the Common Law for a false Oath made by any Witness and therefore an Action will not lye for a scandalous Affidavit Adjornatur Anonymus NOta An Action of Assault and Battery Release of one Def. shall not discharge the rest of a personal thing and false imprisonment was brought against four Defendants the Plaintiff had Iudgment and they brought a Writ of Error The Plaintiff in the Action pleaded the Release of one of them and to this Plea all four jointly demur The Opinion of the Court was that Iudgment might be given severally for they being compelled by Law to join in a Writ of Error the release of one shall not discharge the rest of a personal thing But where divers are to recover in the personalty 6 Co. Ruddock's Case the Release of one is a Bar to all but it is not so in point of discharge If two Coparceners make a Lease of a House and the Rent is in arrear and one of them brings the Action and recovers the Iudgment shall be arrested because one alone hath recovered in Debt for a moiety when both ought to join But it is agreed that if one Tenant in Common make a Lease rendring Rent which afterwards is in arrear Litt. Sect. 316. they must join in an Action of Debt because it savours of the Personalty But 't is otherwise in case of the Realty DE Term. Sanct. Trin. Anno 2 Jac. II. in Banco Regis 1686. Herbert Chief Justice Wythens Justices Holloway Justices Wright Justices Sawyer Attorny General Powis Sollicitor General Aldridge versus Duke ASsault Trespass continued many years and the Statute of Limitations pleaded the Jury gives Damages only for the last six years Battery Wounding and Imprisoning of him from the 10th of August 24 Car. 2. usque exhibitionem Billae The Defendant pleaded not Guilty infra sex infra Annos The Plaintiff replied that the Writ was sued out 2 Octobris 1 Jacobi 2. And that the Defendant was Guilty within six years next before the Writ brought Vpon this Issue was joyned and a Verdict was given for the Plaintiff and entire damages given Mr. Pollexfen moved two Exceptions in Arrest of Iudgment 1. That a Verdict cannot help what appears to be otherwise upon the face of the Record Now here the Plaintiff declared that he was imprisoned the 10th of August 24 Car. 2. which is 13 years since and being one entire Trespass the Issue is found as laid in the Declaration which cannot be for so many years between the cause of Action and bringing of the Writ for if a Trespass be continued several years the Plaintiff must sue only for the last six years for which he hath a compleat cause of Action but when those are expired he is barred by the Statute When the Plaintiff hath any cause of Action Sid. 25. then the Statute of Limitations begins as in an Action on the Case for words if they are actionable in themselves without alledging special damages the Plaintiff will recover Damages from the time of the speaking and not according to what loss may follow So in Trover and Conversion when there is a cause of Action vested and the Goods continue in the same possession for seven years afterwards in such case 't is the first conversion which entitles the Plaintiff to an Action So in the Case at Bar tho' this be a continued imprisonment yet so much as was before the Writ brought is barred by the Statute Thompson contra The Verdict is good for the Iury reject the beginning of the trespass and give Damages only for that which falls within the six years and this may be done because 't is laid usque exhibitionem Billae If the Defendant had pleaded not Guilty generally Cro. Car. 160 381 404. then Damages must be for the 13 years though the Plaintiff of his own shewing had brought his Action for a thing done beyond the time limited by the Statute but having pleaded not Guilty at any time within six years if the Verdict find him guilty within that time 't is against him As to the Objection that the Cause of Action ariseth beyond six years tho' it doth appear so in the Declaration yet that doth not exclude the Plaintiff for there might have been Process out before or he might be disabled by an Outlawry which may be now reversed or he might be in Prison and newly discharged from which time he hath six years to begin his Action for being under either of these circumstances the Statute doth not hurt him Curia If an Action of false Imprisonment be brought for seven years and the Jury find the Defendant guilty but for two days 't is a Trespass within the Declaration This Statute relates to a distinct and not to a continued Act for after six years it will be difficult to prove a Trespass many accidents may happen within that time as the death or removal of Witnesses c. Iudgment was given for the Plaintiff Dobson versus Thornistone THE Plaintiff was a Husbandman Words spoken of a Farmer actionable who brought an Action against the Defendant for these words He owes more mony than he is worth he is run away and is broke He had a Verdict and it was moved now in Arrest of Iudgment that the Words being spoken of a Farmer are not actionable To say that a Gentleman is a Cozener Hill 28 Eliz. B.R. Godb. 40. a Bankrupt and hath got an Occupation to deceive Men though he used to Buy and Sell yet being no Merchant 't was the better Opinion of the Court that the Words were not actionable So to say of a Farmer Stiles 420. that he is a Whoreson Bankrupt Rogue and it not appearing that he got his living by Buying and Selling or that the Words were spoken of him relating to his Occupation 't is not actionable For it must not only appear that the Plaintiff hath a Trade Sid. 299. Hutt 50. but that he gets his Living by it otherwise the Words spoken of him will not bear an Action But the Court held the Words to be actionable the like Iudgment was given in the Case of a Carpenter Mich. 3 Jac. for Words Viz. He is broke and run away Anonymus NOta Misentry of a Writ of Enquiry amendable without paying Costs Iudgment was given upon a Demurrer and a Writ of Enquiry was awarded and in the Entry thereof upon the Roll the Words per Sacramenum duodecim proborum legalium hominum were left out and now the Question was Whether it shall be amended It was said that a Capiatur for a Misericordia shall be amended upon the new Statute of Jeofails after a Verdict but whether upon a Demurrer it was doubted In a Quo Warranto Iudgment was entred by disclaimer Cro. Car. 184. by the consent of all Parties and the Words virtute praetextu literarum patentium geren dat 17 Jacobi were wrote in the Margin of the
Paper Book by the then Attorny General but by reason of a stroak cross them the Clerk omitted them in engrossing the Iudgment But upon a Motion the Court held this amendable at the Common Law Curia The Error is only a Misentry of the Writ of Enquiry and amendable without paying of Costs Mr. Aston the Secondary said that Costs were never paid in this Court upon such Amendments nor in the Common Pleas until my Lord Chief Iustice Vaughan's time but he altered the Practice and made that Rule that if you amend after a Writ of Error brought you must pay Costs Holcomb versus Petit. A Devastavit was brought against an Administrator of a rightful Executor who pleaded an insufficient Plea Administrator of a rightful ful Executor is liable to a Devastavit 30 Car. 2. c. 7. and upon a Demurrer the Question was upon the Statute of 30 Car. 2. The Title whereof is An Act to enable Creditors to recover Debts of Executors and Administrators of Executors in their own wrong which is introductory of a new Law and charges those who were not chargeable before at the Common Law but it enacts That when Executors of persons who are Executors de son tort or Administrators shall convert the Goods of any person deceased that they shall be liable as their Testator or Intestate would have been Gold held that he shall not be charged for where an Act of Parliament charges an Executor in such case an Administrator shall be likewise charged but if an Administrator be charged that shall never extend to an Executor The Rule is A majori ad minus valet Argumentum sed non e contra therefore the rightful Executor shall not be charged by this Act which only makes Executors of Executors de son tort lyable Pollexfen contra There can be no reason given why the Act should make an Administrator of an Administrator lyable to a Devastavit and not an Administrator of an Executor de son tort for the mischief will be the same and therefore a rightful Executor who wasts the Testator's Goods ought to be charged The Recital of this Act is large enough the Preamble is general and the enacting Clause expresseth Executors and Administrators of Executors de son tort but then it also mentions Administrators but not such who are their Administrators de son tort Now the Word Administrator is in it self a general Word and extends to any one who meddles with the personal Estate so that the Preamble being general and the Act remedial 't is within the same mischief Curia The Word Administrator is very comprehensive for when an Executor pleadeth he saith Plene administravit If a rightful Executor waste the Goods he is a kind of an Administrator de son tort for abusing of the Trust There is no Superiority between an Executor or an Administrator for by this Act they are both equal in power as to the Goods of the deceased Iudgment was given that the Administrator of the rightful Executor shall be liable Jenings versus Hankeys 'T IS enacted by the Statute of 13 Car. Where an Informer shall be a Witness though he hath part of the Penalty 13 Car. 2. c. 10. 2. That they who kill course hunt or take away Red or Fallow Deer in any Ground where Deer are kept c. or are aiding therein if such are convicted by Confession or Oath of one Witness before one Justice of the Peace within six Months after the Offence done shall forfeit 20 l. one Moiety to the Informer the other to the Owner of the Deer to be levied by Distress by Warrant under the Justice's Hand The Defendant was convicted by the Oath of the Informer and Mr. Shower moved that it might be quashed because the Informer is not to be admitted as a Witness he being to have a Moiety of the Forfeiture The Party to an usurious Contract shall not be admitted as an Evidence to prove the Vsury 12 Co. 68. 2 Rol. Abr. 685 because he is Testis in propria causa and by their Oath may avoid their own Bonds Mr. Pollexfen contra The Statute gives power to convict by the Oath of a credible Witness and such is the Informer 'T is not a material Objection to say That the Informer shall not be a Witness because he hath a Moiety of the Forfeiture for in Cases of the like nature the Informer is always a good Witness As upon the Statute for suppressing of Conventicles the Informer is a good Witness and yet he hath part of the Penalty for otherwise that Act would be of little force for if who sees the People met together be not a good Witness no Body else can Curia In the Statute of Robberies a Man swears for himself because there can be no other Witness he is a good Witness Harman versus Harman DEBT upon a Bond against an Administrator Notice of a Debt must be given to an Administrator who pleaded Fully administred and that he had not notice of this Bond before such a day In this Case a special Verdict was found upon which the Question was Whether Notice was necessary to be given of Debts of an inferior nature The Court gave no Opinion but they agreed that a Iudgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond and that 't is no Devastavit in an Executor to pay a Debt upon such a Contract before a Bond Debt Vaughan 94. of which he had no Notice So where an Obligor did afterwards enter into a Recognizance in the nature of a Statute 2 Anders 159. 1 Mod. 157. and Iudgment was against him upon the Bond and then he dyed his Executrix paid the Creditor upon the Statute and the Obligee brought a Scire Facias upon the Judgment on the Bond Debt and she pleaded payment of the Recognizance this was held a good Plea for she is not bound to take Notice of the Iudgments against the Testator without being acquainted therewith by his Creditors for she is in no wise privy to his Acts. DE Term. Sancti Mich. Anno 2 Jac. II. in Banco Regis 1686. Anonymus AN Information was exhibited against the Defendant for Perjury Perjury in a Deposition taken before Commissioners in Chancery setting forth that a Bill in Chancery was exhibited by one A. B. and the Proceedings thereon The Perjury was assigned in a Deposition made by the Defendant 30 Julii 1683. and taken in that Cause before Commissioners in the Country It was tried this day at the Barr and the Question was Whether the Return of the Commissioners that the Defendant made Oath before them shall be a sufficient Evidence to convict him of Perjury without their being present in Court to prove him the very same person Serjeant Pemberton for the Defendant admitted an Information will lie in this Case against him but the Commissioners must be here or some other person to prove that he was
the person who made Oath before them The Commissioners sign the Depositions and they ought to produce them so signed to the Court and prove it for Depositions are often suppressed by Order of the Court. If a true Copy of an Affidavit made before the Chief Iustice of this Court be produced at a Trial 't is not sufficient to convict a Man of Perjury This is not like the Case of Perjury assigned in an Answer in Chancery taken in the Country for that is under the Parties Hand but here is nothing under the Defendant's Hand and therefore the Commissioners ought to be in the Court to prove him to be the Man The Court were equally divided The Chief Iustice and Wythens Iustice were of Opinion that it was not Evidence to convict the Defendant of Perjury it might have been otherwise upon the Return of a Master of Chancery for he is upon his Oath and is therefore presumed to make a good Return but Commissioners are not upon Oath they pen the Depositions according to the best of their skill and a man may call himself by another name before them without any offence The Commissioners cannot be mistaken in the Oath tho' they may not know the person for this Court may be so mistaken in those who make Affidavits here but not in the Oath if the Commissioners or the Clerk to the Commission had been here they would have been good Evidence If an Affidavit be made before a Iustice of the Peace of a Robbery as enjoyned by the Statute if you will convict the person of Perjury you must prove the swearing of the Affidavit The Attorney General perceiving the Opinion of the Court rather than the Plaintiff should be nonsuit because no Evidence could be given offered to enter a Nolle prosequi which the Court said could not be done because the Iury were sworn but he insisted upon it and said he would cause it to be entred Sir John Knight's Case AN Information was exhibited against him by the Attorney General upon the Statute of 2 E. 3. Information upon the Statute for going armed 2 E. 3. c. 3. Which prohibits all persons from coming with Force and Arms before the King's Justices c. and from going or riding armed in affray of Peace on pain to forfeit his Armour and suffer Imprisonment at the King's Pleasure This Statute is confirmed by that of R. 2. 20 R. 2.1 with an Addition of a farther punishment which is to make a Fine to the King The Information sets forth that the Defendant did walk about the Streets armed with Guns and that he went into the Church of St. Michael in Bristol in the time of Divine Service with a Gun to terrifie the King's Subjects contra formam Statuti This Case was tryed at the Bar and the Defendant was acquitted The Chief Iustice said that the meaning of the Statute of Ed. 3. was to punish People who go armed to terrifie the Kings Subjects 'T is likewise a great Offence at the Common Law as if the King was not able or willing to protect his Subjects and therefore this Act is but an affirmance of that Law and it having appointed a Penalty this Court can inflict no other Punishment than what is therein directed DE Term. Sancti Hill Anno 2 3 Jac. II. in Banco Regis 1686 7. Kingston versus Herbert A Common Recovery was suffered Anno 22 Jacobi primi Where a Scire Facias must go to the Tertenants before Judgment be reversed and a Writ of Error was brought about five years since to reverse it and Iudgment was given for the Reversal and it was now moved to set aside that Reversal because there was no Scire Facias against the Tertenants Mr. Williams who argued for the Reversal said that the want of a Scire Facias must be either in Law or in Fact it cannot be Error in Law for that must appear upon the Record it self which it doth not here It cannot be Error in Fact because there is no necessity of such a Writ 't is only discretionary in the Court and not ex necessitate juris But on the other side it was insisted that the Court cannot proceed to examine Errors before a Scire Facias is awarded to the Tertenants Dyer 320 331. for they may have a Matter to plead in Barr to the Writ as a Release c. and the Party cannot be restored to all which he hath lost by the suffering of the Recovery unless the Defendant be brought in upon the Scire Facias Curia The only Question is whether this Iudgment be well given without a Scire Facias The Secondary hath reported that the Practice is so Then as to the Ojection that such a Scire Facias is not ex necessitate juris but only discretionary 't is quite otherwise for 't is not only a cautionary Writ as all other Scire Facias but 't is a legal caution which in a manner makes it necessary 'T is true if there had been a Iudgment corruptly obtained this Court might have set it aside but if Erronice 't is a doubt whether it may be vacated but according to the Forms and Methods of Law Adjornatur Baldwin versus Flower BAron and Feme brought an Action on the Case for Words spoken of the Wife Words where actionable without special damage The Declaration was that the Defendant having some discourse with another person called the Wife Whore and that she was his Whore and concluded ad dampnum ipsorum c. The Plaintiff had a Verdict and it was now moved in arrest of Iudgment for that the Words were not actionable without alledging special damage But it was answered Rol. Abr. 35. placit 7. that the Action was well brought To say A Man is rotted with the Pox is actionable without alledging special damage because the person by such means will lose the Communication and Society of his Neighbours As to the Conclusion ad dampnum ipsorum 't is good for if she survive the Husband the Damages will go to her and so are all the Presidents Curia The Words are actionable And three Iustices were of Opinion that the Conclusion of the Declaration was as it ought to be which Iustice Wythens denied for if an Innkeepers Wife be called a Cheat and the House loses the Trade the Husband hath an injury by the Words spoken of his Wife but the Declaration must not conclude ad dampnum ipsorum Sir Thomas Grantham's Case HE bought a Monster in the Indies which was a Man of that Country who had the perfect Shape of a Child growing out of his Breast as an Excrescency all but the Head This Man he brought hither and exposed to the sight of the People for Profit The Indian turns Christian and was baptized and was detained from his Master who brought a Homine Repleg ' the Sheriff returned that he had replevied the Body but doth not say the Body in which
a new Recovery Debt will not lie F.N.B. 122. E. and to prove this there is and Authority in Fitzherbert where a Prior had Iudgment for an Annuity and brought a Scire Fac. upon that Iudgment against the Successor of the parson who was to pay it and obtained a Iudgment upon that Scire Fac. to recover the arrearages and afterwards brought an Action of Debt upon the last Iudgment and the Book says fuit maintein There is another Case in 2 Leon. 2 Leon. 14. 4 Leon. 186. 15 H. 7.16 where 't is held that an Action of Debt will lye upon a Iudgment in a Scire Facias upon a Recognizance Which Objections may receive this Answer First As to the Case in Fitzherbert 't is admitted to be Law but 't is not an Authority to be objected to this purpose because the first Iudgment for the Annuity charges the Successor but the Original Iudgment in this Case doth not charge the Husband so the Cases are not parallel The like answer may be given to the Case in Leonard for a Recognizance is a Iudgment in it self and Debt will lie upon it without a Sci. Fa. upon that Iudgment But on the other side it was argued E contra that the award of execution is absolute against Husband and Wife for 't is a Recovery against both whereas before it was only the Debt of the Wife but now 't is joynt against the one as well as the other The Iudgment upon the Sci. Fa. is a distinct Action It cannot be denied but that if a Woman be indebted and marrieth the Husband is chargable during the Coverture Bro. Ab. tit Baron and Feme pl. 27. 49 E. 3.35 b. which shews that by the Marriage he is become the principal Creditor As to the Sci. Fa. t is true at the Common Law if a Man had recovered in Debt and did not sue forth Execution within a year and a day he must then bring a new Original 1 H. 5. 5. a 43 Ed. 3.2 b. and the Iudgment thereon had been a new Recovery but now a Sci. Fa. is given by the Statute instead of an Original and therefore a Iudgment thereon shall also be a new Iudgment for tho' t is a Iudicial Writ yet 't is in the nature of an Action because the Defendant may plead any matter in Bar of the Execution upon the first Iudgment 1 Inst 290. b. and 't is for this reason that a Release of all Actions is a good bar to it Besides Rast Ent. 193. 4 Leon. 186. Dyer 214. b. an Action of Debt will lie upon a Iudgment on a Sci. Fa. which shews that 't is an Action distinct from the Original and upon such a Iudgment the Defendant may be comitted to Prison several years afterwards without a new Sci. Fa. The Husband may have execution of a Iudgment recovered by him and his Wife after the death of his Wife without a Sci. Fa. 1 Mod. Rep. 179. for the Iudgment hath made it a proper Debt due to him and he alone may bring an Action of Debt upon that Iudgment and it seems to be very reasonable that he should have the benefit of such a Iudgment and yet not be charged after the death of his Wife when there hath been a Recovery against both in her life-time This is like the Case where a Devastavit is returned against Husband and Wife as Executrix Moor 299. 3 Cro. 216. Cro. Car. 603. Sid. 337. and a Iudgment thereon quod querens habeat executionem de bonis propriis the Wife dies yet the Husband shall be charged for the Debt is altered If it should be otherwise this inconvenience would follow that if the Wife should die F.N.B. 121. c. 1 Rol. Abr. 351. 10 H. 6.11 the Husband will possess himself of her Estate and defraud the Creditors so that he takes her but not cum onere But the Law is otherwise for if a Feme being Lessee for years doth marry and the Rent is behind and she dies the Husband shall be charged with the Rent arrear because he is entituled to the Profits of the Land by his marriage To which it was answered that if a Man should marry an Exerecutrix and then he and his Wife are sued and Iudgment obtained against them to recover de bonis testatoris and thereupon a Fi. Fa. is awarded to levie the Debt and Damages and the Sheriff returns a Devastavit and then the Wife dies the Husband is not chargeable because the Iudgment is not properly against him who is joyned only for conformity but if upon the return of the Devastavit there had been an award of execution De bonis propriis that would have been a new Iudgment and the old one De bonis testatoris had been discharged 1 Roll. Abr. 351. and then the Husband must be charged for the new wrong Adjornatur Afterwards in 1 Will. Mar. the Iudgment was affirmed Bowyer versus Lenthal INdebitatus Assumpsit quantum meruit ad insimul computasset Valerent for Valebant good after Verdict The Plaintiff had a Iudgment by default in the Court of Common-Pleas and a Writ of Enquiry was brought and entire Damages given and now the Defendant brought a Writ of Error and it was argued that if any of the Promises be ill Iudgment shall be reversed the Error now assigned was in the second Promise Viz. That in consideration that the Plaintiff would let the Defendant have Meat Drink and Lodging he promised to pay so much Quantum rationabiliter valerent it should have been valebant at the time of the Promise made Sed non allocatur So the Iudgment was affirmed DE Termino Paschae Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Powis Attorny General Wm. Williams Sollicitor General NOTA Wednesday May 2. being the first day of this Term Sir Bartholomew Shower Recorder of London was called within the Bar. Heyward versus Suppie IN an Action of Covenant which was to make such an Assignment to the Plaintiff Covenant to make an Assignment as Council should advise according to an Agreement made between him and the Defendant as Council should direct and advise and for non-performance thereof this Action was brought the Defendant pleaded non est factum and Iudgment was obtained against him Vpon which a Writ of Error was brought and the common Error assgned It was objected that the Plaintiffs Council should give the advice because he is the person interested This Objection was answered by Mr. Pollexfen who said that the Defendant had likewise an interest in this matter for 't is an advantage to him to make the Assignment that his Covenant might be saved 't is true it had been otherwise if the Covenant had been to make such a Conveyance as Council should advise for then the person to whom the Covenant is made may chuse whether he will have a Feoffment
