And first it was said in behalf of the Plaintiff that the Authorities in the Books were strong on his side that the first Administration was well granted 'T is true if a Man make a Will and Administration is granted and that Will is afterwards proved such Administration is void as in Greysbrook and Foxes Case Pl. Com. But in this Case after the death of Sir David Cunningham the Executor his Testator is dead Intestate for to make an Executor there must be first the naming of him then there must be some concurring act of his own to declare his assent that he will take onus executionis upon him for no man can make another Executor against his will so that if after the death of the first Executor those other Executors appointed by him had made such a Declaration as this surviving Executor hath since done their Testator had dyed Intestate 7 E. 4. 12 13. The Executor is made by the Testator and the Ordinary is empowered by the Statute to make the Administrator where the person dies Intestate so that 't is plain there cannot be an Executor and Administrator both together If he who is
of which is that he will be rather scorned than obeyed It hath been objected that the Words are general and charge him not with any act Answ The Scandal is the greater for 't is not so bad to say A Man did such a particular thing against Law and Reason as to say He acts against Law which is as much as to say his constant course and practice is such And to say that the Words might be meant of breaking a Penal Law that is a foreign Construction for the plain sense is he acts against the known Laws of the Kingdom and his practice and designs are so to do for he will be guided neither by Law or Reason Object It has been objected that the Scandal must be false But whether true or not there can be no justification here because they are so general that they cannot be put in Issue Answ He agreed that no Action would lye upon this Statute if the words were true but in some Cases the divulging of a Scandal was an Offence at the Common Law now to argue as on the other side that the Defendant cannot justifie and therefore an Action will not lye is a false Consequence because words may be scandalous and derogatory to the dignity of a Peer and yet the subject matter may not be put in Issue He agreed also that occasional Circumstances may extenuate and excuse the Words though ill in themselves but this cannot be applied to the Case in question because the Words were not mitigated The Defendant pleaded Not Guilty and insisted on his Innocence the Iury have found him Guilty which is an aggravation of his Crime if he would have extenuated them by any occasion upon which they were spoken he should have pleaded it specially or offered it in Evidence neither of which was done This Act is to be taken favourably for him against whom the Words are spoken because 't is to prevent great Mischiefs which may fall out in the Kingdom by rude and uncivil discourses and in such Cases 't is usual for Courts rather to enlarge the remedy than to admit of any extenuation for which reasons he prayed that the Plantiff might have his Iudgment It was argued by Serjeant Calthrop on the same side and to the same effect Afterwards this Term all the Iudges argued this Case Argument at the Bench. seriatim at the Bench. And first Iustice Scroggs said That the greatness of the Damages given should not prevail with him either on the one side or the other at the Common Law no Action would lye for such Words though spoken of a Peer for such Actions were not formerly much countenanced but now since a Remedy is given by the Statute Words should not be construed either in a rigid or mild sense but according to the genuine and natural meaning and agreeable to the common understanding of all Men. At the Barr the strained sense for the Plaintiff is that these Words import He is no Man of Honour and for the Defendant that they import no Scandal and that no more was meant by them but what may be said of every Man 'T is true in respect of God Almighty we are all Vnworthy but the subsequent Clause explains what unworthiness the Defendant intended for he infers him to be Unworthy because he acts against Law and Reason Now whether the Words thus explained fix any Crime on the Plaintiff is next to be considered and he was of Opinion that they did fix a Crime upon him for to say He is an unworthy Man is as much as to say He is a vitious person and is the same as to call him a corrupt Man which in the Case of a Peer is actionable for general words are sufficient to support such an Action though not for a common person To say a Man acts against Law and Reason is no Crime if he do it ignorantly and therefore if he had said My Lord was a weak Man for he acts against Law and Reason such words had not been actionable but these Words as spoken do not relate to his Vnderstanding but to his Morals they relate to him also as a Peer though the contrary has been objected that they relate to him only as a Man which is too nice a distinction for to distinguish between a Man and his Peerage is like the distinction between the person of the King and his Authority which hath been often exploded the words affect him in all qualities and all relations It has been also objected that the Words are too general and like the Case of the Bishops Return that a Man is criminosus which is not good But though they are general in the Case of a Peer they are actionable for to say of a Bishop That he is a wicked Man these are as general words and yet an Action will lye It has been also objected That general Words cannot be justified but he was of another Opinion as if the Plaintiff who was Lord Lieutenant of the County had laid an unequal charge upon a Man who upon complaint made to him ordered such charge to stand and that his will in such case should be a Law If the person should thereupon say That the Lord had done Unworthily and both against Law and Reason those words might have been justified by shewing the special matter either in Pleading or Evidence 'T is too late now to examine whether an Action will lye upon this Statute that must be taken for granted and therefore was not much insisted on by those who argued for the Defendant for the Authorities are very plain that such Actions have been allowed upon this Statute The Words as here laid to be spoken are not so bad as the Defendant might speak but they are so bad that an Action will lye for them and though they are general yet many Cases might be put of general words which import a Crime and were adjudged actionable The Earl of Leicester's Case He is an Oppressor The Lord of Winchester's Case He kept me in Prison 'till I gave him a Release these words were held actionable because the plain inference from them is That they were Oppressors The Lord Abergavenny's Case He sent for me and put me into Little Ease It might be presumed that that Lord was a Iustice of Peace as most Peers are in their Counties and that what he did was by colour of his Authority so are all the Cases cited by those who argued for the Plaintiff in some of which the words were strained to import a Crime and yet adjudged actionable especially in the Case of the Lord Marquess of Dorchester He is to be valued no more than a Dog which are less slanderous Words than those at the Bar because the slander is more direct and positive It appears by all these Cases that the Iudges have always construed in favour of these Actions and this has been done in all probability to prevent those dangers that otherwise might ensue if the Lords
should take revenge themselves for which reasons he held the Action will lye Atkyns Iustice contra This is not a common Action upon the Case but an Action founded upon the Statute of the 2 of R. 2. upon the Construction whereof the Resolution of this Case will depend whether the Action will lie or not And as to that he considered 1. The Occasion 2. The Scope 3. The parts of the Statute 1. The occasion of it is mentioned in Cotton's Abridgment of the Records of the Tower f. 173. nu 9 and 10. At the summoning of this Parliament the Bishop of St. Davids declared the Causes of their meeting and told both the Houses of the Mischiefs that had hapned by divers slanderous Persons and sowers of Discord which he said were Dogs that eat raw Flesh the meaning of which was that they devoured and eat one another to prevent which the Bishop desired a Remedy and his Request seemed to be the Occasion of making this Law for ex malis moribus bonae nascuntur Leges 2. The Scope of the Act was to restrain unruly Tongues from raising false Reports and telling Stories and Lyes of the Peers and Great Officers of the Kingdom so that the design of the Act was to prevent those imminent dangers which might arise and be occasioned by such false Slanders 3. Then the parts of the Act are three viz. reciting the Offence and the Mischief then mentioning the ill Effects and appointing of a Penalty From whence he Observed 1. That here was no new Offence made or declared for nothing was prohibited by this Statute but what was so at the Common Law before The Offences to be punished by this Act are mala in se and those are Offences against the Moral Law they must be such in their nature as bearing of false Witness and these are Offences against a common Person which he admitted to be aggravated by the eminency of the person against whom they were spoke but every uncivil Word or rude Expression spoken even of a Great Man will not bear an Action and therefore an Action will not lie upon this Statute for every false Lye but it must be horrible as well as false and such as were punishable in the High Commission Court which were enormous Crimes 12 Co. 43. By this description of the Offences and the consequences and effects thereof he said he could better judge whether the Words were actionable or not and he was of Opinion that the Statute did not extend to Words of a small and trivial nature nor to all Words which were actionable but only to such which were of a greater magnitude such by which Discord might arise between the Lords and Commons to the great peril of the Realm and such which were great Slanders and horrible Lies which are words purposely put into this Statute for the aggravation and distinction of the Crime and therefore such Words which are actionable at the Common Law may not be so within this Statute because not horrible great Scandals He did not deny but that these were undecent and uncivil words and very ill applied to that honourable person of whom they were spoken but no body could think that they were horrible great slanders or that any debate might arise between the Lords and Commons by reason such words were spoken of this Peer or that it should tend to the great peril of the Kingdom and the quick destruction thereof such as these were not likely to be the effects and consequences of these Words and therefore could not be within the meaning of the Act because they do not agree with the discription given in it 2. Here is no new punishment inflicted on the Offender for at the Common Law any person for such Offences as herein are described might have been Fined and Imprisoned either upon Indictment or Information brought against him and no other punishment is given here but Imprisonment Even at the Common Law scandal of a Peer might be punished by Pillory and loss of Ears 5 Co. 125. De Libellis Famosis 12 Co. 37. 9 Co. 59. Lamb's Case So that it appears this was an Offence at the Common Law but aggravated now because against an Act of Parliament which is a positive Law much like a Proclamation which is set forth to enforce the execution of a Law by which the Offence is afterwards greater He did agree that an Action would lie upon this Statute though there were no express Words to give it to a Peer because where there is a Prohibition and a Wrong and Damage arises to the Party by doing the thing prohibited in such Case the Common Law doth intitle the Party to an Action 10 Co. 75. 12 Co. 100 103. And such was the Resolution in the Earl of Northampton's Case upon construction of the Law as incident to the Statute and as the Offence is greater because of the Act and as the Action will lie upon the Statute so the Party injured may sue in a qui tam which he could not have done before the making this Law 3. But that such words as these were not actionable at the Common Law much less by the Statute for the Defendant spoke only his Iudgment and Opinion and doth not directly charge the Plaintiff with any thing and might well be resembled to such Cases as are in Rolls Abridgm 1 part 57. pl 30. which is a little more solemn because adjudged upon a special Verdict the Words were spoken of a Iustice of Peace Thou art a Blood-Sucker and not fit to live in a Commonwealth These were not held actionable because they neither relate to his Office or fix any Crime upon him Fol. 43. in the same Book Thou deservest to be hanged not actionable because it was only his Opinion So where the Words are general without any particular Circumstances they make no impression and gain no credit and therefore in Cro. Car. 111. 1 Roll. Abridgm 107. pl. 43. You are no true Subject to the King the Action would not lie In this Case 't is said the Plaintiff acts against Law which doth not imply a Habit in him so to do and when Words may as well be taken in a mild as in a severe Sense the Rule is quod in mitiori sensu accipienda sunt Now these Words are capable of such a favourable construction for no more was said of the Plaintiff than what in some sense may be said of every person whatsoever for who can boast of his Innocency who keeps close in all his actions to Law and Reason and to say A Man acts against both may imply that he departed from those Rules in some particular Cases where it was the Error of his Iudgment only In the Duke of Buckingham's Case Sheppard's Abridgment 1 part f. 28. Viz. You are used to do things against Law and mentions a particular fact there indeed because of Usage of the ill practice it was held that an Action lies but if he had been
charged for doing a thing against Law but once an Action would not lie He then observed how the Cases which have been adjudged upon this Statute agree with the Rules he had insisted on in his Argument which Cases have not been many and those too of late times in respect of the Antiquity of the Act which was made almost 300 hundred years since Anno 1379. and for 120 years after no Action was brought the first that is Reported was 13 H. 7. Keilway 26. So that we have no contemporanea expositio of the Statute to guide an Opinion which would be a great help in this Case because they who make an Act best understand the meaning but now the meaning must be collected from the Statute it self which is the best Exposition as the Rule is given in Bonham's Case 8 Co. Vide the Case in 13 H. 7. The next Case in time is the Duke of Buckingham's Case 4 H 8. Cromp Jur. of Courts f. 13. You have no more Conscience than a Dog Lord Abergavenny against Cartwright in the same Book You care not how you come by Goods in both which Cases the Words charge the Plaintiff with particular matter and give a Narrative of something of a false Story and do not barely rest upon an Opinion In the Bishop of Norwich his Case Cro. Eliz. 1. Viz. You have writ to me that which is against the Word of God and to the maintainance of Superstition These were held actionable because they refer to his Function and greatly defame him and yet he had but 500 Marks Damages 29 30 Eliz. 1 Cro. 67. The Lord Mordant against Bridges My Lord Mordant did know that Prude robbed Shotbolt and bid me compound with Shotbolt for the same and said he would see me satisfied for the same though it cost him an hundred pounds which I did for him being my Master otherwise the Evidence I could have given would have hanged Prude These Words were held actionable and 1000 l. Damages given and in all the other Cases which have been mentioned upon this Statute and where Iudgment was given for the Plaintiff the Words always charge him with some particular Fact and are positive and certain but where they are doubtful and general and signifie only the Opinion of the Defendant they are not actionable The Words in the Case at Bar neither relate to the Plaintiff as a Peer or a Lord Lieutenant and charge him with no particular Crime so that from the authority of all these Cases he grounded his Opinion that the Action would not lie and he said If Laws should be expounded to wrack People for Words instead of remedying one Mischief many would be introduced for in such Case they would be made Snares for Men. The Law doth bear with the Infirmities of Men as Reliligion Honour and Vertue doth in other Cases and amongst all the excellent Qualities which Adorn the Nobility of this Nation none doth so much as forgiving of Injuries Solomon saith That 't is the Honour of a Man to pass by an Infirmity Which if the Plaintiff should refuse yet the Defendant if he thinks the Damages excessive is not without his remedy by Attaint for he said he could shew where an Attaint was brought against a Iury for giving 60 l. Damages He farther said that he could not find that any Iudgment had been either reversed or arrested upon this Statute and therefore it was fit that the Law should be setled by some Rule because 't is a wretched condition for People to live under such Circumstances as not to know how to demean themselves towards a Péer and since no Limits have been hitherto prescribed 't is fit there should be some now and that the Court should go by the same Rules in the Case of a Peer as in that of common person that is not to construe the Words actionable without some particular Crime charged upon the Plaintiff or unless he alledge special damages for which Reasons he held that this Action would not lye Wyndham Iustice accorded with Scroggs and the Chief Iustice North agreed with them in the same Opinion his Argument was viz. First he said that he did not wonder that the Defendant made his Case so solemn being loaded with so great damages but that his Opinion should not be guided with that or with any Rules but those of Law because this did not concern the Plaintiff alone but was the Case of all the Nobility of England but let it be never so general and the Conveniences or Incoveniences never so great he would not upon any such considerations alter the Law He said that no Action would lie upon this Statute which would not lie at the Common Law for where a Statute prohibits a thing generally and no particular Man is concerned an Offence against such a Law is punishable by Indictment but where there is a particular damage to any person by doing the thing prohibited there an Action will lie upon the Statute and so it will at the Common Law The Words therefore which are actionable upon this Statute are so at the Common Law This Statute extends only to Peers or other great Officers now every Peer as such is a great Officer he has an Office of great Dignity he is to support the King by his advice of which he is made capable by the great Eminency of his Reputation and therefore all Words which reflect upon him as he is the Kings Councellor or as he is a Man of Honour and Dignity are actionable at the Common Law In the ordinary Cases of Officers 't is not necessary to say that the Words were spoken relating to his Office as to say of a Lawyer that He is a Sot or an Ignoramus or of a Tradesman He is a Bankrupt the Action lies though the Words were not spoken of either as a Lawyer or Tradesman He did not think that Iudges were to teach Men by what Rules to walk other than what did relate to the particular matter before them all other things are gratis dicta neither would he allow that distinction that an Action would not lie where a Man spoke only his Opinion for if that should be admitted it would be very easie to scandalize any Man as I think such a Judge is corrupt or I am of Opinion that such a Privy Councellor is a Traytor and can any Man doubt whether these or such like Words are actionable or not because spoken only in the sense of the person 'T is true in some Cases where a Man speaks his own particular disesteem an Action will not lie as if I say I care not for such a Lord but that differs much where a Man speaks his Opinion with reference to a Crime for Opinions will be spread and will have an implicit Faith and because one Man believes it another will and 't is upon this ground that all the Cases which have been since the Statute are justified and so was the late
