to the second Twisd The Iury have found the Rent to be due for both years and we will now intend that he was in possession all the time for which the Rent is found to be due A Prohibition was prayed to the Ecclesiastical Court at Chester to stay procéedings upon a Libel against one William Bayles for teaching School without Licence but it was denied Redman Edolfe TRespass and Ejectment by Original in this Court Sanders moved in Arrest of Iudgment upon a fault in the Original for a bad Original is not help'd by Verdict But upon Mr. Livesey's certifying that there was no Original at all the Plaintiff had Iudgment though in his Declaration he recited the Original In an Action of Assault and Battery and Wounding the Evidence to prove a Provocation was That the Plaintiff put his hand upon his Sword and said If it were not Assize time I would not take such Language from you The question was if that were an Assault The Court agreed that it was not for he declared that he would not Assault him the Iudges being in Town and the intention as well as the act makes an Assault Therefore if one strike another upon the hand or arm or breast in discourse it s no Assault there being no intention to Assault But if one intending to Assault strike at another and miss him this is an Assault so if he hold up his hand against another and say nothing it is an Assault In the principal case the Plaintiff had Iudgment Medlicott Joyner EJectione firmae The Plaintiff at the Trial offer'd in Evidence a Copy of a Déed that was burnt by the Fire the Copy was taken by one Mr. Gardner of the Temple who said he did not examine it by the Original but he writ it and it always lay by him as a true Copy and the Court agréed to have it read the original Déed being proved to be burnt Twisd Feoffée upon Condition is disseised and a Fine levied and five years pass then the Condition is broken the Feoffor may enter for the Disseisor held the Estate subject to the Condition and so did the Conizee for he cannot be in of a better Estate then the Conizor himself was Dawe Swayne AN Action upon the Case was brought against one for suing the Plaintiff in placito debiti for 600 l. and falsly and maliciously affirming to the Bailiff of Westminster that he did owe him 600 l. whereby the Bailiff insisted upon extraordinary Bail to his Damage c. The Defendant traverses absque hoc that he did falsly and maliciously affirm to the Bailiff of Westminster that he did owe him so much Winnington moved in Arrest of Iudgment that the Action would not lie But the Plaintiff had Iudgment Keel If there had béen no cause of Action an Action upon the Case would not lie because he has a recompence by Law but here was a cause of Action If one should arrest you in an Action of 2000 l. to the intent that you should not find Bail and keep you from practice all this Term and this is found to be falsly and maliciously shall not you have an Action for this this Twisden said he knew to have been Serjeant Rolls his Opinion Morton Foxley's case is That if a man be outlaw'd in another County where he is not known an Action upon the Case will lye so an Action lies against the Sheriff if reasonable Bail be offered and refused Twisd If three men bring an Action and the Defendant put in Bail at the Suit of four they cannot declare but if he had put in Bail at the suit of one that one might declare against him Iudgment was entred as of Trinity Term for the Queen Mother and a Writ of Enquity of damages was taken out returnable this Term and she died in the Vacation-time Resolved that the first was but an interlocutory Iudgment and that the Action was abated by her death Twisd Some have questioned how you shall come to make the death of the party appear between the Verdict and the day in Bank and I have known it offer'd by Affidavit and by suggestion upon the Roll and by motion Troy an Attorney AN Information of Extortion against Troy an Attorney It was moved in arrest of Iudgment That Attorneys are not within any of the Statutes against Extortion and therefore the Information concluded ill the conclusion being contra formam Statuti Twisd The Statute of 3 Jac. cap. 7. is express against Attornies Keel I think as thus advised that Attornies are within all the Statutes of Extortion It was afterwards moved in arrest of Iudgment because the Information was insufficient in the Law for Sir Tho. Fanshawe informed that Mr. Troy being an Attorney of the Court of Common Pleas did at Maidstone cause one Collop to be impleaded for 9 s. 4 d. debt at the suit of one Dudley Sellinger c. and this was ad grave damnum of Collop c. but it is not expressed in what Court he caused him to be impleaded and that which the Defendant is charged with is not an offence for he saith that he did cause him to be impleaded and received the money the same day and perhaps he received the money after he had caused him to be impleaded Then it is not sufficiently alledged that he did illicite receive so much and Extortion ought to be particularly alledged Nor is there any Statute that an Attorney shall receive no more than his just Fées The