Defendant Elizabeth The Question in which Case was whether by the Entry of the Son who was Tenant at Will and his making of this Lease the Father was disseised of the Freehold And it was held not for it was found in that Verdict that he occupying at Will and entring by his Fathers Assent the Lease was also intended to be made by his Assent But on the other side it was said that this Fine was a Barr by the express Words of the Statute of H. 7. E contra which excludes in all Cases but where there is Fraud or the person is incapable 4 H. 7. c. 24. or where the Right to be barred is not divested In this Case John Basket had an Interest and present Right and though it be closed with a Trust yet that will not make any difference 1. Cro. Car. 550. 10 Co. 56. Here is no Fraud for the Fine was levyed by Tenant in Tail in possession but if there had been Fraud it ought to be found otherwise it shall not be presumed This is not like Blunden's Case for there the Son was Tenant at Will but 't is not found by this Verdict that John occupied at Will There is no difference between this Term and a Trust of a Term to attend the Inheritance whose Interest shall be barred by such a Fine and Nonclaim because the Trust is included in the Fine and therefore the Trustees not making of their Claim within the five years are for ever excluded It cannot be denied but a Term for years is such an Interest which may be barred by Fine 5 Co. 123. 't is Saffin's Case expresly which was a Lease for years to commence in futuro after a Lease then in being should be determined the first Lease ended the second Lessee did not enter but the Reversioner did and made a Feoffment and levyed a Fine and five years passed without Entry or Claim by the second Lessee it was adjudged that this Fine was a Barr to him for when his future Interest commenced then and not before he had such a present Interest in the Land which might be divested and turned to a Right To which it was answered that this differs from Saffin's Case which was an interesse Termini and the Case of Alport which was an Executory Devise If John Basket had still continued in Possession it might have altred the Case but he died and his Wife entred and then the five years passed without any Claim Adjournatur Evans versus Crocker A Special Verdict in Ejectment was found in Ireland In Ejectment where the Entry seems to be before the Title yet the Declaration is good and Iudgment given there for the Plaintiff and now a Writ of Errour was brought in this Court and the Common Error assigned The Objection was to the Declaration which was That the Plaintiff declared upon a Demise made 12 Junii c. Habendum a praedicto duodecimo die Junij which must be the 13th day of the same Month usque c. virtute cujus quidem dimissionis he entred c. and that the Defendant postea scilicet eodem duodecimo die Junij did eject him c. So that it appears upon the Face of the Declaration that the Defendant entred before the Plaintiff had a Title for the Lease commenced on the 23th of June and the Entry was on the 12th of that Month. And it was said that this agrees with a former Resolution in this Court where the Lease was made the 24th of June for five years Habendum a die datus Siderfin 8. 2 Cro. 96. which must be the 25th by vertue whereof the Plaintiff entred and that the Defendant postea scilicet 24th Junij did eject him which must be before the commencement of the Lease Curia The Plaintiff entred as a Disseisor by his own shewing and thereupon Iudgment was reversed Rex versus Kingsmill QUO Warranto against the Defendant to shew cause why he executed the Office of a Bayliff of the Hundred of Barnstaple Grant of an Hundred where good c. The Defendant pleaded that the said Hundred was an ancient Hundred and that the Office of Bayliff was an ancient Office and that the Hundred Court was an ancient Court held from three Weeks to three Weeks before the Steward thereof that the Return of Writs was an ancient Liberty and Franchise which did belong to the said Bayliff that King Charles I. was seized of the said Franchise jure Coronae in Fee who by Letters Patents dated c. did grant the same to one North Habendum the said Hundred to him and his Heirs and that by several mesne Assignments it came to and was vested in the Defendant and so he justified to have Retorna Brevium To this Plea the Plaintiff demurred And for the King it was argued that this Claim was not good First as to the manner of the Grant as 't is here pleaded viz. that the King was seized in Fee c. and that he granted the Franchise Habendum the said Hundred That such a Grant can never include the Hundred for nothing can pass in the Habendum but what was mentioned in the Premisses 2. The Defendant hath derived a Title from the Crown to this Office of a Bayliff which must be either by Grant or Prescription It cannot be by Grant for 't is a Question whether the Hundred Court can now be separated from the County Court it hath been derivative from it in former times when the Sheriffs did let those Hundreds to farm to several persons who put in Bayliffs errant to the great oppression of the People which was the occasion of the making of the Statute of Ed. 14 E. 3. c. 9. 3. by which such Hundreds were united and rejoyned to the Counties as to the Bailiwicks thereof 4 Inst 267. except such as were then granted in Fee by the King or his Ancestors Now these Hundreds were usually granted to Abbots and other religious persons 31 H. 8. c. 13. and their Possessions coming afterwards to the King by the dissolution of their Abbies and Monasteries are now merged in the Crown and cannot be regranted after the making of that Statute And as the Defendnat cannot have a Title by Grant so he hath not prescribed to have this Office 't is true the Plea sets forth that 't is an ancient Office but that is not a Prescription but a bare Averment of its Antiquity But admitting he had alledged it by way of Prescription 14 H. 4.89 he could not do it by a Que Estate to have Retorna Brevium A man cannot preserive to have Cognizance of Pleas in an Hundred Court he may in a County Palatine because 't is of a mixed Iurisdiction Neither can he prescribe to have Return of the King's Writs Abbot de Strata Marcella because they are matter of Record Here is a good Title pleaded E contra It was never yet denied but that
which he claims he ought to shew the other Will by which it must appear that nothing is contradictory to it or that it doth confirm the first but if Presumptions shall be admitted it must be in favour of the Heir for nothing shall be presumed to disinherit him Afterwards in Trinity-Term 5 Willielmi Iudgment was given for the Plaintiff and a Writ of Error was brought in the House of Peers to reverse that Iudgment but it was affirmed Anonymus A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Ejectment for Lands in the County of Essex in which a Special Verdict was found viz. That R. F. What Words in a Will make Tenants in Common was seized in Fee of the Lands in question who had Issue two Daughters Frances Jane Frances had Issue Philp Frances Anne R. F. the Father devised unto Philip Frances and Anne the Children of his Daughter Frances and to Jane his other Daughter the Rents and Profits of his Mannor of Spain for thirty years to hold by equal parts viz. the three Grandchildren to have one Moiety and his Daughter Jane the other Moiety And if it happen that either of them should die before the thirty years expired then the said Term should be for the benefit of the Survivor and if they all die then the same was devised over to other Relations Afterwards he made a Codicil in these words viz. I give Power and Authority to my Executors to let my whole Lands for the Term of thirty years for the benefit and behalf of my Children Anne one of the Granchildren died without Issue Frances another of the Grandchildren died but left Issue The first Question was whether the Power given to the Executors by the Codicil will take away that Interest which was vested in the Grandchildren by the Will Mr. Appleton argued that it would not because the Executors had only a bare Authority to let it or improve it for the benefit of the Children there was no Devise of the Land to them If Power be given to Executors to sell Lands 't is only an Authority and not an Interest in them but a bare Authority only to let is of much less importance 2. After the Testator had devised the Profits of these Lands to his Grandchildren and Daughter equally to be divided during the term and had provided that if any dye without Issue that then it should survive and if all dye then to remain over to collateral Relations c. Whether Frances being dead but leaving Issue her Interest shall survive to Philip or go to such her Issue As to that he held that the Testator made them Tenants in Common by equal parts and therefore he devised it by Moieties in which there can be no Survivorship 'T is like a Devise to the Wife for life 2 Cro. 448. 1 Roll. Abr. 833. King versus Rumbal Cro. Car. 185. and after her decease to his three Daughters equally to be divided and if any of them die before the other then the Survivors to be her Heirs equally to be divided and if they all die without Issue then to others c. the Daughters had an Estate Tail and there was no Survivorship So in this Case it shall never go to the third Grandchild as long as any Issue of the second are living On the other side it was argued that they are Ioyntenants and not Tenants in Common E contra for the Testator having devised one Moiety to his three Grandchildren joyntly by equal parts that will make them Ioyntenants But the Court were all of Opinion that the words in the Will shew them to be Tenants in Common for equally to be divided runs to the Moieties So the Iudgment was affirmed Woodward 's Case THE Statute of 23 H. 8. c. 9. Church Ornaments are a personal Charge upon the Inhabitants and not upon those who live else where though they occupy Lands in that Parish Godb. 134. pl. 4. 152. pl. 29. 154. pl. prohibites a Citation out of the Diocess wherein the Party dwelleth except in certain Cases therein mentioned one whereof is viz. Except for any Spiritual Cause neglected to be done within the Diocess whereunto the Party shall be lawfully cited One Woodward and others who lived in the Diocess of Litchfield and Coventry but occupied Lands in the Diocess of Peterborough were taxed by the Parishioners where they used those Lands for the Bells of the Church and they refusing to pay this Tax a Suit was commenced against them in the Bishop of Peterborough's Court who thereupon suggested this Matter and prayed a Prohibition because they were not to be charged with this Tax it being only for Church Ornaments And a Prohibition was granted the reason given was because 't is a personal charge to which the Inhabitants only are liable and not those who only occupy in that Parish and live in another but the repairing of the Church is a real Charge upon the Land let the Owner live where he will DE Term. Sanct. Trin. Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices The Bishop 's Case Friday June 15th THE King having set forth a Declaration for Liberty of Conscience did on the 4th day of May last by Order of Council enjoyn that the same should be read twice in all Churches c. and that the Bishops should distribute it through their respective Diocesses that it might be read accordingly The Archbishop of Canterbury who then was together with six other Bishops petitioned the King setting forth that this Declaration was founded upon a dispensing Power which had been declared illegal in Parliament and therefore they could not in Honour or Conscience make themselves Parties to the Distribution and Publication of this Declaration who thereupon were summoned before the King in Council and refusing there to give Recognizance to appear before the Court of Kings Bench they were committed to the Tower by Warrant of the Council-Board The Attorney General moved for a Habeas Corpus retornable immediate and the same Morning in which that Motion was made Sir Edward Hales Lieutenant of the Tower returned the same and they were all brought into the Court. The Substance of the Return was viz. That they were committed to his Custody by Warrant under the Hands and Seals of the Lord Chanchellor Jefferies and also naming more of the Lords of the Privy-Council Dominos Concilij for contriving making and publishing a Seditious Libel against the King c. Then it was prayed that the Return might be filed and that the Information which was then exhibited against them for this Crime might be read and that they might all plead instanter Serjeant Pemberton Mr. Finch and Mr. Pollexfen oppsed the reading of it and moved that the Bishops might be discharged because they were not legally before the Court for it appears upon the Return that there is no lawful cause of
Executors one of them of Age 2 Sand. 212. and the other not one may make an Attorney for the other There is no difference between Executors and Infants in this Case for Executors recover in the right of the Testator and the Bayliffs in the Right of him who hath the Inheritance Besides the Avowants are in the nature of Plaintiffs and whereever a Plaintiff recovers the Defendant shall not assign Infancy for Error Adjornatur Capel versus Saltonstal INdebitatus assumpsit in the Common Pleas Where there are several Plaintiffs in a personal thing and one dyeth before Judgment the Action is abated in which Action there were four Plaintiffs one of them died before Iudgment the others recover and now the Defendant brought a Writ of Error in this Court to reverse that Iudgment and the Question was whether the Action was abated by the death of this person Those who argued for the Plaintiffs in the Action held that the Debt will survive and so will the Action for 't is not altered by the death of the party for where Damages only are to be recovered in an Action well commenced by several Plaintiffs and part of that Action is determined by the Act of God or by the Law and the like Action remaineth for the residue the Writ shall not abate As in Ejectment if the Term should expire pending the Suit 1 Inst 285. the Plaintiff shall go on to recover Damages for though the Action is at end quoad the possession yet it continues for the Damages after the Term ended So if the Lessor bring Waste against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for Damages but the Survivor So where Trover was brought by two 2 Bulst 262. 1 Inst 198. and after the Verdict one of them died the Iudgment shall not be arrested because the Action survives to the other Mr. Pollexfen contra He admitted the Law to be that where two Iointenants are Defendants the death of one would not abate the Writ because the Action is joint and several against them But in all Cases where two or more are to recover a personal thing there the Death or Release of one shall abate the Action as to the rest though 't is otherwise when they are Defendants and are to discharge themselves of a personalty 6 Co. 25. b. Ruddock's Case 2 Cro. 19. And therefore in an Audita Querela by two the death of one shall not abate the Writ because 't is in discharge Now in this Case Iudgment must be entred for a dead Man which cannot be for 't is not consistent with reason The Case of Wedgewood and Bayly is express in it which was this Trover was brought by six and Iudgment for them one of them died the Iudgment could not be entred 'T is true where so many are Defendants and one dies the Action is not abated but then it must be suggested on the Roll. Curia Actions grounded upon Torts will survive but those upon Contracts will not The Iudgment was reversed Fisher versus Wren In the Common-Pleas THE Plaintiff brought an Action of Trespass on the Case Prescription and Custom alledged together and declared that he was seized of an ancient Mesuage and of a Meadow and an Acre of Land parcel of the Demesnes of the Mannor of Crosthwait and sets forth a Custom to grant the same by Copy of Court Roll and that there are several Freehold Tenements parcel of the said Mannor and likewise several Customary Tenements parcel also thereof grantable ad voluntatem Domini and that all the Freeholders c. time out of Mind c. together with the Copyholders according to the Custom of the said Mannor have enjoyed solam seperalem Pasturam of the Ground called Garths parcel of the said Mannor for their Cattle Levant and Couchant c. and had liberty to cut the Willows growing there for the mending of their Houses and the Defendant put some Cattle into the said Ground called Garths which did eat the Willows by reason whereof the Plaintiff could have no benefit of them c. Vpon Not Guilty pleaded there was a Verdict for the Plaintiff And now Serjeant Pemberton moved in arrest of Iudgment and took these Exceptions 1. As to the manner of the Prescription which the Plaintiff had laid to be in the Freeholders and then alledged a Custom for the Copyholders c. and so made a joint Title in both which cannot be done in the same Declaration because a Prescription is always alledged to be in a person and a Custom must be limited to a place and therefore an entire thing cannot be claimed both by a Prescription and Custom Vaughan 215. Carter 200. 1 Sand. 351. because the Grant to the Freeholders and this Vsage amongst the Copiholders could not begin together 2. As to the Custom 't is not good as pleaded to exclude the Lord for it can never have a good Commencement because Copyholders have Common in the Lords Soil only by permission to improve their Estates which Common being spared by the Lord and used by the Tenant becomes a Custom but no Vsage amongst the Tenants or permission of the Lord can wholly divest him of his Soil and vest an Interest in them who in the beginning were only his Tenants at Will 2 Sand. 325. 3. The third Exception and which he chiefly relyed on was viz. That this is a Profit apprender in alieno Solo to which all the Tenants of the Mannor are entituled and that makes them Tenants in Common and therefore in this Action where Damages are to be recovered they ought all to join 'T is true in real Actions Tenants in Common always sever 1 Inst 197 198. Godb. 347. but in Trespasses quare Clasum fregit and in personal Actions they always join and the reason is plain because in those Actions though their Estates are several yet the Damages survive to all and it would be unreasonable to bring several Actions for one single Trespass E contra It was argued that it cannot be denied E contra but that there may be a Custom or Prescription to have solam seperalem pasturam but whether both Prescription and Custom can be joyned together is the doubt now before the Court and as to that he held it was well enough pleaded 1 Sand. 351. for where there is an unusual Right there must be the like remedy to recover that Right it was thus pleaded in North's Case But admitting it not to be well pleaded 't is then but a double Plea to which the Plaintiff ought to have demurred and this may serve for an Answer to the first Exceptions Then as to the last Objection that 't is a Profit apprender in alieno solo for which all the Tenants ought to join 't is true a Common is no more than a Profit apprender
the Land 211 5. Not granted for Mariners Wages 244 6. Libel for a Tax upon the Parishioners for not repairing of their Church who suggest that they had a Chappel of Ease in the same Parish the Prohibition was denied for of common right they ought to repair the Mother Church 264 7. Proof of Matter of Fact by one Witness denied to be allowed in the Spiritual Court is a good cause for a Prohibition 284 8. Where the Release of a Legacy offered to be proved by one Witness was denied in the Spiritual Court ibid. 9. Proof of Payment or Subtraction of Tythes denied and a Prohibition granted ibid. 10. Whether a Prohibition ought to be allowed after Sentence an Appeal being then the more proper remedy 284 Property See Interest Q. Quorum MUst be one Justice of the Peace of the Quorum otherwise cannot be a Sessions 14 152 Quantum meruit Will lie for Rent reserved upon a real Contract where the Sum is not certain but if a Sum in gross is reserved then Debt must be brought 73 R. Record ERror shall not be assigned against the Essence of a Record 141 Recovery Common Reversed without a Scire Facias to the Tertenants but it seems not to be good 119 2. For there must be a Scire Facias against the Heir and Tertenants when a Writ of Error is brought to reverse it 274 Relation Where an Estate shall pass by Relation where not 299 300 Release Of a Legacy by one Executor and also of all Actions Suits and Demands whatsoever those general words which follow are tied up to the Legacy and release nothing else 277 2. Of a Demand will not discharge a growing Rent 278 3. A Receipt was given for 10 l. in which there was a Release of all Actions Debts Duties and Demands nothing is released but the 10 l. 277 4. Judgment against four Defendants who all joyned in a Writ of Error and the Plaintiff pleaded a Release of Errors by one it shall not discharge the rest of a personal thing but if there had been four Plaintiffs to recover the Release or death of one is a Barr to all 109 135 249 5. A Release of all Actions will discharge an Award of Execution upon a Scieri Facias 185 187 6. Of all Actions and Demands doth not discharge a Legacy it must be by particular words 279 7. One of the Defendants who made Conusance released the Plaintiff after the taking of the Cattle this was held void upon a Demurrer for he had no Demand or Suit against the Plaintiff having distrained in the right of another ibid. Remainder See Entry 3. Fines levied 4. Must take place eo instanti the particular Estate is determined or else it can never arise 309 2. By the Conveyance of the Reversion in Fee to him who had the Estate for Life before the Birth of a Son the particular Estate is merged and all contingent Remainders are thereby destroyed 311 Replevin Where 't is brought by Writ the Sheriff cannot make deliverance without the taking of Pledges de prosequendo retorn ' Habend ' 35 Replication Where the Plaintiff confesseth and avoideth he ought not to traverse for that would make his Replication double 318 Request When a thing is to be done upon Request the time when the person requires it to be done is the time of the performance 295 Reservation Of a Rent upon a Lease for three years payable at Michaelmas and Lady-Day Debt was brought for 2 years without shewing at which of the Feasts it was due 't is good after Verdict but ill upon a Demurrer 70 Resignation See Abeiance To the Ordinary and Patron presented 'ts void if the Ordinary did not accept the Resignation 297 Reversion See Bargain and Sale Surrender 2. Tenant in Tail who had likewise the Reversion in Fee if he acknowledge a Judgment the Reversion may be extended 256 2. But a Reversion in Fee expectant upon an Estate Tail is not Assets until it comes into possession 257 3. By what words a Reversion in Fee passeth in a Will 228 Revocation A Will shall not be revoked by doubtful words 206 2. It might be revoked by Word without Writing before the Statute of Frauds 207 3. Before that Statute a Will might be revoked by a subsequent Will which was void in it self yet good to revoke the former 207 218 4. A subsequent Will which doth not appear shall not be any Revocation of a written Will which doth appear 204 205 206 5. Whether a subsequent Will which is void in it self may revoke another since the Statute of Frauds 218 6. Such a Will must be good in all circumstances to revoke a former 260 261 Riot See Information Robbery The Hundred was sued and it did not appear that the Parish where the Fact was laid to be done was in the Hundred or that it was done upon the High way or in the day time this was helped after Verdict 258 2. A Servant delivered Mony to a Quaker to carry home for his Master they were both robbed viz. the Servant of 26 s. and the Quaker of 106 l. the Servant made Oath of the Robbery and the Quaker refused the Master brought the Action it doth not lie for him 287 288 S. Scire Facias See Bail 3 4. Baron and Feme 1 4 5. Iudgment 2. Pledges 1. Recovery MUst be to the Tertenants before the Common Recovery shall be reversed by Writ of Error 119 2. Scieri Facias quare Executionem non habet recites the first Judgment but prays no new thing only to have Execution upon that Judgment 187 3. 'T is not an original but a judicial Writ and depends upon the first Judgment 187 4. 'T is suspended by Writ of Error and if the original Judgment is reversed that is so also ibid. 5. Debt will lie upon a Judgment had on a Scire Facias 188 189 6. A Judgment upon a Scire Facias is a distinct Action from the original cause 189 7. Judgment in Dower and a Writ of Enquiry of Damages the Woman marries and dies before the Writ of Enquiry executed the Husband administred and brought a Scire Facias upon the Judgment whether it lieth or not 281 Serjeants at Law See Iudges Surplusage See Inquisition Steward See Court Supersedeas See Parliament Surrender See Assent 1 2. Where it may be pleaded without an acceptance 297 2. No man can take it but he who hath the immediate Reversion 299 3. If pleaded without an Acceptance 't is aided after Verdict which shews 'tis no Substance 301 4. By one Non compos mentis 't is void ab initio 303 T. Tail DEvise to D. for Life the Remainder to her first Son and the Heirs of the Body of such first Son endorsed thus viz. Memorandum that D. shall not alien from the Heirs Males of her Body she had a Son who had Issue a Daughter 't is not an Estate Tail Male for the Memorandum shall not alter the Limitation in the Will