notwithstanding Iniquum non est praesumendum may be well intended here and so Iudgment was given against the Defendant that this was no good Plea Adams versus Adams DEBT upon Bond to perform an Award Award Exceptions thereunto overruled so that it be made before or upon the 22d day of December or to choose an Vmpire The Defendant pleads no Award made The Plaintiff replies and sets forth an Award and assigns a Breach The Defendant demurrs 1. That here is no good Award Mod. Rep. 274. because the Arbitrators were to make it before or upon the 22d day of December and if they could not agrée to choose an Vmpire 2 Sand. 133. Now the Award set forth in the Replication was made by an Vmpire chosen after the 22d day of December which the Arbitrators had not power by the Submission to choose Sed non allocatur because they might have made their Award upon the 22d of December and therefore could not choose an Vmpire till afterwards for their Power was only determined as to the making an Award 2. Antea Because the Vmpire recites that the Parties submitting had bound themselves to stand to his Award which is not true Sed non allocatur because 't is but Recital 3. The Award is that the Defendant should pay the Plaintiff two Sums at several times and that several Releases shall be given presently and so the Bond and the Mony would be discharged and for that reason the Awarding the Release was void against the Plaintiff and by consequence there is nothing on his side to be done and the Court were all of Opinion that for this last reason the Award was not good Serjeant Baldwyn who was of Council for the Plaintiff said that it was an Exception which he could not answer if true but said that the Award was not that Releases should be given presently but that the Mony should be paid and Releases given by which it appears by the very Method and Order of the Award that the general Releases were not to be given till after the Mony paid and that being the Case the Court were clear of Opinion that it was well enough and so Iudgment was given for the Plaintiff Brook versus Sir William Turner Feme Covert made a Will and disposed of her Estate and good IN a Prohibition to the Spiritual Court to prove the Will of Philippa Brooks by Sir William Turner her Executor A Tryal at the Barr was had in which the Case was viz. That James Phillips by Will in Writing dated 24 Aprilis 1671. inter alia gave to Philippa for Life in lieu and full of her Dower all his Houses in Three Crown Court in Southwark purchased by him of one Mr. Keeling another House in Southwark purchased of one Mr. Bowes and all his Houses in New Fishstreet Pudding-Lane Buttolph Lane Beer Lane Duxfield Lane and Dowgate London and died That afterwards there being a Treaty of Marriage between the Plaintiff Mr. Brooks and Philippa Phillips it was agréed that all the said Houses and Rents and Profits thereof and all Debts Ready Mony Iewels and other real and personal Estate whatsoever or wherein Philippa or any in Trust for her were interessed or possessed should at any time as well before as after the Marriage be disposed in such manner as should be agreed on between them And thereupon by Indenture tripartite between Mr. Brook of the first part the said Philippa Phillips of the second part and William Williams and Francis Gillow of the third part reciting the said Will of James Phillips and the said Agréement the said Philippa in consideration of a Shilling paid to her by Williams and Gillow did with the full and free Consent of the said Edward Brook the now Plaintiff grant bargain and sell to the said Williams and Gillow all the said Houses devised by the last Will of the said James Phillips in Trust that the said Trustees should permit her to receive and enjoy the whole Rents and Profits of all the Houses purchased of Mr. Keeling and of all the Houses in Beer Lane and of two of the Houses in Broadstreet in the possession of James and Worsley and the Quarters Rent only due at Christmas then last past and no more saving to Philippa all former Rents and Arrears thereof to be received by her and not by Mr. Brook and to be imploied as therein after was mentioned And upon this farther Trust that after Mr. Brooks death in case the said Philippa survived that then the Trustées should permit Philippa and her Assigns from time to time to grant sell and dispose of the rest of the Premisses and all others whereof she was seised or possessed as she should think fit and also to receive dispose of and enjoy all the Rents and Profits of the Premisses not thereby appointed to be received by the Plaintiff for her only particular and separate use and not for the use of the Plaintiff without any account to be given for the same and not to be accounted any part of Mr. Brook's Estate and that the Acquittances of the said Philippa be good discharges against the Plaintiff and the said Trustees to joyn with Philippa in the Sale and disposition of the Premisses And Philippa in farther consideration of the said Marriage agreed to pay to Mr. Brook on the day of Marriage 150 l. and to deliver him several Bonds and Securities for Mony in the said Indenture particularly named And the said Philippa in farther pursuance of the said Agreement and in consideration of a Shilling paid to her by the said Trustees did with the like assent assign to them all her Iewels Rings Mony c. and other her real and personal Estate upon Trust that they should permit her to enjoy the same to her own separate and distinct use and to dispose thereof from time to time as well before the said Marriage as afterwards as she should think fit without any Accompt and for want of such Limitation or Appointment in Trust for her her Executors Administrators or Assigns and the Plaintiff not to hinder or impeach the same and not to be taken as any part of his Estate or be subject to his Debts Legacies or Engagements And the Plaintiff covenanted that if the Marriage took effect the Trustees should quietly enjoy the Premisses and Philippa to dispose thereof without trouble or molestation by him his Executors c. and that Philippa notwithstanding the Marriage should at any time either before or after have liberty by Deed or Will in Writing by her published in the presence of two or more credible Witnesses or otherwise howsoever at her pleasure to give and dispose all her real and personal Estate Goods Chattels c. whereof she was possessed before the said intended Marriage or at any time after or any other person in Trust for her except such part thereof as was thereby agreed to be paid to and received by the Plaintiff
the Sheriff though he take insufficient Bail but must be amerced if the Defendants do not appear Mod. Rep. 227. Antea and afterwards suffered him to go at large The Defendant pleads the Statute of 23 H. 6. cap. 10. that the took good and sufficient Bail within the County according to the Statute The Plaintiff replies that he let him go at large absque hoc that he took good and sufficient Bail within the County To this the Defendant demurred This Case was argued this Term by Serjeant Skipwith and Baldwyn for the Defendant and by Serjeant Barrel and George Strode for the Plaintiff and in their Arguments for the Defendant it was said Ex parte Def. Sid. 23. 2 Sand. 60. Cro. Eliz. 624. That the Plaintiff in this case cannot maintain an Action of Escape for where the Sheriff takes Bail no Escape will lie against him 1. Because he is compellable by the Statute to let the Defendant to Bail 2. If he have not the Defendant ready at the return of the Writ he may be amerced which is the proper remedy 3. This precept of letting the Defendant to Bail being by Act of Parliament is intended by the direction of the Plaintiff himself because all people are Parties to the making of an Act of Parliament Many Actions have been brought against Sheriffs upon Suggestions that no Bail have been taken Antea Page and Tulse and for which an Action on the Case will lie but where there is Bail taken the Sheriff hath done his duty which he is commanded to do by the Statute and if the Defendant doth not appear the Sheriff is to be amerced and he is the proper Iudge of the Bail the Plaintiff is no ways concerned therein whether good or bad At the Common Law the Defendant was to continue in Prison till he had satisfied the Plaintiff to whom no benefit was intended by this Statute but rather an ease to the Defendant that he should be from thence discharged giving good Bail and the reason why the Statute mentions such Bail is in favour of the Sheriff also Cro Eliz. 672. to secure him from Amerciaments the Bail being then for his Indempnity he is the sole Iudge both of their persons number and ability for the Statute requires two Sureties and that they shall be Men within the County yet if there is but one and he not of the County and if the Bond taken by the Sheriff for the appearance of the Defendant be but 40 l. and the Debt due to the Plaintiff be 400 l. 't is well enough 2 Cro. 286. because the Statute doth not restrain him to any Sum or Sureties for he may take what Sum he please to force the Defendant to appear And when this Security is taken the Sheriff is neither compellable to assign it to the Plaintiff or he to take it T is true he doth usually assign it but that is to discharge himself of the Amerciaments which is the way that the Plaintiff should pursue where he doth imagine the Bail to be insufficient If therefore this Statute was made for the benefit and ease of the Defendant the Security therein directed is for the indempnity of the Sheriff and therefore if no Action will lie against him for taking of insufficient Bail 't is as reasonable that no Action should lie against him when he hath taken Bail which he is compelled to do and so the Traverse in this Case is immaterial and Iudgment ought to be given for the Defendant On the other side it was argued Ex parte Quer. That an Action of Escape would lye against the Sheriff if he did not take good Bail which matter may be traversed and though here if the Defendant had rejoyned the Issue had been whether sufficient Bail within the County or not yet that part of the Issue had not been material for the only matter had rested upon the sufficiency or insufficiency of the Bail in general Like a Case adjudged in Mich. 14 Car. 2. in B. R. where a Woman had power given her by her Husband to make a Will in the presence of two credible Witnesses It was pleaded that she made a Will in the presence of A. and B. credible Witnesses and Issue was thereupon joyned Antea and it was found to be made in the presence of C. and D. who were credible Witnesses and this was held to be good because the substance was found Viz. That it was made in the presence of two credible Witnesses The Defendant therefore here ought to have taken good and sufficient Bail to bring himself within the Statute and that is traversable and the Pleadings are well enough for if there be good Bail 't is not material in what County they live Vpon the first Argument of this Case the Lord Chief Iustice inclined that an Action of Escape did lie at the Common Law against the Sheriff for it was clear that he was to keep the Party arrested in Prison 'till the Debt was satisfied and that if he had gone at large it had been an Escape the Sheriff then hath no excuse but by this Statute and to entitle himself to any benefit thereby he must pursue the very directions therein prescribed and therefore ought to take good and sufficient Bail for otherwise the Statute would be eluded if it be left in his power to take what Bail he pleases and he was of Opinion that the Plaintiff had an Interest in the Security and therefore the Sheriff was lyable if it was not good when first taken but not if by any accident afterwards the Bail miscarry or become insolvent And Iustice Wyndham was of the same Opinion that the Sheriff was lyable he differed only as to the manner of the Action which he held should be a special Action on the Case setting forth the whole matter and alledging that the Defendant did not take sufficient Bail Iustice Atkyns said the Case depends upon the construction of that * 23 H. 6. cap. 10. Statute which is very obscure and the Opinions various which have been upon it 't is plain the Sheriff is compellable to take Bail and that an Action lies against him if he refuses such as are sufficient when tendred but the question was now whether it will lie against him fortaking those who are insufficient and as to that he said that many Authorities were in our Books that the taking of Bail is left to the Sheriffs discretion and he is thereby to provide for his own indempnity for he must return a Cepi Corpus upon the Writ he cannot return that he let him to Bail according to the Statute and therefore inclined that the Action did not lie Scroggs Iustice contra He said that this Statute designed the benefit of the Creditor that he might either get the Sheriff amerced or have an Action in both which Cases he might indempnifie himself by the Security he had taken T is true he may let the
c. The Question was whether the Owner of a new House uninhabited from the time of the building thereof ought to pay this Duty during all that time Mr. Pollexfen and Mr. Sympson argued that they shall not be chargeable with this Duty their general Reason was because no Duty should arise to the King without some benefit to the Subject And as to that it was said that in this Case both the Revenue of the Crown and the Property of the Subject are concerned from which as from a Root all these Impositions arise to sustain the publique Charge And therefore It hath been the way of Iudges in the Interpretations of Statutes not only to consider the benefit of the Crown but to regard what is convenient for the Subject There are two Reasons for Impositions 1. Such as are Customs viz. Tunnage and Poundage and private Tolls which come in lieu of other things and so are quid pro quo 2. Subsidies or Grants from the People which naturally arise in some proportion from a benefit to the Subject And under the last of these Reasons falls the present Duty given by the Act of 14 Car. only to proportion the Revenue to the publique Charge of the Crown and therefore 't is not to be thought that the Parliament ever intended a Duty to the King where the Subject had no benefit for ex nihilo nihil fit and how can it be thought that a Duty should be paid before the Subject hath any Rent which is the Mother of the Duty for if a Man expends 1000 l. in building which is all he is worth and the Houses should happen not to be let how can he then raise such a Sum as must be paid to the King And 't is an Objection of no weight to say if this Duty must not be paid till the Houses are let then the Revenue of the King depends upon a Contingency because all Duties which come to the Crown do depend upon such The next thing to be considered is the Act it self and as to that 1. It must be taken as an Act which gives a new Duty to the Crown and thereupon such Construction ought to be made that the Subjects Estate be not charged further than the Words will bear and for that reason it is to be taken in an ordinary sense and not to be strained though it had been in the Case of an old Duty and for that the * 7 Co. 21. Lord Anderson's Case is a good Authority viz. The Statute of 33 H. 8. cap. 30. makes all Mannors which descend to any Heir whose Ancestor was indebted to the King by Judgment Recognisance Obligation or other Specialty chargeable for payment of the Debt Tenant in Tail is bound in a Recognizance to S. who is attainted then Tenant in Tail dies and his Issue aliens bona fide the King cannot extend the Lands so sold because the Act shall not be construed to mean all Recognizances for the Kings Debts though the Words are general enough and though 't is not said which way the Debts shall come to the King either by Forfeiture Attainder c. yet they shall be taken in an ordinary sense viz. such debts as were due to the King originally for which reason it has been always held where an Act gives any thing to the King and lays a Charge upon the Subject in such Case it ought to have a moderate construction And that this Duty is a Gift cannot be denied for 't is called so in the very Act therefore such ought the Construction to be and the rather because it is more for the Kings Honour it should be so and both in this Case as well as in Constructions of his Grants the Law hath more regard for his Honour than for his Profit 2. This being so called a Duty or Tax by the very Words of the Act doth in the natural sense import a proportion out of that in which the Subject hath a benefit and it will be scarce found that there hath been a general Tax given to the King where the Subject has rather received a loss than any profit out of the thing taxed because it would be very hard to pay where a Man cannot receive In the Case of Tunnage and Poundage provision is made that the Party shall have Allowance if the Goods be lost by Pyracy which was mentioned to shew how unlikely it was that the Parliament should intend a Duty where the Subject had a loss Ever since the making the Statute of 43 Eliz. cap. 2. Houses that lay void and untenanted have neither paid to Church or Poor which also shews how the Vsage hath beén in Cases almost of the like nature The next thing considered were the Clauses in this Act of 14 Car. 2. cap. 10. 1. The first Clause gives a Duty viz. That every Chimny and Stove shall pay 2 s. 2. The next Clause is to bring this Duty into a way of Charge viz. That every Owner or Occupier shall give unto the Constable an accompt of the number of Hearths in Writing and the Constables to transmit such Accompts to the Sessions there to be enrolled by the Clerk of the Peace and a Duplicate to be sent into the Exchequer From which it is to be observed that where mention is made of bringing this Duty into a Charge both Owners and Occupiers are named but the Owner is not named in any place where the payment of the Duty is mentioned but the Occupier only so that from the very intent and reason of the Act he cannot be chargeable The Accompt thus transmitted is to charge the Inheritance and therefore it concerns the Owner to look after the Charge but for empty Houses he cannot be charged because the Act takes no notice of them in the Clause of Payment but are purposely omitted that being laid on the Occupier and this appears by the Proviso which is strongly penned for the Subject Viz. Provided that the Payments and Duties hereby charged shall be charged only upon the Occupier for the time being c. and not on the Land-Lord who lett and demised the same so that by the Body of the Act every House is charged which being general might have given some colour to charge the Owner but by the Proviso the Payment is restrained to the Occupier and if there be no such there shall be no Payment It was said that it cannot be insisted upon that an Owner is an Occupier because the legal acceptance of the Word Occupation doth only intend an actual Possession and not a Possession in Law and such is the meaning of the Statute by charging the Occupier for the time being If therefore the Proviso extends to Cases where Tenants run away and pay no Rent as it certainly doth because there is no Occupier then in being what difference can there be between that and this Case where the Land-Lord in both hath no Rent for if he shall not pay where he cannot receive
upon complaint made and Conviction he shall forfeit 500 l. so that as to himself whatever he doth in his Office is void but it was never the intent of the Act to work a Mischief or Wrong to Strangers for the Law favours what is done by one in reputed authority as if a Bishop be created who upon a Presentation made admits a Parson to a Benefice or collates by Lapse the former Bishop not being deprived or removed such acts are good and not to be avoided Cro. Eliz 699. Cro Car. 97. 2 Cro. 260. But admitting it to be an Error it cannot now be assigned for such because the Parties in Pleading have allowed the proceedings to be good upon Record and there is Iudgment against the Defendant but if he had been taken upon that Iudgment he might have brought an Action of false Imprisonment 2 Cro. 359. Cro. Eliz. 320. Wild Iustice You shall not assign that for Error which you might have pleaded especially having admitted it by pleading and one Musgrave's Case was cited which was that there is an Act of Parliament which lays a Tax upon all Law proceedings and makes them void if the Kings Duty be not paid and it was adjudged That if the Duty was not paid but admitted in pleading you shall not afterwards alledge what before was admitted viz. That the Duty was not paid Vpon a Writ of Error in Parliament it cannot be assigned for Error that the Chief Iustice of the Kings-Bench had not taken this Oath the same might be also of a Writ of Error in the Exchequer Chamber for an Error in Fact cannot be there assigned Sid. 253. but at the last the Iudgment was Reversed See the Reasons thereof by the Chief Iustice Jones in his Reports folio 81. Higginson versus Martin in C. B. IN an Action of Trespass and false Imprisonment If Cause of Action doth not arise within the Jurisdiction tho' Judgment is given below an Action will lie here the Defendant justifies by Process issuing out of the Court of Warwick upon a Iudgment obtained there and sets forth that there was a Plaint there entered in placito transgressionis to which the Defendant appeared super quo taliter processum fuit that Iudgment was given against him upon which he was taken and Imprisoned The Plaintiff replies That the Cause of Action did not arise within the Iurisdiction of that Court. The Defendant rejoyns that the Plaintiff is now estopped to say so for that the Declaration in the Inferiour Court against the now Plaintiff did alledge the cause of Action to be infra jurisdictionem of the Court to which he pleaded and Iudgment was given against him The Plaintiff demurrs And Newdigate Serjeant took Exceptions to the Plea 1. Ex parte Quer. 'T is said a Plaint was entered in placito transgressionis but 't is not said what kind of Trespass it was whether a clausum fregit or other Trespass 2. 'T is said that the Defendant appeared super quo taliter processum fuit that Iudgment was given for the Plaintiff Antea and no mention was made of any Declaration and the pleading taliter processum est in an Inferiour Court is not good 3. The Iustification is ill because the Inferiour Court had no Iurisdiction and so the Proceedings are coram non Judice for the Plaintiff in his Replication saith That the Trespass for which the Recovery was had in the Court of Warwick Moor 422. Latch 180. Cro. Jac. 184. was done at a place out of the Iurisdiction of the Court which the Defendant hath admitted by relying on his Plea by way of Estoppel 4. It did not appear by what Authority the Court at Warwick was held whether by Grant or Prescription These Exceptions were answered by Serjeant Hopkins Ex parte Def. and first he said That the Plaintiff there sets forth that levavit quandam querelam in placito transgressionis which was well enough Secondly taliter processium fuit is the shorter and better way of Pleading and therefore in a Scire Facias nothing is recited but the Iudgment 't is true in a Writ of Error the whole Record must be set out but that is not necessary here Thirdly 't is too late now to question the Iurisdiction of the Inferiour Court after the Party hath admitted it below he ought first to have pleaded to the Iurisdiction but now is Estopped by his own admittance there and since Iudgment is given upon it 't is not now to be questioned but however this being in the Case of an Officer if it was out of the Iurisdiction he is bound to execute the Process of the Court and so this is a good excuse for him Dyer 61. 10 Co. 77. But let the Pleadings be good or bad if the Declaration here be ill the Plaintiff cannot have Iudgment and that it was so he said that the Writ alledged an Imprisonment generally but the Count an Imprisonment donec he paid 5 l. 10 s. which is variant and the Prothonotaries said that the Writ used always to mention donec c. Curia But the Court were all of Opinion that the Count was well enough for there was no matter therein contained which was not in the Writ the Imprisonment was the Gist of the Action and the donec c. might have been given in Evidence because 't is only an aggravation and a consequence of the Imprisonment so that the Count is not larger but more particular than the Writ And as to the two first Exceptions the Court was also of Opinion that there was no difficulty in them or in the last Exception but thought the Plea was well enough as to those And they also agreed that the Officer in this Case was to be discharged for though the Process be erronious yet he is to obey and not to examine 2 Cro. 3. Weaver versus Clifford The great doubt in this Case was upon the third Exception as to the point of Iurisdiction Sid. 151. Latch 181. and whether the other Defendant who was the Plaintiff below should be likewise discharged was the Question And as to that the Chief Iustice and Wyndham Iustice were of Opinion That this was no good justification as to the Plaintiff below for if the cause of Action did arise without the Iurisdiction of which he is bound to take notice the proceedings quoad him are all coram non Judice and he cannot justifie the serving of any Process so that if the Trespass was done out of the Iurisdiction of the Court the Defendant below may bring an Action against the Plaintiff and is not concluded here by the proceedings there but may alledge the cause of Action to arise out of the Iurisdiction and as to his being Estopped by admitting of the Iurisdiction below that cannot be because an admittance cannot give the Court a Iurisdiction where it had none originally and so he said it was resolved in one Squib's Case in a