profession of an Attorney is at Common Law and allowed by the Statute of Westm 1. cap. 26. and the Statute of 3 Jac. does not extend to this matter Non constat in this case if what he received was for Fees or no besides the suit for an offence against that Statute must be brought by the party not by Sir Tho. Fanshawe Keel If the party grieved will not sue for the penalty of treble damages given by that Statute yet the King may prosecute to turn him out of the Roll. Twisd I doubt that nor is it clear whether an Information will lie at all upon that Statute or not for the Statute does not speak of an Information Keel Whenever a Statute makes a thing criminal an Information will lie upon the Statute though not given by express words Twisd It appears here that this money was not received of his Client for he was against Collop But he ought to shew in what Court the impleading was for otherwise it might be before Mr. Major in his Chamber To which the Court agreéd So the Information was quash'd Burnet Holden THere were these two points in the case 1. If the Defendant dye after the day of Nisi prius and before the day in Bank whether the Iudgment shall be said to be given in the life of the Defendant 2. Admit it shall yet whether the Executor shall have the advantage taken from him of retaining to satisfie his own debt To the first
it was said that the Act of Parliament only takes away a Writ of Error in such case but there is no day in Bank to plead It was order'd to stand in the paper Corporation of Darby THe Corporation of the Town of Darby prescribe to have Common sans number in grosse Sanders I conceive it may be by prescription what a man may grant may be prescribed for Co. Lit. 122. is express Keel In a Forest the King may grant Common for Sheep but you cannot prescribe for it And if you may prescribe for Common sans number in grosse then you may drive all the Cattel in a Fair to the Common Sanders But the prescription is for their own Cattel only Twisd If you prescribe for common sans number appurtenant to Land you can put in no more Cattel then what is proportionable to your Land for the Land stints you in that case to a reasonable number But if you prescribe for common sans number in grosse what is it that sets any bounds in such case There was a case in Glyn's time betwéen Masselden and Stoneby where Masselden prescribed for common sans number without saying levant couchant and that being after a Verdict was held good but if it had been upon a Demurrer it would have been otherwise Livesey said he was agent for him in the case Bucknall Swinnock INdebitat Assumpsit for money received to the Plaintiffs use the Defendant pleads specially that post assumptionem praedictam there was an agreement between the Plaintiff and Defendant that the Defendant should pay the money to J. S. and he did pay it accordingly The Plaintiff demurrs Jones This plea doth not only amount to the general issue but is repugnant in it self It was put off to be argued Hall versus Wombell THe question was whether an Action of Debt would lie upon a Iudgment given by the Commissioners of Excise upon an Information before them Adjornatur Vaughan Casewell A Writ of Error was brought to reverse a Iudgment given at the grand Sessions in Wales in a Writ of Quod ei deforciat Sanders The point in Law will be this whether a Tenants vouching a Vouchee out of the line be peremptory and final or that a Respondeas ouster shall be awarded Mr. Jones In an Assise the Tenant may vouch another named in the Writ 9 H. 5. 14. and so in the Com. fo 89. b. but a voucher cannot be of one not named in the Writ because it is festinum remedium In Wales they never allow foreign vouchers because they cannot bring them in If there be a Counterplea to a Voucher and that be adjudged in another Term it is always peremptory otherwise if it be determined the same Term. An Action of Trover and Conversion was brought against husband and wife and the wife arrested Twisd The wife must be discharged upon Common bail so it was done in the Lady Baltinglasse's case And where it is said in Crook that the Wife in such case shall be discharged it is to be understood that she shall be discharged upon Common bail So Livesey said the course was It was said to be the course of the Court That if an Attorney be sued time enough to give him two Rules to plead within the Term Iudgment may be given otherwise not Russell Collins AN Assumpsit was brought upon two several promises and entire damages were given Moved by Mr. Sympson in arrest of Iudgment that for one of the promises an Action will not lie It was a general indebitatus pro opere facto which was urged to be too general and uncertain But per Cur ' it is well enough as pro mercimoniis venditis pro servitio without mentioning the Goods or the Service in particular And the Plaintiff had Iudgment Dyer versus East AN Action upon the Case upon a promise for Wares that the wife took up for her wearing Apparel Polyxfen moved for a new Trial. Keel The husband must pay for the wives Apparel unless she does elope and he give notice not to trust her that is