mistaken in that Action and being in the wrong was barred but that will be no Bar where a right Action is brought as if I deliver a Bond to another for advice who refusing to redeliver it I bring an Action of Trespass and am barred either by Verdict or Demurrer yet I may bring Detinue Trespass and Detinue are not the same Actions Pro Def. and therefore a Iudgment in one shall be no bar to the other but where two Actions are brought for one thing to be recovered in such case a Recovery in one shall be a bar to the other There is no substantial difference between Trespass and Trover for the disposing of the Goods in the one case is the same with the Conversion in the other the taking vi armis and likewise the Conversion are both tortious and therefore either Action may be well brought But for the Reasons given by the Plaintiffs Council he had Iudgment by the Opinion of the Chief Iustice and the other two Iudges Jones and Raymond of which Iustice Dolben did very much doubt Dominus Rex versus Sir Robert Atkins Knight of the Bath al' AN Indictment was found at the Quarter Sessions held for the County of the City of Bristol 4 Octob. 33 Car. 2. The County of the City of Bristolâ— against Sir Robert Atkins Knight of the Bath and Recorder and Senior Alderman of the said City Sir John Knight Alderman John Lawford Alderman and Joseph Creswick Alderman setting forth 1. That King Henry the VII th by his Charter dated 17 Decemb 15 Regni sui granted to the Mayor and Commonalty of the Town of Bristol the now City of Bristol being then a Town and to their Successors That if any shall procure abett or maintain any Debate and Discord upon the Election of the Mayor or other Minister he shall be punished instantly by the Mayor and two Aldermen to be chosen and named by the Mayor after the quantity and quality of his offence according to the Laws and Custom of the Realm 2. That according to the Priviledges granted by Queen Elizabeth to the Mayor and Commonalty of the said City and their Successors by Charter dated 28 June 23d of her Reign After which time as the Indictment sets forth the said Town was made a City there have been or ought to have been from the time of the making the said Charter twelve Aldermen whereof the Recorder was to be and now is one 3. That according to the Priviledges so as aforesaid granted by all the time aforesaid which is from the time of the Charter after the death of every Alderman the Mayor and the rest of the surviving Aldermen eorum major pars ad summonitionem of the said Mayor being called together have accustomed to choose another person of the circumspect Citizens to be an Alderman in the place of him so deceased and the Mayor and Aldermen by the same Privileges so granted have been and ought to be Iustices of the Peace for the said City 4. That continually after the time of the said Charter of Queen Elizabeth the Recorder and the rest of the Aldermen were and ought to be of the Privy Council de privato Concilio of the Mayor in particular Cases concerning the Government of the City whensoever the Mayor shall call them together And such Privy Council by all the time aforesaid which still is from the said Charter of Queen Elizabeth have not accustomed nor ought not to be called together to transact any Business belonging to that Council unless by the Summons and in the presence of the Mayor That after the death of one Sir John Lloyd being at his death an Alderman of the said City the said Sir Robert Atkins then being Recorder Sir John Knight John Lawford Esquire and Joseph Creswick being all Aldermen then of the City and free Burgesses of the City to make debate and discord upon the Election of an Alderman in the place of the Alderman so dead 8 March 33 Car. 2. in the Parish and Ward of St. Andrew within the said City did conspire to hold a Privy Council of the Aldermen of the said City and therein to choose an Alderman sine summonitione in absentia contra voluntatem Richardi Hart Militis then being Mayor of the City And in pursuance of their said wicked Conspiracy the day and year aforesaid entred by force and arms into the Tolzey and in the Chamber of the Council of the Mayor and Commonalty of the said City commonly called The Council House and there riotously c. did assemble and the same day and year they the said four Aldermen una cum aliis Aldermannis which must be two more Aldermen at the least which makes six and there were but five more in all then in being taking the Mayor in the said rest of the Aldermen not knowing their purposes held a Privy Council of Aldermen and then and there as much as in them lay chose Thomas Day for an Alderman in the place of Sir John Lloyd sine aliqua summonitione per praedictum Richardum Hart then Mayor to meet and in his absence and against his Will And they farther caused to be entred in the Common Council-Book the said Election as an Order of the Privy Council in which Book the Acts of the Mayor and Aldermen in their Privy Council are commonly written from whence great Discord hath risen c. Which Indictment was tryed at the Assises at Bristol by Nisi Prius and the Defendants found guilty and thereupon Sir Robert Atkins one of the Defendants having then lately before this Case been one of the Judges of the Common Pleas but then discharged of his Place after eight years sitting there secure came into the Court of Kings Bench and in Arrest of Iudgment argued his own Case not as Council nor at the Bar but in the Court in his Cloak having a Chair set for him by the Order of the Lord Chief Iustice and said as followeth 1. The Indictment in the first place mentions the Letters Patents of King H. 7. made to the Mayor and Commonalty of Bristol that the Mayor with two Aldermen such as he should choose should by their discretions according to Law punish such as should make debate and discord at the Elections of Officers They have not pursued this course against us but gone the ordinary way of Indictment and therefore I shall not need to speak to it 2. The Indictment in the next place proceeds to mention Letters Patents of Queen Elizabeth granted to the Mayor and Commonalty in the 23d year of her Reign which provides that there shall be twelve Aldermen and how upon the death or removal of an Alderman a new one should be chosen that is by the Mayor and the surviving Aldermen and the greater number of them being call'd together as the Indictment suggests by the Summons of the Mayor The whole Indictment and the Offence we are charged with being
it because the words were an entire Sentence and spoken altogether at the same time and therefore if a Prohibition should not go it would be a double vexation DE Termino Paschae Anno 1 Jac. II. in Banco Regis 1685. Earl of Yarmouth versus Darrel THE Plaintiff brought an Action on the Case Grant of the King of sole Printing not good setting forth Letters Patents of King Charles the II. by which the Sole Printing of Blank Writs Bonds and Indentures were granted to him excepting such Forms which belonged to the Custom-House and which were formerly granted to Sir Roger L'Estrange that this Grant was to continue for the space of 30 Years and that the Defendant had notice thereof and had printed 500 Blank Bonds which he laid to his damage of the sum of 40 l. Vpon Not Guilty pleaded the Iury found a special Verdict the substance of which was that the Defendant was a Stationer and that the Company of Stationers for the space of 40 years last past before the granting of these Letters Patents had constantly printed Blank Bonds and so made a general conclusion Mr. Trindar argued for the Plaintiff and the only Question was Whether this Patent did vest a sole Interest in the Plaintiff exclusive to all others In his Argument he insisted on these Points 1. That the King hath a Prerogative in Printing and may grant it Exclusive to others 2. That this Prerogative extends to the Case at the Bar. That he hath such a Prerogative 't is confirm'd by constant Vsage for such Grants have been made by the Kings of England ever since Printing was invented But to instance in a few Viz. The Patent for Printing of Law-Books was granted to one More on the 19th day of January in the 15th year of King James the I. And when that Patent was expired another was granted to Atkyns and others on the 15th day of November in the 12th year of King Charles the II. In 23. Eliz. a Patent was granted to the Company of Stationers for the sole Printing of Psalm-Books and Psalters for the space of 30 years And on the 8th of August 31 Eliz. the like Patent was granted to Christopher Barker for Life Another Patent to the Company of Stationers for printing of Corderius c. These and many more of the like nature shew what the constant usage hath been Now the Statute of Monopolies doth not reach to this Case because of the Proviso therein to exempt all such Grants of sole Printing and by the Statute of King Charles the II. for regulating of the Press 14 Car. 2. cap. 33. 't is Enacted That no person shall Print any Copy which any other hath or shall be granted to him by Letters Patents and whereof he hath the sole Right and Priviledge to Print And upon the breaches of these Statutes several Iudgments have been given Between Streater and Roper in this Court Mich. 24 Car. 2. Rot. 237. 't is true the Iudgment was against the Plaintiff but upon a Writ of Error brought in Parliament that Iudgment was reversed The same Term there was a Iudgment given upon a special Verdict in the Common-Pleas for the Plaintiffs Hill 35 Car. 2. B. R. Rot. 99. who were the Company of Stationers against Seymour for Printing of Almanacks And they obtained the like Iudgment against Wright for Printing of Psalters and Psalm-Books Now to apply this to the principal Case 't is to be considered that these Books for which the sole Printing was so claimed were of a publick nature and importance relating to the good and benefit of the Subjects and so likewise are Blank Bonds for there may be false and vitious Impressions to the ruin and destruction of many innocent people And as a farther Argument that the King hath this Prerogative 't is likewise to be considered that where no individual person can claim a Property in a thing there the King hath a Right vested in him by Law and it cannot be pretended that any particular person hath a Right to Print those Bonds therefore the finding that such were printed by the Company for above 40 years is immaterial because there being an inherent Prerogative in the King whenever he exerts it all other persons are bound up who were at liberty before To prove which the Iudgment in the Case of the East-India Company is express in point for before that Patent the subject had liberty to Trade to those places prohibited by that Grant but afterwards they were restrained by that Grant Neither is this in the nature of a Monopoly 11 Co. 84. 't is not like that of the sole Grant of making Cards which hath been adjudged void and with great reason because that Grant reached to prohibit a whole Trade and therefore differs from this Case for the Defendant may print other Instruments or Books and exercise his Trade in some other lawful and profitable Commodities and so might the Merchants in the Case of the East-India Company for they were restrained by the Patent as to particular places but might Trade to any other part of the World Neither will the Subjects in general receive any prejudice by this or such like Grants for if the Patentees make ill use of their Priviledges tho' it cannot be properly called an Office yet 't is a Trust and a Scire Facias will lie to repeal their Grants It was argued by the Councel for the Defendant E contra That the Verdict having found that the Company of Stationers had used to print those Bonds for above 40 years before the making of this Grant the Question will be Whether they are now divested of a Right so long enjoyed And as to that 't is not a new thing to object That notwithstanding such Grants yet other persons have insisted on a Right to Print and have printed accordingly Thus the sole Printing of Law-Books was granted to one Atkyns yet the Reports of Iustice Jones and my Lord Chief Iustice Vaughan were printed without the direction of the Patentees Printing as 't is a manual Occupation makes no alteration in this Case for the King hath as great a Prerogative in Writing any thing that is of a publick Nature as he hath in Printing of it Now considering Printing as an Art exclusive from the thing printed this Patent is not good For if a Man invent a new Art and another should learn it before the Inventor can obtain a Patent if afterwards granted 't is void Then consider it in relation to the thing printed 1 Roll. 4. 11 Co. 53. id which in this Case are Blank-Bonds 't is not a new Invention because the Company of Stationers have printed such above 40 years and for that reason this Patent is void for where the Invention is not New there Trade shall not be restrained No Man can receive any prejudice by the printing of such Bonds for they are of no Vse till filled up 't is only a bare Manufacture
fearing that this Daughter might be stoln from her applies her self to my Lady Gore and entreats her to take this Daughter into her House which she did accordingly My Lady had a Son then in France she sent for him and married him to this Ruth she being then under the Age of sixteen years without the Consent of her Mother who was her Guardian The Question was whether this was a Forfeiture of her Estate during Life It was proved at the Trial that the Mother had made a Bargain with the Lessor of the Plaintiff that in case he recovered she should have 1000 l. and the Chirds of the Estate and therefore she was not admitted to be a Witness The Plaintiff could not prove any thing to make a Forfeiture and therefore was nonsuited The Chief Iustice said that the Statute was made to prevent Children from being seduced from their Parents or Guardians by flattering or enticing Words Promises or Gifts and married in a secret way to their disparagement but that no such thing appeared in this Case for Dr. Hascard proved the Marriage to be at St. Clements Church in a Canonical Hour and that many People were present and that the Church Doors were open whilst he married them Anonymus BY the Statute of 21 Jacobi 't is Enacted 21 Jac. c. 23. That no Writ to remove a Suit out of an Inferior Court shall be obeyed unless it be delivered to the Steward of the same Court before Issue or Demurrer joined so as the Issue or Demurrer be not joined within six Weeks next after the Arrest or Appearance of the Defendant In this Case Issue was joined and the Steward refused to allow the Habeas Corpus and the Cause was tried but not before an Utter Barrister as is directed by the Statute Curia The Steward ought to return the Habeas Corpus and they having proceeded to try the Cause no Utter Barister being Steward let an Attachment go Claxton versus Swift Hill 1 Jac. 2. Rot. 1163. THE Plaintiff being a Merchant brought an Action upon a Bill of Exchange If the Plaintiff recover against the Drawer of a Bill he shall not afterwards recover against any of Endorsers setting forth the Custom of Merchants c. and that London and Worcester were ancient Cities and that there was a Custom amongst Merchants that if any person living in Worcester draw a Bill upon another in London and if this Bill be accepted and endorsed the first Endorser is liable to the payment That one Hughes drew a Bill of 100 l. upon Mr. Pardoe paiable to the Defendant or Order Mr. Swift endorsed this Bill to Allen or Order and Allen endorsed it to Claxton The Mony not being paid Claxton brings his Action against Hughes and recovers but did not take out Execution Afterwards he sued Mr. Swift who was the first Endorser and he pleads the first Recovery against Hughes in barr to this Action and avers that it was for the same Bill and that they were the same Parties To this Plea the Plaintiff demurred and the Defendant joyned in the Demurrer Mr. Pollexfen argued that it was a good Barr because the Plaintiff had his Election to bring his Action against either of the Endorsers or against the Drawer but not against all and that he had now determined his Election by suing the Drawer and shall not go back again though he never have Execution for this is not in the nature of a joint Action which may be brought against all 'T is true that it may he made joint or several by the Plaintiff but when he has made his choice by suing of one he shall never sue the rest because the Action sounds in Damages which are uncertain before the Iudgment but afterwards are made certain transeunt in rem judicatam and is as effectual in Law as a Release As in Trover the Defendant pleaded that at another time the Plaintiff had recovered against another person for the same Goods so much Damages 2 Cro. 73. Yelv. 65. Brown versus Wootton and had the Defendant in Execution and upon a Demurrer this was held a good Plea for though in that Case it was objected that a Iudgment and Execution was no satisfaction unless the Mony was paid yet it was adjudged that the cause of Action being against several for which Damages were to be recovered and because a Sum certain was recovered against one that is a good discharge against all the other but 't is otherwise in Debt because each is liable to the entire Sum. Chief Iustice If the Plaintiff had accepted of a Bond from the first Drawer in satisfaction of this Mony it had been a good Barr to any Action which might have been brought against the other Indorsers for the same and as this Case is the Drawer is still liable and if he fail in payment the first Endorser is chargeable because if he make Endorsement upon a bad Bill 't is Equity and good Conscience that the Endorsee may resort to him to make it good But the other Iustices being against the Opinion of the Chief Iustice Iudgment was given for the Defendant Pawley versus Ludlow DEBT upon a Bond. The Condition was That if John Fletcher shall appear such a day coram Justitiariis apud Westm c. that then c. The Defendant pleaded that after the 25th day of November and before the day of the appearance he did render himself to the Officer in discharge of this Bond and to this the Plaintiff demurred Darnel for the Defendant admitted that if a Scire Facias be brought against the Bail upon a Writ of Error 3 Bulstr 191. 2 Cro. 402. who plead that after the Recognizance and before the Iudgment against the Principal affirmed he rendred himself to the Marshal in discharge of his Bail that this is not a good Plea but that the Sureties are still liable 3 Jac. cap. 8. because by the Statute they are not only liable to render his Body but to pay the Debt recovered But if a Iudgment be had in this Court 1 Rol. Abr. 334. pl. 11. and a Writ of Error brought in the Exchequer-Chamber and pending that Writ of Error the Principal is rendred the Bail in the Action are thereby discharged It was argued on the other side E contra that this is not the like Case of Bail upon a Writ of Error for the Condition of a Recognizance and that of a Bond for Appearance are different in their nature the one is barely that the Party shall appear on such a day the other is that he shall not only appear and render his Body to Prison but the Bail likewise do undertake to pay the Debt if Iudgment should be against the Principal Now where the Condition is only for an Appearance at a day if the Party render himself either before or after the day 't is not good Chief Iustice If the Party render himself to the Officer before the
' Francisco Wythens Mil ' Justiciariis Richardo Holloway Mil ' Justiciariis Thoma Walcot Mil ' Justiciariis MEmorandum That the First day of this Term Sir Thomas Jones Chief Justice of the Common-Pleas had his Quietus and Sir Henry Beddingfield one of the Justices of the same Court succeeded him in that Office Likewise the Honourable William Mountagu Esq Lord Chief Baron of the Exchequer had his Quietus and Sir Edward Atkyns one of the Barons of the same Court succeeded him Sir Job Charleton one of the Justices of the Common-Pleas had his Quietus but was made Chief Justice of Chester and Sir Edward Lutwich the King's Serjeant was made one of the Justices of the Common-Pleas and Serjeant Heath was made one of the Barons of the Exchequer Okel versus Hodgkinson THE Father and Son join in a Fine in order to make a Settlement upon the second Wife of the Father who was only Tenant by the Curtesie the Remainder in Tail to his said Son One of the Cognizors died after the Caption and before the Return of the Writ of Covenant and now a Writ of Error was brought to Reverse it and this was assigned for Error Curia If it had been in the Case of a Purchasor for a valuable Consideration the Court would have shewed him some favour but it being to do a wrong to a young Man they would leave it open to the Law THE first day of this Term being the 22th day of April there was a Call of Serjeants viz. Sir John Holt of Grays-Inn Recorder of London who was made Kings Serjeant Sir Ambrose Phillips made also Kings Serjeant Christopher Milton John Powell John Tate William Rawlinson George Hutchins William Killingworth Hugh Hodges and Thomas Geers They all appeared that day at the Chancery-Bar where having taken the Oaths the Lord Chancellor Jefferies made a short Speech to them after which they delivered a Ring to him praying him to deliver it to the King They went from the Inner-Temple-Hall to Westminster and Counted at the Common-Pleas and gave Rings the Motto whereof was DEUS REX LEX Dominus Rex versus Saloway SAloway drowned himself in a Pond and the Coroners Enquest found him Non Compos Mentis because 't is more generally supposed that a Man in his Senses will not be Felo de se The Kings Councel moved for a Melius Inquirendum and that the Inquisition might be quashed for that it sets forth Quod pred Defend circa horam octavam ante meridiem in quoddam stagnum se projecit per abundantiam aquae ibidem statim suffocat emergit ' erat which is insensible Pemberton Serjeant contra Here is no Exception taken to the substance of the Inquisition and the word suffocat had been sufficient if the word emergit ' had been left out The Court were of Opinion that there being another word in this Inquisition which carries the sense 't is therefore sufficient but if it had stood singly upon this word Emergit ' it had not been good And this Fact happening about the time of the general Pardon the Court was of Opinion that where an Interest is vested in the King a Pardon of all Forfeitures will not divest it but that nothing was vested here before Inquisition found 2. It was objected that this Inquisition ought to set forth that Saloway came by his death by this means Et nullo alio modo quocunque To which it was answered by Pemberton that in matters of Form only the Iudges have sent for the Coroner into Court and ordered him to amend it Rodney versus Strode AN Action on the Case was brought against three Defendants one of them suffered Iudgment to go by default In a joynt Action the Jury may sever the Damages and the other two pleaded Not Guilty The Cause was tryed the last Assises at Exeter and it was for imposing the Crime of Treason upon the Plaintiff and for assaulting and imprisoning of him there was a Verdict for the Plaintiff and 1000 l. damages against Mr. Strode and 50 l. against the other Defendant who pleaded The Plaintiff entred a nolle prosequi against him who let the Iudgment go by default and against the other Defendant for the 50 l. damages and took judgment only against Mr. Strode Serjeant Pemberton moved for a new Trial by reason of the excessive Damages which were not proportioned to the quality of the Plaintiff he being a Man of mean Fortune But it was opposed by the Plaintiff for that the Defendant pursued him as a Traytor and when he was apprehended for that Crime he caused him to be arrested for 1000 l. at the Suit of another person to whom he was not indebted so that upon consideration of the Circumstances of the Case the Court refused to grant a new Tryal Then Serjeant Pemberton for the Defendants moved in arrest of Iudgment and for cause shewed that the Iury have found both guilty and assessed several Damages which they cannot do because this is a joynt Action to which the Defendants have pleaded jointly and being found guilty modo forma the Iury cannot assess the damages severally for the damage is the same by the one as the other Cro. Eliz. 860. Austen vers Millard al' and therefore it hath been adjudged that where an Action of Battery was brought against three and one pleaded not guilty and the other two Son Assault demesne and several damages found against them it was held ill for that very reason because it was a joint offence 'T is true where there are divers Defendants and damages assessed severally the Plaintiff hath his election to take execution de melioribus damnis but this is when the Trials are at several times So 't is where they plead several Pleas Cro. Car. 239. Walsh versus Bishop as in an Action of Battery one pleads not guiity and the other justifies and both Issues are found for the Plaintiff in such case he may enter a non pros against one and take Iudgment against the other because their Pleas are several but where they plead jointly the Iury cannot sever the Damages But Mr. 1 Bulst 157. Sampson vers Cramfield al' Rast Entr. 677. b. Pollexfen for the Plaintiff insisted that even in this case damages may be assessed severally for where two Defendants are sued for the same Battery and they plead the same Plea yet damages may be assessed severally So was Trebarefoot and Greenway 's Case in this Court which was an Action for an Assault and Battery and false Imprisonment one of the Defendants pleaded not Guilty and the other justified Issue was joined and there was a Verdict for the Plaintiff and damages assessed severally the Plaintiff entred a nolle prosequi as to one and took judgment against the other and upon this a Writ of Error was brought in this Court and the Iudgment was affirmed So if an Action of Trespass be brought against two for taking of 100 l.