special Verdict He who sues in an Inferior Court is bound at his peril to take notice of the Bounds and Limits of that Iurisdiction and if the Party after a Verdict below prays a Prohibition and alledges that the Court had no Iurisdiction a Prohibition shall be granted and 't is no Estoppel that he did not take advantage of it before 1 Roll. Abr. 545. But Iustice Atkins and Scroggs were of another Opinion they agreed that if an Action be brought in an Inferior Court if it be not said to be infra Jurisdictionem Curiae they would never presume it to be so but rather to be without if not alledged to be within the Iurisdiction and here in the Plea 't is not shewn at all so that as the Case stands upon the Plea the Proceédings are coram non Judice and there is no legal Authority to warrant them and by consequence the Officer is no more to be excused than the Party because also 't is in the Case of a particular Iurisdiction And so it hath béen adjudged upon an Escape brought against an Officer of an Inferior Court wherein the Plaintiff declared that he had brought an Action upon a Bond against S. in the Court of Kingston and that he had Iudgment and Execution and the Defendant suffered him to escape this Declaration did not charge the Defendan because the Bond was not alledged to be made infra Jurisdictionem Curiae for though such an Action is transitory in its nature yet the Proceedings in an inferior Court upon it are coram non Judice if it doth not appear to be infra Jurisdictionem 1 Roll. Abr. 809. though in the Case of a general Iurisdiction it might be otherwise But here the Rejoynder doth help the Plea for the Plaintiff having replied that the Trespass was committed out of the Iurisdiction and the Defendant having rejoyned that he had alledged in his Declaration below that the Trespass was done within the Iurisdiction 't is now all one Plea and the Plaintiff hath confessed it by his Demurrer so that in regard it was alledged below and admitted there 't is a good Plea both for Officer and Party and the Plaintiff cannot now take advantage of it but is concluded by his former admittance and it shall not be enquired now whether true or false And as to the taliter processum fuit they all held it well enough and that there was no necessity of setting out all the Proceedings here as in a Writ of Error And as to the last Exception 't is said that the Burrough of Warwick is antiquus Burgus and that the Court is held there secundum consuetudinem which is well enough Jones's Case Common Pleas cannot grant Habeas Corpus in Criminal Cases IT was moved for a Habeas Corpus for one Jones who was committed to New Prison by Warrant from a Iustice of Peace for refusing to discover who intrusted him with the keeping of the Keys of a Conventicle and for that he had been instrumental to the Escape of the Preacher he was asked by the Iustice to give Security for his Good Behaviour which he also refused and thereupon was committed The Chief Iustice doubted that a Habeas Corpus could not be granted in this Case because it was in a criminal Cause of which the Court of Common Pleas hath no Iurisdiction and that seemed to be the Opinion of my Lord Coke Vaugh. 157. 2 Inst 53. 2 Inst 55. where he saith it lies for any Officer or priviledged Person of the Court. There are three sorts of Habeas Corpus in this Court one is ad respondendum Mod. Rep. 235. which is for the Plaintiff who is a Suitor here against any Man in Prison who is to be brought thereupon to the Barr and remanded if he cannot give Sureties There is another Habeas Corpus for the Defendant ad faciend ' recipiend ' as to this the same Iurisdiction is here as in the Court of Kings Bench if a person be near the Town by the course of the Court he may be brought hither to be charged and then the Habeas Corpus is returnable immediate but if he be remote it must then be returnable in the Court at a certain day these are the Habeas Corpus's which concern the Iurisdiction of this Court and are incident thereunto There is another which concerns Priviledge when the Party comes and subjects himself to the Court to be either bailed or discharged as the Crime is for which he stands charged and if he be priviledged this Court may examine the Case and do him right if a private man be committed for a criminal Cause we can examine the Matter and send him back again Before King James's Reign there was no Habeas Corpus but recited a Priviledge as in the Case of Priviledge for an Attorny so that if this Court cannot remedy what the Party complains 't is in vain for the Subject to be put to the trouble when he must be sent back again neither can there be any failure of Iustice because he may apply himself to a proper Court and of the same Opinion were Wyndham and Scroggs But Iustice Atkins was of another Opinion for he could see no Reason why there should not be a Right to come to this Court as well as to the Kings Bench. And that Vaughan Wild and Archer Iustices were of Opinion that this Court may grant a Habeas Corpus in other Cases besides those of Priviledge Afterwards the Prisoner was brought to the Court upon this Habeas Corpus but was remanded because this Court would not take Sureties for his Good Behavior The Chief Iustice said that when he was not on the Bench he would take Sureties as a Iustice of Peace And Monday late Secondary informed him that Iustice Wild when he sate in this Court did once take such Sureties as a Iustice of Peace Anonymus IT was the Opinion of the Chief Iustice North In Replevin both are Actors that in a Replevin both Parties are Actors for the one sues for Damages and the other to have the Cattle and there the place is material for if the Plaintiff alledges the taking at A. and they were taken at B. the Defendant may plead Non cepit modo forma but then he can have no Return for if he would have a Retorn ' Habend ' he must deny the taking where the Plaintiff hath laid it and alledge another place in his Avowry Sir Osborn Rands versus Tripp THE Plaintiff was a Tobacconist and lived near Guild-Hall London he married the Daughter of the Defendant New Trial granted who was an Alderman in Hull and had 400 l. Portion with her after the Marriage the Defendant spoke merrily before thrée Witnesses That if his Son-in-Law would procure himself to be Knighted so that his Daughter might be a Lady he would then give him 2000 l. more and would pay 1000 l. part thereof presently upon such Knighthood and the
is not like the Case at the Barr where 't is not a Stranger but the Obligee himself that must procure the Conveyance for 't is to be advised by his Council and to be done at his Costs and therefore in * 5 Co. 23. Lamb's Case it was held that if a Man be bound to give such a Release before such a day as the Iudge of the Admiralty shall direct there 't is no Plea to say that he appointed none for the Iudge being a Stranger to the Condition 1 Roll. Abr. 452. lit L. placito 6. the Defendant is to apply himself to him having undertaken to perform it at his peril which is the same Resolution with Moor's Case in Crook So that he took it for a Rule in all Cases that where the Act of God or of the Obligée discharges the Obligor from one part of a disjunctive Obligation that the Law discharges him of the other and therefore prayed Iudgment for the Defendant Dyer 361. Ex parte Quer. Serjeant Pemberton contra It appears that one thing or the other was to be done in this Case for if the Plaintiff demanded and tendred an Annuity the Defendant was to seal it and if he did not tender it then likewise the Defendant was to do something viz. to pay 300 l. So that the Plaintiff was either to have the Annuity or the Mony He agreed that where the Obligor hath the Election if in such Case the Obligée shall wilfully determine it that the Bond is thereby discharged But if a Stranger take away the Election 't is no discharge for in such case the other part is to be performed In this case the Plaintiff hath done no wilful Act to determine the Defendants Election but all which is pretended is that he hath not done something necessary to be performed which is that he hath not made a request But by his omission thereof the Defendants Election is not taken away for though no request was made within the six Months yet the Defendant might have prepared a Grant of the Annuity himself and have offered it to the Plaintiff within the six Months upon the last part of the day and if he had thus set forth his case and alledged that the Plaintiff made no request nor tendered him a Grant of the Annuity to Seal this had been a good performance of the Condition for he had done that which was the substance which though it was to be done at the Plaintiffs charge yet the Defendant might have brought an Action for so much Mony by him laid to the use of the other and the Cases put in the principal Case in Moor 645. are expressly for the Plaintiff in this Case where the Iudgment was That if there be a Statute with a Defeazance to make such Conveyance as the Council of the Conusee shall direct the Cognisor must prepare the Conveyance if the other doth not and there is a Case put where a thing was to be done at the Costs of the Plaintiff yet the Defendant did it at his own Charge which he recovered of the other North Chief Iustice Judgment and the whole Court were of Opinion that the Plea was good because the Defendant had the benefit of Election and the Plantiff not making the request within the six Months had dispensed with one part of the Condition and the Law hath discharged the Defendant of the other part and they relied upon the Case of Grenningham and Ewre which they held to be good Law and an Authority express in the very point In this Case the Obligee was to do the first act Viz. To make the request Where the Condition is single concilium non dedit advisamentum is a good Plea to discharge the Defendant so here the Condition is but single as to the Defendant for though it be disjunctive yet the Plaintiff hath taken away the benefit of Election from the Obligor of doing the one and therefore he shall be excused from doing the other The Pleading as alledged by the Council of the Plaintiff would not have been a good performance of the Condition for if one be bound to Convey as the Council of the other shall advise and he makes the Conveyance himself this is not such a Deed as was intended by the Parties and so no performance of the Condition But however the Defendant need not plead it for he is not bound so to do Here if the Plaintiff had requested the Sealing of such a Grant of an Annuity even the Defendant had liberty either to execute it or to pay the 300 l. and where the Election is on the Obligors part neither the act or neglect of the Obligee shall take it away from him for it would be unreasonable that the Obligee should have his choice either to accept of the Annuity or the 300 l. when 't is a known Rule That all Conditions where there is a Penalty in the Bond are made in favour and for the benefit of the Obligor and the 300 l. in this case to be paid upon the refusal of the Defendant to make such Grant is in the nature of a Penalty to enforce him to do it The principal Case in Moor 645. was agreed to be Law but the Rule there put was denied as not adequate to the present Case which was that if by the Act of God or of the Party or through default of a Stranger it becomes impossible for the Obligor to do one thing in a disjunctive Condition he is notwithstanding bound to do the other This is true only as to the last Case but not to the two first and for an Authority * 5 Co Laughter's Case was full in the Point which is that when a Condition consists of two parts in the disjunctive and both are possible at the time of the Bond made and afterwards one becomes impossible by the Act of God or of the Party the Obligor is not bound to perform the other part And Iudgment was given for the Defendant Smith versus Tracy In Banco Regis Distribution shall be equally made amongst the Children of the whole and half Blood Mod. Rep. 209. Jones 93. 1 Ventris 307 IN a Prohibition The Case was A Man dies intestate having three Brothers of the whole Blood and a Brother and Sister of the half Blood and the Question was whether they shall be admitted to a distribution in an equal degreé Mr. Holt argued that they were all in aequali gradu because before the Act of Distribution the Ordinary had power to compel the Administrator to give and allot filial Portions to the Children of the deceased out of his Estate And by the Civil Law such provision is made for the Children of the Intestate that the Goods which either the Father or Mother brought to each other at the Marriage shall not remain to the Survivor but the use and occupation of them only during Life for the Property did belong to the Children
Heir Male of the Body of the Devisor had by this Limitation an Estate Tayl as by Purchase and that the Inheritance in Fee simple did not vest in Francis 2. If Thomas the Covenantor had no Estate executed in him yet William his Son in this Case may take by way of future springing use because the Limitation of an Estate upon a Covenant to stand seised may be made to commence after the Ancestors Death for the old Seisin of the Covenantor is enough to support it There is a great difference between a Feoffment to Vses and a Covenant to stand seised for by the Feoffment the Estate is executed presently 1 Co. 154. Rector of Cheddington's Case So if there be a Feoffment to A. for Life Remainder to B. in Fee if A. refuse B. shall enter presently because the Feoffor parted with his whole Estate but if this had been in the Case of a Covenant to stand seised if A. had refused the Covenantor should have enjoyed it again till after the death of A. by way of springing use like the Case of Parsons and Willis 2 Roll. Abr. 794. Where a Man Covenants with B. That if he doth not marry he will stand seised to the use of B. and his Heirs B. dies the Covenantor doth not marry this Vse arises as well to the Heir of B. as to B. himself if he had been living and he shall have the Land in the nature of a descent But if William cannot take it either by purchase or by descent he shall take it 3. Per formam doni as special Heir to Thomas This Case was compared to that in Littleton Sect. 23. If Lands are given to a Man and the heirs Females of his Body if there be a Son the Daughter is not Heir but yet she shall take it for voluntas donatoris c. So if Lands are given to a Man and the Heirs Males of his Body the youngest Son shall have it after the death of the eldest leaving Issue only Daughters for these are descents secundum formam doni So in this Case the Estate Tail vested in Edward and when he died without Issue it comes to William per formam doni Object The Case of Greswold in 4 5 Ph. Mariae Dyer 156. seems to be express against this Opinion which was that Greswold was seised in Fee and made a Grant for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs he had Issue two Sons and dyed the eldest Son had Issue a Daughter and dyed and if the Daughter or her Vncle should have the Land was the question in that Case And it was adjudged that the Limitation of the Remainder was void because Greswold could not make his right Heir a Purchasor without departing with the whole Fee Postea Brittain and Charnock and therefore Iudgment was given against the special Heir in Tail for the Heir general which was the Daughter Answ Admit that Case to be Law yet the Iudges there differed in their Arguments 'T is not like this at Bar for that Case was not upon a Covenant to stand seised but upon a Deed indented and so a Conveyance at the Common Law But for an Authority in the point the Case of Pybus and Mitford was cited and relied on which was Trin. 24 Car. 2. Rot. 703. Mod. Rep. 159. 1 Ventris 372. adjudged by Hales Chief Iustice Rainsford and Wild but Iustice Twisden was of a contrary Opinion Serjeant Stroud who argued on the other side made three Points 1. Whether this Limitation be good in its creation 2. If the Estate Tail be well executed in Thomas the Covenantor 3. If it be good and well executed whether when Edward died without Issue the whole Estate Tail was not spent 1. And as to the first Point he held that this Limitation to the Heirs Males of Thomas was void in the creation because a Man cannot make himself or his own right Heir a Purchasor unless he will part with the whole Estate in Fee Dyer 309 b. If A. being seised in Fee makes a Lease for Life to B. the Remainder to himself for years this Remainder is void so if it had been to himself for Life because he hath an Estate in Fee and he cannot reserve to himself a lesser Estate than he had before 42 Ass 2. If I give Lands to A. for Life the Remainder to my self for Life the Remainder in Fee to B after the death of A. in this Case B. shall enter for the Remainder to me was void 1 H. 5. 8. 42 Edw. 3. 5. Bro. Estate 66. Dyer 69. b. 'T is true these Cases are put at the Common Law but the Statute of Vses makes no alteration for according to the Rules laid down in Chudleigh's Case by my Lord Chief Iustice Popham 1 Co. 138. 1. Vses are odious and so the Law will not favour them 2. A Rule at Common Law shall not be broke to vest an Vse and the Vses here cannot vest without breaking of a Rule in Law 3. Vses are raised so privately that he who takes them may not know when they vest and for that reason they are not to be favoured 4. The Statute annexes both the Possession and the Vse together as they vest and divest both together Moor 713. 2 Co. 91. Co. Lit. 22. Moor 284. 2. As to the second Point The Estate is not executed in Thomas and therefore William cannot take it by descent Heirs of his Body or Heirs Male are good Words of Limitation to take by Purchase from a Stranger but not from an Ancestor for there he shall take by descent and for this there is an Authority Co. Lit. 26. b. John had Issue by his Wife Roberga Robert and Mawd John dies Michael gave Lands to Roberga and to the Heirs of her Husband on her Body begotten Roberga in this Case had but an Estate for Life for the Fee Tail vested in Robert and when he died without Issue his Sister Maud was Tenant in Tail per formam Doni and in a Formedon she counted as Heir to Robert which she was not neither was she Heir to her Father at the time of the Gift yet it was held good for the Words Viz. Heirs of the Body of the Father were Words of Purchase in this Case If therefore no Vse for Life vested in Thomas then William cannot take by descent Dyer 156. Co. Lit. 22. Hob. 31. Dyer 309. 1 Co. 154. Lord Paget's Case cited in Hob. 151. 3. To the third Point Admitting both the former to be against him yet since Edward is dead without Issue the Estate Tail is spent But the whole Court were of Opinion Judgment That William should Inherit this Land in question for though at the Common Law a Man cannot be Donor and Donee without he part with the whole Estate yet 't is otherwise upon a Covenant to stand seised to Vses And if any other Construction should be made