Scott Manby's case which was a hard Iudgment but we will not impeach it The Plaintiff had Iudgment Beckett Taylor DEbt upon a Bond to submit to an Award Exception was taken to the Award because the concurrence of a third person was awarded which makes it void They award that one of the parties shall discharge the other from his undertaking to pay a Debt to a third person and it was pretended that the third person being no party to the submission was not compellable to give a discharge But it was answered that he is compellable for in case the debt be paid him he is compellable in equity to give a Release to him that had undertaken to pay it Rolls 1 part 248. Giles Southwards case Mich. 1653. Judgment nisi Seventéen Serjeants being made the 4th of November a day or two after Serjeant Powis the Junior of them all coming to the Kings Bench bar the Lord Chief Iustice Keeling told him that he had something to say to him viz. That the Rings which he and the rest of the Serjeants had given weighed but 18 s. apiece whereas Fortescue in his book de laudibus legum Angliae says That the Rings given to the Chief Iustices and to the Chief Baron ought to weigh 20 s. apiece and that he spake this not expecting a recompence but that it might not be drawn into a president and that the young Gentlemen there might take notice of it Clerke versus Rowell Phillips A Trial at bar in Ejectment for Lands settled by Sir Pexall Brockhurst The Court said a Trial against others shall not be given in Evidence in this cause And Twisden said that an Entry to deliver a Declaration in Ejectment should not work to avoid a Fine but that it must be an express Entry Vpon which last matter the Plaintiff was non-suit Redmans Case IT was moved that one Redman an Attorney of the Court who was going into Ireland might put in special Bail Twisd A Clerk of the Court cannot put in bail You have filed a Bill against him and so waved his putting in bail Keel You may remember Woolly's case that we discharged him by reason of his priviledge and took Common bail Twisd You cannot declare against him in custodia But though we cannot take bail yet we may commit him and then deliver him out by mainpernancy Jones If he be in Court in propria persona you cannot procéed against his bail The Court agréed that the Attorney should not put in bail Grafton GRafton one of the Company of Drapers was brought by Habeas Corpus In the Return the cause of his Imprisonment was alledged to be for that being chosen of the Livery he refused to serve Per Cur ' they might have fined him and have brought an Action of Debt for the sum but they could nor imprison him Keel The Court of Aldermen may imprison a
have but one Elegit At another day the Iudges gave their Opinions severally that Iudgment ought to be given in this Court upon the whole Record for that it is an entire Record and the Execution one and if Iudgment were to be given there upon the demurrer there must be two Executions And because the Record shall not be remanded Twisden said the Record it self was here and that it had been so adjudged in King and Holland's case and in Dawkes Batter's case though my Lord Chief Baron being then at the Bar urged strongly that it was but the tenour of the Record that was sent hither And it is a Maxim in Law that if a Record be here once it never goes out again for that here it is coram ipso Rege so that if we do not give Iudgment here there will be a failer of Iustice because we cannot send the Record back The Iury that tries the Issue must assess the damages upon the demurrer The Record must not be split in this case Accordingly Iudgment was given here Willbraham Snow TRover Conversion Vpon Issue Not-guilty the Iury find a special Verdict viz. that one Talbot recovered in an Action of Debt against one Wimb and had a Fierr facias directed to the Sheriff of Chester whereupon he took the Goods into his possession and that being in his possession the Defendant took them away and converted them c. and the sole point was whether the possession which the Sheriff has of Goods by him levied upon an Execution is sufficient to enable him to bring an Action of Trover Winnington I conceive the Action does not lie An Action of Trover and Conversion is an Action in the right and two things are to be proved in it viz. a Property in the Plaintiff and a Conversion in the Defendant I confess that in some cases though the Plaintiff have not the absolute property of the Goods yet as to the Defendants being a wrong-doer he may have a sufficient property to maintain the Action against him But I hold that in this case the property is not at all altered by the seizure of the Goods upon a Fieri facias for that he cited Dyer 98 99. Yelvert 44. This case is something like that of Commissioners of Bankrupts they have power to sell and grant and assign but they cannot bring an Action their Assignees must bring all Actions It is true a Sheriff in this case may bring an Action of Trespass because he has possession but Trover is grounded upon the right and there must be a Property in the Plaintiff to support that whereas the