Finch contra The chief Objection is the incertainty of this Custom now if a Custom as incertain as this hath been held good in this Court 't is a good Authority to support this Custom And as to that it was said that a Custom for a person whom a Copy holder should name to have his Land after his death and that he should pay a Fine for his admitance And if the Lord and Tenant cannot agree about the Fine that then the rest of the Tenants should assess it 1 Rol. Rep. 48. 2 Cro. 368. 4 Leon. 238. Noy 3. 2 Brownl 85. this was adjudged a good Custom by the Court of Common-Pleas and affirmed upon a Writ of Error in this Court It was the Case of Crab and Bevis cited in Warne and Sawyers Case Adjornatur Afterwards the first Iudgment was affirmed and all the Court held the Custom to be a good Custom Hacket versus Herne JVdgment was had in Debt upon a Bond against Father and Son Where the Defendants in the Action must joyn in a Writ of Error and afterwards the Father alone brought a Writ of Error and the Error assingned was that his Son was under Age but because the Son did not join in the Errors the Court ordered the Writ to be abated If a Quare impedit be brought against a Bishop and others and Iudgment be against them all they must likewise all join in a Writ of Error unless it be where the Bishop claims only as Ordinary 'T is true Rol. Abr. 929. pl. 30. this is against the Opinion of my Lord Rolls in his Abridgment who puts the Case that where a Scire Facias was brought against four Executors who pleaded plene administraverunt the Iury find Assets in the Hands of two of them and that the other eant inde sine die two bring a Writ of Error and altho' at the opening of the Case it was held that the Writ should abate for that reason because brought only by two yet he says the Iudgment was afterwards affirmed and the Writ held good But there is a difference where a Writ of Error is brought by the Plaintiffs in the original Action 5 Co. 25. a Ruddock's Case and when by the Defendants for if two Plaintiffs are barred by an erronious Iudgment and afterwards bring a Writ of Error the Release of one shall bar the other because they are both actors in a personal thing to charge another and it shall be presumed a Folly in him to join with another who might release all But where the Defendants bring a Writ of Error 't is otherwise for it being brought to discharge themselves of a Iudgment the Release of one cannot barr the other because they have not a joint Interest but a joint burthen and by Law are compelled to join in Errors Mosse versus Archer COvenant by an Assignee of an Assignee of Lands which were exchanged the Breach assigned was Breach not well assigned that a Stranger habens jus titulum did enter c. There was a Uerdict for the Plaintiff and it was now moved in Arrest of Iudgment that the Plaintiff had not shewed a sufficient breach for he sets forth the Entry of a Stranger habens jus titulum but doth not shew what Title and it may be he had a Title under the Plaintiff himself 2 Cro. 315. Hob. 35. after the Exchange made and to prove this the Case of Kirby and Hansaker was cited in point and of that Opinion was all the Court. Nota It was said in this Case that an Exchange ought to be executed by either Party in their Life-time or else it is void Taylor versus Brindley THE Original in Trespass was quare Clausum fregit Variance between the Original and Declaration where 't is no Error and the Plaintiff declared quare Clausum Domum fregit and had Iudgment in the Common-Pleas and a Writ of Error was brought in this Court and the variance between the Original and Declaration was assigned for Error and that one was not warranted by the other But Serjeant Levinz argued that because the Original was certified three Terms since 2 Cro. 674. 1 Rol. Abr. 790. n. 7. Cro. Car. 272. 18 Eliz. cap. and no Continuances between it and the Declaration therefore that could not be the Original to this Action and that the Court might for that reason intend a Verdict without an Original which is helped by the Statute of Jeofails But he argued that where the Original varies from the Declaration and is not warranted by it 't is not aided by this Statute Iudgment was affrmed DE Term. Sancti Mich. Anno 3 Jac. II. in Banco Regis 1687. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Sawyer Attorny General Powis Sollicitor General Mathews versus Cary Pasch 3 Jac. Rot. 320. TRespass for entring of his House and taking of a Silver Tankard Where the Defendant justifies by way of excuse he must set forth the Warrant and that he took the Goods virtute Warranti The Defendant made conusance as Bayliff of the Dean and Chapter of Westminster for that the place where c. was within the Iurisdiction of the Leet of the said Dean who was seised of a Court Leet which was held there such a day c. And that the Iury did present the Plaintiff being a Tallow-Chandler for melting of stinking Tallow to the annoyance of the Neighbours for which he was amerced and that the Amerciament was affered to 5 l. which not being paid the Defendant by a Mandate of the said Dean and Chapter distreined the Tankard c. The Plaintiff replied de injuria sua propria absque hoc that he did melt Tallow to the annoyance of the Neighbours c. And upon a Demurrer to this Replication it was argued this Term by Mr. Pollexfen for the Defendant and Tremaine for the Plaintiff and afterwards in Michaelmas Term 1 Will. Mariae by Mr. Bonithan and Serjeant Thompson for the Defendant It was said for the Defendant that a Presentment in a Court Leet which concerns the person as in this Case and not the Free hold 5 H. 7.3 Fitz. Bar. 271. Bro. Abr. tit Travers sans ceo pl. 183. Presentment in Court pl. 15. was not traversable and that the Amerciament was a Duty vested in the Lord for which he may distrain or bring an Action of Debt Co. Entr. 572. But on the other side it was said that if such a Presentment is not traversable the party hath no remedy 't is contrary to the Opinion of Fitzherbert in Dyer Dyer 13. b. who affimed the Law to be that it was traversable and that if upon such a Presentment a Fine should be imposed erroniously 11 Co. 42. 1 Rol. Rep. 79. it may be avoided by Plea and this agrees with the second Resolution in Godfrey 's Case 2. It was objected to the Plea that it was not good for it sets
' ac qd ' Record ' ill ' in nullo vitiosum aut defectivum existit Ideo considerat ' est qd ' Judicium praed ' adjudication ' executionis superinde in omnibus affirmetur ac in omni suo robore stet effectu dict' causis materiis superius pro Error ' assign ' in aliquo non obstante Et ulterius per Cur. Judgment affirmed Domini Regis Dominae Reginae nunc hic cons est qd ' praedict ' Abel Ram recuperet versus praefatum Donatum Obrian octodecim libras eidem Abel per Curiam Domini Regis Dominae Reginae nunc hic secundum formam Statuti in hujusmodi casu edit ' provis adjudicat ' pro mis custag ' dampn ' suis quae sustin ' occasione dilationis executionis Judicij praedict ' praetextu prosecutionis praedict ' Brevis de Errore Et qd ' praedictus Abel habeat inde executionem c. Obrian versus Ram. ERror to reverse a Iudgment given in Ireland Whether a Sci. fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her dum sola upon a Scire Fac. brought against the Plaintiff in the Errors setting forth that Debt was brought upon a Bond against Elizabeth Grey and a Iudgment was thereupon obtained for 800 l. dum sola That the said Elizabeth afterwards intermarried with Mr. Obrian That a Scire Facias was brought upon that Iudgment against Husband and Wife to shew cause why the Plaintiff should not have execution That upon this Scire Facias there were two Nichils returned and thereupon Iudgment was had against Husband and Wife It rested for a year and a day and then the Wife died and the Plaintiff brought a new Scire Fac. against the Husband alone to shew cause why he should not have Execution upon the first Iudgmont The Defendant pleaded that there was another Scire Fac. brought against him and his Wife for the same Cause c. And upon a Demurrer to this Plea Iudgment was given in Ireland against him The Question now was whether this Scire Fa. will lye against the Husband alone after the death of his Wife This Case was argued by Mr. Finch and Mr. Pollexfen that the Husband was not chargable It was admitted on all sides that if a Feme sole is indebted and marries that an Action will lye against the Husband and Wife and he is lyable to the payment of her Debts It was agreed also that if a Iudgment be had against a Feme sole and she marries and afterwards dies that the Husband is not chargable because her Debts before Coverture shall not charge him unless recovered in her Life-time In like manner no Debts which are due to her dum sola shall go to the Husband by virtue of the inter-marriage if she dye before those are recovered but her Administrator will be entituled to them which may be the Husband but then he hath a Right only as Administrator 1 Roll Abr. 351. and the reason is because such Debts before they are recoverd are only choses in Action And from hence the Council did inferr that the Iudgment in this Case against the Wife dum sola did not charge the Husband Then the Question will be if the Husband is not chargeable by the Original Iudgment whether the Iudgment on the Scire Fac. had not made an alteration and charged him after the death of his Wife And as to that it was said that this Iudgment upon the Scire Fac. made no new charge for 't is only quod habeat executionem c. and carries the first Iudgment no farther than it was before for 't is introduced by the Sci. Fac. At the Common Law no Execution could be had upon a Iudgment after a year and a day and there was then no remedy but to bring an Action of Debt upon that Iudgment This Inconvenience was remedied by the Statute of Westm W. 2. cap. 45. the 2. which gives a Scire Fac. upon the Iudgment to shew cause why Execution should not be had which can be no more than a liberty to take Execution upon the Original Iudgment which cannot charge the Husband in this case because 't is only a consequence of that Iudgment and creates no new charge for a Release of all Actions will discharge this award of Execution But the Reasons why the original Iudgment shall not be carried farther by the Iudgment in the Scire Fac. are as follow 1. By considering the nature of a Scire Fac. which lay not at the Common Law but is given by the Statute in all persosonal Actions the words whereof are these Viz. 2 Inst 469. Sid. 351. Observandum est de caetero quod ea quae inveniuntur irrotulat c. Vpon which words it is evident that the execution of the first Iudgment on Record is all which is given by this Act after the year and day and it takes off that bar which was incurred by the lapse of time and gives a speedy Execution of the Iudgment recorded 2. The Proceedings upon a Scire Facias shew the same thing for the Writ recites the first Iudgment and then demands the Defendant to shew cause why the Plaintiff should not have Execution thereon juxta vim formam effectum recuperationis praed but prays no new thing 3. A Scire Facias is not an Original but a Iudicial Writ which depends purely upon the first Iudgment 1 Roll. Abr. 777. pl. 6. 8 Co. 143 Dr. Drurie's Case and a Writ of Error suspends the execution of both so likewise if the Original Iudgment be reversed even a Iudgment obtained upon a Scire Facias will be reversed in like manner 4. The Law doth not charge a Man without an Appearance but here is none and the Statute can never operate upon this Case because that extends only to such Iudgments upon which there has been a Recovery and here is nothing recovered upon this Scire Facias for 't is only to have Execution upon the first Iudgment If the Law should be otherwise this absurdity would follow Viz. There would be a Recovery without a Record for the purport of the Scire Facias is only to have Execution according to the form and effect of the Record and the very Record it self doth not charge the Husband Besides the first Iudgment did charge the Lands of the Wife which are still liable to satisfie the Debt why therefore must the Lands of the Husband be charged Cannot the Administrator of the Wife bring a Writ of Error to reverse this Iudgment and if it should be reversed shall the Husband pay the Debt and the Administrator of the Wife be restored The Objections made by the Council on the other side against this Opinion were viz. That if an Action of Debt will lie upon a Iudgment in a Scire Facias the Original Iudgment is by this means carried farther for without
ought to be left out and of that Opinion was the Court and therefore a Rule was made that he might discontinue this Action without Costs Mordant versus Thorold Hill 1 2 Gulielmi Rotulo 340. THE Plaintiff brought a Scire Fac. upon a Iudgment The Case was thus Viz. Ann Thorold recovered in Dower against Sir John Thorold in which Action Damages are given by the Statute of Merton 20 H. 3. c. 1. Sir John Thorold brought a Writ of Error in B. R. and the Iudgment was affirmed Then the Plaintiff in Dower brought a Writ of Enquiry for the Damages and married Mr. Mordant and died before that Writ was executed Mr. Mordant takes out Letters of Administration to his Wife and brought a Sci. Fa. upon the Iudgment and the question was whether it would lie This depended upon the construction of the Statute of King Charles the II. which enacts That in all personal Actions 17 Car. 2. c. 8. and real and mixt the death of either party between the Verdict and the Iudgment shall not hereafter be alledged for Error so as such Iudgment be entred within two Terms after such Verdict Serjeant Pemberton insisted that this was a judicial Writ and that the Administrator had a right to it though the Wife died before the Profits were ascertained by the Writ of Enquiry 't is no more than a plain Sci. Fa. upon a Iudgment which an Executor may have and which was never yet denied though this seems to be a Case of the first Impression The Council on the other side argued that 't is true an Executor may have a Scire Facias upon a Iudgment recovered in the life of the Testator by reason only of such Recovery but this Scire Facias is brought for what never was recovered because the Wife died before any thing was vested in her for the Iudgment will stand so as to effect the Lands but not for the Damages Curia When a Statute which gives a remedy for mean Profits is expounded it ought to be according to the Common Law Now where entire Damages are to be recovered and the Demandant dies before a Writ of Enquiry executed the Executor cannot have any remedy by a Scire Facias upon that Iudgment because Damages are no duty till they are assessed Sed adjornatur DE Term. Sanctae Trin. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Shotter versus Friend Vxor ' Hill 2 Willielmi Rot. 39. THE Plaintiff and his Wife declared upon a Prohibition setting forth Proof by one Witness good in the Spiritual Court that John Friend on the 13th of October 22 Car. 2. made his Will by which he bequeathed to Mary Friend 10 l. to be paid to her within two years after his decease and that he made Jane the Wife of the Plaintiff Shotter Executrix and dyed that the said Executrix whilst sole and unmarried paid the said Legacy to Mary Friend who is since dead that Thomas Friend the Husband of the said Mary did after her death demand this Legacy in the Consistory Court of the Bishop of Winton that the Plaintiff pleaded payment and offered to prove it by one single Witness which Proof that Court refused though the Witness was a person without Exception and thereupon Sentence was given there against the Plaintiff which Sentence was now pleaded and upon Demurrer to the Plea The Question was whether upon the whole matter the Defendant should have a Consultation or whether a Prohibition should be granted because the proof by one Witness was denied by that Court. It was argued that the Defendant should not have a Consultation because Matters Testamentary ought to have no more favour than things relating to Tythes in which Cases the Proof by one Witness hath been always held good So 't is in a Release to discharge a Debt which is well proved by a single Testimony and it would be very inconvenient if it should be otherwise for Feoffments and Leases may come in question which must not be rejected because proved by one Witness A Modus decimandi comes up to this Case upon the Suggestion whereof Prohibitions are never denied and the chief reason is because the Spiritual Court will not allow a Modus to be any discharge of Tythes of Kind The Courts of Equity in Westminster-Hall give Relief upon a Proof by one Witness so likewise do the Courts of the Common Law if the Witness is a good and credible person 'T is true a Prohibition shall not go upon a Suggestion that the Ecclesiastical Court will not receive the Testimony of a single Witness If the Question is upon Proof of a Legacy devised or Marriage or not or any other thing which originally doth lie in the Cognizance of that Court but payment or not payment is a matter of Fact triable at the Law and not determinable there if therefore they deny to take the Evidence of a single Witness a Prohibition ought to go 2 Inst 608. 2. The Sentence is no obstacle in this Case because the Plaintiff had no Right to a Prohibition until the Testimony of his Witness was denied and Sentence thereupon given and this is agreeable to what hath been often done in cases of like nature As for instance Cro. Eliz. 88. Moor 907. Prohibitions have been granted where the Proof of a Release of a Legacy by one Witness was denyed So where the Proof of payment of Cythes for Pidgeons was denied upon the like Testimony Cro. Eliz. 666. Moor 413. 2 Rol. Rep. 439. 2 Rol Abr. 300. pl. 9. 299 pl. 14 17. Yelv. 92. Latch 117. 3 Bulst 242. Hutt 22. So where a Suit was for Subtraction of Cythes and the Defendant pleaded that he set them out and offered to prove it by by one Witness but was denied a Prohibition was granted And generally the Books are that if the Spiritual Court refuse such Proof which is allowed at the Common Law they shall be prohibited There is one Case against this Opinion which is that of Roberts in 12 Co. 12 Co. 65. Rep. but it was only a bare Surmise and of little Authority Those who argued on the other side held that a Consultation shall go E contra and that for two Reasons 1. Because a Prohibition is prayed after Sentence 2. Because the Ecclesiastical Court have an original Iurisdiction over all Testamentary things As to the first Point 'T is plain that if that Court proceed contrary to those Rules which are used and practised at the Common Law yet no Prohibition ought to go after Sentence but the proper remedy is an Appeal 2. It cannot be denied but that that Court had Cognizance of the principal matter in this Case which was a Legacy and Payment or not is a thing collateral Now wherever they have a proper Iurisdiction of a Cause both that and all its dependences shall be tried according to their Law which rejects the Proof by a single Witness
they are not properly sua 278 Exposition of Words and Sentences See Number Subsequent words may explain a former Sentence in a Deed but in Wills the first words guide all which follow 82 2. Action was brought by Original for that the Defendant prosecut ' fuit adhuc prosequitur in the Admiralty those words adhuc prosequitur shall not be construed to make it subsequent to the Original but must refer to the time of suing it forth 103 157 3. Doubtful Words must be Expounded always against the Lessor 230 4. To make an Assurance to the Obligee and his Heirs the Conjuction and shall be taken in the disjunctive 235 F. Fair See Trade IF the place where it should be kept is not limited by the Grant it may be kept where the Grantee will 108 False Imprisonment It will not lye against a Sheriff for taking the Body by vertue of a Casa upon an Erronious Judgment for the Execution is good till avoided by Writ of Error 325 Fees Of the Clerks of the Crown-Office the Court will not regulate upon a Motion but if oppressive they must be indicted for Extortion 297 Fines levied See Tenant at Will 6. One of the Cognisors died before the return of the Writ of Covenant 't is Error but not in the case of a Purchaser for a valuable consideratino for the Court will interpose 99 2. If the Cognisor doth dye after the Entry of the Kings-Silver the Fine is good 140 3. Writ of Covenant Teste 15th of January returnable in Crastino Purificationis taken by Dedimus 18th of Januarii The Cognizor died in Easter-Week following but four days before her Death the Kings-Silver was entred as of Hillary-Term precedent this was held a good Fine 141 4. Where a person is in possession by vertue of a particular Estate for Life and accepteth a greater Estate it shall not divest the Estate of those in Remainder for Life so as the same may be barred by Fine and Non-claim 195 5. Lease for one hundred years in Trust to attend the Inheritance cestuy que Trust being in possession Demises to another for fifty years and levied a Fine and the five years passed the Term for a hundred years is divested by this Fine and turned to a right and so barred 196 6. In what Cases a Fine is a Bar and what not 198 Fines upon Admittance See Admittance Copihold Debt 2. Infant 9. The Judges are to determine whether it be reasonable or not 134 2. Lord cannot enter for non-payment of an unreasonable Fine 134 Forfeiture If Tenant for years make a Feoffment 't is a Forfeiture but if he make a Lease and Release ' tho 't is of the same Operation yet 't is no forfeiture 151 Fraud See Evidence G. Grants Grantor and Grantee WHere an Interest is coupled with a Trust in a Grant it shall go to the Executor of the Grantee 43 2. Grants must be certain otherwise they are void 134 Grants of the King Not good for the sole Printing of Blank Bonds exclusive of all other Printers 75 2. A Grant to restrain trading to particular places is good 77 3. But of sole making Cards not good because it restrains a whole Trade ibid. 4. A Grant cannot divest the Subject of a Right enjoyed long before it was made ibid. 5. Cannot discharge a person of a Duty to which he is made lyable by a subsequent Act of Parliament 96 6. Difference between his Grants and Prohibitions 7. Where his Grants ought to be taken very strictly 168 8. In a Quo Warranto the Defendant pleaded that the King was seised in Fee of a Franchise who granted it to another Habendum the Hundred whether good or not 199 Gun See Iustice of Peace 3. Conviction before a Justice of Peace upon the Statute of H. 8. for keeping a Gun not having 100 l. per Annum quashed because it was said non habuisset instead of nunquam Habuit 100 l. per Annum 280 H. Habendum WHere it shall be said to explain the general Words preceding 81 2. Nothing passes in the Habendum but what was mentioned in the Premisses 199 Heir Error by the Plaintiff ut Consanguineus Haeres viz. Filius c. 't is sufficient without shewing the descent from more Ancestors 152 2. Where he shall take by Descent and where by Purchase 205 3. In a Bond where the word Heir is a word of Limitation and not a designation of the person 233 4. Reversion in Fee descended to an Heir after the Estate Tail spent and an Action was brought against him upon a Bond of his Ancestor 't is not necessary that the Plaintiff name all the intermediate Remainders but him who was last actually seized of the Fee 255 Heriot Lease for 99 years if A. B. C. so long live paying an Heriot upon the death of either A. assigns the term no Heriot shall be taken of the Assignee 231 2 May seize or distrain for Heriot Service if distrain it may be the Beast of any man upon the Land but if he seise it must be the very Beast of the Tenant ibid. 3. Where an Heriot is reserved upon a Demise it differs from those which are due by Tenure 231 4. Lease for 99 years if M. and D. so long live reserving an Heriot after death of either provided if D. survive no Heriot to be paid but M. survived the Court was divided whether a Heriot should be paid 230 Highways A Man cannot be exempted from repairing by the Grant of the King if made before the Statute of Ph. Mar. which charges him to repair 96 Homine Replegiando Brought for a Monster and upon the Return of the Sheriff that he had replevyed the Body he was bailed 121 2. Brought for a young Woman taken out of her Parents Custody and married against her Consent 169 Hue and Cry See Robbery Hundred Court This Court was first derived from the County Court 200 2 Hundreds were usually granted to Abbots and their Possessions coming to the Crown by dissolution of their Abbies are merged and cannot be regranted 200 I. Ideot HOW it differs from a Lunatick 43 2. The King hath power to grant his Estate to any person without Accompt to be given ibid. 3. Grant of an Ideot by the King the Grantee dieth his Executor hath an Interest in him ibid. Ieoffails See Indictment 8. Travers 4. Variance 2. None of the Statutes help an insufficient Indictment 79 2. Variance between original and declaration not aided by the Statute of Ieofails 136 3. Want of concluding without a Travers is but matter of form and aided 319 Indictment For using of Alias Preces than enjoined by the Book of Common Prayer it may be upon an extraordinary occasion and so no Offence 79 2. For scandalous words whether it lieth as it doth for Libels the one being a private the other a publick Offence 139 3. For Baretry in soliciting of a Suit against another who was not indebted to the person 97