many Settlements would be shaken in which nothing was more usual now than to Covenant to stand seised to the Vse of himself and the Heirs Males of his Body c. They all agreed also That the Estate being well limited William should take per formam Doni as special Heir for Voluntas Donatoris in charta manifeste expressa observetur and 't is apparent Thomas intended that William should have it or else the Limitation to his Heirs Males had been needless So that taking it for granted that the Estate Tail once vested is not spent by his dying without Issue but it comes to William by descent and not as a Purchasor for so he could not take it because he is not Heir and till Thomas be dead without Issue the Tail cannot be spent so there was no difficulty in that Point And they held the Opinions of Dyer and Saunders in Creswold's Case to be good Law who were divided from the other Iustices but they doubted of Pybus and Mitford 's Case whether it was Law or not they doubted also whether by any Construction Thomas could be said to have an Estate for Life by implication they doubted also of the springing Vse but they held that this Limitation was good in its creation and Iudgment was given accordingly Cockram Executor versus Welby Statute of Limitations not pleadable by a Sheriff who levied mony by fi fa. and nine years pass Mod. Rep. 245. IN Debt the Plaintiff declared that his Testator recovered a Iudgment in this Court upon which he sued out a Fieri facias which he delivered to the Defendant being Sheriff of Lincoln and thereupon the said Sheriff returned Fieri feci but that he hath not paid the Mony to the Plaintiff per quod actio accrevit c. The Defendant pleaded the Statute of Limitations to which the Plaintiff demurred And the question was whether this Action was barely grounded on the Contract or whether it had a Foundation upon matter of Record If on the Contract only then the Statute of 21 Jacobi cap. 16. is a good Plea to barr the Plaintiff of his Action which Enacts That all Actions of Debt grounded upon any Lending or Contract without Specialty shall be brought within six years next after the Cause of Action doth accrew and in this Case nine years had passed But if it be grounded upon matter of Record that is a Specialty and then the Statute is no barr Serjeant Barrel held this to be a Debt upon a Contract without specialty for when the Sheriff had levied the Mony the Action ceases against the Party and then the Law creates a Contract and makes him Debtor as it is in the Case of a Tally delivered to a Customer It lies against an Executor where the Action arises quasi ex contractu which it would not do if it did not arise ex maleficio as in the Case of a Devastavit 'T is true The Iudgment recovered by the Testator is now set forth by the Plaintiff Executor but that is not the ground but only an inducement to the Action for the Plaintiff could not have pleaded nul tiel Record so that 't is the meer receiving the Mony which charges the Defendant and not virtute Officii upon a false return for upon the receipt of the Mony he is become Debtor whether the Writ be returned or not and the Law immediately creates a Contract and Contracts in Law are as much within the Statute as Actual Contracts made between the Parties All which was admitted on the other side but it was said that this Contract in Law was chiefly grounded upon the Record and compared it to the Case of Attornies Fees which hath been adjudged not to be within the Statute though it be quasi ex contractu because it depends upon Matter of Record Rolls Abridg. tit Debt 598. pl. 17. And afterwards in Michaelmas-Term following by the Opinions of the Chief Justice Wyndham and Atkins Iustices it was held that this Case was not within the Statute because the Action was brought against the Defendant as an Officer who acted by vertue of an Execution in which Case the Law did create no Contract and that here was a Wrong done for which the Plaintiff had taken a proper remedy and therefore should not be barred by this Statute Iustice Scroggs was of a contrary Opinion for he said if another received Mony to his use due upon Bond the Receipt makes the Party subject to the Action and so is within the Statute But by the Opinions of the other Iustices Iugdment was given for the Plaintiff Major versus Grigg In Banco Regis THE Plaintiff brought an Action Covenant to save harmless and the Plaintiff sets forth no Title in the disturber good after Verdict Cro. Eliz. 914. Cro. Jac. 315 425. Vaugh. 120 121. 2 Sand. 178. Mod. Rep. 66. for that the Defendant Non indempnem conservavit ipsum de concernente occupation̄ quorundam clausorum c. secundum formam agreamenti and sets forth a disturbance by one who commenced a Suit against him in such a Term concernente occupation̄ clausorum praed ' but doth not set forth that the person suing had any Title which it was said ought to have been shewn as if a Man makes a Lease for years and covenants for quiet enjoyment in an Action brought by the Lessee upon that Covenant it must be shewn that there was a lawful Title in the person who disturbed or else the Action will not lie But this being after a Verdict and the Plaintiff setting forth in his Declaration that the disturber recovered per Judicium Curiae the Court now were all of Opinion that Iudgment should be given for the Plaintiff Taylor versus Baker In Banco Regis Payment to the Marshal no discharge to the Plaintiff at whose Suit the Defendant was in Execution Jones 97. THE Case was viz. a Man being in Execution doth actually pay the Mony to the Marshal for which he was imprisoned and thereupon was discharged and whether he should pay it again to the Plaintiff upon a second Execution was the Question Sanders argued that he should not pay it again he said this Case was never adjudged and therefore could produce no Authority in Point to warrant his Opinion but parallel Cases there were many As if the Sheriff take Goods in Execution by vertue of a Fieri Facias whether he sells them or not yet being taken from the party against whom the Execution was sued he shall plead that taking in discharge of himself and shall not be liable to a second Execution though the Sheriff hath not returned the Writ and the reason is because the Defendant cannot avoid the Execution and he would therefore be in a very bad condition if he was to be charged the second time And if the Sheriff should die after the Goods are taken in Execution his Executors are liable to the Plaintiff to satisfie the debt for they have paid pro
and yet it was objected that there he was a Iudge Quaere Brook 204. March 117. for which Reasons he prayed Iudgment for the Plaintiff Curia But the whole Court were of Opinion that the bringing of this Action was a greater Offence that fining of the Plaintiff and committing of him for Non-payment and that it was a bold attempt both against the Government and Iustice in general The Court at the Old-Bayly had Iurisdiction of the Cause and might try it and had power to punish a Misdemeanour in the Iury they thought it to be a Misdemeanour in the Iury to acquit the Prisoners which in truth was not so and therefore it was an Error in their Iudgments for which no Action will lie How often are Iudgments given in this Court reversed in the Kings Bench And because the Iudges have been mistaken in such Iudgments must that needs be against Magna Charta the Petition of Right and the Liberties of the Subject These are mighty words in sound but nothing to the Matter There hath not béen one Case put which carries any resemblance with this those of Iustices of the Peace and Mayors of Corporations are weak instances neither hath any Authority been urged of an Action brought against a Iudge of Record for doing any thing quatenus a Iudge That Offences in Iury-men may be punished without Presentment is no new Doctrin as if they should either eat or drink before they give their Verdict or for any contempt whatsoever but 't is a new Doctrin to say that if a Fine be set on a Iury-man at the Old-Bayly he hath no remedy but to pay it for a Certiorari may be brought to remove the Order by which it was imposed and it may be discharged if the Court think fit As to what hath been Objected concerning the Liberty of the Subject that is abundantly secured by the Law already a Iudge cannot impose upon a Iury for giving their Verdict contrary to Evidence if he doth any thing unjustly or corruptly complaint may be made to the King in whose Name Iudgments are given and the Iudges are by him delegated to do Iustice but if there be Error in their Iudgments as here 't is void and therefore the Barons of the Exchequer might refuse to issue Process upon it and there needs no Writ of Error for the very Estreats will be vacated Though the Defendants here acted erroneously yet the contrary Opinion carried great colour with it because it might be supposed very inconvenient for the Iury to have such liberty as to give what Verdicts they please so that though they were mistaken yet they acted judicially and for that Reason no Action will lie against the Defendant and Iudgment was given accordingly The Case of the Warden of the Fleet. COmplaint was made by Serjeant Turner on the part of the Parishioners of St. Brides London against the Warden of the Fleet and his Prisoners for that he suffered several of them to be without the Walls of his Prison in Taverns and other Houses adjoyning to the Prison and fronting Fleet-Ditch where they committed Disorders and when the Constable came to keep the Peace and to execute a Warrant under the Hand and Seal of a Iustice of Peace they came in a tumultuous manner and hindered the execution of Iustice and rescued the Offenders and often beat the Officers the Warden often letting out 20 or 30 of his Prisoners upon any such occasion to inflame the Disorder It was prayed therefore That this Court to which the Prison of the Fleet doth immediately relate might give such Directions to the Warden that these Mischiefs for the future might be prevented and that the Court would declare those Houses out of the Prison to be subject to the Civil Magistrate The Court were all of Opinion but Iustice Atkins Curia who doubted that nothing can properly be called the Prison of the Fleet which is not within the Walls of the Prison and that the Warden cannot pretend an exemption from the Authority of the Civil Magistrate in such places as are out of the Prison Walls though Houses may be built upon the Land belonging to the Fleet for the preservation of the Kings Peace is more to be valued than such a Private Right But Iustice Atkyns said if such places were within the Liberties of the Fleet he would not give the civil Magistrate a Iurisdiction in prejudice of the Warden but thought it might be fit for the Court to consider upon what reason it was that the Warden of the Fleet applied such Houses to any other uses than for the benefit of the Prisoners whereupon the Court appointed the Prothonotaries to go thither and give them an account of the matter and they would take farther Order in it St. Mary Magdalen Bermondsey Church in Southwark In Scaccario Rate for Building a Church shall be set by the Parishioners Jones 89. Mod. Rep. 236. IN a Prohibition it was the Opinion of the whole Court That if a Church be so much out of Repair that 't is necessary to pull it down and that it cannot be otherwise repaired that in such case upon a general warning or notice given to the Parishioners much more if there be notice given from House to House the major part of the Parishioners then present and meeting according to such notice may make a Rate for pulling down of the Church to the Ground and Building of it upon the old Foundation and for making of Vaults where they are necessary as they were in this Church by reason of the springing Water and though the Rate be higher than the Mony paid for doing all this yet 't is good and the Churchwardens are chargeable for the Overplus they not being able to compute to a Shilling That if any of the Parishioners refuse to pay their Proportion according to the Rate they may be Libelled against in the Spiritual Court and if the Libel alledge the Rate to be pro reparatione Ecclesiae generally though in strictness Ecclesia contains both the Body and Chancel of the Church yet by the Opinion both of the Court of Common Pleas and of the Exchequer It shall be intended that the Rate was only for the Body of the Church but in this Case it was made appear clearly that the Rate was only for the Body and that the Minister was at the charge of the Chancel And both Courts agreed That when a Prohibition is moved and desired on purpose to stop so good a Work as the Building a Church the Court will not compel the Parties to take Issue upon the Suggestion when upon examination they find it to be false and therefore will not grant a Prohibition for if the Rate be unduly imposed the Party grieved hath a Remedy in the Spiritual Court or may Appeal if there be a Sentence against him The Bishop or his Chancellor cannot set a Rate upon a Parish but it must be done by the Parishioners themselves
according to the computed or improved value and therefore he inclined that the Action would not lie The Exemplification of the Decree was offered to be read which being opposed Serjeant Maynard informed the Court that nothing was more usual than to read a Sentence in the Ecclesiastical Court or a Decree in Chancery as Evidence of the Fact It being allowed to be read the Council for the Defendant took notice that the Commission was therein mentioned which was returned into Chancery and burned when the Six Clerks Office was on fire in the year 1618. but a Duplicate thereof was produced which the Defendant had from the Heir of the Harveys and so the Survey was praied to be read which was opopsed by Sir William Jones for he said that it was no Duplicate the Commissioners Names being all written with one Hand and no proof being made that it was a true Copy of that which was returned he likewise observed upon the reading of the Decree that it was an Evidence for the Plaintiff because if there had been a setled Rule for payment of the Fines there had been no occasion to seek relief in Equity and that there was no reason that the Defendant should come into a Court of Law to prove such Settlement by a Decree in Chancery for if there be such a Decree his Remedy is proper there besides the Decree it self only mentions the years value which was to be setled by the Commissioners and which he said was never done so that the Decree which appointed the Commission was not compleated and therefore being but executory is of no force even in Equity The Court were doubtful in the matter and Baron Thurland said That no Action of Debt would lie for this Fine because it was neither upon the Contract nor as ex quasi contractu But as to that Serjeant Maynard answered That many Resolutions had been made in his time of Cases wherein the Old Books were silent Vpon the whole the Court thought this to be a proper Case for Equity and so directed a Iurour to be withdrawn which was accordingly done DE Term. Sanctae Trin. Anno 29 Car. II. in Communi Banco Addison versus Sir John Otway IN a special Verdict in Ejectione firmae A Parish and a Vill within the Parish of the same Name a Recovery is suffered of Lands in the Vill and in the Deed to lead the Uses the Parish is named they make but one Conveyance and the Lands in the Parish do pass Mod. Rep. 250. the Case was thus Viz. There was the Vill of Rippon and the Parish of the same Name and likewise the Vill of Kirkby and the Parish of the same Name in the County of York And Thomas Brathwaite being Tenant in Tail of the Lands in question lying in the said Parishes of Rippon and Kirkby did by Bargain and Sale convey the same lying as in truth they did in the Parishes of Rippon and Kirkby to the intent to make a Tenant to the Praecipe in order to suffer a Common Recovery and thereby he did Covenant to suffer the same which Recovery was afterwards suffered of Lands in Rippon and Kirkby but doth not say as he ought in the Parishes of Rippon and Kirkby and the Verdict in effect found That he had no Lands in the Vills but farther that it was the intent of the Parties that the Lands in the Parishes should pass and whether they should or not was the Question It was said for the Defendant That by this Indenture and Common Recovery the Lands which lie in the said Parishes shall pass 1. Supposing this to be in the Case of a Grant there if the Vill is only named yet the Lands in the Parish of the same Name shall pass because the Grant of every Man shall be taken strongest against himself Owen Rep. 61. So where part of the Lands lie in B. and the Grant is of all the Lands in D. all the Lands in the Parish of D. shall pass because in that Case the Parish shall be intended and if the Law be thus in a Grant a fortiori in the Case of a Common Recovery Postea Barker and Keat which is the Common Assurance of the Land 2. The Verdict hath found that the Defendant had no Lands in the Vills of Rippon and Kirkby and the Court will not intend that he had any there if not found so that nothing passes by the Recovery if the Lands in the Parishes do not pass which is contrary to the intention of the Parties and to the Rules of Law in the like Cases for if a Man deviseth all his Lands in Dale and hath both Free-hold and Lease-hold there by this Devise the Freehold only passes but if no Free-hold the Leases shall pass Cro. Car. 293. So adjudged in the Case of Rose and Bartlet for otherwise the Will would be void 3. The Parish and Vill shall be both intended to support a Trial already had as where a Venire facias ought to issue from the Parish of Dale and it was awarded from Dale generally 't is well enough * 1 Roll. Rep. 21 27 293. Hob. 6. 2 Cro. 263. 1 Roll. Rep. 27. A fortiori to support a Common Recovery which has always been favourably interpreted and yet a new Tryal will help in the one case but a Man cannot command a new Recovery when he will and therefore the Iudges usually give Iudgments to support and maintain Common Recoveries that the Inheritances of the Subject might be preserved for if there be Tenant in Tail the Reversion in Fee or if Baron and Feme suffer a Recovery this is a bar of the Reversion and the Dower and yet the intended Recompence could not go to either Pl. Com. 515. 2 Roll. Rep. 67. 5 Co. Dormer's Case Antea 4. The Iury have found that the intention of the Parties was to pass the Lands in the Parishes which Intention shall be equivalent to the Words Omitted And for that there is a notable Case in 2 Roll. Rep. f. 245. where the intent of the Parties saved an Extinguishment of a Rent The Case was A. makes a Lease for years rendring Rent and then grants the Reversion for 40 years to B. and C. which he afterwards conveyed to them and their Heirs by Bargain and Sale and covenanted to levy a Fine accordingly to make them Tenants to the Praecipe to suffer a Common Recovery to another Vse the Bargain Fine and Recovery were all executed and it was adjudged that they made all but one Conveyance and that the Reversion was not destroyed and by consequence the Rent not extinguished for though the Bargainor might intend to destroy the Reversion by making this Grant to them and their Heirs yet the Bargainees could never have such Intention and though they were now seised to another Vse yet by the Statute of Wills their former Right is saved which they had to their proper Vse and their intention being only to make a
Tenant to the Praecipe the Statute shall be so construed that the intent of the Parties shall stand 5. The Lands in the Parishes pass 1 Anders 83. because the Deed and Common Recovery make but one Conveyance and Assurance in the Law and therefore as a Construction is not to be made upon part but upon the whole Deed so not upon the Deed or Recovery alone but upon both together 2 Co. 75. Lord Cromwel's Case 6. Antea 'T is the Agreement of the Parties which governs Fines and Recoveries and Lands shall pass by such Names as are agreed between them though such Names are not proper and therefore a Fine of a lieu conus is good though neither Vill or Parish is named therein Poph. 22. 1 Cro. 270 276 693. 2 Cro. 574. So if a Fine be levied of a Common of Pasture in Dale Cro. Car. 308. Winch 122. Sid. 190 191. Antea 't is good though Dale be neither Vill or Hamlet or lieu conus out of a Vill 2 Roll. Abr. f. 19. So in Sir George Symonds his Case Lands as parcel of a Mannor were adjudged to pass though in truth they were used with the Manor but two years and the reason of all these Cases is because it was the Agreement of the Parties that they should pass Object If it be objected That all these Authorities are in Cases of Fines but the Case at Bar is in a Common Recovery which makes a great difference Answ The proceedings in both are amicable and not adversary and therefore as to this purpose there is no difference between them and for an Authority in the point the Case of Lever and Hosier was cited which was adjudged in this Court Trin. 27 Car. 2 Where the Question was Antea whether upon a Common Recovery suffered of Lands in the Town of Sale or the Liberty thereof Lands lying in Dale being a distinct Vill in the Parish of Sale should pass or not and after divers Arguments it was allowed to be well enough being in the Case of a Common Recovery And so was the Case Pasch 16 Car. 2. in B. R. In a special Verdict the Case was That Sir Thomas Thinn being seised of the Mannor of Buckland in Tail and of twenty Acres of Land called and known by a particular name which twenty Acres of Land were in Ed. the 6th's time reputed parcel of the said Mannor and always used with it Sid. 190. sold the said Mannor and all the Lands reputed parcel thereof with the Appurtenances of which he did suffer a Common Recovery and it was adjudged upon great consideration that though the Recovery did not mention the twenty Acres particularly yet it did dock the Entail thereof because the Indenture which leads the Vses of the Recovery was of the Lands reputed parcel thereof or enjoyed with it and that the shortness in the Recovery was well supplied by the Deed in which Case the Court were guided by the resolution in Sir George Symond's Case Vide 6 Co. Sir Moyle Finch's Case The Authorities against this Opinion are two Antea Lever and Hosieâ— 1. That of Stock versus Fox Cro. Jac. 120. There were two Vills Walton and Street in the Parish of Street and a Fine was levied of Lands in Street it was adjudged that the Lands in Walton did not pass by this Fine But there is another Report of this very Case by my Lord Chief Iustice Roll in his Abr. tit Grants 54. where 't is said if there be in the County of Somerset the Vill of Street and the Vill of Waltham within the Parish of Street and a Man being seised of Lands in the Vill of Street and of other Lands in the Vill of Waltham all within the Parish of Street and he Bargains and Sells all his Lands in Street and having Covenanted to levie a Fine doth accordingly levie it of Lands in Street and doth not mention either in the Indenture or in the Fine any Lands in Waltham the Lands lying there shall not pass from which Report there may be a fair Inference made That it was the Lord Rolls his Opinion that if Waltham had been named in the Indenture though not in the Fine the Lands would have passed and in this Case the Parishes are named in the Indenture of Bargain and Sale but besides in that Case the Party had Lands both in Street and Waltham and so the Conveyances were not in vain as they must be here if the Lands in the Parishes do not pass Antea 2. The other Case is that of Baker and Johnson in Hutton 106. But this Case is quite different from that because there was neither Vill or Parish named in the Indenture but here the Indenture was right for the Lands are mentioned therein to lie in the Parishes c. And for these Reasons Iudgment was prayed for the Defendant This Case was afterwards argued in Michaelmas-Term following by Serjeant Pemberton and Maynard for the Plaintiff who said Ex parte Quer. That the Government of this Nation was Ecclesiastical and Civil the Ecclesiastical runs by Parishes and the Civil by Vills That a Parish is constituted by the Ecclesiastical Power and may be altered by the King and Ordinary of the place that the Parson was superintendent of the Parish and the Constable of the Vill which was also constituted by the Civil Magistrate and from hence it is that in real Actions which are adversary Lands ought not to be demanded as lying in a Parish but within a Vill that being the place known to the Civil Iurisdiction and if a Trespass which is local be laid at Dale generally there being both the Parish and Vill of Dale the proof of the Trespass done in the Parish is not good for it must be at the Vil. They agreed that in conveying of Lands a Fine or Common Recovery of Lands in a Parish or Lieu conus was good 2 Cro. 574. But if there be both a Vill and a Parish of the same Name and severally bounded if the Vill be only named without the Parish nothing doth pass but what is in the Vill because where a place is alledged in Pleading it must be of a Vill Moor 710. 1 Inst 125. b. 2 Cro. 121. And this was the ancient way of demanding Lands in a Praecipe quod reddat because of the Notoriety of Vills from whence Visnes do arise and because the Vill is more particular and of more certainty than a Parish and therefore 't is requisite that the Demandant should be very particular in his Demand that the Tenant may know how to make his defence and the Sheriff of what to deliver possession Besides a Vill is more ancient than a Parish and Lands have been demanded within them time out of mind so that the Demand when 't is doubtful of what 't is made shall be supposed of that which is most ancient and such Construction is most conformable to the like Cases
of a Bond was that the Defendant should shew the Plaintiff a sufficient discharge of an Annuity who pleaded that he tendered a good and sufficient discharge in general without setting it forth it was not good Mod. Rep. 67. 3. The Plea is that the Indenture had the usual Covenants but doth not set them forth and for that cause 't is also too general In 26 H. 8. 1. The Condition was for the performance of Covenants one whereof was that he should make such an Estate to the Plaintiff as his Council should advise The Defendant pleaded that he did make such Conveiance as the Council of the Plaintiff did advise and the Plea was held ill and too general because he shewed not the Nature of the Conveyance and yet performance was pleaded according to the Covenant But notwithstanding these Exceptions the whole Court were of Opinion that this Plea was good for if the Defendant had set forth the whole Deed verbatim yet because the Lands are in Jamaica and the Covenants are intended such as are usual there the Court cannot judge of them but they must be tried by the Iury. He hath set forth that the Conveyance was by a Deed of Bargain and Sale which is well enough and so it had been if by Grant because the Lands lying in Jamaica pass by Grant and no Livery and Seisin is necessary if any Covenants were unreasonable and not usual they are to be shewed on the other side And so Iudgment was given for the Defendant Spring versus Eve Verdict cures the misrecital of the time of the Session of Parliament DEBT upon the Statute of 29 Eliz. cap 4. by the Sheriff for his Fées for serving of an Execution After Verdict for the Plaintiff it was moved in an arrest of Iudgment by Serjeant Pemberton because the time of holding the Parliament was mis-recited being mistaken in both the Statute Books of Poulton and Keble as it appeared by the Parliament Roll whereupon Iudgment was staied till this Term and the Court had Copies out of the Rolls of the time when the Parliament was held and they were all clear of Opinion that the time was mistaken in the Declaration and so are all the Presidents for the Plaintiff here declared that this Statute was made at a Session of Parliament by Prorogation held at Westminster 15 Febr. 29 Eliz. and there continued till the dissolution of the same whereas in truth the Parliament began 29 Octob. and not on the 15th of February for it was adjourned from that time to the 15th of February and then continued till it was dissolved My Lord Coke in his 4th Institutes fol. 7. takes notice of this mistake in the printed Books But the Court were all of Opinion Curia that though it was mistaken and ought to have been otherwise yet being after * Dyer 95. Yelvert 127. 2 Cro. 111. pl. 9. Br. Abr. tit Parl. 87. Verdict 't is well enough and the rather because this is a particular Act of Parliament and so they are not bound to take notice of it and therefore if it be mistaken the Defendant ought to have pleaded Nul tiel Record but since he hath admitted it by Pleading they will intend that there is such a Statute as the Plaintiff hath alledged and they could not judicially take notice of the contrary The Serjeant perceiving the Opinion of the Court desired time to speak to it being a new Point and told the Court that they ought to take notice of the Commencement of private Acts which the whole Court denyed And the Chief Iustice said that they were not bound to take notice of the Commencement of a general Act for the Court was only to expound it and though this had not been in the Case of a particular Act where 't is clear the Defendant ought to plead Nul tiel record yet being after Verdict 't is well enough because the Party took no benefit of it upon the Demurrer and because of the multiplicity of Presidents which run that way So in the Case upon the Statute of Tythes though it be mistaken yet it hath often been held good as if an Action be brought upon that Statute for not setting out of Tythes declaring quod cum quarto die Novembris anno secundo Edw. 6. It was Enacted c. and the Parliament began 1 Ed. 6. and was continued by Prorogation until 4 Novembris yet this hath often been held good and Multitudo errantium tollit peccatum And though in this Case the Parliament was adjourned but in that upon the Statute of Ed. 6. it was prorogued yet the Chief Iustice said that as to this purpose there was but little difference between an Adjournment and a Prorogation for an Adjournment is properly where the House adjourn themselves and a Prorogation is when the King adjourns them But Iustice Atkins doubted whether the Court ought not to take notice of the Commencement of a general Act and could have wished that there had been no such resolution as there was in the Case of Partridge and Strange in Pl. Commentaries for that he was satisfied with the Argument of Serjeant Morgan in that Case who argued against that Iudgment and held that he who vouched a Record and varies either in the Year or Term hath failed of his Record But since there had been so many Authoritis since in confirmation of that Case he would say nothing against it But he held that there was a manifest difference betwéen an Adjournment and a Prorogation for an Adjournment makes a Session continue but after a Prorogation all must begin de novo and that an Adjournment is not always made by themselves for the Chancellor hath adjourned the House of Péers ex mandato Domini Regis and Queen Elizabeth adjourned the House of Commons by Commission under the Great Seal 4 Iust 7 Mires versus Solebay Servant shall not be charged in Trover for taking Goods by the Command of his Master IN a Special Verdict in Trover and Conversion the Case was this viz. H. being possessed of several Sheep sells them in a Market to Alston but did not deliver them to the Vendée and afterwards in that very Market they discharge each other of this Contract and a new Agreément was made between them which was that Alston should drive the Sheep home and depasture them till such a time and that during that time H. would pay him so much every Week for their Pasture and if at the end of that time then agreed between them Alston would pay H. so much for his Sheep being a price then also agreed on that then Alston should have them Before the time was expired H. sells the Sheep to the Plaintiff Mires and afterwards Alston sells them to one Marwood who brought a Replevin against the Plaintiff for taking of the Sheep and the Officers together with Solebay the Defendant who was Servant to Marwood did by his Order and in assistance
Seck after demand is a disseisin Pl. Com. 92. b. much more in personal Actions where the substance is found 't is well enough 1 Inst 282. a. But the Court said That notwithstanding this Authority they would not intend a Conversion unless the Iury had found it especially in this Case because they ought to have found it to make the Servant lyable for if the conversion was to the use of his Master there is no colour for this Action to be brought against the Defendant but it ought to be brought against the Master Whereupon a Ve. fa. de novo was prayed to help the Insufficiency of the Verdict the conversion not being found but the Court said it was to no purpose to grant a new Tryal unless the Plaintiff had a new Case and so Iudgment was given for the Defendant Bill versus Nicholl Variance between the Record pleaded and the Record it self IN an Action brought in the Court of Exchequer the Defendant pleaded another Action depending against him for the same matter in the Common Pleas and upon nul tiel Record replied by the Paintiff a Day was given to bring in the Record and when it was brought in it appeared that there was a variance between the Record in the Common Pleas as mentioned in the Defendants Plea and the Record it self for the Defendant in his Plea had alledged one Gerrard to be Attorny instead of Gardiner who was Attorny upon Record and whether this was a failure or not of the Record was the question It was said on the Defendants side that it was such a variance that it made it quite another Action and on the Plaintiffs side it was said that an immaterial variance will not prejudice where the substance is found 7 H. 4. 1. Bro. Failure pl. 2. 15. Curia advisare vult Forest qui tam c. versus Wire Action lyes in the Courts at Westminster upon the Statute of 5 Eliz. but not an Information 3 Cro. 316. DEBT upon the Statute of 5 Eliz. cap. 4. for using the Trade of a Silk Weaver in London not having been an Apprentice seven years the Action was brought in this Court and laid in London and tried by Nisi prius and a Verdict for the Defendant and now the Plaintiff to prevent the payment of Costs moved by Mr. Ward against his own Action and said that it will not lye upon this Statute in any of the Courts of Westminster for 't is not only to be laid as here in the proper County but 't is to be brought before the Iustices in their Sessions and this is by force of the Statute made 31 Eliz. cap. 4. and 21 Jac. cap. 4. Which Enacts That all Informations upon Penal Statutes must be brought before the Justices of the Peace in the County where the Fact was committed But the Court were clear of 2 Cro. 178. Stiles 383. By the Opinion of Rolls Cro. Car. 112. Opinion That the Action may be brought in any of the Courts of Westminster who have a concurring Iurisdiction with the Iustices and so they said it hath been often resolved Attorny General versus Alston AN Inquisition upon an Accompt stated went out to inquire what Lands one Havers had in the twentieth year of this King or at any time since Where the Kings Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be liable by the Statute of the 13th Eliz. he being the Receiver General in the Counties of Norfolk and Huntingdon The Iury found that he was seised of such Lands c. whereupon an Extent goes out to seise them into the Kings Hands for payment of 1100 l. which he owed to the King Alston the Ter-tenant pleads that Havers was indebted to him and that he was seised of those Lands in 20 Car. 1. which was before the Debt contracted with him and that he became a Bankrupt likewise before he was indebted to the King and thereupon these Lands were conveyed to the Defendant by assignment from the Commissioners of Bankrupcy for the Debt due to him from Havers absque hoc that he was seised of these Lands at the time he became indebted to the King The Attorny General replies That he was seised of these Lands before the Commisson of Bankrupcy issued and before he became a Bankrupt and that at the time of his Seisin he was Receiver and accountable for the receipt to the King and being so seised in the 20the year of this present King he was found in Arrear 1100 l. for the payment whereof he was chargeable by the Statute of the 13 Eliz. cap. 4. Which subjects all the Lands of a Receiver which he hath or shall have in him during the time he remains accomptable and so prays that the Kings Hands may not be amoved To this the Defendant demurred And Sawyer for him held that the Replication was ill both in form and Substance 1. It doth not appear that the Defendant continued Receiver from the time he was first made as it ought to be or else that he was Receiver during his Life for if a Man is Receiver to the King and is not indebted but is clear and sells his Land and ceases to be Receiver and afterwards is appointed to be Receiver again and then a Debt is contracted with the King the former Sale is good 2. The Replication is a departure from the Inquisition which is the Kings Title for the Lands of which Inquiry was to be made were such which Havers had 20 Car. 2. And the Defendant shews that Havers was not then seised thereof but makes a good Title to himself by Indenture of Bargain and Sale made to him by the Commissioners of Bankrupcy and so the Attorny General cannot come again to set up a Title precedent to the Defendant for that is a departure 't is enough for the Defendant that he hath avoided the Kings Title as alledged and though Mr. Attorny is not bound to take Issue upon the Traverse yet he cannot avoid waveing both the Title of the Defendant and the King by insisting upon a new matter It was agreed That the King had two Titles and might either have brought his Inquisition grounded upon the Debt stated or upon the Statute of the 13th of Eliz. upon Havers his becoming Receiver but when he hath determined his Election by grounding it upon the Debt stated he cannot afterwards have recourse to the other matter and bring him to be liable from the time of his being Receiver as if an Inquisition goes to inquire what Lands the Debtor of the King had such a day when he entred into a Bond if there be an answer given to that Mr. Attorny cannot afterwards set up a precedent Bond because 't is a departure and the Statute it self vests no Estate in the King but makes the Receivers Lands lyable as if he had entred intred into a Statute Staple The Inquisition therefore should have been grounded
without any actual Entry 2 Cro. 604. and the Bargaineé thereby is capable of a Release though he cannot bring an Action of Trespass without Entry for when Mony is the Consideration of making the Bargain and Sale 't is executed by the Statute of Vses and so the Release upon it is good but if the Deed be not executed 't is otherwise But this being to support a Common Recovery Antea Addison and Otway was to be favoured and therefore the Court took time to consider till the next Term and then The Chief Iustice said That if a real Action be brought against A. who is not Tenant to the Praecipe and a Recovery be had against him the Sheriff can turn him out who is in possession but if he who is not in possession comes in by Voucher he is estopped to say afterwards that he was not party to the Writ so that he who is bound must be Tenant or Vouchee or claim under them Conveyances have been altered not so much by the Knowledge of the Learned as by the Ignorance of Vnskilful Men in their Profession The usual Conveyance at Common Law was by Feoffment to which Livery and Seisin were necessary the Possession being given thereby to the Feoffee Antea Lord Salisburies Case but if there was a Tenant in Possession and so Livery could not be made then the Reversion was granted and the particular Tenant always attorned and upon the same reason it was that afterwards a Lease and Release was held a good Conveyance to pass an Estate but at that time it was made no question but that the Lessee was to be in actual Possession before the Release Afterwards Vses came to be frequent and Settlements to Vses were very common by reason whereof many inconveniencies were introduced to prevent which the Statute of the 27th of H. 8. was made by which the Vse was united to the Possession for before that Statute Vses were to be executed according to the Rules of Equity but now they are reduced to the Common Law and are of more certainty and therefore are to be construed according to the Rules of Law At the Common Law when an Estate did not pass by Feffoment the Lessor or Vendor made a Lease for years and the Lessee actually entred and then the Lessor granted the Reversion to another and the Lessee attorned and this was good Afterwards when an Inheritance was to be granted then also was a Lease for years usually made and the Lessee entred as before and then the Lessor released to him and this was good But after the Statute of Vses it became an Opinion That if a Lease for years was made upon a valuable Consideration a Release might operate upon that without an actual Entry of the Lessee because the Statute did execute the Lease and raised an Vse presently to the Lessee Sir Francis Moor Serjeant at Law was the first who practised this way Nota. But because there were some Opinions that where Conveyances may enure two ways the Common Law shall be preferred unless it appear that the party intended it should pass by the Statute thereupon the usual course was to put the Words Bargain and Sale into the Lease for a Year to bring it within the Statute and to alledge that the Lease was made to the intent and purpose that by the Statute of Vses the Lessee might be capable of a Release but notwithstanding this Mr. Noy was of the Opinion That this Conveyance by Lease and Release could never be maintained without the actual Entry of the Lessee This Case goes farther than any that ever yet came into Iudgment for Mony is not mentioned here to be the Consideration or any thing which may amount to it unless the Pepper Corn which he held to be a good Consideration The Lease and Release are but in nature of one Deed and then the intent of the Parties is apparent that it should pass by the Satute and eo instanti that the Lease is executed the Reservation is in force The Case put by Littleton in Sect. 459. is put at the Common Law and not upon the Statute where he saith That if a Lease be made for years and the Lessor releaseth all his Right to the Lessee before Entry such Release is void because the Lessee had only a Right and not the Possession which my Lord Coke in his Comment upon it calls an interesse termini and that such Release shall not enure to enlarge the Estate without the Possession which is very true at the Common Law but not upon the Statute of Vses And therefore Iudgment was given by the whole Court Judgment that the Word Grant in the Lease will make the Land pass by way of Use that the Reservation of a Pepper Corn was a good consideration to raise an Vse to support a Common Recovery that this Lease being within the Statute of Vses there was no need of an actual Entry to make the Lessee capable of the Release for by vertue of the Statute he shall be adjudged to be in actual possession and so a good Tenant to the Praecipe and Iudgment was given accordingly in Michaelmas Term following Kendrick versus Bartland THE Plaintiff brought an Action on the Case for stopping the Water going to his Mill with a Continuando c. Continuando laid after a Nusance abated yet Damages shall be recovered for what was done before The Defendant pleads that the stopping was contra voluntatem and that tali die which was betwéen the first and the last day laid in the Continuando the Plaintiff himself had abated the Nusance and so he had no cause of Action To this Plea the Plaintiff demurred and Serjeant Baldwyn who argued to maintain the Plea did not relye upon that part of it where the Defendant saith that the stopping of the Water was involuntary because he doing the thing it could not be contra voluntatem but the Question would be whether the Plaintiff had any cause of Action to recover damages after the Abatement of the Nusance and he said that he had abated it before the Action brought and counted for damages after the Abatement for which he had no Cause of Action and this he had confessed by his Demurrer But the Court were of Opinion that it was not a good Plea and took this difference between a Quod permittat or an Assize for a Nusance and an Action on the Case for the same for the end of a Quod permittat or an Assise was to abate the Nusance 2 Cro. 207 618 but the end of an Action on the Case was to recover damages therefore though the Nusance was removed the Plaintiff is intituled to his damages that accrued before and 't is usual in Actions of this nature to lay the Sid. 319. Continuando for longer time than the Plaintiff can prove but he shall have damages for what he can prove and so here he shall recover the