before a Coroner the person having drowned himself it was suffocat ' emergit fuit if it had stood singly upon the word emergit it had been insensible but the word suffocat ' expressing the sense it was held good 100 4. Where nothing is vested in the King before Office found ibid. 5. It must always be found that there is an Estate in the person offending and a cause of Forfeiture of that Estate to vest it in the King 336 Interest in a thing See Pardon 4. Where a Man may have an interest in a Chattel without a Property 61 2. Devise to a Wife and Children after Debts and Legacies paid an interest vests in the Devisees but 't is otherwise in case of Administration for there no Interest vests till actual distribution 65 3. A Man may have a Property tho' not in himself as in the Case of Joyntenancy 97 Intestate See Administration Innuendo The proper office of it is to make the subject matter certain 53 2. It will not help insensible words 54 Joyntenancy and Tenancy in Common See Abatement 3. Baron and Feme 12. Interest 3. If one Joyntenant bring an Action against the other unless he pleads the Jointenancy in abatement the Plaintiff will recover 97 2. If two Coparceners lease a House and the Rent is arrear and one brings an Action and recovers Judgment shall be arrested because both ought to joyn 109 3. Tenants in Common must join in the personalty but 't is otherwise in real Actions for though their Estates are several yet the Damages to be recovered survive to all 109 251 4. Where one Commoner may bring an Action against his Fellow 251 Joint Action See Action for a wrong 6. Ioyntenancy 2 3. Where an Action may be joint or several at the Election of the Plaintiff 86 2. Where 't is brought against three Defendants who plead jointly the Jury may sever the Damages and the Plaintiff may take Execution de melioribus damnis as well as where their Pleas are several and Tryals at several times 101 102 3. Judgment against two and one brought a Writ of Error and assigned the Infancy of the other for Error the Writ was abated because both did not joyn 134 4. The Defendants in the original Action must joyn in a Writ of Error but it seems otherwise where the Plaintiffs bring Error 135 5. Two covenant to sell Lands and the Purchasor agreed to pay the Mony to one of them he alone ought to bring the Action 263 6 Where there are several Proprietors of a Vessel for carriage of Goods which are damaged by carrying the Action must be brought against all or against the Master alone 321 322 7 Where two Tenants in Common were sued for not setting out of Tythes the Action ought to be brought not against him who set them out but against the other who carried them away 322 8. Two are bound joyntly one is sued he may plead in Abatement that he was bound with another but cannot plead Non est factum 323 9 In all Cases which are grounded upon Contracts the Parties who are Privies must be joyned in the Action ibid. 10 Action must be brought against all where a promise is created by Law 324 Issue Must be joyned upon an affirmative and a negative by concluding to the Country 80 Iudges The making altering and displacing of several Judges Serjeants at Law and King's Council 71 99 100 104 125 143 191 239 Iustices of Peace Offences against the Statute of 23 Eliz c. 1. for not coming to Church may be enquired of by them in their Sessions 79 2. Where a Statute appoints a thing finally to be done by them yet the Court of King's Bench may take Cognizance of it 95 3. Conviction for keeping of a Gun before a Justice of Peace the time when he had not 100 l. per Annum must be precisely alledged 280 Iustification See Pleading 4 5. Where 't is pleaded by way of Excuse to an Action of Trespass for the taking of any thing the Defendant must averr the Fact to be done and set forth the Warrant to him directed and the taking virtute Warranti and not generally that he took it by a Mandate c. 138 2. In Replevin where the Defendant made Conusance in right of the Lord he may Justifie the taking generally ibid. Iudgment 1. At the Common Law no Execution could be of a Judgment after a year and a day but the remedy was to bring an Action of Debt upon Judgment 187 189 2. Now a Scire Fac. is given upon a Judgment after the year by the Statue of W. 2. 189 3. When a Judgment is once execucuted the Goods are in custodia legis and shall not be taken away by an Exchequer Process or by the Commissioners of Bankrupts 236 L. Lapse See Notice Lease A Covenant in a Lease for years that the Lessee should pay the Rent without obliging his Executors or Administrators 't is determined by his Death 231 2. For 99 yeas if three persons or any of them so long live reserving a Rent and an Herriot upon the death of either the Beast of the Assignee shall not be taken for a Herriot for the Lessee is to pay his best Beast and that shall not be carried further than to the person named 231 Libel Where a Fine and Corporal punishment was imposed upon the Offender after Conviction 68 Limitation An Estate was setled upon Trustees to the use of A. and her Heirs provided she marry with the consent of Trustees remainder over to B. This is a Limitation and not a Condition 32 Limitation of Action See 21 Jac. 16. Where a Trespass is laid with a continuando for more than six years and the Statute pleaded and entire Damages it must be intended only for that which falls within the six years and that the Jury rejected the beginning of the Trespass 111 2. This Statute relates to a distinct and not to a continued Account 112 3. It provides a Remedy when the Plaintiff is beyond Sea at the time when his Right accrews and saves it till he returns whether it may be extended in a Case where the Defendant is beyond Sea longer than six years from the time the Plaintiff was entituled to the Action 311 312 Local Actions Whether Covenant will lie by an Assignee of a Reversion against an Assignee of a Lessee in any other place than where the Land lieth 337 2. Debitum contractus sunt nullius loci ibid. 3. Debt for Rent upon a Lease for years brought upon the Contract and Covenant between the same Parties are transitory ibid. 4. If Privity of Contract is gone by making an Assignment and only a privity in Law remains the Action must be brought in the County where the Land lieth ibid. M. Mayor See Corporation Marriage See Condition 3. Evidence 7. Limitation Notice A Maid above 12 and under 16 taken from Parents or Guardian and Married forfeits her Estate to the next in
Bradburn versus Kennerdale 318 Brason versus Deane 39 Brett versus Whitchott 96 Bridgham versus Frontee 94 Broad versus Piper 268 Burgh's Case 67 C. CAlthrop versus Axtel 168 Capel versus Saltonstal 249 Carter versus Dowrish 226 Chapman versus Lamphire 155 Clarke versus Hoskins 79 Claxton versus Swift 86 Coghil versus Freelove 325 Cole versus Knight 277 Cross versus Garnett 261 D. DAvies Case 246 Dawling versus Venman 108 Dixon versus Robinson 107 Dobson versus Thornigrove 112 Doe versus Dawson 274 Dorrington versus Edwyn 56 E. ECcleston versus Speke 258 Evans versus Crocker 198 F. FItzgerald versus Villiers 236 Fisher versus Wrenn 250 Franshaw versus Bradshaw 235 Friend versus Bouchier 81 G. GRandison Lord versus Countess of Dover 23 Grantham Mil ' his Case 120 Godfrey versus Eversden 264 Gold versus Strode 324 Goring versus Deering 156 H. HAcket versus Herne 134 Hall versus Wybank 311 Hamson Serjeant his Case 89 Hanchet versus Thelwell 104 Harman versus Harman 115 Harrison versus Austin 237 Harrison versus Heyward 295 Hebblethwait versus Palmes 48 Hexam versus Coniers 238 Heyward versus Guppee 191 Hicks versus Gore 84 Hyley versus Hyley 228 Hinton versus Roffey 35 Hitchins versus Bassett 203 Hobbs qui tam versus Young 313 Hoile versus Clerke 218 Holcomb versus Petit 113 Holloway's Case 42 Horner's Company versus Barlow 158 I. JAckson versus Warren 78 Jefferies Mil ' versus Watkyns 161 Jennings versus Hankeys 114 Joyner versus Pritchard 103 K. KEllow versus Rowden 253 King versus Dilliston 221 Knight versus Cole 277 Knight Mil ' Case 117 Kingston versus Herbert 119 The King against Ayloffe 72 The King against Armstrong Mil ' 47 The King against Atkyns Mil ' 3 The King against Barns 42 The King against Baxter 68 The King against Beale 124 The King against Bunny 238 The King against Cony al' 37 The King against Colson al' 72 The King against Dangerfield 68 The King against Darby 139 The King against Fairfax 269 The King against G l. 97 The King against Griffith 201 The King against Grimes al' 220 The King against Hethersel 80 The King against Hinton al' 122 The King against Hockenhal 167 The King against Inhabitants of Malden The King against Johnson 241 The King against Kingsmill 199 The King against Lenthal 143 The King against Marsh al' 66 The King against Plowright al' 94 The King against Rosewell 52 The King against Saloway 100 The King against Sellars 167 The King against Silcox 280 The King against Sparks 78 The King against Warden of the Fleet 335 L. LAngford versus Webber 132 Lambert versus Thurston 275 Lea versus Libb 262 Leigh's Case 332 Letchmere versus Thorowgood 236 Lidcott versus Willows 229 Lock versus Norborne 141 Lutwich versus Piggot 268 M. MAcklesfield Earl 41 Malloon versus Fitzgerald 28 Marsh versus Cutler 41 Mason versus Beldham 73 Mather versus Mills 252 Matthews versus Cary 137 Mayor and Cominalty of Norwich versus Johnson 90 Merchants Adventurers versus Rebow 126 Mordant versus Thorold 281 Moss versus Archer 135 N. NEwton al' versus Stubbs 71 Newton Mil ' versus Creswick 165 Newton versus Trigg 327 Norwich Mayor c. versus Johnson 90 O. OBrian versus Ram 170 Okel versus Hodgkinson 99 Osborn versus Steward 230 P. PAine versus Partrich 289 Palmer versus Allicock 58 Panton versus Earl of Bath 227 Parkinson's Case 265 Pawley versus Ludlow 87 Peak versus Mather 103 Perkins versus Titus 132 Pitt versus Brereton 70 Plimouth Countess versus Throgmorton 153 Pool versus Trumbull 56 Price versus Davies 152 Prince's Case 295 Proctor versus Burdet 69 Prodgers versus Frazier 43 Proud versus Piper 268 Prowse versus Wilcox 163 Putt versus Rawsterne 1 R. REves versus Phelpes 264 Reeves versus Winnington 45 Roberts versus Pain 67 Rodney versus Strode 101 Roe versus Clargis Mil ' 26 Rowsby versus Manning 330 S. SAvier versus Lenthall 273 Shipley versus Chappel 232 Shotter versus Friend 283 Shuttleworth versus Garnat 239 Smith versus Goodier 36 Smith versus Peirce 195 T. TAyler versus Brindley 136 Thirsby versus Helbott 272 Thompson versus Leach 296 Idem versus Eundem 301 Tippet versus Hawkey 263 U. UPton versus Dawkin 97 W. WHitehal versus Squire 276 Wytham Mil ' versus Dutton Mil ' 159 Woodward's Case 211 Y. YArmouth Earl versus Dorrell 75 Young versus Inhabitants of Tottenham 258 DE Term. Sancti Mich. Anno 34 Car. II. in Banco Regis 1682. Sir Francis Pemberton Chief Justice Sir Thomas Jones Justices Sir William Dolben Justices Sir Thomas Raymond Justices Putt versus Rawstern Mil ' AN Action of Trespass was formerly brought for taking of Goods c. and upon Not-guilty pleaded Trespass is no Barr to Trover for the same Goods Raymond 472 the Defendant had a Verdict The same Plaintiff now brought Trover against the same Defendant for those Goods The Defendant pleads in Barr the Iudgment in the former Action of Trespass and upon a Demurrer the Question was Whether a Iudgment in Trespass vi armis may be pleaded in Bar to an Action of Trover for the same Goods This Case was argued by Mr. Saunders for the Plaintiff and by Mr. Pollexfen for the Defendant And to prove that it was no Bar Lacon versus Bernard Cro. Car. 35. Hutt 81. Stiles 202. a Case was cited to be adjudged in the Common Pleas in the 20th year of King James which was an Action of Trover and Conversion of one hundred Sheep The Defendant pleaded a former Iudgment in Trespass brought against him quare cepit abduxit those Sheep and that the Plaintiff in that Action recovered 2 d. damages and that both Actions were for the same thing The Plaintiff replied that the two pence damages were recoverd for the chasing and not for the value of the Cattle and upon a Demurrer had Iudgment For the smalness of the damages implies it was for the chasing and it shall therefore be intended that he had his Cattle again and that the Conversion was afterwards My Lord Coke in Ferrer's Case tells us Ferrer 's Case 6 Co. 7. Cro. Eliz. 676. Co. Ent. 39. Cro. Jac. 15. that a Recovery by Verdict Confession or upon a Demurrer in a personal Action is a good Bar to an Action of the like nature and for the same thing but that must be understood where the same Evidence will maintain both the Actions Iustice Croke reports the same Case to be ended by Arbitration but that it was the Opinion of my Lord Anderson and Iustice Glanvil that Trover and Trespass are Actions of different natures and one may be brought where the other cannot be maintained as upon a demand and denial Trover will lie but not Trespass vi armis because the taking was not tortious And therefore it may be well intended that when the Plaintiff brought Trespass he was
Trust as in the Case of Wardship formerly which always went to the Executor of the Grantee and which was of greater consideration in the Law than the feeding or clothing of an Ideot and of that Opinion was the Court that the King had a good Title to dispose of both the Ward and the Ideot one till he was of Age and the other during his Ideocy Iudgment for the Defendant DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis 1684. Reeves versus Winnington THE Testator was a Citizen and a Freeman of London A Devise of all his Estate passed a Fee and being seised in Fee of a Mesuage c. and likewise possessed of a considerable personal Estate made his Will in which there was this Clause viz. I hear that John Reeves is enquiring after my Death but I am resolved to give him nothing but what his Father hath given him by Will I give all my Estate to my Wife c. The Question was Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage It was argued that she had only an Estate for life because the Words All my Estate cannot be construed to pass a Fee for it doth not appear what Estate was intended and Words in a Will which go to disinherit an Heir must be plain and apparent A Devise was in these Words viz. Sid. 191. Bowman versus Milbank I give all to my Mother all to my Mother and it was adjudged that a Fee did not pass which is as strong a Case as this for by the word All it must be intended All that was in his power to give which is as comprehensive as if he had said All my Estate 'T is true Kerman and Johnson Stiles 281. 1 Rol. Abr. 834. Cro. Car. 447. it hath been adjudged that where a Man devised his whole Estate to his Wife paying his Debts and Legacies that the word Estate there passed a Fee because it was for the benefit of the Creditors there being not personal Assets sufficient to pay all the Debts But that is not found in this Case therefore the Word Estate being doubtful and which will admit of a double construction shall not be intended to pass a Fee Mr. E contra Pollexfen contra The first part of this Sentence consists in negative words and those which are subsequent explain the intention of the Testator viz. That John Reeves should take nothing by the Will The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property like a Release of all Actions which is a good discharge as well of real as personal Actions In common understanding it carries an interest in the Land and then 't is the same as if he had devised all his Fee-simple Estate In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All because it was a Relative Word and had no Substantive joined with it and therefore it might have been intended All his Cattle All his Goods or All his personal Estate for which incertainty it was held void yet Iustice Twisden in that Case said that it was adjudged that if a Man promise to give half his Estate to his Daughter in Marriage that the Lands as well as the Goods are included The Testator devised all his Tenant-right Estate held of such a Manor 3 Keb. 245. Mod. Rep. 100. and this being found specially the Question was Whether any more passed than an Estate for Life because he did not mention what Estate he intended but it was held that the Devisee had a Fee-simple because the Words were as comprehensive as if he had devised all his Inheritance and by these Words a Fee-simple would pass Curia It plainly appears that the Testator intended nothing for John Reeves therefore he can take nothing by this Will and that the Devisee hath an Estate in Fee-simple for the Words All my Estate are sufficient to pass the same Rex versus Sir Thomas Armstrong Saturday June 14th THE Defendant was outlawed for High-Treason and being taken at Leyden in Holland was brought into England and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry and he tried by virtue of the Stature of Ed. 6. which Enacts 5 6 E. 6. cap. 11. That if the Party within one year after the Outlawry or Judgment thereupon shall yield himself to the Chief Justice of England and offer to traverse the Indictment upon which he was outlawed he shall be admitted to such Traverse and being acquitted shall be discharged of the Outlawry He alledged that it was not a year since he was outlawed and therefore desired the benefit of this Law But it was denied because he had not rendered himself according to the Statute but was apprehended and brought before the Chief Iustice Whereupon a Rule was made for his Execution at Tyburn which was done accordingly DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis 1684. Hebblethwaite versus Palmes Mich. 36 Car. II. in B. R. Rot. 448. AN Action on the Case was brought in the Common-Pleas Possession is a sufficient cause to maintain an Action against a wrong doer for diverting of a Watercourse The Declaration was That the Defendant Primo Augusti c. injuste malitiose did break down an ancient Damm upon the River Darwent by which he did divert magnam partem aquae ab antiquo solitu cursu erga molendinum ipsius quer c. ad dampnum c. The Defendant pleaded that before the said Breach made he was seised in Fee of an ancient Mill and of six Acres of Land adjoyning upon which the said Damm was erected time out of mind to turn the Water to his said Mill which Damm was always repaired and maintained by the Defendant and the Tenants of the said Land that his Mill was casually burnt and he not intending to Re-build it suffered the Damm to be broken down and converted the Timber to his own use being upon his own Soil prout ei bene licuit c. The Plaintiff replied that by the breaking of the Damm the Water was diverted from his Mill c. The Defendant rejoyned and justified his Plea and Traversed that the Mill of the Plaintiff was an ancient Mill. And upon a Demurrer to this Rejoynder Iudgment was given for the Plaintiff and a Writ of Error now brought to reverse that Iudgment and for the Defendant in the Action it was argued 1. That the Declaration is not good because the Plaintiff had not set forth that his Mill was an ancient Mill. 2. Because he had not entituled himself to the Watercourse 3. That the Plea was good in Bar to this Action because the Defendant had sufficiently justified having a Right to the Land upon which the Damm was erected and always repaired it As to the first Point it
sell them so that a Retorn could not be made to the Party distraining therefore it directs that the Sheriff shall take Pledges for returning the Beasts if a Return should be awarded which would be to little purpose if such Pledges were not liable upon the Retorn of Elongar Now as to the removing of the Pleint by Certiorari that makes the Case more strong in the Plaintiffs behalf because the Record it self una cum omnibus ea tangen is removed but by an Habeas Corpus the person is only removed and the Court hath thereby a Iurisdiction over his Cause which the inferior Court hath lost because it hath lost his Person 2. This Scire Facias is not brought too soon as hath been objected for 't is in vain to bring an Alias Pluries after the Sheriff had returned Elongat ' 't is like the common Case where a Scire Facias is brought against the Bail and Non est inventus is returned after which there never was an Alias or Pluries Capias And afterwards in Michaelmas-Term following Iudgment was given that the Pledges are liable Palmer versus Allicock BY the Statute of Distribution of Intestates Estates 't is provided 22 23 Car. 2. cap. 10. That in case there be no Wife then the Estate of the Husband dying intestate shall be distributed equally amongst the Children and if no Child then to the next of Kin of the Intestate in equal degree and to those who legally represent them A Man died intestate having no Wife at the time of his death and but one Child who was an Infant afterwards Administration was granted of the Fathers Estate durante minore aetate of the Child who died before the Age of seventeen Then Administration was granted by a peculiar to the next of Kin of the Infant and an Appeal was brought in the Arches by the next of Kin of the Father to revoke that Administration In a Prohibition the Question was Whether Administration de bonis non c. of the first Intestate shall be granted to the next of Kin of the Father or the Child Mr. Pollexfen argued this Term for the Plaintiff in the Prohibition viz. That the Statute gives a power to the Ordinary to take Bonds of such persons to whom Administration is committed the Forms of which Bonds are expressed in the Act and the Conditions are to make a true and perfect Inventory and to exhibit it into the Registry He hath also a power to distribute what remains after Debts Funeral Charges and Expences Thus the Law stands now Then as to the Case at the Barr three things are to be considered 1. If a Man dies intestate leaving two Sons and no Wife each hath a Moiety of his personal Estate immediately vested in him so that if one Brother should afterwards die intestate the other shall have the whole 2. If an Interest be vested in two then by this Statute the like Interest is vested in one so that if he die Intestate his Administrator shall have the Estate 3. If so then the consequence will be that in this case Administration de bonis non of the first Intestate shall go to the next of Kin of the Infant By Interest is meant a Right to sue for a share after Debts paid which Interest every person hath in a chose in action As if a Man doth covenant with two that they shall have such an Estate after Debts paid an Interest vests in them by this Covenant and if they die it goes to their Executors such also is the Interest of every Residuary Legatee Now if any of them die before the Residue can be distributed the Wife or Children of him so dying shall have it And to make this more clear it will be necessary to consider how the Law stood before the making of this Act. At the Common Law neither the Wife Child or next of Kin had any Right to a Share of the Intestates Estate but the Ordinary was to distribute it according to his Conscience to pious Vses and sometimes the Wife and Children might be amongst the number of those whom he appointed to receive it but the Law entrusted him with the sole disposition of it 2 Inst 399. Afterward by the Statute of Westm 13 E. 1. c. 19. 2. he was bound to pay the Intestate's Debts so far as he had Assets which at the Common Law he was not bound to do and an Action of Debt would then and not before Pl. Com. 277. Greisbrook versus Fox lie against him if he did alien the Goods and not pay the Debts Then the Statute of * 31 E. 1. c. 11. 31 E. 1. was made by which he was impowred to grant Admstration to the next of Kin and most lawful Friend of the Intestate 1 Inst 133. b. 2 Inst 397. 9 Co. Hensloes Case and by this Statute the person to whom Administration was committed might have an Action to recover the Intestate's Estate for at the Common Law he had no remedy But then afterwards the Statute of 21 H. 8. cap. 5. Enacts That the Ordinary shall grant Administration to the Widow or next of Kin of the person deceased or to both and this was the first Law which gave any Interest to the Wife to whom Administration being once granted the power of the Ordinary was determined Hob. 83. 1 Cro. 62 202. and he could not repeal it at his pleasure as he might at the Common Law But after the making of this Statute many mischiefs did still remain because the Administration being once committed the person to whom it was granted had the whole Estate and the rest of the Relations of the deceased were undone and therefore if his Children were under Age or beyond the Seas and a Stranger had got Administration it would have been a Bar to them And thus it continued many years the Ordinary still making distribution as he thought fit taking only a Bond from the person to whom he granted Administration for the purposes aforesaid and sometimes to dispose the Surplus after Debts and Legacies as he should direct and no Prohibition was granted to remedy these inconveniences till about the 12th year of King James the First Hob. 83. But now by this Act a good remedy is provided against these mischiefs and 't is such which takes away the Causes thereof which is that the Administrator shall not have the whole Estate but that a Distribution shall be made The Title of the Act shews the meaning thereof to be for the better Settlement of Intestates Estates and the Body of it shews how Distribution shall be made so that such Bonds which were usually given by the Administrator before this Law to make Distribution as the Ordinary should direct are now taken away and other Forms are prescribed and there can be no remedy taken upon such new Bonds till the Ordinary hath appointed the Distribution so that in effect this Act makes the Will