Profits of a Parsonage as in the Case of a Sequestration upon a Iudgment obtained against a Spiritual Person where a Fi. Fa. is directed to the Sheriff upon that Iudgment and he returns Clericus beneficiatus non habens Laicum feodum for which reason he cannot meddle with the Profits of the Glebe but the Bishop doth it by a Sequestration to him directed He may likewise retain for the supply of the Cure and pay only the residue which hath been omitted on the other side As the Ordinary might dissolve a Vicaridge endowed where the Parsonage was in the Hands of a Dean so he may sequester an Appropriation in any Spiritual Person and there is no Statute which exempts an Impropriation from such a Sequestration because 't is onus reale at the Common Law and as the Lay Impropriator may sue for Tythes and receive them as before the making this Statute 't is as reasonable since he hath the same advantage that he should have the same Charge and the rather because the saving in the Statute of 31 H. 8. cap. 13. doth still continue the same Authority the Bishop had before though the possession was thereby given to the King The Words of which are viz. Saving to all and every person c. such Right which they might have had as if the Act had not been made which must be the Right of the Ordinary and of no other person An Impropriator pays Synodals and Procurations as well as an Appropriation in the Hands of Ecclesiastical Persons and it would be very inconvenient if a Sequestration should not lie which would quicken them more than an Excommunication and it was said that in England there were above 1000 Appropriations belonging to Corporations aggregate as Deans and Chapters which could not be excommunicated and if the Bishop could not sequester then there was no remedy to repair the Chancel For which Reasons Iudgment was prayed for the Defendant But the whole Court besides Iustice Atkins held that the Lay Impropriation was not to be sequestred for the Repairs of the Chancel And the Chief Iustice said that the Repair of the Chancel was an Ecclesiastical Cause but that the Rectory and Impropriator were Lay and not to be sequestred as the possessions in the Hands of Ecclesiastical Corporations may which he did agree could not be excommunicated but the persons who made up such Corporation might And as to the Sequestration upon a Iudgment it made nothing for the Matter to entitle the Ordinary to a Sequestration in this Case because what he doth in that is in the nature of a temporal Officer for the Sequestration is like the Fieri Facias and being directed to the Bishop he is in that Case if he may be so called an Ecclesiastical Sheriff and by virtue thereof may do as the Sheriff doth in other Cases that is he may seise Ecclesiastical things and sell them as the Sheriff doth Temporal things upon a Fieri Facias but 't is to be observed that he must return Fieri feci and not Sequestrari feci upon this Writ And as to the Saving in the Statute that doth not alter the Case for if any Right be thereby saved 't is that of the Parson for the Parishioners have no right to sit there indeed the Vicar may because he comes in under the Parson So that this Case is not to be put as at the Common Law but upon the Statute of Dissolutions by vertue whereof the Rectory being in the Hands of a Lay Person is become a Lay Fee and so cannot be subject to a Sequestration if it should the next step would be that the Bishop would increase Vicaridges as well in the Case of an Impropriation as Appropriation which would lessen the possessions of such as have purchased under the Act. But Iustice Atkins was of a contrary Opinion he said that it was agreed by all that an Impropriator is chargeable with the Repairs of the Chancel but the Charge was not personal but in regard of the profits of the Impropriation which are originally the Debtor according to the first Donation That the primary Rights of Rectories are the performance of Divine Service and the Repairs of the Chancel and that the Profits which are over and above must then go to the Imprpriator and are to be esteemed then a Lay Fée but that those Duties are the first Rights and therefore must be first discharged That this Right this duty of Repairing was certain and therefore shall not be taken away by Implication but by express Words in the Act which if wanting shall remain still and the Parties shall be compelled to repair under the same Penalties as before But admitting it should be taken away yet the saving in the Act extends to the Right of the Parishioners which is not to sit in the Chancel but to go thither when the Sacraments are administred of which they are deprived when 't is out of Repair nor can they have the use of the Church which properly belongs to them because when the Chancel is out of Repair it not only defaces the Church but makes it in a short time become ruinous He denied that a Sequestration in Chancery cannot be pleaded to barr a Trespass at the Common Law for if it be said that the Chancery have issued such Sequestrations it will be as binding as any other Process issuing according to the Rules of the Common Law And he also denied the Case put by the Chief Iustice that the Lands of the Parishioners might as well be sequestred for the repair of the Church as those of the Impropriator for repair of the Chancel because the Profits of the Rectory might originally be sequestred but the Lands of the Parishioner could not and so the Cases are quite different Judgment But in Easter Term following Iudgment was given against the Defendant upon the point of Pleading which the Court all agreed to be ill 1. The Defendants should have averred that the Chancel was out of repair 2. That no more was taken than what was sufficient for the repair thereof 3. For that the Plaintiff had declared for the taking of several sorts of Grain and the Defendant justifies the taking but of part and saith nothing of the residue and so 't is a Discontinuance and the general Words quoad residuum transgressionis will not help because he goes to particulars afterwards and doth not ennumerate all and thereupon Iudgment was given accordingly Edwards versus Weeks ASsumpsit Parol discharge good before breach of Promise but not afterwards Mod. Rep. 262. The Plaintiff declared that the Defendant in consideration that the Plaintiff at his Request had exchanged Horses with him promised to pay him 5 l. and he alledged a breach in the Non-performance The Defendant pleads that the Plaintiff before any Action brought discharged him of his Promise And upon a Demurrer the Question was whether after a breach of a Promise a parol discharge could be good The
here for want of * 2 H. 4. 12. Bro Accompt 24 65 89. privity and because there is no contract 't is only a tort a disseisin and the Plaintiff might have brought an Assise for this Office which lies at the Common Law and so it hath been adjudged in Jehu Webb's Case 1 Inst 212. 8 Co. 4. Which is also given by the Statute of Westm 2. cap. 25. for a profit apprender in alieno solo The Plaintiff might have brought an Action on the Case against the Defendant for disturbing of him in his Office and that had been good because it had been grounded on the wrong In this Case the Defendant takes the Profits against the will of the Plaintiff and so there is no Contract but if he had received them by the consent of the Plaintiff 6 H. 6.9 1 Roll. Abr. 597 pl. 5. yet this Action would not lie for want of privity 'T is true in the Case of the King where his Rents are wrongfully received the party may be charged to give an accompt as Bayliff so also may the Executors of his Accomptant because the Law createth a privity but 't is otherwise in the Case of a common person 10 Co. 114. b. 11 Co. 90. b. Because in all Actions of Debt there must be a Contract or quasi ex contractu and therefore where Iudgment was had and thereupon an Elegit and the Sheriff returned that he had apprised the Goods and extended such Lands which he delivered to the Plaintiff ubi revera he did not per quod actio accrevit which was an Action of Debt but it was adjudged that it would not lie because the Sheriff had not returned that he medled with the Goods or with the value of them and therefore for want of certainty how much to charge him with this Action would not lie but an Action on the Case for a false Return but if he had returned the Goods sold for so much Mony certain Godb. 276. 2 Sand. 344. 2 Cro. 566. which he had delivered then an Action of Debt would lie for though 't is not a Contract 't is quasi ex contractu Hob. 206. 3. Point The Iury find that the Defendant received the Profits for seven years and that the Plaintiff had his Patent but two years and do not shew what was received by the Defendant within those two years and then the Court cannot apply it But on the other side it was said by Sawyer Ex parte Quer. That this Non obstante was good for where an Act of Parliament comes to restrain the Kings power and prerogative it was always held so to be and he relied upon the Iudgment of 2 H. 7. f. 6. that the King might dispense with the Statute of 23 H. 6. Pl. Com. 502. b. Dyer 303. which he affirmed to be the constant Vsage ever since and that therefore the Law is so taken to be at this day As to the second Point both he and the Sollicitor General Winnington said That an indebitatus assumpsit would lie here for where one receives my Rent I may charge him as Bayliff or Receiver or if any one receive my Mony without my order though 't is a tort yet an indebitatus will lie because by the Receipt of the Mony the Law creates a promise and the Action is not grounded on the tort but on the receipt of the Profits in this Case As to the Objection about the finding they held that to be nugatory and idle for it cannot be intended that the Damages given were for the time the Defendant received the Profits before the Plaintiff had his Patent neither is there any thing found in the Verdict to that purpose In Michaelmas-Term following Judgment the Court gave Iudgment for the Plaintiffs 1. They held that the King might dispense with this Statute for the Subject had no interest nor was in any wise concerned in the Prohibition it was made only for the ease of the King Hob. 146. and by the like reason he might dispense with the Statute of 4 H. 4. 24. That a Man shall hold the Office of Dyer 203. Aulnager without a Bill from the Treasurer and with the Statute of 31 H. 6. 5. That no Customer or Comptroller shall have any Estate certain in his Office because these and such like Statutes were made for the ease of the Sovereign and not to abridge his Prerogative and that the general Clause of Non obstante aliquo alio Statuto was sufficient 2. 4 H. 7. 6. b. Moor 458 An Indebitatus Assumpsit will lye for Rent received by one who pretends a Title for in such case an Accompt will lye wherever the Plaintiff may have an Accompt an Indebitatus will lye As to the finding 't is well enough for the Iury assess Damages occasione praemissorum in narratione mentionat which must be for the time the Plaintiff had the Office and that a Patent would make a Man an Officer before admittance Steward Executor of Steward versus Allen. Demand must be made where an Interest is to be determined DEBT for a Rent reserved upon a Lease for years in which there was a Proviso That if the Rent be behind and unpaid by the space of a Month next after any or either of the Daies of payment then the Lease to be void The Plea was That the Rent was behind a Month after a day on which it was reserved to be paid and so the Lease is void to which Plea the Plaintiff demurred because the Defendant did not say that the Plaintiff demanded the Rent for though the Rent be due without demand yet the Interest shall not be determined without it which must be expressly laid in the Pleading and of that Opinion was the Court except Iustice Atkyns who doubted Searl versus Long. Quare Impedit real mainpernors must be returned upon the Summons Pone and Grand Cape 2 Inst 124. Mod. Rep. 248. IVdgment final was given in a Quare Impedit according to the Statute of Marlebridge cap. 12. Which Serjeant Pemberton moved to set aside He said that at the Common Law the Process in a Quare Impedit was Summons Pone and Distress infinite which being found mischievous in respect of a Lapse it was therefore provided by this Statute that if the disturbers do not appear upon the Summons then they shall be Attached to appear at another day c. Now here upon the Attachment the Sheriff hath returned Attachiatus fuit by John Doe and Richard Roe who are feigned persons and not mainpernors for the Defendant hath made Oath That he did not know any such persons neither was he ever Attached so that 't is not only a matter of Form for he ought to have that notice which the Law requires it being so penal upon him 'T is probable this Mistake might arise from Mr. Dalton who in his Book of the Office of Sheriffs in the Returns of Writs
Defendant demands Dyer of the Indenture wherein was a variance between the Covenant which was for notice to be given to the Testator and this Declaration by which notice is averred to be given to the Executor and for this reason he demurred And Serjeant Dolben Recorder of London argued for him that this was in the Nature of a Condition precedent and therefore they ought to have given the Testator notice which according to the Agreement ought also to have been personal which not being done but only notice given to his Executor did make a material and fatal difference between the Covenant and this Declaration 14 H. 6. 1. 1 H. 6. 9. And that in this Case there was no Covenant by the Testator at all for all agree to pay their proportions and the Testator should pay his part which is not a Covenant Barrel Serjeant on the other side said that the Executor doth represent the person of the Testator and that though this Covenant was to give notice to the Testator yet if the Declaration had been of a Covenant to give notice to him his Executors and Administrators c. it had been no material variance so as to prejudice the Action of the Plaintiff because 't is no more than what the Law implies Pl. Com. 192. And upon the first opening this Matter this Term the Chief Iustice and Iustice Atkins enclined that the notice ought to be personal and that the variance was material But afterwards in Hillary Term following mutata opinione the whole Court agreed it to be otherwise because the Covenant runs in Interest and Charge and so the Executor is bound to pay and therefore 't is necessary that he should have notice and that there was no material difference between the Declaration and the Covenant And lastly Antea that the Testator being a Party to the Deed his Agreement to pay amounts to a Covenant though the formal Words of Covenant Grant c. were wanting But then Serjeant Dolben perceiving the Opinion of the Court insisted that the Declaration was naught for another reason viz. they had not declared that this notice was given in writing which is expresly agreed in the Covenant to which it was answered that the Defendant having pleaded that he gave notice secundum formam effectum Conditionis it was well enough But he said that would not help the want of Substance Dyer 243. b. and cited a Case where an Action of Debt was brought for the performance of an Award so as the same was delivered in Writing c. The Defendant pleaded Non deliberavit in scriptis The Plaintiff replyed and set forth the Award in Writing but did not directly answer the Plea of delivering it in Writing only by way of Argument and upon Demurrer there omnes Justiciarii contra Querentem and so they were in this Case that the notice must be pleaded in Writing and that secundum formam Conditionis was not good And so Iudgment was given for the Defendant Frosdick versus Sterling THE Plaintiff alone brought an Action on the Case against the Defendant and sets forth Baron and Feme where the Action if it s not discharged shall survive to her they must both join that he and his Wife in her Right were seised of a Messuage Bake-House and Cole-Yard c. and that the Defendant had erected two Houses of Office so near the said Bake-House that the Walls thereof became foundrous and the Air so unwholesome that he lost his Custom and that the Defendant had digged a Pit so near the said Cole-Yard that the Walls thereof were in danger of falling and that he had built another Wall so near the said Messuage that he had stopped an old Light therein Vpon Not-guilty pleaded there was a Verdict for the Plaintiff And now Serjeant George Strode moved in Arrest of Iudgment for that the Wife should have been joyned in this Action for where she may maintain an Action for a tort done in the Life-time of her Husband if she survive and where she may also recover Damages in such Cases she must joyn and it hath been adjudged that she ought to joyn with her Husband for stopping a way upon her Land Cro. Car. 418. 1 Roll. Abr. 348. pl. 1. 20 H. 6. 1. â— Ed. 4. 15. Cro. El. 461. So also for cutting down Trees on the Ioynture of the Wife made to her by a former Husband by reason whereof the present Husband lost the Loppings they both joyned for though the wrong was done to his Possession and he might have Released yet because there was also a wrong done to the Inheritance they ought both to joyn Cro. Car. 438. 3 Inst 650. So it hath been adjudged that the Husband and Wife in Right of the Wife jojned in an Action of Debt upon the Statute of 2 E. 6. cap. 13. for not setting out of Tythes and held good and where the Wife cured a wound 2 Cro. 205 399. 9 E. 4. 55. both joyned in the Action 11 H. 4. 16. 46. E. 3. 3. The Court held That where the Action if not discharged shall survive to the Wife they ought both to joyn which if they had done here it would have been hard to have maintained this Action because entire Damages are given and for losing the Custom to his Bake-house the Husband alone ought to have brought the Action He may bring an Ejectment of the Lands of his Wife but Iudgment was stayed till moved on the other side Barker versus Warren Justification where 't is not local a Traverse of the place makes the Plea naught AN Action was brought against a Carrier and laid in London for losing of Goods there which were delivered to him at Beverly in Yorkshire to re-deliver at London The Defendant pleads That he was robbed of the said Goods at Lincoln absqe hoc that he lost them in London And the Plaintiff demurred 1. For that Robbery is no excuse for a Common Carrier so that the Plea is not good in substance 2. This was no local Iustification so that the Traverse was ill But on the other side it was said by Serjeant Hopkins that the Plea was good and that the Defendant might Traverse the place For in Trespass for the taking of Goods in Coventry the Defendand pleaded that the Plaintiff did deliver the Goods to him at London to deliver at Dale by force whereof he took them at London and delivered them at Dale accordingly absque hoc that he took them at Coventry and held good for by his Plea he hath confessed the delivery and the taking both at one time and place and he could not have pleaded the delivery at London and justifie the taking at Coventry because the Possession is confessed by the first delivery at London and therefore the justification of the taking at Coventry had been inconsistent 24 H. 6. 5. But it had been otherwise if the Defendant had justified because the Plaintiff
gave him the Goods at London by force whereof he took them at London absque hoc that he took them at Coventry because by such Gift or Delivery he might justifie the taking any where as well as where the delivery was made 2. That the Declaration was ill for the Agreement was to deliver the Goods at London and the breach was that he left them at London and so but argumentative Aston pl. Red. 62. Herns Pleader 76. Brownl Pleadings 139. But the Court were of Opinion that the Declaration was good and the Plea was naught in substance but if it had been good the Traverse notwithstanding had been ill because the justification was not local 2 Cro. 45 372 though Iustice Scroggs was of a contrary Opinion And Iudgment was given for the Plaintiff Nota Visne altered Propter necessiatem The Plaintiff had leave given by the Court to alter the Visne from London to Middlesex because all the Sittings in London were on a Saturday and his Witness was a Jew and would not appear that day Mendyke versus Stint PRohibition was prayed to the Sheriffs Court of London Prohibition to the Sheriffs Court after Verdict and Judgment comes too late The Suggestion was That the Plaintiff was sued in that Court in an Action on the Case and sets forth the Proceedings at large that there was a Verdict against him there and averred that the Contract upon which he was sued there revera was made in Middlesex and so the cause of Action did not arise within their Iurisdiction and upon Demurrer to the Prohibition Serjeant Pemberton argued 2 Inst 229 243 601. West 1. c. 35. F. N. B. 45. b. Hob. 106. 1. That a Prohibition doth lie to any Court as well Temporal as Spiritual where such Courts exceed their Bounds for both those Iurisdictions are united to the Imperial Crown it may be granted to the Dutchy Court if they hold Plea of Lands not parcel of the Dutchy 2. Though the Iury have here found that the Defendant assumpsit modo forma yet such finding as to time and place is not material nor is it any Estoppel in a new Action laid in another County to aver that it was for the same thing 'T is true both time and place may be made material by pleading and so it had been in this Case if the Iury had found the place precisely for it would have been an Estoppel The Verdict therefore is nothing and all they have done is coram non Judice The Case of * Antea Squib and Holt. Squib and Hole he cited as an Authority in point where it was adjudged no Escape in the Officer to let a Man at Liberty who was in Execution upon a Bond sued in an Inferior Court the Bond not being made within the Iurisdiction thereof Ex parte Def. But Maynard Dolben Goodfellow and Sympson Serjeants contra They agreed that where it appears by the Plaintiffs Libel that the Court had no Iurisdiction there a Prohibition lies at any time but if what is in the Declaration is laid infra jurisdictionem there the Party must plead extra jurisdictionem and if they refuse to plead to the Plea a Prohibition will lie after Sentence But here is an Action on the Case brought of which the Sheriffs Court can hold Plea and which is laid to be infra jurisdictionem and not denied by the Plaintiff in his Plea and therefore now after Verdict and Iudgment he comes too late for a Prohibition and upon this difference Prohibitions have been usually either granted or denied to the Spiritual Courts Though the Court hath not cognisance of the Cause yet the Proceedings are not coram non Judice for if it be alledged to be within the Iurisdiction and the Defendant takes no exception to it and then Sentence is given against him he hath there by admitted the Iurisdiction So where a Man sued for a Legacy in the Prerogative Court where the Will was proved Stiles 45. by the Opinion of Rolls C. J. 2 Roll. Abr. 318. and Sentence given and an Appeal to the Delegates and Sentence affirmed and then a Prohibition granted but without notice upon the Statute of 23 H. 8. cap. 9. for that the Parties lived in another Diocess but the Plaintiff having allowed the Iurisdiction in all the former proceedings though the Prohibition was granted the Court would not compel the Party to appear and plead but granted a Consultation Cro. Car. 97. Smith versus the Executors of Pondrel In Hillary-Term 1675. in B.R. between Spring and Vernon and in Michaelmas-Term in 22 Car. 2. B. R. Buxton's Case and in Hillary Term the 22 23 Car. 2. in the same Court between Cox and St. Albon Prohibitions were denied after the Iurisdiction adadmitted by Pleading Mod. Rep. 81. The Chief Iustice Wyndham and Atkyns upon the first Argument enclined that a Prohibition ought to be granted because the admittance of the Party cannot give a Iurisdiction where originally there was none but afterwards they were all of Opinion That the Prohibition should not go but said that the Plaintiff in the Inferiour Court ought to have been Non-suited if it appeared upon the Evidence that the Cause of Action did arise extra jurisdictionem In this Case these things were agreed by the Court. 1. Sid. 151. That if any matter appears in the Declaration which sheweth that the Cause of Action did not arise infra jurisdictionem there a Prohibition may be granted at any time 2. If the subject matter in the Declaration be not proper for the Iudgment and determination of such Court there also a Prohibition may be granted at any time 3. If the Defendant who intended to plead to the Iurisdiction is prevented by any Artifice as by giving a short day or by the Attornies refusing to plead it c. or if his Plea be not accepted or is over-ruled in all these Cases a Prohibition likewise will lie at any time And the Chief Iustice and Wyndham Iustices were of Opinion that after the Defendant had admitted the Iurisdiction by pleading to the Action especially if Verdict and Iudgment pass the Court will not examine whether the Cause of Action did arise out of the Iurisdiction or not But Atkyns and Scroggs Iustices said nothing to this last point but that many times an advantage given by the Law was lost by coming too late and instanced that a Visne may be changed in time but not if the Party come too late so if the time of the promise be laid above six years from the time of the Action brought if the Statute of Limitations be not pleaded the Defendant cannot take afterwards advantage of it Whereupon a Prohibition was denied and Iudgment was given for the Defendant Birch versus Wilson Plea tho' it amount to a general Issue if it doth disclose matter of Law besides it shall not be demurred unto IN an Action on the Case the Plaintiff declared
reason alone the Plaintiff had no cause of Demurrer for the Defendant may well disclose the matter of Law in Pleading which is a much cheaper way than to have a Special Verdict and that this is on the same reason of giving of colour but if the matter by which the Defendant justifies be all matter of Fact and proper for the Tryal of a Iury then the Dfendant ought to plead the General Issue And as to the Matter of the Plea the Chief Iustice and Wyndham Iustice held it to be good for the Common which was pleaded was a Common by Grant and not argumentatively pleaded for if the Defendant had pleaded an express Grant of Common in those two places and the Plaintiff had demanded Oyer of the Deed it would have appeared that there was no such Deed and this had been a good cause of Demurrer If this Plea should not be good it would be very mischievous to the Defendant for there being a perpetual Vnity as to the Freehold there can be no Prescription to the Common but there being a constant enjoyment thereof by the Tenants and so a perpetual Vsage and a Grant made referring to that Vsage 't is well enough And since whilst the Lands were in possession of the Lord the Commoners could not complain of a Surcharge why should they if he grant the Premisses the Granteé being in loco c. In the Case of the King a Grant of tot talia Libertates Privilegia quot qualia the Abbot lately had 9 Co. 23. Abbot de Strata Marcella was held good by such general Words Here the Lord Paget granted to the Defendant that which the Lessées had before viz. that Common which the Tenants had time out of mind and it cannot be conceived but that the Tenants had a Right for as a Tort cannot be presumed to be from time immemorial so neither shall it be intended that the Lord gave only a Licence and permitted his Tenants to enjoy this Common But Iustice Atkins was of Opinion that the Plea was not good he said he knew not by what Name to call this Common for it was no more than a Permission from the Lord that the Tenants might put their Cattle into his Freehold or a Connivance at them for so doing and if it be taken as a new Grant then nothing can pass but the Surplus for the Lord cannot derogate from his former Grant and the new Grantee shall not put in an equal proportion with him who hath the Prescription for if he may then such Prescription would be quite destroyed by such puisne Grant for as the Lord might grant to one so he might to twenty and then there would not be sufficient Common left for him who prescribes to the Right So that he conceived that the Defendant had no Right of Common or if he had any it would not be till after the Right of the Plaintiff was served and he said that Vsage shall not intend a Right but it may be an Evidence of it upon a Tryal But if there had been an Vsage 't is now lost by the Vnity of the Possession and shall not be revived by the new Grant like the Case of Massam and Hunter Yelv. 189. there was a Copyholder of a Messuage and two Acres in Feé which the Lord afterwards granted and confirmed to him in Fee cum pertinentiis it was adjudged that though the Tenant by Vsage had a Right to have Common in the Lord's Wast yet by this new Grant and Confirmation that Right was gone the Copyhold being thereby extinguished for the Common being by Vsage and now lost these Words cum pertinentiis in the new Grant will not revive it But notwithstanding Iudgment by the Opinion of the other three Iustices was given for the Defendant Week's Case A Prohibition was prayed to the Ecclesiastical Court at Bristol the Suggestion was that he was excommunicated for refusing to answer upon Oath to a Matter by which he might accuse himself viz. to be a Witness against another that he himself was present such a day and saw the other at a Conventicle which if he confessed they would have recorded his Confession of being present at a Meeting and so have proceeded against him The Court granted a Prohibition but ordered him to appear in the Ecclesiastical Court to be examined as to the other persons being there Anonymus A Man wins 100 l. of another at play Gaming not within the Statute where the Security is given to a third person the Winner owed Sharp 100 l. who demanded his Debt the Winner brought him to the other of whom he won the Mony at Play who aknowledged the Debt and gave Sharp a Bond for the payment of the 100 l. who not being privy to the Matter or knowing that it was won at Play accepted the said Bond and for default of payment puts it in Suit the Obligor pleads the Statute of Gaming The Plaintiff in his Replication discloseth the Matter aforesaid and saith that he had a just Debt due and owing to him form the Winner and that he was not privy to the Monies being won at Play c. and that he accepted of the said Bond as a Security for his Debt and the Defendant demurred And the Court were all of Opinion Hill and Phesant Antea that this Case was not within the Statute the Plaintiff not knowing of the Play and though it be pleaded that the Bond was taken pro Securitate and not for satisfaction of a just Debt it was held well enough like the Case of Warns and Ellis Yelv. 47. Warns owed Alder 100 l. upon an usurious Contract and Alder owed the Plaintiff Ellis 100 l. for which they were both bound and in an Action of Debt brought upon this Bond Warns pleads the Statute of Vsury between him and Alder and Ellis replyed as the Plaintiff here and upon a Demurrer it was adjudged for the Plaintiff by thrée Iudges because the Plaintiff had a real Debt owing him and was not privy to the Vsury And upon this Case the Court relyed and said the Reason of it governed this Case at the Barr whereupon Iudgment was given for the Plaintiff Tissard versus Warcup INdebitatus Assumpsit for 750 l. laid out by the Plaintiff for the use of the Defendant Vpon Non assumpsit pleaded there was a Tryal at the Barr and the Evidence was that the Defendant and another now deceased farmed the Excise that the Mony was laid out by the Plaintiff on the behalf of the Defendant and his Partner and that the Defendant promised to repay the Mony out of the first Profits he received Curia And by the Opinion of the whole Court this Action would not lie 1. Two Partners being concerned the Action cannot be brought against one alone he ought in this Case to have set out the death of the other But if Iudgment be had against one the Goods in Partnership may be
reason the Iury might find for him 'T is true he might have pleaded Plene computavit which is the general Plea But it may as well be presumed that the Verdict was against the Plaintiff because the Action would not lye and the Matter being in dubio the Court will intend it against the Pleader he not having averred to the contrary and so they held the Plea to be ill DE Termino Paschae Anno 30 Car. II. in Communi Banco Osborn versus Wright ACtion on the Case for words Viz. The Plaintiff declares that she was unmarried but about to marry one J. S. and that the Defendant to hinder her Marriage spoke these Words of her Viz. She is a Whore a Common Whore and N's Whore per quod maritagium amisit The Iury found the Defendant guilty of speaking the Words but that she did not lose her Marriage thereby and it was moved in arrest of Iudgment that these Words are not actionable being only Scolding and of that Opinion was all the Court and Iudgment was arrested Hambleton versus Justice Scroggs alios In Camera Scaccarii Serjeant at Law whether Priviledge to be Sued only in the Common-Pleas AN Assault and Battery was brought against the Defendants in the Kings-Bench to which one of them pleaded that he was a Serjeant at Law and so ought to have his Priviledge to be sued by Bill in the Common Pleas and in no other Court To this Plea the Plaintiff demurred and Iudgment was given in my Lord Chief Iustice Hales's time by the Opinion of him and the whole Court of Kings-Bench That a Serjeant at Law might be sued there and was not suable in the Court of Common-Pleas only 2. That in this Action the Defendant should not have his Priviledge because it was brought against him and another And afterwards a Writ of Error was brought upon this Iudgment returnable before the Lord Chancellor and Chief Iustices of the Kings-Bench and Common-Pleas and the Errors were argued before the two Chief Iustices at Serjeants-Inn in Chancery Lane Mr. Holt for the Plaintiff in the Writ of Error Ex parte Quer. That a Serjeant at Law is to be sued only in the Court of Common-Pleas and not elsewhere because there is an absolute necessity of his Attendance there He is sworn and no other person can plead at that Bar and therefore if he should be sued in any other Court Vaugh. 155. it would be an Impediment to the Business of that Court where not only the Officers but their Servants have Priviledge In the 11th of E. 4. 2. There was some discourse about the Priviledge of Serjeants at Law where it was held that he is not to be sued in that Court by Bill but by Original but either way he is to have his Priviledge So the Servant of an Officer is not to be sued by Bill Cro. Car. 84. but he is still to have the Priviledge of the Court and so had Serjeant Hedley's Clerk in the Reign of King Charles the first The Serjeants receive a kind of Induction to the Bar and have a place assigned them and that they ought to have Priviledge the very Words of the Writ are observable Viz. mentioning a Serjeant at Law ex officio incumbit in Curia illa And though it hath been said and given as an answer to that Case in Cro. Car. That where the Serjeants Clerk was Arrested in an Inferior Court as in that Case he was there he shall have Priviledge but not against the other great Courts in Westminster-Hall this is a difference never yet taken notice of in any Book nor doth the Writ warrant this distinction 2. He shall have his Priviledge though he be joyned with another because the Action is joynt and several and the one may be found guilty and the other acquitted and it would be an easie way to oust a Man of his Priviledge if it might be done by joyning him with another who hath none 14 H. 4. 21. But the Person with whom the Serjeant is joyned may be sued in the Common-Pleas likewise so that he shall not hinder him from having Priviledge who of right ought to have it 10 E. 4. 15. Offley contra As to the first point Ex parte Def. the Court of Kings-Bench agreed that a Serjeant at Law shall always have the Priviledge of the Court of Common-Pleas against all Inferiour Courts but not against the other Courts in Westminster Hall for he may be sued in any of them A Serjeant is not like the Common Officers of the Court for they are to be attendant there and no where else but a Serjeant at Law is not confined to that Court alone he may be assigned of Council in any other Court and doth usually put his hand to Pleas both in the Kings-Bench and the Exchequer but a Philazer or Attorny of that Court cannot practise in his own Name in any other All Cases of Priviledge ought to be taken strictly And that which was cited concerning the Priviledge of a Serjeants Clerk is not like this because the Arrest was in an Inferiour Court In the 11 E. 4. 2. b. The Chief Iustice of the Kings-Bench came to the Common-Pleas Bar and told a Serjeant who he had assigned for a Pauper That if he would not come into that Court and plead for his Clyent he would forejudge him so that if he could be fetch'd out of the Common Pleas and carried to the Kings-Bench he is not confined to that Court alone In the 5 H. 5. nu 10. Complaint was made that the Subjects of the King were not well served in his Courts the Parliament thereupon Ordered that one Martin and others should take upon them the Dignity of Serjeants at Law so that it appears that their Business lies in other Courts as well as in that of the Common-Pleas 2. As to the second Point Here is a joynt Action for any thing that appears to the contrary 2 Rol. Abr. 275. pl. 4. and the Plaintiff may proceed against one in the Kings-Bench and therefore the other shall be ousted of his Priviledge if he have any in the Common-Pleas Moor 556. 20 H. 6. 32. North Chief Iustice said That he always took it to be an uncontroverted point That a Serjeant at Law should be sued only in the Court of Common-Pleas by Bill he is bound by Oath to be there and when he brings a Writ of Priviledge 't is always out of that Court and no other Curia advisare vult The Attorny General versus Sir John Read In Scaccario INformation A special Verdict was found Disability by a Statute ought to be removed by the Party to enable himself to execute an Office The Case was thus Viz. Sir John Read 1 Apr. 24 Car. 2. was by Sentence in the Spiritual Court divorced a Mensa Thoro and for Non payment of Alimony was excommunicated Afterwards it was Enacted by the Statute of 25 Car. 2.
Plaintiff Blackbourn versus Conset Place where it shall be intended tho' not laid in the Pleading IN Replevin the Avowant pleads an Execution taken out and that a Term for years was extended and an Assignment thereof made by the Sheriff but alledges no place where the Assignment was made But upon Demurrer it was held good for it shall be intended to be assigned where the Land doth lie Hall versus Carter Bond to render himself a Prisoner good IN an Action of Debt upon a Bond the Defendant craves Oyer of the Condition which was That if another person who was arrested at the Suit of the Plaintiff and for whom the Defendant was now bound should give such Security as the Plaintiff should approve of for the payment of 90 l. to him Sid. 132. pl. 4. or should render his Body to Prison at the return of the Writ then the Obligation to be void The Defendant pleads the Statute of 23. H. 6. cap. 10. That this Bond was given pro easimento favore And this Case coming to be argued upon a Demurrer the question was whether such Bond be within the Statute or not And the Court were of Opinion that it was not If the Sheriff takes Bond in another Man's name to elude the Statute such Bond is void but the Plaintiff may give directions to the Officer to take such Bond as this to himself 't is only an expedient to prevent a new Arrest and the Agreement of the Plaintiff makes it good If a Capias be taken out against the Defendant and a third person gives the Plaintiff a Bond that the Defendant shall pay the Mony or render himself at the Return of the Writ 't is a good Bond and not within the Statute because 't is not by the direction of the Officer but by the agreement of the Plaintiff and there is no Law that makes the Agreement of the Parties void and if the Bond was not taken by such Agreement it might have been traversed But Iustice Atkyns doubted because a Bond to render himself a Prisoner is void Bewfages's Case 10 Co. But if it had been to pay the Mony or appear at the Return of the Writ it had been good But notwithstanding Iudgment was given for the Plaintiff Shaxton versus Shaxton THE Condition of a Bond was Non damnificatus not a good Plea where the person and Lands are to be indempnified Antea That the Defendant should save harmless Thomas Shaxton and the Mortgaged Premisses and should pay the Interest for the prinicipal Sum. The Defendant pleads that Thomas Shaxton non fuit damnificatus for that the Defendant had paid the 120 l. principal mony with all the arrears of Interest due at such a day And upon a Demurrer this was held no good Plea because the first matter non damnificatus goes to the Person and not to the Premisses And so Iudgment was given for the Plaintiff Anonymus After acquittal for a Common Trespass an Action on the Case will not lie Sid. 465 466. Antea THE Defendant was Indicted for a Common Trespass and Acquitted and now was Plaintiff in an Action on the Case against the Prosecutor And by the Opinion of the Chief Iustice the Action will lie for the Charges and Expences in defending the prosecution which the acquittal proves to be false and the Indicting him proves to be malicious for if he had intended any thing for his own benefit or recompence he might have brought a civil Action and then if he had been found Not Guilty he would have had his Costs allowed Though the prosecution be for a Trespass for which there is a probable cause yet after Acquittal it shall be accounted malicious the Difference only is where the Indictment is for a Criminal matter but where 't is for such a thing for which a Civil Action will lie the Party can have no reason to prosecute an Indictment it is only to put the Defendant to charges and make to him pay Fees to the Clerk of the Assises Penrice and Wynn's Case Habeas Corpus may be granted in Civil matters SErjeant Maynard moved for a Habeas Corpus for them being committed to the Poultry Compter by the Commissioners of Bankrupts for refusing to be examined and sworn touching their Knowledge of the Bankrups Estate The Process against them in this Court was an Attachment of Priviledge which was a Civil Plea and of which the Court had Iurisdiction and therefore the Habeas Corpus must be granted And the Chief Iustice said that it might be without motion because all the Habeas Corpus's in that Court were ad faciendum recipiend and they issue of course Antea but in the Kings-Bench they are ad subjiciendum which are in Criminal Causes and not to be granted without motion Then the Serjeant moved that the Sheriff might Return his Writ which was done and being filed he took Exceptions to the Return by which the ground of the Commitment appeared to be by virtue of a Warrant under the Hands and Seals of the Commissioners c. which he said was ill for want of an Averment of their refusal to come and be sworn for it did not appear that they did refuse and they ought not to be committed without refusing so that should have been positively averred viz. That they did refuse and still do for if they are willing at any time they ought to be discharged and so they were but were ordered to put in Bail upon the Attachment Abbot versus Rugeley THE Plaintiff declared in an Action of Assault and Battery to which the Defendant pleaded non cul Plea puis darrein continuance must be certified as part of the Record of Nisi prius and at the Assises a Plea was put in puis darrein continuance and a Demurrer thereunto The Court were clear of Opinion That if the Plea had been issuable it could not have been then tried neither could the Demurrer be there argued but must be certified up hither by the Iudge of Assise as part of the Record of Nisi prius Yelv. 180. Hawkins versus Moor. Ballard versus Oddey It was ruled in this Case The Contract it self must be Usurious to make it void 1 Sand. 295. Mod. Rep. 69. That to avoid a Security by reason of Vsury the Contract it self must be usurious for if the Party takes afterwards more than is allowed that will not make it so so that if the Agreement of the Parties be honest but made otherwise by the mistake of a Scrivener yet 't is not Vsury As if a Mortgage be for 100 l. with a Proviso to be void on payment of 106 l. at the end of one year and no Covenant for the Mortgagor to take the Profits till default be made in paiment so that in strictness the Mortgagee is intituled both to the Interest and the Profits yet if this was not express'd the Agreement is not Vsury DE Term. Sanctae Trin.