the Court of Arches the Case was Prohibition not granted where a temporal loss may ensue The Plaintiff was presented by the Mayor and Aldermen of Bristol to the Parish Church of Christ-Church in the said City and the Defendant libelled against him because he was not 23 years of Age when made Deacon nor 24 when he entred into the Orders of a Priest 13 Eliz. c. 12. and the Statute requires that none shall be made a Minister or admitted to preach being under that Age. The reason now alledged for a Prohibition was because this Matter was triable at Law and not in the Spiritual Court because if true a Temporal Loss viz Deprivacion might follow But the Court denied the Prohibition and compared this Case to that of a Drunkard or ill Liver who are usually punished in the Ecclesiastical Courts though a temporal loss may ensue and if Prohibitions should be granted in all Cases where Deprivation is the consequence of the Crime it would very much lessen the Practice of those Courts David Burgh 's Case THE Parishioners of St. Leonard Foster Lane gave this Man who had a Wife and five Children 5 l. in Mony to remove into another Parish upon Condition that if he returned in 40 days that he should repay the Mony he removed accordingly and stayed away by the space of 40 days the Parish to which he removed obtained an Order upon an Appeal for his settlement in the last Parish where he was lawfully an Inhabitant which Order being removed into this Court and the Matter appearing thus upon Affidavits they declared their Opinion only upon the Order to remove viz. That the Man had gained a Settlement in the Parish to which he removed for he being an Inhabitant there for so long time as was required by Law to make a Settlement and not disturbed by the Officers they were remiss in their Duty and the Court would not help their negligence DE Term. Sanctae Trin. Anno 1 Jac. II. in Banco Regis 1685. Dominus Rex versus Dangerfield THE Defendant was convicted of publishing a Libel wherein he had accused the King when Duke of York that he had hired him to kill the late King Charles c. And on Fryday June 20. He was brought to the Barr where he received this Sentence viz. That he should pay the Fine of 500 l. That he should stand twice in the Pillory and go about the Hall with a Paper in his Har signifying his Crime That on Thursday next he should be whipped from Algate to Newgate and on Saturday following from Newgate to Tyburn which Sentence was executed accordingly and as he was returning in a Coach on Saturday from Tyburn one Mr. Robert Frances a Barrister of Greys-Inn asked him in a jeering manner whether he had run his Heat that day who replied again to him in scurrilous words whereupon Mr. Frances run him into the Eye with a small Cane which he had then in his Hand of which wound the said Mr. Dangerfield died on the Monday following Mr. Frances was indicted for this Murder and upon Not-guilty pleaded was tried at the Old-Bayly and found guilty and executed at Tyburn on Fryday July the 24th in the same year Mr. Baxter's Case HE was a Nonconformist Minister against whom an Information was exhibited for writing of a Book which he Entituled A Paraphrase upon the New Testament and the Crime alledged against him in the said Information was That he intending to bring the Protestant Religion into contempt and likewise the Bishops innuendo the Bishops of England did publish the Libel in which was contained such words c. setting forth the words He was convicted And Mr. Williams moved in arrest of Iudgment that the words in the Information and the Bishops therein mentioned were misapplied to the Protestant Religion and the Bishops of England by such Innuendoes which could not support this Charge against the Defendant That the Distringas and Habeas Corpora were inter nos Richardum Baxter which could not be because the Information was exhibited in the name of the Attorney General But the Court over-ruled these Exceptions and said that by the word Bishops in this Information no other could be reasonably intended but the English Bishops thereupon the Court fined him 500 l. and ordered him to give Security for his Good Behavior for seven years Procter versus Burdet AN Action of Covenant was brought by an Apprentice setting forth the Indenture by which the Defendant In Covenant the Breach was generally assigned and held good his Master had covenanted to find and allow the Plaintiff Meat Drink Lodging and all other things necessary during such a time and the Breach was as general as the Covenant viz. That he did not find hind him Meat Drink Lodging alia necessaria The Plaintiff had Iudgment by Nil dicit and upon a Writ of Enquity brought entire Damages were given against the Defendant And in a Writ of Error upon this Iudgment the Error assigned was that the Breach was too general and that entire Damages were given amongst other things for alia necessaria and doth not say for what 2 Cro. 436. Astel versus Mills and a Case was cited in the Point in Trinity-Term 16 Jacobi where the Iudgment was reversed for this very reason The Council contra argued that that which is required in an Action of Covenant is that there may be such a certainty as the Defendant may plead a former Recovery in Barr if he be sued again and therefore one need not be so particular in assigning of the Breach upon a Covenant as upon a Bond for in a Bond for performance of Covenants where there is a Covenant to repiar if it be put in suit 't is not sufficient to say That the House is out of repair but you must shew how but in a Covenant 't is enough to say That it was out of repair If in this Case the Plaintiff had shewed what necessaries were not provided for him Kelway 85. it would have made the Record too long and therefore 't is sufficient for him to say that the Defendant did not find alia necessaria That Case in 2 Cro. 2 Cro. 304 367. 1 Rol. Rep. 173. 3 Bulst 31. 2 Saund. 373. has since been adjudged not to be Law for many contrary Iudgments have weakened the Authority of it viz. That the Breach may be assigned as general as the Covenant as where a Man covenanted that he had a lawful Estate and Right to let c. the Breach assigned was that he had no lawful Estate and Right to let c. and doth not shew that the Lessor had not such Right or that he was evicted yet it was held good Curia In a Quantum meruit they formerly set out the Matter at length but now of late in that Action in general Words and also in Trover and Conversion pro diversis aliis bonis hath been held good which is as
my Lord Coke to be an allowance by the King 's Grant to any person for the sole buying or selling of any thing restraining all others of that Liberty which they had before the making of such a Grant 3 Inst 181. and this he tells us is against the ancient and fundamental Rights of this Kingdom This Patent agreeth exactly with that Definition 9 E. 3. cap. 1. 18 E. 3. c. 3. 25 E. 3. c. 2. Roll. Abr. 180. 2 R. 2. c. 1. 11 R. 2. c. 7. and therefore it must be against Law 't is against an Act of Parliament which gives Liberty to Merchants to buy and to sell in this Realm without disturbance and 't is expresly against the Statute of 21 Jac. cap. 3. which declares all such Letters Patents to be void That which may give some colour to make such Grants good 2 Inst 540. 11 Rep. is a pretence of Order and Government in Trade but my Lord Coke was of Opinion that it was a hinderance to both and in the end it produced Monopolies There is a great difference between the King's Grant and his Prohibition for the one vests an Interest which is not done by the other and all Prohibitions determine by the King's death but Grants still remain in force Adjornatur Langford versus Webber IN Trespass for the taking of a Horse Justification upon a bare possession good against a wrong doer the Defendant justified for that Joseph Ash was possessed of a Close c. and that the Defendant as his Servant took the Horse in that Close Damage fesant And upon a Demurrer to this Plea for that the Defendant did not shew what Title Ash had to this Close The Councel for the Defendant insisted that it being in Trespass 't is sufficent to say that Ash was possessed because in this Case possession is a good Title against all others But it might have been otherwise in Replevin The Title of the Close is not in question Cro. Car. 138. Yelv. 74. Cro. Car. 571. pl. 10. the possession is only an inducement to the Plea and not the substance thereof which is the taking of the Horse and the Law is plain that where the interest of the Land is not in question a Man may justifie upon his own possession against a wrong-doer Mr. Pollexfen on the other side alledged that damage fesant would bring the Title of the Land in question But the Court gave Iudgment for the Defendant Perkins versus Titus A Writ of Error was brought to reverse a Iudgment given in the Common-Pleas Fine upon an Admittance where it must be certain in Replevin for taking of the Plaintiff's Sheep The Defendant avowed the taking damage fesant The Plaintiff replied that the Lands where c. were Copy-hold held of the Manor of Bushy in Com. Hertf. the Custom whereof was that every Tenant of the said Manor qui admissus foret to any Copyhold Estate should pay a years Value of the Land for a Fine as the said Land is worth tempore Admissionis And upon a Demurrer the Question was 1. Whether this be a good Plea or not as 't is pleaded 2. If it be good as pleaded then whether such a Custom may be supported by Law 1. It was for the Plaintiff in the Writ of Error now and in Michaelmas Term following argued that it was not a good Custom The substance of whose Arguments were that Fines are either certain or incertain those which are incertain are arbitrary and therefore cannot be due of Common Right nor by Custom for there can be no Custom for an incertain Fine and such is this Fine for the value of the Land cannot be known because as this Custom is pleaded it doth not appear whether it shall be a years value past or to come at the time of the admittance of the Tenant A Custom to assess rationabilem denariorum summam for a Fine upon an admittance that is to say 13 Rep. 1. being two years Rent of a Tenant of the yearly value of 53 s. 4 d. is no good Custom A Lease is made for so many years as a third person shall name this is altogether incertain 13 Edw. 3. Fitz. Abr. 273. but when the Term is named then 't is a good Lease but this can be done but once How can this Fine be assessed It cannot be by Iury for then it stands in need of the Common Law and will be therefore void for a Custom must have nothing to support it but usage 1. Neither can this be a good Custom as 't is pleaded because all Customs are made up of repeated Acts and Vsages and therefore in pleading them it must be laid time out of mind which is not done here for admissus foret hath a respect to future admissions and are not to those which are past 2. Here is no time laid when this Fine shall be paid for 't is said Quilibet tenens qui admissus foret c. solvet tantam denariorum summam quantum terra valebat per Annum tempore admissionis c. which last words must be taken to relate to the value of the Land and not to the time when the Fine shall be paid so that if there be such a Custom which is Lex loci and not fully set forth and expressed the Common Law will not help it by any Construction 2. Point Whether such a Custom can be good by Law And they argued that it cannot Where the Fine is certain the Lord may refuse to admit without a tender of it upon the prayer of the person to be admitted 4 Rep. 27. b. but where 't is incertain the Lord is first to admit the Tenant and then to set the Fine the reasonableness whereof is to be determined by Iudges before whom the Case shall depend or upon Demurrer or by a Iury upon proofs of the yearly value of the Land but for non payment of an unreasonable Fine the Lord cannot enter Cro. Eliz. 779. Cro. Car. 196. The Law admits of no Custom to be good but such as is very certain for incertainty in a Custom as well as in a Grant makes both void and therefore 't is held a void Custom for an Infant to make a Feoffment when he can measure an Ell of Cloth Rol. Abr. 565. 6 Rep. 60. Davies Rep. 37. It may be objected that certum est quod certum reddi potest the meaning of which saying must be quod certum reddi potest by something which is certain for if this Rule should be taken to be an answer to incertainties it would destroy all the Books which say a Custom must be certain The Law is very clear Fitz. Bar. 177. 2 Rol. Abr. 264. that a Custom is void for the incertainty therefore this Custom must be void for the value of Land is the most incertain thing in nature and therefore Perjury will not lye for swearing to the value Serjeant Fuller and Mr.
forth that the Plaintiff was amerced and that it was affered at the Court and so he hath confounded the Office of the Iurors and Affearers together which he ought not to do for he should be amerced to a certain Sum Hob. 129. Rol. Abr. 542. and not in general which Sum may be mitigated or affered by others If it had been a Fine 8 Co. 38. 1 Leon. 142. it need not be affered because that is imposed by the Court but this is an Amerciament which is the act of the Jury and therefore it must be affered 3. The chiefest Exception was to the matter of the Warrant viz. the Defendant sets forth that he seised by virtue of a Precept from the Dean and Chapter whereas he ought to shew it was directed to him from the Steward of the Court and then to set forth the Warrant without which he cannot justifie to distrain for an Amerciament And of this Opinion was the whole Court and therefore Iudgment was given for the Plaintiff in Michaelmas Term Primo Will. Mariae If it had been in Replevin where the Defendant made cognizance in the right of the Lord it might be well enough as here pleaded but where 't is to justifie by way of excuse there you must averr the Fact and alledge it to be done and set forth the Warrant it self 3 Cro. 698.748 1 Leon. 242. and the taking virtute Warranti for a Bayliff of a Liberty cannot distrain for an Amerciament by virtue of his Office but he must have a Warrant from the Steward or Lord of the Leét for so doing The other Exception that the Amerciament ought to be to a Sum Rast Ent. 606. Co. Ent. 665. the Presidents are otherwise for an Amerciament per duodecim probos legales homines adtunc ibidem jurat ad 40 s. afferat ' is well enough but the Warrant is always set forth Dominus Rex versus Darby THE Defendant was indicted for speaking of scandalous words of Sir J.K. a Justice of the Peace Viz. Sir J.K. Indictment for Scandalous words is a buffle-headed Fellow and doth not understand Law he is not fit to talk Law with me I have bafled him and he hath not done my Clyent Justice Mr. Pollexfen for the Defendant said that an Indictment would not lye for these words because not spoken to the Party in the exceution of his Office but behind his back it will not lye for irreverent words but for Libels and Writings because such are publick but words are private offences But the Court being of Opinion that an Indictment would lye where an Action would not because it respects the publick Peace and that an Action would not lye in this Case unless the party had a particular loss Sid. 65. 2 Cio 5 8. and therefore it hath been held not to be actionable to call a Iustice of Peace Fool Ass Coxcomb He then took Exceptions to the Form of the Indictment 1. There is no place of Abode laid where the Defendant did inhabit which is expresly required by the Statute of H. 5. Viz. 1 H. 5. cap. 5 That in Indictments there shall be addition of the Estate Degree c. and of the Towns Hamlets Places and Counties where the Defendants dwell And by the Statute of H. 6. 8 H. 6. cap. 12 which gives the Iudges power to amend Records in affirmations of Iudgments such defects which are named in the Statute of H. 5. are excepted and therefore where a Writ of Error was brought to reverse an Outlawry upon the Statute of 5 Eliz. for Perjury 2 Cro. 167. the Defendant was Indicted by the Name of Nicholas Leech de Parochia de Aldgate and did not shew in what County Aldgate was and for this cause it was reversed 2. The Caption is coram Justiciariis ad pacem dicti Domini Regis conservand ' and the word nunc is left out It was the Opinion of Iustice Twisden that it ought to be nunc conservand ' Sid. 422. for otherwise it may be the Peace of King Stephen The Councel on the other side said that it was a new Doctrine that the King shall not have the same Remedy by an Indictment which the Subject may have by an Action What is the meaning of the words of all Commissions de propalationibus verborum As to the first Exception they said that the Indictment was certain enough for the Defendant is laid to be de Almondbury in the West-Riding of Yorkshire To the second Exception they said that ad pacem conservand ' without nunc is well enough for it cannot be intended upon this Indictment that they were Iustices to preserve the Peace in any other Kings Reign and what was quoted out of Siderfin is but the Opinion of one single Iudge This is a Scandal upon the Government and 't is as much as to say that the King hath appointed an ignorant Man to be a Iustice of Peace for which an Indictment will lye And of that Opinion was the whole Court and gave Iudgment accordingly Ball versus Cock A Writ of Covenant did bear Teste the first day of Trinity Term Error to reverse a Fine where the Cognisor died after the Caption and before it passed the King's Silver retornable tres Trinitatis and it was taken by Dedimus 30 Julii A Writ of Error was brought to reverse this Fine and the Error assigned was that the Cognizor died after the Caption and before the Enrolment at the King's Silver Office It was argued by the Councel for the Plaintiff in the Writ of Error that a Fine Sur Cognizance de droit c. is said to be levied when the Writ of Covenant is returned and the Concord and King's Silver which is an antient Revenue of the Crown pro licencia concordandi duly entred for though the Cognisor dieth afterwards Dyer 220. b. 5 Co. 37. Cro. Eliz. 469. the Fine is good and the Land passeth but if the King's Silver be not entred the Fine may be reversed by Writ of Error for it is an Action and Iudgment and the death of either Party abates it If it should be objected that this cannot be assigned for Error because 't is against the Record which is Placita terrae irrotulat de Termino Sanctae Trinitatis anno primo Jacobi c. 'T is true an Error cannot be assigned against the very essence of a Record but in the matter of time it may and so 't is in this Case 'T is like Syer's Case 32 Eliz. 3 Inst 230. 4 Co. Hind's Case 10 H. 7.24 who was indicted for a Burglary supposed to be done primo Augusti and upon the Evidence it appeared to be done primo Septembris and though he was acquitted of the Indictment for that reason viz. because the Iudgment relates to the day of the Indictment yet it was resolved by all the Iudges of England that the very day needs not be set down in
to Sir Edward Biggs against the Countess as Administratrix of the Earl of Plymouth wherein the Plaintiff sets forth a Writing by which the Earl had given power to Sir Edward to be the Collector and Receiver of his Mony and Rents and that he promised to allow him 100 l. per Annum for his pains and in default of payment thereof that Sir Edward should detein the same which Writing was in these Words following viz. I do direct and appoint Sir Edward Biggs to take and receive to his own use 100 l. of lawful Mony of England out of the first Mony which he shall receive of mine The Action was brought for 75 l. being his Salary for three quarters of a year and Iudgment by Nil dicit It was argued this Term and in Easter Term by Councel on both sides It was agreed on all sides that the Earl left sufficient Assets to satisfie all his Bond Creditors but not enough to pay Debts upon simple Contract First it was said for the Plaintiff in the Errors that no Action of Debt will lie against an Executor upon a Mutuatus 11 Co. Godfreys Case because the Testator might have waged his Law but this was not much insisted on 2. That admitting an Action would lye yet this is an erronious Iudgment because the Suit was for 75 l. for three quarters Salary when by the Writing Sir Edward was to serve the Earl a whole year and this being an entire Contract shall not be seperated Therefore he cannot be well entituled to the Actionn unless his Testator had served a year and he had averred it so in his Declaration As where a Covenant was to pay 2 s. Yelv. 133. 7 Co. 10. Allen 9. for copying every Quire of Paper and the Breach assigned that he copyed 4 Quire and 3 sheets for which 8 s. and 3 d. was due to the Plaintiff 't is true he had Iudgment but it was reversed because it was an entire Covenant of which no apportionment could be made pro rata 3. That which was chiefly insisted on was to make these words amount to an Obligation that so it might be satisfied amongst the Bond Creditors But those who argued for the Plaintiff in the Errors said that it cannot be an Obligation for it was only a bare Letter of Attorney and an Authority and no more for there were no words to oblige the Earl or which can make a Warranty and therefore if the Mony was not received the Party to whom the Note was given could not resort back to him who made it had they been both living neither shall the Plaintiff now to his Administratrix Like the common Cases of the assigning of Iudgment if the Assignee doth not receive the Mony he cannot have an Action against the Assignor who only directs and appoints him so to do But on the other side Ex parte Def. the second Objection was thus answered viz. That this being only an Executory thing the Plaintiff may now bring an Action for so long time as his Testator served and this may be apportioned secundum ratam if the Law should be otherwise the Case of all Servants would be bad for they are generally hired for a year and not usually serve so long In an Assumpsit to pay for a years board Sid. 225. and the Plaintiff had declared only for three quarters of a year but yet had Iudgment because as the Book saith if there be any variance in the Agreement 't is for the advantage of the Defendant The 3d. Vaughan 92 93. Pl. Com. 182. Dyer 21. Objection answered viz. When a Man is indebted to another by simple Contract which is aknowledged by Deed an Action of Debt will lie against his Executor for any thing which is under Hand and Seal will amount to an Obligation especially where the Debt is confessed Now there are words in this Deed to shew that Mony was due and that makes it a Bond. But the Court was of Opinion that this was an entire Agreement and therefore the Action not well brought for three quarters Salary and for this reason the Iudgment was reversed Nisi c. Chapman versus Lamphire AN Action on the Case was brought for scandalous words spoken of the Plaintiff Words spoken of a Carpenter where actionable who declared that he was a Carpenter and a Freeman of the City of London and that he got great Sums of Mony by buying of Timber and Materials and by building of Houses and that the Defendant having discourse of him and of his Trade spoke these words viz. He is broken and run away and will never return again There was a Verdict for the Plaintiff and a Motion was now made in arrest of Iudgment for that a Carpenter was not a Trade within the Statute of Bankrupts and a day being given to speak to it again Mr. Pollexfen argued that before the Statutes made against Bankrupts words spoken reflecting upon a man in his Trade were actionable even at the Common Law because it might be the occasion of the loss of his Livelyhood 1 Rol. Abr. 59. pl. 6. Hutton 60. and therefore it was actionable to say of a Scrivener that he is broken and run away and dares not shew his Face and yet a Scrivener was not within the Statutes of Bankrupcy before the Act of 21 Jac. therefore the Action must lie at the Common Law because words disparage him in his Trade But the Councel for the Defendant said that these words were not actionable for they do not tend to his disparagement he may be broke and yet as good a Carpenter as before The Case of one Hill in 2 Car. Latch 114. in this Court was much stronger than this the words spoken of him were viz. Hill is a base broken Rascal and hath broken twice already and I will make him break the third time the Plaintiff had Iudgment but it was arrested A Carpenter builds upon the Credit of other men and so long as the words do not touch him in the skill and knowledge of his Profession they cannot injure him Chief Iustice The Credit which the Defendant hath in the World may be a means to support his skill for he may not have an opportunity to shew his Workmanship without those Materials for which he is entrusted The Iudges were divided in Opinion two against two and so the Plaintiff had his Iudgment there being no Rule made to stay it so that he had his Iudgment upon his general Rule for Iudgment but if it had been upon a Demurrer or Special Verdict then it would have been adjourned to the Exchequer Chamber Goring versus Deering IN an Appeal for the Murder of Henry Goring Esq Auterfoits convict of Manslaughter no good Plea in an Appeal for Murder brought by his Widow The Defendant pleaded that he was indicted for the said Murder at the Sessions-house in the Old Bayly in Middlesex that he was found guilty of Manslaughter