Where 't is good without the word tunc where not 129 Of words where the Pronoun pro makes the Contract conditional 33 34 F. Factor WHere he cannot sell but for ready Mony 100 101 Factum valet quod fieri non debet 194 Failure Of Record certified 246 Feoffment To Uses the Estate is executed presently 208 209 Fine Of Lands in a Lieu conus good 49 In a Scire facias to have such Fine excuted the Vill must be named 48 Good by Estoppel levied by a Remainder man in Tail 90 No Uses can be declared of such Fine ibid. Fine sur concessit the nature and effect of it 110 111 112 By such a Fine nothing shall pass but what lawfully may 111 Fines shall work a disseisin where they can have no other interpretation 112 Fines in Criminal Cases must be with Salvo contenemento 150 Flotsam Where it shall be sued for at Common Law and not in the Admiralty 294 Forbearance And doth not say from the making of the promise hucusque held good 24 Formedon In Descender the difference in pleading between that and a Formedon in Remainder or Reverter 94 25 Fraction Where an Estate shall pass by Fractions where not 114 115 G. Gaming WHat Acts amount to make it penal within the Statute 54 Not within the Statute where the Security is given to a third person 279 Grant of the King Where a false recital shall not make it void 2 3 Where the first description is full the misrecital afterwards shall not make it void 2 3 4 He may grant what he hath not in possession 107 Where words shall be rejected rather than his Grant shall be void ibid. Where an Advowson passeth though not named 2 Where a thing will pass by general words ibid. Misrecital where it doth not concern his Title shall not make the Grant void 2 3 Grant of a common Person Of the next Avoidance where it shall not bind the Successor 56 Must be taken according to usual and common intendment 193 Grant where the word in a Deed will make a thing pass by way of Use 253 Guardian In Socage where a doubt is of his sufficiency he may be compelled to give Security 177 H. Harmless vide Condition COndition to save harmless the Plea indempnem conservavit generally is not good 240 305 Habeas Corpus Cannot be granted by the Court of Common Pleas in Criminal Cases 198 199 306 Heir Where he takes by the Will with a Charge he comes in by Purchase and not by Descent and the Lands shall not be Assets 286 Where a general Replication to Riens per descent is good 50 51 Where he shall have a thing though not named 93 Hors de son Fee When to be pleaded 103 I. Ieofails THE Statute of 16 and 17 Car. 2. helps a misrecital in a proper County but not where the County is mistaken 24 An immaterial Issue not arising from the matter is not helped after a Verdict 137 Inducement Not such certainty required as in other Cases 70 Indebitatus Assumpsit Where it will not lie for want of Privity 262 263 Imparlance Tout temps prist not good after an Imparlance 62 Implication Where a Man shall have an Estate for Life by Implication 208 Imprisonment False Imprisonment will not lye against a Judge for committing of a Jury Man for finding against Evidence 218 It lies not against an Officer for refusing Bail but a special Action on the Case lies against the Sheriff for it 32 Information Upon the Statute of Philip and Mary for taking away a Maid unmarried within the Age of sixteen years 128 It will not lie where the Punishment is executed by the Statute 302 Infant When he may make a Will 315 Interest Where 't is vested in the King 53 Where it differs from an Authority 79 What words give an Interest 80 81 Where the word Interest signifies the Estate in the Land 134 Intention Of the Parties where to be considered 76 77 80 111 116 234 280 281 310 Where a thing shall be intended and where not 227 280 282 Grants where they shall be taken according to common intendment 193 Ioynder in Action Covenant to two not to do a thing without their consent one may bring the Action 82 Issue Where Time shall be made parcel of the Issue 145 Iudge and Iudgment Judge cannot fine a Jury for finding against Evidence 218 Action will not lie against him for what he doth judicially though erroneously 221 Judgment may be avoided by Plea without a Writ of Error 308 Iustification Vide Pleading Where 't is local you must traverse both before and after 68 Under a Lease for the Life of another Man and doth not averr that the Life is in being ill 93 Where 't is not local a Traverse makes the Plea naught 270 271 By vertue of a particular Estate you must shew the commencement of it 70 Where it is general and yet good 144 In Assault Battery and Wounding and saith nothing to the Wounding not good 167 Of a Servant by Command of his Master and good ibid. In Assault Battery and Imprisonment for 11 l. 10 s. the Defendant justifies by a Warrant for the 11 l. and saith nothing of the 10 s. not good upon Demurrer 177 Where 't is but of part the general words Quoad residuum transgressionis will not supply the rest 259 K. King THE Defendant cannot justifie in a Scandalum Magnatum brought upon the Statute of R. 2. because the King is a Party tam pro Domino Rege quam pro seipso 166 Where his Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be charged by the Statute of 13 Eliz. 247 248 Difference between the Case of the King and of a common person 263 A person disabled by Outlary may sue for him but not for himself 267 Where an Interest is vested in him it shall not be divested by a general Pardon 53 L. Lease BY a Bishop and more than the old Rent reserved good 57 Where it shall be made by the words Covenant Grant and Agree and where not 80 81 Lessee for years assigns over his whole Term whether Debt will lie on the Contract or not 174 175 Liberties What is meant by the Word 48 Limitation of Action Extends to Indebitatus Assumpsit though not named in the enacting Clause 71 72 73 Statute no Barr where the Sheriff levyed Goods by a Fieri Facias and did not pay the Mony within nine years 212 Doth not extend to an Action on the Case Indebitatus Assumsit Quantum meruit and Insimul computasset 311 312 Limitation of Estate What are good words to take by Purchase from a Stranger 210 211 Limitation of Estate when void makes the Estate absolute 227 Livery Secundum formam Chartae where good or not 78 79 M. Mannor WHere a thing becomes in gross it can never after be united to it 144 What may be appurtenant to it ibid. N. Negative WOrds must
be in an Act of Parliament to restrain the power of the Courts at Westminster 128 Negative pregnant 138 Negative Plea that three did not such a thing it must be said nec eorum aliquis 284 285 Non Obstante Where it makes a Grant good 107 Where a general Non obstante will not dispense with a particular Statute 261 Notice Where the Agreement is that it shall be in writing it must be so pleaded 268 Where 't is made to the Testator alone it shall not be personal but is good if given to the Executor 268 269 O. Oath EX Officio lawful 118 Where it ought to be made of the loss of a Deed to entitle a Man to a Bill in Equity 173 Office and Officer Grant thereof to two and the Survivor one surrenders and another is admitted the benefit of Survivorship is gon 95 96 Of the Warden of the Fleet not to be granted for years 120 Where a person recomended proves insufficient the recommender shall be liable 121 In an Office of Trust there shall be no Survivorship 260 Officer excusable for executing an erroneous Process 196 Ordinary When his Power began 148 Outlary Pleaded in Disability to an Information and good 267 268 Where it needed not to be pleaded sub pede sigilli being in the same Court 267 P. Parish HOW it differs from a Vill 237 Pardon Where nothing vests but by Office found a Pardon restores the Party 53 Where the thing it self is pardoned and the consequence not 52 Parliament Where the time of the Session is misrecited and yet good 241 Where the Court ought to take notice of the commencement of a private or general Act 241 Difference between an Adjournment and a Prorogation 242 Partners The Action cannot be brought against one without setting forth the death of the other 280 If Judgment be against one the Goods of the other may be taken in Execution ibid. Paying In the Case of an Heir is not a Condition but a Limitation 286 Place Where it shall be intended not being laid in the pleadings 304 Pleas and Pleading What the Parties have admitted in pleading shall be good though the Jury find otherwise 5 Shall not afterwards be assigned for Error 193 194 Pleading of a Grant of a Reversion without hic in Curia prolat ' whether good or not 19 In Dower that the Demandant ought to have Judgment de tertia and doth not say parte and yet good 17 18 19 Award nullum fecerunt arbitrium de praemissis whether good without adding nec de aliqua parte 27 28 29 Plea to a Bond not good 33 A Judgment ultra quod no Assets where good 36 Estoppel you must relie upon it and not conclude with a Traverse 37 38 One promise in discharge of another where good or not 43 44 Of an accord in must be averred to be executed in all points 43 Replication where the Heir pleads a Settlement in Tail and a Lease for 99 years and that he had not Assets praeter the Reversion a general Replication of Assets is good because the praeter is idle 50 51 Justification in Trespass for taking corrupt Victuals held good 56 Justification by Arrest upon process out of an Inferiour Court 58 59 Justification by the Defendant where he must shew the Commencement of his Estate or not 70 71 Where 't is incertain 76 Touts temps prist not good after Imparlance 62 Profert hic in Curia where it must be pleaded formally 77 78 It must be pleaded when the Title is by Deed either as party or privy 64 De injuria propria sua where a Servant is Defendant 't is good without a Traverse 68 Plea where 't is naught with a Traverse ibid. Where the Defendant may plead any thing which amounts to a performance 139 Where the Defendant was charged with receiving 80 Pigs of Lead and he saith that he was not Receiver but omits aliquam partem inde the Plea was ill 146 Hoc paratus est verificare where good or not ibid. The Defednant was charged as Bayliff 1 Martii he saith he was not from the 1st of March and so excludes the day 146 In Covenant for not Repairing the Defendant pleads recuperavit generally and held good after Verdict 176 Affirmative Plea ought to be particular as if the Defendant pleads a Conveyance made he must shew what 239 Of another Action depending for the same Cause in another Court 246 Where good though it amounts to the general Issue 274 275 276 277 278 Argumentative Plea where good 276 Negative Plea viz. that three did not such a thing the Defendant must say nec eorum aliquis 284 Otherwise in an affirmative Plea ibid. Plea puis darrein Continuance must be certified as part of the Record of Nisi Prius 307 Non damnificatus generally no good Plea where the person and Lands are to be indempnified 305 Where a Judgment shall be avoided by a Plea without bringing of a Writ of Error the party being a Stranger to it 308 Prescription Not to be pleaded against another without a Traverse of the first 104 Must be alledged with a Seisin in Fee and not for Life 318 To a Modus where good 320 Presentation The King being entituled by the Symony of the Patron presents though the Symony be pardoned the Presentee shall not be removed 52 53 54 Between three by turns they are Tenants in Common of the Advowson and one may grant the next Avoidance the Church being full 97 How it must be pleaded tempore pacis 184 185 Possibility A Grant made thereof and good 106 107 By an Executor before Probate is but a Possibility and yet good 108 Priviledge Will not extend to a Case of necessity 182 Of a Serjeant at Law 296 Of an Attorny of the Kings Bench 181 Process Where an Action will not lie against the Defendant for doing a thing in Execution of the Process of Law 244 Prohibition To the Bishops Commission to set Rates upon the Parishioners to repair the Church 8 Prohibition printed in English and dispersed a Crime fit to be punished 119 Not granted for a Rate for building of a Church 222 223 Where it shall be granted at any time 273 Where a Sentence of Divorce was intended to adnul a Marriage 314 Upon a Suggestion of Excommunication because he refused to accuse himself 278 Power Where 't is coupled with an Interest 't is assignable 317 Promise Where they are mutual the performance need not be averred 33 34 Purchase Where the Heir takes by Purchase the Ancestor must depart with his whole Fee 208 Where the Heir shall take by Purchase and where by Descent 286 Q. Quare Impedit REal Mainpernors must be returned upon the Summons Pone and Grand Cape if the disturber do not appear and not John Doe and Richard Roe 264 265 Que Estate Where 't is pleadable 143 144 R. Rates FOR building of a Church shall be set by the Parishioners 222 Recital Where a Title is set
this Action they would have named it he said he was for restoring the Common Law as much as he could but doubted much whether this Proviso did help the Plaintiff But Iudgment was given for the Plaintiff Doctor Samways versus Eldsly COvenant The Plaintiff declares Where Covenants are mutual and where not That by Indenture made between him and the Defendant reciting that there were divers Controversies between them as well concerning the right title and occupation of Tythes arising and renewing upon the Fréehold of the Defendant in T. and upon other Lands held by the Defendant by a Lease for years from the Plaintiff under the annual Rent of c. and concerning the arrearages of Rent due upon that demise as concerning other matters for the determination thereof the said Parties did by the said Indenture bind themselves in consideration of 12 d. given to each other to observe the Arbitration of an Arbitrator indifferently to be chosen between them to arbitrate order and judge between them de super praemissis and the Plaintiff and Defendant mutually covenanted to do several other matters That the Arbitrator did thereupon afterwards Award and the Defendant did Covenant with the Plaintiff that in consideration of the Plaintiffs sealing and delivering at the Defendants request one part of a Lease for years to the Award annexed for the Rent therein reserved that the Defendant should pay so much Mony for the Tythes That it was also Awarded by the said Arbitrator and the Defendant did covenant that he would be accomptable to the Plaintiff for all such arrearages of Rent Tythes and Composition-Mony for Tythes as should be arising and renewing upon the said Land c. according to such a value per Annum whereof the Defendant could not lawfully discharge himself And the Plaintiff avers That he hath observed all the Covenants on his part and that the Defendant hath not observed all the Covenants on his part and assigns for breach that he hath not accounted with him for all arrears of Tythes and Composition-Mony for Tythes arising upon the Lands in c. and that he hath requested him to accompt which he hath refused The Defendant pleads Actio non For he says that 't is true there was such an Indenture as in the Declaration is set forth and such a Covenant to be accountable as the Plaintiff hath declared But saith in eadem Indentura agreatum fuit ulterius provisum that the Plaintiff should allow and discount upon the Account all Sums of Mony for Parsons Dinners at the request of the Plaintiff and for his concerns laid out and disbursed by the Defendant and such other Sums which he had direction to lay out and that such a day paratus fuit obtulit se adhuc paratus est to account for all arrears of Rent c. if the Plaintiff would discount c. That such a day the Plaintiff would not and often after refused and yet doth refuse to allow upon such accompt all such Sums of Mony as the Defendant at the request and for the concerns of the Plaintiff had laid out and this he is ready to aver and then he avers that after c. on such a day he did expend several Sums of Money for the Plaintiff which were just and reasonable to be allowed by the Plaintiff upon accompt made by him To this Plea the Plaintiff demurred and the Defendant joyned in Demurrer which was argued by Turner Serjeant for the Plaintiff and by Serjeant Seys for the Defendant This was a bad Plea for 't is a Rule in all Law Books that every Plea ought to answer the matter which is charged upon the Defendant Ex parte Quer. in the Declaration which is not done here because the Defendant doth neither aver that he did accompt or confess or avoid or traverse it which he ought to do after the Plaintiff had alledged a request to accompt and a refusal 'T is an absolute Covenant which charges him to be accomptable and not if the Plaintiff would allow Parsons Dinners c. for 't is impossible that the Plainntiff can make any such allowance till the Defendant hath accompted for how can there be a discounting without an Accompt If the Plaintiff had told him before the Accompt that he would not allow any thing upon the Accompt this would not have been prejudicial to bart him of his Action so as it had been before the request For if a Man makes a Feoffment in Fee upon condition that if the Feoffor pay 100 l. at Michaelmas the Feoffment shall be void and before Michaelmas the Feoffee tells him that he will not receive the Money at that time this shall not prejudice him because t is no refusal in Law The Defendant in this Case is to do the first act viz. to Accompt and when that is neglected by him it shall never prejudice him who is to do a subsequent act 5 Co. 19 20. Higginbottoms Case 22 23 Hallin and Lambs Case One Covenants to make an Estate in fee at the Costs of the Covenantee the Covenantor is to do the first act viz. to let him know what Conveyance he will make The like Case was in this Court between Twiford and Buckly upon an Indenture of Covenants wherein one of the parties did Covenant to make a Lease for the Life of the Covenantee and for two other Lives as he should name and the Covenantor was to give possession The breach assigned was that the Defendant had not made Livery and Seisin and upon performance pleaded the Plaintiff did demux and upon great debate it was resolved that the Covenant was not broken because the Plaintiff had not performed that which was first to be done on his part viz. to name the Lives It may be objected that these Covenants have a relation one to the other and so non-performance of the one may be pleaded in bar to the other But to that he answered they are distinct and mutual Covenants and there may be several Actions brought against each other The Case of * Stiles 186. 187. Ware and Chappel comes up to this point Ware was to raise 500 Soldiers and bring them to such a Port and Chappel was to find Shipping for which he sued upon the Covenant though the other had not raised the Soldiers for that can be only alledged in mitigation of Damages and is no excuse for the Defendant and it was adjudged that this was not a condition precedent but distinct and mutual Covenants upon which several Actions might be brought This cannot be a Condition precedent for the Defendant pleads ulterius agreat̄ provisum est that the Plaintiff shall discompt and reimburse the Defendant and here the word provisum est doth not make a Condition but a Covenant 27 H. 8. 14 15. Bro. Condition 7. There is another fault in the Plea for the Defendant averrs that the Plaintiff hath not reimbursed him several Sums of Mony which
damages which he sustained before the Abatement And thereupon Iudgment was given for the Plaintiff Walwyn versus Awberry and others Tythes of a Rectory shall not be sequestred for Repairs of the Chancel Mod. Rep. 258. TRespass for the taking and carrying away of four Loads of Wheat and four Loads of Rye c. The Defendants justifie for that the Plaintiff is Rector of the Rectory impropriate of B. and that the Chancel was out of Repair and that the Bishop of Hereford after Monition first given to the Plaintiff had granted a Sequestration of the Tythes of the Rectory for the repairing the Chancel and that the Defendants were Churchwardens of the Parish and that the particulars mentioned in the Declaration were Tythes belonging to the Plaintiff as Rector aforesaid and that by vertue of the said Commission they took the same for repairing of the said Chancel and that for these Tythes so taken they had accounted to the Bishop To this the Plaintiff demurred The Question was whether an Impropriate Rectory be chargeable for the Repairs of the Chancel by the Sequestration of the Tythes by the Bishop and those who argued in the negative for the Plaintiff could not deny but that Church Reparations did belong to the Ecclesiastical Courts and that as often as Prohibitions have been prayed to that Iurisdiction Consultations have been as often granted notwithstanding in many Cases the Rates for such Reparations have been very unequally imposed and the reason is because those Courts have original Iurisdiction of the Matter It was admitted also that Parishioners are bound to repair the Church and the Rector the Chappel and in this respect of their Lands and therefore if a Man hath Lands in one Town and dwell in another he shall be contributory to the Reparation of that Church where his Lands are and not where he inhabits And that all this was by the common Custom of England long before the making of the Statute of 31 H. 8. cap. 13. by which Parsonages were made Lay Fees but then it must be understood that this was no real Duty incumbent upon them but was a personal burden for which every Parishioner was chargeable proportionably to the quantity of Land which he held in the Parish in which Case if he refused to be contributory the Ordinary did never intermeddle with the possessions but always proceeded by Ecclesiastical Censures as Excommunication of the Party refusing which is the proper remedy But in case of an Appropriation in the Hands of an Ecclesiastical Corporation as Dean and Chapter c. there if a Refusal be to contribute to the Repairs the Ordinary may sequester and the reason is because a Corporation cannot be excommunicated The Ordinary may also sequester in things of Ecclesiastical Cognizance as if the King do not present so he may take the Profits within the six Months that the Patron hath to present and apply them to the Pastor of the Church by him recommended because the Ordinary hath a provisional Superintendency of the Church and there is a necessity that the Cure should be supplyed until the Patron doth present and this is a kind of Sequestration But in some Cases the Ordinary could not sequester the Profits belonging to Spiritual Persons though he was lawfully entituled to them for a particular time and purpose For by the Statute of 13 Eliz. cap. 20. 't is Enacted That if a Parson make a Lease of his Living for a longer time than he is resident upon it that such Lease shall be void and he shall for the same lose one years Profits of his Benefice to be distributed by the Ordinary amongst the Poor of the Parish Now he had no Remedy to recover the Years Profits but in the Ecclesiastical Court he could not sequester and to give him Authority so to do a supplemental Statute was made five years afterwards in the 18th year of the Queens Reign cap. 11. by which Power is given him to grant a Sequestration so that if he could not sequester in a Case of which he had a Iurisdiction by a precedent Statute à fortiori he cannot in a Case exempted as this is from his Iurisdiction But admitting a Sequestration might go then this inconveniency would follow that if other Lands should be sequestred for the same purpose the former Sequestration could not be pleaded to discharge them because the interest is not bound thereby no more than a Sequestration out of Chancery is pleadable to an Action of Trespass at the Common Law This Case cannot be distinguished from that of Jefferies in 5 Co. and from what the Civilians testified to the Court there viz. That the Churchwardens and greater part of the Parishioners upon a general warning given may make a Taxation by Law but the same shall not charge the Land but the person in respect of his Land so that 't is he that is chargeable and may be excommunicated in case of refusal to contribute but his Lands cannot be sequestred because 't is not the business of the Ordinary to meddle with the temporal possessions of Lay-men but to proceed against them by Ecclesiastical Censures and the Parishioners Lands may be as well sequestred for the Repairs of the Church as the Lands of the Impropriator for the Repairs of the Chappel for which Reasons it was held that a Sequestration would not lie Ex parte Def. But on the other side it was said that before the making of the Statute the Rector was to repair the Chancel under pain of Sequestration which the Ordinary had power to grant in case of refusal and that his Authority in many Cases was not abridged by the Statute The Case of * 2 Cro. 518. Parry and Banks was cited where in the 24th Year of H. 8. a Parsonage was appropriated to the Deanary of St. Asaph and a Vicaridge endowed which the Bishop dissolved in the 24th Year of Queen Elizabeth and Parry pretending that notwithstanding this Dissolution it was in the Kings Hands by lapse obtained a Presentation and it was resolved that after the Statute of Dissolutions which made Parsonages Lay Fees the Ordinary could not dissolve the Vicaridge where the Parsonage was in a Temporal Hand but being in that Case in the Hands of the Dean he might The Rector is to repair the Chancel because of the Profits of the Glebe which is therefore Onus reale impositum rebus personis and of that Opinion was Johannes de Atkin who wrote 100 years before Lynwood where in fol. 56. he saith That if the Chancel was out of repair it affected the Glebe And that the Constitution of the Canon Law is such will not be denied Vaugh. 327. and if so Canons being allowed are by use become parcel of the Common Law and are as much the Law of the Kingdom as an Act of Parliament for what is Law doth not suscipere magis aut minus Several Cases were put where the Bishop doth intermeddle with the