and not of Murder prout patet per Recordum that he was Clericus paratus fuit legere ut Clericus if the Court would have admitted him and that he is the same person c. To this Plea the Appellant demurred The truth of this Case was that after the Conviction and before the Sentence an Appeal was brought so that the Defendant had not an opportunity to pray his Book It was argued by Mr. Pollexfen for the Appellant and by Sir George Treby for the Appellee If the Statute of 3 H. 3 H. 7. c. 1. 7. was not in the way this Plea might be a good Barr to the Appeal because before the making of that Law Auterfoits convict c. had been a good Plea but now that Statute deprives the Defendant of that benefit for 't is enacted That if any man be acquitted of Murder at the King's Suit or the Principal attainted the Wife or next Heir to him so slain may take and have their Appeal of the Murder within a year and a day after the said Murder done against the said persons so acquitted or attainted if they be alive and the Benefit of * Nota At this time Clergy was allowed for Murder but now taken away by the Statute of 23 H. 8. c. 1. Hales Pl. Cor. 232. Clergy before not had Now though the Party be neither acquitted or attainted but is only convicted of Manslaughter yet the word Attaint in this Statute signifies the same with Convict and this appears by the penning of the Act in that Clause which mentions the benefit of Clergy viz. That if any man be attainted of Murder the Heir shall have an Appeal if the benefit of Clergy be not had Now an Attainder supposeth a Conviction for one is the consequence of the other and if it should not signifie the same thing in this place then that Clause would be in vain because if it should be taken for the Iudgment given upon the Conviction then 't is too late for the Party to have any benefit of his Clergy Thus it was held in the second Resolution of Wrot and Wigg's Case that the word Attaint in this very Act shall not be intended only of a person who hath Iudgment of Life 4 Co. 46. a. but also of one Convict by Confession or Verdict 'T is true 2 Anders 68. 't is said in that case and so likewise in Holecroft's Case that Auterfoits convict of Manslaughter upon an Indictment of Murder is a good Bar to an Appeal at the Common Law as well as if the Clergy had been allowed the reason may be because in both those Cases the Iudgments were by Confession so that the Court ought to have granted the Clergy but this is a Conviction by Verdict which alters the Case E contra Auterfoits convict is a good Plea at the Common Law in all other Cases Treason only excepted at this day it appears by the Statute of H. 7. that the year and day which was the time allowed for the Appeal and in which time the Kings Indictment could not be tried was an usage but not a Law therefore that Act provides that the King shall proceed upon the Indictment within the year and a day and not stay for the Appeal of the Party If the Party be attainted or acquitted the Wife or next Heir shall have an Appeal but not if he be convicted But now admitting that the word Attaint hath the same signification with the word Convict yet this is a good Plea both within the Words and the Equity of the Statute This appears upon the Construction of that Law which must be expounded according to the vulgar Sense and signification of the words and therefore where the Statute saith That an Appeal lies where the benefit of Clergy is not had is that it is not had de Jure but the Clergy in this Case was de Jure and the Defendant was ready to read if he had been admitted thereunto by the Court. Thus is the Statute of Malbridge about the taking away of Wards viz. Si parentes conqueruntur that is if they had cause to complain 2. This Statute hath been expounded according to Equity for though it gives an Appeal to the Wife or next Heir of him slain yet if a Woman be killed her next of Kin shall bring an Appeal Therefore by the same Equity these words viz. The benefit of Clergy not had shall be construed had by the Grant of the Court Co. Ent. 355. for if a Man be indicted without the addition of Clerk he cannot demand his Clergy unless the Court ask him but if he be indicted with that addition then he may demand it because 't is supposed by the Court that he can read That this Appeal was not well brought these Exceptions were taken grounded upon the Statute of Gloucester by which seven things are required in an Appeal of Murder 6 E. 1. ca. 9. That the Appellor declare the Fact the Year the Day the Hour the Year of the King the Town where the Fact was done and with what Weapon the Party was slain Now in this Case there is a defect in two of the things required by that Statute 1. That of the Hour which is laid too general for 't is circa horam octavam which is not certain enough 2. They have laid no Vill for 't is that the Defendant did assault the Husband of the Appellant in Parochia Sancti Martini in Campis now though that word Parochia has crept into Fines and Recoveries and likewise into Indictments it must not be allowed in Appeals There may be several Vills in one Parish and though this is ruled good in Indictments it ought not to be so here because of the difference between an Indictment and an Appeal Stamf. 80. b. Doct. Stud. 48. for in Indictments you need not mention the Hour but it must be done in Appeals A Parish is an Ecclesiastical Division and though such may be a Vill 't is not necessary Ex vi termini that it should be so But afterwards in Trinity-Term 4 Jac. the Chief Iustice delivered the Opinion of all the Iudges except Iustice Street who were assembled for that purpose at Serjeants-Inn that this was no good Plea and that the Court ought not to ask the Prisoner what he had to say and so to let him into the benefit of his Clergy Tamen quaere for 't is otherwise resolved The Company of Horners versus Barlow DEBT upon a By-Law wherein the Company set forth A By-Law restrained to London and not to extend farther that they were incorporated by Letters Patents of King Charles I. and were thereby empowred to make By-Laws for the better Government of their Corporation and that the Master Warden and Assistants of the Company made a Law viz. That two Men appointed by them should buy rough Horns for the Company and bring them to the Hall there to be distributed every Month by
an Inn-keeper or common Carrier 't is usual to declare secundum legem consuetudinem Angliae for 't is not a Custom confined to a particular place but 't is such which is extensive to all the King's People The word Consuetudo might have been added 1 Inst 182. but it imports no more than Lex for Custom it self is Law If the Custom of Merchants had been left out the Defendant had then pursued his Covenant for if a Man agrees to pay Mony to such a person or his Assigns and he appoints the payment to another a tender to that person is a good performance of the Covenant But the Court were of Opinion that this was not a good Plea Panton versus the Earl of Bath A Scire Facias to have Execution of a Iudgment obtained in the Court of Oliver late Protector of England and the Dominions and Territories thereunto belonging Where the Pleading is good in substance tho' there is a small variation it will not hurt and in reciting the Iudgment 't is said that it was obtained before Oliver Protector of England and the Dominions thereunto belonging leaving out the word Territories And upon a Demurrer Mr. Pollexfen held this to be a variance Yelv. 212. Orde versus Moreton and like the Case where a Writ of Error was brought to remove a Record in Ejectment directed to the Bishop of Durham setting forth that the Action was between such Parties and brought before the said Bishop and seven other persons naming them and the Record removed was an Ejectment before the Bishop and eight others so that it could not be the same Record which was intended to be removed by the Writ E contra E contra It was said suppose the word Scotland should be left out of the King's Title would that be a variance The Iudicature in this Case is still the same and the Pleading is good in Substance and of that Opinion was the whole Court Hyley versus Hyley HYley had Issue W. Where the Reversion in Fee shall pass in a Will by the words viz. Remaining part of my Estate his eldest Son who had Issue Peter Charles John He by Will devised 1000 l. to his eldest Son and several parcels of Land to other Legatees Then he gave to Peter Lands in Tail Male To John a Mansion House now in question in Tail Male He devised another House to his Grandson Charles in like manner And all the rest and remaining part of his Estate he devised to his three Grandsons equally to be divided amongst them that only excepted which he had given to Peter Charles and John and to the Heirs of their Bodies whom he made Executors Then by another Clause he devised viz. That if either of his Executors die without Issue then the part or parts of him so dying shall go to the Survivor or Survivors equally to be divided John the youngest Grandson dyed without Issue and the question was whether the Reversion of his House shall be divided between his surviving Brothers or descend to his Heir And it was adjudged that the Exception in the Will did comprehend the Reversion in Fee and that it did not pass but without such an Exception it had passed * Allen 28. as where a Man devised his Mannor to another for years and part of other Lands to B. and his Heirs and all the rest of his Lands to his Brother in Tail it was held that by these words the Reversion of the Mannor did pass Anonymus NOTA. An Infant having entred into a Statute brought an Audita Querela to avoid it he was brought into the Court and two Witnesses were sworn to prove his Age and then his Appearance and Inspection were recorded he was bound in this Case with two other persons for 1600 l. and had no more than 200 l. for his share Lydcott versus Willows IN Ejectment A special Verdict was found viz. Devise of an Hereditament carries the Reversion in Fee that the Testator being seized in Fee of certain Houses in Bedfor-Bury and in Parker's Lane did by Will devise his Houses in Parker's Lane to charitable Vses then he gave several specifick Legacies to several persons named in the said Will and then he devised his Houses in Bedford-Bury to Edward Harris and Mary his Wife for their Lives then follow these words viz. The better to enable my Wife to pay my Legacies I give and bequeath to her and her Heirs all my Mesuages Lands Tenements and Hereditaments in the Kingdom of England not before disposed of c. The Question was whether this Devise would carry the Reversion of the Houses in Bedford-Bury to his Wife Adjudged that it did not but that it ought to go to the Heir of the Testator who was Plaintiff in this Case It being found that Harris and his Wife were dead and that the Wife who was Executrix had sufficient Assets to pay the Legacies without the Reversion But Iustice Powel was of another Opinion for that the word Hereditament imports an Inheritance and if it had devised thus viz. the Inheritance not before disposed of the Reversion had passed Afterwards a Writ of Error was brought in the Exchequer-Chamber upon this Iudgment 2 Vent 285. and according to the Opinion of Iustice Powel the Iudgment was reversed Nota. A Rule of Court was made that no Certiorari should go to the Sessions of Ely without Motion in Court or signing of it by a Iudge in his Chamber But Mr. Pollexfen insisted that the Sessions there did not differ from other Courts and Franchises for the inferior Courts in London are of as large a Iurisdiction as any and yet a Certiorari goes to them and so it ought to go to Ely for 't is the Right of the Subject to remove his Cause hither Their course in the Royal Franchise of Ely is to hold the Sessions there twice a year viz. in March and September in which two Months the Iudges are seldom in Town and if this Court should deny a Certiorari the Court of Common Pleas would grant it Attorney General contra This Franchise of Ely is of greater Priviledge and Authority than any inferior Court for it hath many Regalia though 't is not a County Palatine A Certiorari will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes 't is true it lyeth to remove Indictments for Riots and this Franchise being truly called Royal hath equal priviledge with a County Palatine and therefore a Certiorari will not lie But no Rule was made Osborn versus Steward TRespass Distress for an Heriot where it may be taken The Case upon the Pleadings was this viz. A Lease was made of Land for 99 years if Margery and Dorothy Upton should so long live reserving a yearly Rent and an Heriot or 40 s. in lieu thereof after the death of either of them Provided that no Heriot shall be paid after the death of Margery living
Contract for that Service with the Master was at Land But the principal reason why Mariners Wages are sued for in the Admiralty is because the Ship is liable as well as the Master who may be poor and not able to answer the Seamen Curia Take a Trial upon the necessity in this Case Anonymus THE Plaintiff recovered a Verdict against the Defendant in an Action upon the Case The Defendant now moved by his Council The Court will not order a Plaintiff to file the Venire Facias that the Plaintiff should file the Venire Facias and Distringas because all Writs which are returnable in this Court ought to be filed otherwise a Damage may ensue to the Officers and a Wrong to the King upon the Forfeitures of Issues by the Iurors which are always estreated upon the coming in of the Distringas The Council insisted upon it that it was the Common Law of this Realm and that it was the Right of the Subject that all Writs which issue out of the King's Courts should be filed that the Panel of the Venire Facias is part of the Record and that an Attaint could not be brought against the Iury if these Writs were not filed because non constat de personis This matter was referred to some of the ancient Clerks of the Court and to the Secondary Aston who reported that the Court never ordered a Plaintiff to file a Venire Facias against his Will Davies 's Case TRespass against Davies and Powel for breaking of the Plaintiffs Close and chasing and killing of Fowl in his Free Warren Prescription for all the Tenants of a Mannor to fowl in a Warren good though it was objected that it was too large The Defendant as to all the Trespass but chasing and killing of the Fowl pleaded Not-Guilty and as to that he sets forth that the Dean and Chapter of Exeter were seized in Fee of the Mannor of Brampton of which the said Warren was parcel and that they and all those whose Estates they had c. had liberty for themselves their Tenants and Farmers to fowl in the said Warren that the Dean and Chapter did make a Lease of parcel of the said Mannor to the Defendants for one and twenty years reserving a Rent c. and so they justifie as Tenants c. they did fowl in the said Warren The Plaintiff replied de injuria sua propria Vpon which they were at Issue and there was a Verdict for the Defendants Mr. Pollexfen moved in arrest of Iudgment because 't is an unreasonable Prescription for an interest in every Tenant of the Mannor to fowl in that Warren It hath been so ruled for a Common Roll. Abr. 399. without saying for his Cattle Levant and Couchant for it must be for a certain number In this Case the Prescription is not only in the person of the Lord but for all his Farmers and Tenants who cannot prescribe to have a free Warren in alieno solo E contra E contra It was argued that such a Prescription might not be good upon a Demurrer but 't is well enough after a Verdict 'T is not an Objection to say that this Prescription is too large for all Tenants as well Freeholders as Copyholders to prescribe in the Soil of another and so there may not be enough for the Lord himself Yelv. 187. 2 Cro. 256. because this is a Profit apprender in alieno solo and for such the Tenants of a Mannor may prescribe by a Que estate exclusive of the Lord and of that Opinion was the Court so the Defendant had his Iudgment Anonymus NOTA. An Information was brought in this Court for throwing down of Hedges and Ditches in which there were several Defendants who pleaded specially and the Clerk of the Crown Office demanded 13 s. and 4 d. for every Name which came to 17 l. for his Fees in this Plea and by reason of the great charge the Defendants did not plead but let Iudgment go by default Mr. Pollexfen moved that the Plea might be received and that it might be enquired what Fees were due which the Court would not try upon a Motion but advised an Indictment of Extortion if their Clerk was guilty Rex versus Inhabitantes de Malden SErjeant Shaw moved to affirm an Order made upon an Appeal to the Quarter Sessions of the Peace for the County of Essex The Case was viz. Order of Sessions quashed for settling a poor Man because he had not given formal notice in writing John Pain served an Apprentiship at Malden where he married and had several Children His Wife died he marryed another Woman who had a Term for years of an House in the Parish of Heybridge where he lived for a year and left Malden Afterwards he returned to Malden was rated to the Poor and lived there two years then he dyed In a short time after his death his Widow and Children were removed by an Order of two Iustices to Heybridge from which Order they appeal and by the Order of Sessions they were declared to be Inhabitants of Malden It was now moved by Mr. Pollexfen to quash it because it doth not appear that he gave any formal Notice in Writing to the Overseers of Malden when he returned from Heybridge and therefore ought to be settled there and not at Malden for being taxed to the Poor will not amount to Notice and he cited a stronger Case which was viz. The Churchwardens of Covent Garden certified under their Hands that such a person was an Inhabitant within their Parish but because no Note was left with them pursuant to the Statute notwithstanding such Certificate he was held to be no Inhabitant within their Parish and of that Opinion was all the Court. Anonymus IN Replevin three persons made Cognizance as Bayliffs to A. Whether an Infant should make Cognizance per Attorn or per Guardianum and so justifie the taking of the Cattle Damage Feasant in his Ground The Plaintiff replied that the Cattle were taken in his Ground and traverseth the taking in the place mentioned in the Cognizance There was Iudgment for the Defendant upon which a Writ of Error was brought and the Error assigned was that one of the Bayliffs was an Infant and made Cognizance per Attornatum when he ought to do it per Guardianum Mr. 2 Cro. 441. 2 Sand 212. 1 Rol. Abr. 228. 3 Cro. 441. Pollexfen This might be pleaded in Abatement but 't is not Error for an Infant Administrator may bring an Action of Debt per Attornatum because he sues in the Right of another and so his Infancy shall be no impediment to him The Bayliff in this Case is as much a Plaintiff as the Administrator in the other for he makes Cognizance in the Right of another and in such case if two are of Age and one is not they who are of Age may make an Attorney for him who is not So if there are two
so his Son is justly and rightly sued as Son and Heir In some Cases the persons are to be named not by way of a Title but as a Pedigree as if there be Tenant for Life the Reversion in Fee to an Ideot and an Vncle who is right Heir to the Ideot levied a Fine and died living the Ideot leaving Issue a Son named John who had Issue William who entred the Question was whether the Issue of the Vncle shall be barred by this Fine It was the Opinion of two Iudges that they were not barred because the Vncle died in the life-time of the Ideot and nothing attached in him March 94. Cro. Car. 524. and because the Issue claim in a collateral Line and do not name the Father by way of Title but by way of Pedigree But Iustice Jones who hath truly Reported the Case Jones 456. was of Opinion that the Issue of the Vncle were barred because the Son must make his Conveyance from the Father by way of Title The Iury have found that the Reversion did descend to the Defendant as Heir to the last John 't is true it descends as a Reversion but that shall not charge him as Heir to the Father Jenk's Case 1 Cro. for the other was seised of the Estate Tail which is now spent and the last who was seised of the Fee was the Father and so the Defendant must be charged as his Heir 'T is likewise true that where there is an actual Seisin you must charge all but in this Case there was nothing but a Reversion Tremaine Serjeant for the Defendant In this Case the Plaintiff should have made a special Declaration for the Estate-Tail and the Reversion in Fee are distinct and seperate Estates John the Nephew might have sold the Reversion and kept the Estate Tail if he had acknowledged a Statute or Iudgment it might have been extended and if so then he had such a Seisin that he ought to have been named A Man becomes bound in a Bond and died Debt is brought against the Heir it is not common to say that he had nothing by descent but only a Reversion expectant upon an Estate Tayl. In the Case of Chappel and Lee Covenant was brought in the Common-Pleas against Judith Daughter and Heir of Robert Rudge She pleaded Riens per descent Issue was joyned before Sir Francis North then Chief Iustice and it appearing upon Evidence that Robert had a Son named Robert who died without Issue a Case was made of it and Iudgment was given for the Defendant the Plaintiff took out a new Original and then the Land was sold so the Plaintiff lost his Debt Adjornatur Afterwards in Hillary Term a Gulielmi Mariae Iudgment was given for the Plaintiff by the Opinion of three Iustices against Iustice Eyre who argued that the Defendant cannot be charged as immediate Heir to his Father 't is true the Lands are Assets in his Hands and he may be charged by a special Declaration Dyer 368. pl. 460. In this Case the intermediate Heirs had a Reversion in Fee which they might have charged either by Statute Iudgment or Recognizance they were so seised that if a Writ of Right had been brought against them they might have joyned the Mise upon the Mere right which proves they had a Fee and though it was expectant on an Estate Tail 3 Co. 42. Ratcliff's Case yet the Defendant claiming the Reversion as Heir ought to make himself so to him who made the Gift The person who brings a Formeden in Descender must name every one to whom any Right did descend 8 Co. 88. F.N.B. 220. c. Rast Ent. 375. otherwise the Writ will abate A Man who is sued as Heir or who entitles himself as such must shew how Heir The Case of Duke and Spring is much stronger than this 2 Rol. Abr. 709. 2 Cro. 161. for there Debt was brought against the Daughter as Heir of B. She pleaded Riens per descent and the Iury found that B. died seised in Fee leaving Issue the Defendant and his Wife then with Child who was afterwards delivered of a Son who died within an hour and it was adjudged against the Plaintiff because he declared against the Defendant as Daughter and Heir of the Father when she was Sister and Heir of the Brother who was last seised But the other three Iudges were of a contrary Opinion The Question is not whether the Defendant is lyable to this Debt but whether he is properly charged as Heir to his Father or whether he should have been charged as Heir to his Nephew who was last seised It must be admitted that if the Lands had descended to the Brother and Nephew of the Defendant in Fee that then they ought to have been named but they had only a Reversion in Fee expectant upon an Estate Tail which was incertain and therefore of little value now though John the Father and Son had this Reversion in them yet the Estate Tail was known only to those who were Parties to the Settlement 'T is not the Reversion in Fee Bro. Fit Descent pl. 30.37 Ass pl. 4. but the Possession which makes the party inheritable and therefore if Lands are given to Husband and Wife in Tail the Remainder to the right Heirs of the Husband then they have a Son and the Wife dies and the Husband hath a Son by a second Venter and dies the eldest Son enters and dies without Issue and his Vncle claimed the Land against the second Son but was barred because he had not the Remainder in Fee in possession and yet he might have sold or forfeited it But here the Reversion in Fee is now come into possession and the Defendant hath the Land as Heir to his Father t is Assets only in him and was not so either in his Brother or Nephew who were neither of them chargeable because a Reversion expectant upon an Estate Tail is not Assets Iudgment was given for the Plaintiff DE Term. Sancti Mich. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Young versus Inhabitants de Totnam AN Action was brought against the Hundred for a Robbery in which the Plaintiff declared that he was Robbed apud quendam locum prope Faire Mile Gate in such a Parish He had a Verdict And now Serjeant Tremaine moved in arrest of Iudgment and the Exceptions taken were these viz. 1. That it doth not appear that the Parish mentioned in the Declaration was in the Hundred 2. Neither doth it appear that the Robbery was committed in the High-way 3. The Plaintiff hath not alledged that it was done in the day time for if it was not the Hundred is not lyable by Law But these Exceptions were all disallowed because it being after a Verdict the Court will suppose that there was Evidence given of these Matters at the Trial so the Plaintiff had his Iudgment Eggleston al' versus Speke alias Petit.
afterwards suffered If so then the contingent Remainders to the first and other Sons is destroyed 2. If the Estate was not vested in the Surrendree till his actual assent such assent shall not relate though after the execution of the Deed so as to pass the Estate at the very time it was sealed and delivered Iudgment being given in the Common-Pleas by the Opinion of three Iustices against Iustice Ventris that the contingent Remainder was not destroied by this Surrender because it was not good without the acceptance and till the actual assent of the Surrendree this Writ of Error was now brought upon that Iudgment This Case depended several Terms and those who argued to maintain the Iudgment insisted that here was neither a mutual agreement between the Parties or acceptance or entry of the Surrendree which must be in every Surrender these being solemn acts in such Cases required to the alteration of Possessions and to prevent Frauds That the Law hath a greater regard to the transmutation of Possessions than to the alteration of Personal things and therefore more Ceremonies are made requisite to that than to transfer a Chattel from one to another In all Feoffments there must be Livery and Seisin Quaere For if Tenant for Life surrender to him in Reversion the Surrendree hath a Freehold in Law before Entry Co. Lit. 266. b. 1 Inst 266. b. so in Partitions and in Exchanges which are Conveyances at the Common Law no Estate is changed until an actual Entry though in the Deed it self such Entry is fully expressed Here the Surrendree is a Purchaser of the Estate and yet did not know any thing of it than which nothing can be more absurd 'T is admitted that every Gift and Grant enures to the benefit of the Donee and Grantee but not where the assent of the Parties is required to compleat the act Assent and Dis-assent are acts of the Mind now 't is impertinent to say that a Man gave his Assent to a thing which he never heard A Lease for years is not good without Entry nor a Surrender without Acceptance Lane 4. 3 Cro. 43. 'T is no new thing to compare a Surrender to a resignation of a Benefice 2 Cro. 198. Dyer 294. Br. Abr. tit Bar 81. Yelv. 61. Sid. 387. now if an Incumbent should resign to the Ordinary and the Patron should afterwards present to that Living such presentation is void if the Ordinary had not accepted the resignation the reason is because a resignation doth not pass the Freehold to the Bishop but puts it only in Abeyance till his acceptance and 't is not an Objection to say that this is grounded upon an Ecclesiastical Right and not at the Common Law or that a Formedon will not lie of a Rectory for tho' 't is of Ecclesiastical Right yet 't is of Temporal Cognizance and shall be tried at Law The president in Rastal may be objected where the surviving Lessee for years brought an Action of Covenant against the Lessor for disturbing of him in his possession Rast Ent. tit Covenant 136. b. Owen 97. Dyer 28. Rast Enttit Debt 183 176. b. 177. a. Br. Sur. 39. Cro. Car. 101. Fitz. Abr. tit Bar 262. Co. Ent. 335. and the Lessor pleaded a Surrender to himself without an acceptance but the Plaintiff in that Case said nothing of a Surrender In the same Book a Surrender was pleaded ad quam quidem sursum redditionem the Plaintiff agreavit so in Fitzherbert 's Abridgment issue was joyned upon the acceptance which shews 't is a material point No inconvenience can be objected that an Assent is made a Legal Ceremony to a Surrender for 't is not inconvenient even in the Case of an Infant who by reason of his non-age is not capable to take such a Conveyance because he cannot give his assent but he may take the Land by way of Feoffment or Grant or any Conveyance of like nature without his Assent By the very definition of a Surrender Co. Lit. 337. b. Bro. tit Surrender pl. 45. Dyer 110. b. Fitz. 39. it plainly appears that there must be an assent to it for 't is nothing else but a yielding up of an Estate to him who hath the immediate Reversion or Remainder wherein the Estate for Life or Years may drown by mutual Agreement between the Parties 'T is true an Agreement is not necessary in Devises nor in any other Conveyances which are directed by particular Statutes or by Custom but 't is absolutely necessary in a Surrender which is a Conveyance at the Common Law 't is such an essential Circumstance that the Deed it self is void without it 't is as necessary as an Attornment to the Grant of a Reversion or an Entry to a Deed of Exchange which are both likewise Conveyances at the Common Law There are various Circumstances in the Books which declare what acts shall amount to an Acceptance or Agreement Cro. Eliz. 488. Owen 97. 31 Ass pl. 26. but it was never yet doubted but that an acceptance was necessary to a Surrender So in the Entries Fitz. tit Debt 149. 9 E 3.7 b. contra Rast Ent. 136. a Surrender is sometimes pleaded without an Acceptance but 't is always that the Surrendree by vertue of the Surrender expulit ejecit the Plaintiff which amounts to an Agreement The Law is so careful in these Conveyances Kelwway 194 195. Dyer 358. pl. 48. that it will not presume an assent without some act done if therefore a Deed cannot operate as a Surrender without an acceptance then in this Case no such shall be presumed because the Iury have found it expresly otherwise then by the birth of Charles Leach the contingent Remainder is vested in him which arising before the Assent of the Surrendree makes such assent afterwards void for there can be no intermediate Estate Besides if an Assent should not be necessary to a Surrender this inconvenience would follow viz. if a Purchaser should take in several Mortgages and Extents and keep them all on foot in a third persons name which is usual to prevent mean incumbrances and the Mortgagor should afterwards Surrender his Estate without the assent of the Purchaser if this should be held a good Conveyance in Law it would be of very mischievous consequence 2. If the Estate is not immediately transferred to the Surrendree at the sealing of the Deed without the assent of the Surrenderor it shall not pass afterwards when he gives his consent and that by way of Relation for if that should be allowed then the Surrenderor might have kept the Deed in his Pocket as well fifty as five years after the execution thereof which would be so prejudicial that no Man could be assured of his Title 'T is true when a Bargain and Sale is made of Land 2 Inst 675. 3 Co. 36. such a day c. and two days afterwards the Bargainor enters into a Recognizance then the Deed is inrolled within
the six Months by this means the Conusee of the Statute is defeated for after the inrollment the Land passeth ab initio and the Bargainee in Iudgment of Law was seised thereof from the delivery of the Deed but not by way of Relation but by immediate Conveyance of the Estate by vertue of the Statute of Vses But the Law will not suffer contingent Remainders to waver about and to be so incertain that no Man knows where to find them which they must be if this Doctrine of Relation should prevail Now suppose the Surrendree had made a Grant of his Estate to another person before he had accepted of the Surrender and the Grantee had entred would this subsequent assent have divested this Estate and made the Grant of no effect if it would then here is a plain way found out for any Man to avoid his own acts and to defeat Purchasors Therefore 't is with great reason that the Law provides that no person shall take a Surrender but he who hath the immediate Reversion and that the Estate shall still remain in the Surrenderor until all acts are done which are to compleat the Conveyance Those who argued against the Iudgment E contra held that the Estate passed immediately without the assent of the Surrenderor and that even in Conveyances at the Common-Law 't is divested out of the person and put in him to whom such Conveyance is made without his actual assent 'T is true in Exchanges the Freehold doth not pass without Entry nor a Grant of a Reversion without an Attornment but that stands upon different Reasons from this Case at the Bar for in Exchanges the Law requires the mutual acts of the Parties exchanging and in the other there must be the consent of a third person But in Surrenders the assent of the Surrendree is not required for the Estate must be in him immediately upon the execution of the Deed if he doth not shew some dissent to it If a Man should plead a Release without saying ad quam quidem relaxationem the Defendant agreavit yet this Plea is good because the Estate passeth to him upon the execution of the Deed. It may be a Question whether the actual assent must be at the very time that the Surrender was made for if it should be afterwards t is well enough and the Estate remaineth in the Surrendree till dis-agreement Presumption stands on this side for it shall never be intended that he did not give his Assent but on the contrary because t is for his benefit not to refuse an Estate Therefore where a Feme Sole had a Lease and married Hob. 203. the Husband and Wife surrendred it to another in consideration of a new Lease to be granted to the Wife and her Sons c. this Estate vests immediately in her tho' a Feme Covert and that without the assent of her Husband for the Law intends it to be her Estate till he dissent 't is true in that Case his assent was held necessary because the first Lease could not be divested out of him without his own consent So a Feoffment to three 2 Leon. 224. and Livery made to one the Freehold is in all 'till disagreement So if a Bond be given to a Stranger for my use and I should die before I had agreed to it my Executors are entituled to an Action of Debt and will recover A Feme Covert and another were Ioint-tenants for Life 1 Rol. Rep. 401 441. she and her Husband made a Lease for years of her moiety reserving a Rent during her Life and the Life of her partner then the Wife died this was held to be a good Lease against the surviving Ioint-tenant till disagreement which shews that the agreement of the Parties is not so much requisite to perfect a Conveyance of this nature as a disagreement is to make it void And this may serve as an answer to the second point which was not much insisted on that Mens Titles would be incertain and precarious if after the assent of the Surrendree the Estate should pass by Relation at the very time that the Deed was executed and that it was not known where the Free-hold was in the mean time for if he had agreed to it immediately it had been altogether as private Then as to the Pleadings 't is true that generally when a Surrender is pleaded 't is said ad quam quidem sursum redditionem the Party adtunc ibidem agreavit which implies that the Surrendree was then present and in such Case he ought to agree or refuse Besides those Actions to which an Agreement is thus pleaded were generally brought in disaffirmance of Surrenders and to support the Leases upon which the Plaintiffs declared and then the proper and most effectual Bar was to shew a Surrender and express Agreement before the Action brought It might have been insufficient pleading not to shew an Acceptance of the Surrendree but 't is not substance for if Issue should be taken whether a Surrender or not Cro. Eliz. 249. and a Verdict for the Plaintiff that defect of setting forth an Acceptance is aided by the Statute of Ieofails In this Case there is not only the Word Surrender but * Grant and Release which may be pleaded without any consent to it and a Grant by operation of Law turns to a Surrender because a Man cannot have two Estates of equal dignity in the Law at the same time Neither can it be said that there remained any Estate in Simon Leach after this Surrender executed for 't is an absurd thing to imagine that when he had done what was in his power to compleat a Conveyance and to divest himself of an Estate yet it should continue in him Therefore the Remainder in Contingency to the Lessor of the Plaintiff was destroyed by this Surrender of the Estate to him in reversion for by that means when it did afterwards happen there was no particular Estate to support it But notwithstanding the Iudgment was affirmed and afterwards Anno quarto Gulielmi Mariae upon a Writ of Error brought in the House of Lords it was reversed Idem versus Eundem THIS Point having received a legal determination the same Plaintiff brought another Action of Trespass and Ejectment against the same Defendant Surrender by a person Non compos is void and at a Trial at the Barr in Easter Term nono Gulielmi Regis another special Verdict was found upon which the Case more at large was viz. That Nicholas Leach being seised in Fee of the Lands in question made his Will in these Words viz. In the Name of God Amen c. I devise my Mannors of Bulkworth Whitebear and Vadacot in Devonshire and Cresby Goat and Cresby Grange in Northallerton in Yorkshire unto the Heirs Males of my Body begotten and for want of such Issue Male I devise the same unto my Brother Simon Leach for Life and after his decease to the
and Title set forth but no Iudgment was then given Boson versus Sandford THE Plaintiff declared that the Defendant and seven other persons were Proprietors of a Vessel Where there are several Proprietors of a Vessel and Goods are dampnified by carriage the Action must be brought against them all in which they used to carry Goods for a reasonable hire from Port to Port. That he had loaded the said Vessel with Boards which were agreed to be safely transported from London to Topsam and that the Defendant by neglect suffered them to be dampnified c. Vpon Not-Guilty pleaded a special Verdict was found the substance whereof was viz. That the Plaintiff did load the Ship with Boards of which Ship the Defendant and seven other persons were Proprietors that the said Ship did usually carry Goods for hire that the Plaintiff delivered the Goods to Daniel Hull who was Master of the Vessel and that they were loaded therein but that none of the Proprietors were present That there was no actual Contract between the Plaintiff and the Proprietors or any Negligence in them but the Boards were dampnified by the neglect of the said Master c. The Questions upon this special Verdict were two 1. Whether this Action would lie against the Defendant alone as one of the Proprietors or whether it must be brought against them all 2. If the Action ought to be brought against them all then Not-Guilty was not a proper Plea because the Defendant ought to have pleaded in Abatement that the rest of the Owners super se susceperunt simul cum the Defendant absque hoc quod he super se suscepit tantum It was argued for the Plaintiff that the Action may be well brought against any single person of the Proprietors because 't is grounded upon a Tort as well as upon a Contract which in this Case is only an Inducement to the Action and therefore the Plaintiff hath liberty to bring it either the one way or the other for 't is both joint and several So it is in Trover where a Man declares that he was possessed of such Goods that the Defendant found them and promised to deliver them but converted them to his own use the Contract is but Iuducement for the cause of Action arises upon the Conversion This is a remedy given by the construction of the Law and if so it must be certain and effectual to all intents and therefore it hath been ruled in an Action brought against a common Carrier upon the Assumpsit in Law Sid. 244. and likewise upon the Tort that the Declaration was ill and though the Plaintiff had a Verdict yet the Iudgment was arrested because he had declared both ways Agreeable to this was that Iudgment which was given upon the Statute of 2 Ed. Hutt 121 122. 3. for not setting out of Tythes in an Action of Debt brought against two Tenants in Common it happened that one of them set out the Tythes and the other carried them away and because the Action was brought against both it was held to be ill for it lies only against him which did the wrong 2. If the Action ought to be brought against all then the Defendant should have taken advantage of it by pleading and to have shewed who were the Proprietors with himself for 't is impossible for the Plaintiff to know who they are and for this reason the Plea is not good E contra E contra The Plaintiff ought to have brought his Action either against the Master alone or all the Proprietors 't is true if this had been only an Action of a simple Trespass he might have brought it against all or one but this sounds not only in a Wrong but 't is in Breach of a Covenant or Duty and so ought to be commenced against all of them as common Carriers Now the great reason why all are liable to an Action is because they all have a reward for the Hire of the Vessel and it seems very unreasonable that one should bear the burthen and the rest run away with the profit The principal Case in Hutton is an Authority directly to this purpose though it was otherwise quoted by the Plaintiffs Council it was Debt upon the Statute of Ed. 6. brought against one Lessee for not setting out of Tythes and it appeared upon the Evidence that two were jointly possessed of the Term and for that reason it was held that the Action would not lie against one alone 2. The Defendant ought not to have pleaded in Abatement that the rest of the Proprietors super se susceperunt simul cum the Defendant c. because such a Plea would not have been good here for he shall never be compelled to plead in Abatement either in Debt or Contract but in one single Case and that is where two are bound jointly and one is sued he may plead in Abatement 5 Co. 119. but cannot say Non est factum for the Bond is his Deed since each of them have sealed it Afterwards in Hillary-Term the Defendant had Iudgment Judicium that the Action ought to be brought against all the Partowners because they have all an equal benefit and the ground of the Action is upon a Trust reposed in all and every Trust supposeth a Contract 2 Cro. 202. Palm 523. and in all Cases grounded upon Contracts the Parties who are Privies must be joyned in the Action The Master of the Ship is no more than a Servant to the Owners he hath no Property either general or special but the Power he hath is given by the Civil Law There are many Cases where the act of the Servant shall charge the Master as for instance viz. King Ed. 6. sold a quantity of Lead to Renagre Dyer 161. and appointed the Lord North who was then Chancellor of his Court of Augmentations to take Bond for payment of the Mony The Lord North appointed one Benger who was his Clerk to take the Bond which was done who delivered it to the Lord and he delivered it back again to his Clerk in order to send it to the Clerk of the Court of Augmentations Benger suppressed this Bond and it was the Opinion of all the Iudges of England that the Lord North was chargeable to the King because the possession of the Bond by his Servant and by his Order was his own possession So where an Officer of the Customs made a Deputy Dyer 238. b. who concealed the Duties and the Master being ignorant of the Concealment certified the Customs of that part of the Revenue into the Exchequer upon Oath he was adjudged to be answerable for this Concealment of his Servant So where the Lessor was bound that the Lessee should quietly enjoy and it was found that his Servant by his command 4 Leon. 123. and he being present entred this was held to be a Breach of the Condition for the Master was the principal Trespasser Therefore though
Demise and the Word Assignes is in the Deed yet they are not bound if they have no Estate so that 't is not the naming of them but by reason of the Estate in the Land they are made chargeable No Iudgment is entred upon the Roll. FINIS ERRATA FOlio 88. Line 13. for Defendant read Plaintiff f. 106. l. 26. for no r. an f. 119. l. 7. after must be r. Error f. 147. l. 13 18 38. for coram r. quorum f. 189. l. 23. for reasonable r. unreasonable f. 196. l. 28. for devises r. demises f. 199. l. 1. for 23. r. 13. f. 201. l. 14. before merged r. not f. 218. l. 17. for 1672. r. 1679. f. 203. l. 31. after Berkley r. and Mr. Killigrew f. 222. l. 31. leave out and marrieth f. 226. l. 21. leave out she marrieth f. 237. l. 29. for devise r. demise f. 255. l. 31. for Father r. Nephew f. 256. l. 12. for joyned r. tryed f. 287. l. 6. after delivered r. tied f. 303. l. 16. for Grantee r. Guarantee f. 307. l. 36. for voidable r. void A TABLE to the Third Part of Modern Reports A. Abatement See Ioint Action 8. 1. DEBT was brought by four Plaintiffs one of them died before Judgment the Action is abated as to the rest 249 2. Waste is brought against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for the Damages ibid. 3. Two Jointenants are Defendants the death of one shall not abate the Writ for the Action is joint and several ibid. 4. Where two or more are to recover in a personal thing the death of one shall abate the Action as to the rest ibid. 5. But in Audita Querela the death of one shall not abate the Writ because it is in discharge ibid. Abeiance See Acceptance 1. Resignation of a Benefice passes nothing to the Ordinary but putteth the Freehold in Abeiance till his acceptance 297 See Acceptance Resignation Surrender Acts of Parliament See Iustice of Peace 2 Pardon 2 Ought to be construed according to the intention of the Law-makers and ought to be expounded according to the Rules of the Common Law 63 2. Where a particular punishment is directed by a Statute Law it must be pursued and no other can be inflicted upon the Offender 78 118 3. When an Act is penal it ought to be construed according to Equity 90 157 312 4. Preamble is the best Expositor of the Law 129 169 Action upon the Ease Assumpsit A Feoffment was made upon Trust that the Feoffee should convey the Estate to another the Cestuy que Trust may have an Action if the Feoffee refuseth to convey 149 2. In consideration that the Plaintiff would let the Defendant have Meat Drink c. he promised to pay as much as it was reasonably worth the word valerent was in the Declaration it should have been quantum valebant at the time of the Promise but held good after Verdict 190 3. Where a personal promise is grounded upon a real Contract the Action will lie 73 4. It will not lie for Rent reserved upon a Demise but where a Promise is made to pay Rent in consideration of occupying a House it will lie 240 Action on the Case See Bankrupts 2 Indictment 2 Slander where it lieth 1. He is a Papist spoken of a Deputy Lieutenant 26 2. Where the words injure a person in his Profession or bring him in danger of punishment 27 3. He stole the Colonel's Cupboard Cloth there being no precedent Discourse either of the Colonel or his Cloth 280 4. He is broken and run away and never will return again spoken of a Carpenter 155 5. He is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his door but he spoken of a Merchant who made a Bonefire at the Coronation of King James 103 6. He owes more Mony than he is worth he is run away and is broak spoken of an Husbandman 112 7. The Wife was called Whore and that she was the Defendant's Whore the Husband and she brought the Action and concluded ad dampnum ipsorum it lies without allegding special Damages 120 8. Sir J. K. is a buffle headed Fellow and doth not understand Law he is not fit to talk Law with me I have baffled him and he hath not done my Client Justice spoken of a Justice of Peace 139 9. J. P. is a Knave and a busie Knave for searching after me and other honest men of my sort and I will make him give satisfaction for plundering me spoken of a Justice of Peace no Colloquium was laid the Court was divided 163 Where it doth not lie Words were laid to be spoken ad tenorem effectum sequen ' which is not an express allegation that they were spoken 71 72 Action on the Case against a Common Carrier Where it was brought against him upon an Assumpsit in Law and likewise upon a Tort the Declaration is not good 322 Action on the Case for a wrong See Pleading For diverting of a Water-course the Antiquity of the Mill must be set forth 49 2. It lies against a wrong doer upon the bare possession only and the Plaintiff need not set forth whether he hath a Title by Grant or Prescription for that goes to the right 51 52 132 3. If the Declaratien is for the diverting of the Water ab antiquo solito cursu this amounts to a Prescription which must be proved at the Trial or the Plaintiff will be non-suited 52 4. Whether it lieth for the making of a scandalous Affidavit in Chancery 108 5. For selling of Oxen affirming them to be his own ubi revera they were not but doth not say sciens the same to be the Goods of another or that he sold them fraudulenter or deceptive 't is naught upon a Demurrer but good after Verdict 261 6. Where several are guilty of a wrong the Action may be brought against either 321 7. Debt upon the Statute of Ed. 6. for not setting out Tithes brought against two Tenants in Common one of them did set out the Tithes and the other carried them away it ought to be brought only against the wrong doer 322 8. For disturbing of a Man in a Common Passage or Common High-way no Action on the Case lieth without a particular damage done to himself for the proper remedy is a Presentment in the Leet 294 Administrator Vide Infant 18 Ordinary Interest 2 Pleading 2 Administrator durante minore aetate hath no power over the Estate 24 2. Administration could not be granted by the Spiritual Court before the Statute of Ed. 3. 24 3. Where 't is once granted whether it ought to be repealed 25 4. Administrator had the whole Estate in him before the Statute of Distributions 60 5. He then gave Bond to distribute as the Ordinary should direct ibid. 6. The Father died
Remainder during her Life 84 2. There must be proof of the Stealing an Heiress either by slight or force to bring the person within the Statute of Phil. Mar. 169 3. There must be a continued disassent of the Parent or Guardian for if she once agree 't is an assent within the Statute though she or they disagree afterwards 169 4. Marriage de facto is triable in the Temporal Courts but de Jure in the Spiritual Court only 165 Mandamus Denied to restore a person to a Fellowship of a College 265 2. Denied to restore a Proctor to his Office in Doctors Commons 332 3. It hath been granted to restore an Attorny 333 4. It will not lye to restore a Steward of a Court-Baron 334 Master and Servant See Robbery 2. Where the Act of the Servant shall charge the Master 323 2. Where the Master may have an Action for a Robbery done upon the Servant 287 Melius Inquirendum Not granted but for a Misdemeanour in the Jury 80 2. It never helps a defective Inquisition 336 3. Whether it may be granted to a Coroner in the Case of a Felo de se who makes his Enquiry super visum corporis 238 Merchants See Custom Pleas and Pleading Misfeazance Not Guilty is a good Plea to any Misfeazance whatsoever 324 Misprision of Clerk See Amendment Mistrial 'T is not a Mistrial where the day and place of the Assises is left out of the Distringas for the Jurata is the Warrant to try the Cause 78 Mortuary 'T is not due but by particular Custom of the Place 268 Monopoly The Definition of it 131 N. Ne exeat Regum IS a Writ grounded upon the Common Law and not given by any particular Statute 127 2. It was brought to prevent a person who had married an Heiress without her Parents consent to go beyond Sea 169 Nolle prosequi Whether it may be entred after the Jury is sworn 117 Non compos Mentis If he releaseth his Right that shall not bar the King but he shall seize his Lands during Life 303 2. Surrender made by him is void 305 3. He may purchase Lands and may grant a Rent-Charge out of his Estate and shall not plead Insanity to avoid his own Acts 309 Notice See Executor 115. A Settlement was made in Trust for A. provided she married with the consent of Trustees Remainder to B. she married without consent Whether the Trustees ought not to give notice of this Settlement before the Marriage or whether the Estate is forfeited without notice 29 30 2. Where Conditions are annexed to Estates to pay Mony notice is necessary but where Estates are limitted upon performance of collateral acts 't is not necessary 30 3. Lapse shall not incur upon a Deprivation but after notice given to the Patron by the Ordinary himself 31 4. The Heir himself ought to have notice of such Conditions which his Ancestor hath put upon his Estate because he hath a good title by descent 34 5. Where it ought to be given of Debts to an Executor 115 Number Where the singular number shall be intended by the plural as by Children is meant Child 63 O. Obligation Obligor and Obligee DEbt upon Bond will not lie before the day of payment is past but it may be released before 61 2. Where the Debt is confessed under and Hand Seal whether that will amount to an Obligation 154 Office and Officer Whether the Office of Marshal of B.R. can be granted in Trust 145 2. It cannot be granted for years ibid. 3. Non-Attendance whether a Forfeiture or not 146 4. Non-Feazance is a Forfeiture ibid. 5. It lies in Grant and cannot be transferred without Deed 147 6. Neither a Judicial or a Ministerial Officer may make a Deputy unless there is an express Clause in the Grant that it may be executed per se vel Deputatum 147 150 7. Marshal of B. R. may grant that Office for Life but cannot give the Grantee power to make a Deputy 147 8. That Office may be granted at will 149 9. Deputy may be made without Deed 150 Ordinary Probate of Wills did not originally belong to him 24 2. He had no power at Common Law over the Intestate's Estate 25 3. An Action lay against him at Common Law if he got the Goods and refused to pay the Intestate's Debts 25 4. Was alone entrusted by the Common Law as to the distribution of the Intestates Estate 59 5. Afterwards by the Statute of W. 2. was bound to pay Debts so far as he had Assets 60 6. Then and not before an Action of Debt might be brought against him if he did dispose the Goods without paying Debts ibid. 7. By the Statute of the 31st of Ed. I. he was bound to grant Administration to the next of Kin ibid. 8. Afterwards by the Statute of 21 H. 8. was compelled to grant it to the Widow or next of Kin or both ibid. 9. Before the Statute of Distributions he always took Bond of the Administrator to distribute as the Ordinary should direct ibid. Outlary See 5 Ed. 6. For Treason cannot be reversed without the Consent of the Attorney-General 42 2. For Treason the Party was taken within the year but because he was apprehended and did not render himself he had not the benefit of the Statute 47 3. For Treason and a Rule of Court for the Execution of the person 72 4. For Murder against three persons it was reversed because it did not appear that the Court was held pro Comitatu 2dly 't is said Non comperuit but doth not say nee eorum aliquis comperuit 90 P. Pardon THE King hath power to pardon by general words as felonica interfectio for Murder 37 2. Where his Power is restrained by Act of Parliament yet a Non obstante is a Dispensation to it 38 3. A Suit was commenced for Dilapidations which is to have satisfaction for Damages sustained 't is not pardoned by these general words viz. Offences Contempts and Penalties 56 4 If an Interest is vested in the King a Pardon of all Forfeitures will not divest it without particular words of Restitution 101 241 242 5. An Exception in a Pardon ought to be taken as largely as the Pardon it self 242 6. A Pardon of all Offences except Offences in collecting of the King's Revenue that must be of the stated Revenue and not what arises by any Forfeiture ibid. Parish See Indictment Parliament Writ of Error upon a Judgment in B. R. returnable in Parliament Prorogued from the 28th of April to the 29th of November whether this was a Supersedeas to the Execution because a whole Term intervened between the Teste and Return of the Writ of Error 125 Pedegree Where persons are named by way of Title and where by way of Pedegree 255 Perjury See Information Pleading In pleading of the Statute of Usury you must set forth what Agreement was made and what Sum was taken more than six pound in the Hundred 35 2.