Sheriff takes the Goods by vertue of a nude Authority As when a man deviseth that his Executors shall sell his Land they have but a nude Authority Cur. The Sheriff may well have an Action of Trover in this case As for the case in Yelvert 44. there the Sheriff seiz'd upon a Fieri facias then his Office determined then he sold the Goods and the Defendant brought Trover And it was holden that the Property was in the Defendant by reason of the determining of the Sheriffs Office and because a new Fieri facias must be taken out for that a venditioni exponas cannot issue to the new Sheriff They compared this case to that of a Carryer who is accountable for the Goods that he receives and may have Trover or Trespass at his Election Twisden said the Commissioners of Bankrupts might have an Action of Trover if they did actually seize any Goods of the Bankrupts as they might by Law Rainsford said let the Property after the seizure of Goods upon an Execution remain in the Defendant or be transferred to the Plaintiff since the Sheriff is answerable for them and comes to the possession of them by the Law it is reasonable that he should have as ample remedy to recover damages for the taking of them from him as a Carryer has that comes to the possession of Goods by the delivery of the party Morton said if Goods are taken into the custody of a Sheriff and the Defendant afterward become Bankrupt the Statute of Bankrupts shall not reach them which proves the Property not to be in the Defendant Twisd I know it hath been urged several times at the Assizes that a Sheriff ought to have Trespass and not Trover and Counsel have pressed hard for a special Verdict Morton My Lord Chief Justice Brampston said he would never deny a special Verdict while he lived if Counsel did desire it Gavell Perked ACtion for words viz. You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen Vpon Issue Not-guilty there was a special Verdict found Jones The Declaration says further whereby her Husband did conceive an evil Opinion of her and refused to cohabit with her But the Iury not having found any such special damage the question is whether the words in themselves are Actionable without any relation had to the damage alledged I confess that to call one Bawd is not Actionable for that is a term of reproach used in Scolding and does not imply any act whereof the Temporal Courts take notice for one may be said to be a Bawd to her self But where one is said to be a Bawd in such actions as these it is actionable 27 H. 8. 14. If one say that another holds Bawdry it is Actionable 1 Cro. 329. Thou keepest a Whore in thy House to pull out my Throat these words have been adjudged to be Actionable for that they express an act done and so are special and not general railing words In Dimock's case 1 Cro. 393. Two Iustices were of Opinion that the word Pimp was Actionable of it self But I do not relie upon that or the word Bawd but taking the words all together they explain one another the latter words show the meaning of the former viz. that her Pimping and Bawdry consisted in bringing young men and women together and what she brought them together for is sufficiently expressed in the words Pimp and Bawd viz. that she brought them together to be naught And that is such a Slander as if it be true she may be indicted for it and is punishable at the Common Law The Court was of the same Opinion and gave Iudgment for the Plaintiff Nisi c. Healy Warde ERror of a Iudgment in Hull Weston The Action is brought upon a promise cum inde requisitus foret and does not say cum inde requisitus foret infra Jurisdictionem Twisd Though the agreement be general cum inde requisitus foret yet if he does request within the Iurisdiction it is good enough and so it has been ruled and this Error was disallowed Boswill Coats TWo several Legacies are given by Will to Alice Coats and John Coats the Executors deposit these Legacies in a third persons hand for them and take a Bond of that third person conditioned That if the Obligor at the request of
be unreasonable it ought to be locally circumscribed and confined to the City 17 Ed. 4. 7. there was an Action brought upon the Statute of Labourers for retaining one that was the Plaintiffs retained Servant the Defendant pleaded in abatement that there was no place laid where the Plaintiffs retainer was and this was held a good Plea for that if it were in another County then where the Defendant retained him it was impossible for the Defendant to take notice of a Retainer in another County No more can we take notice who is a City Orphan in the County of Kent Then they have returned a Custom to imprison generally but it should have beén that without reasonable cause shewn they might imprison and the party have liberty to shew cause to the contrary Then I conceive they have returned the Fact as defective as the Custom they say that he marryed her without their consent they ought to have said that he took her out of their custody and your Lordships will not intend that she was in their custody when she was out of the City Offley of the same side and cited 21 Ed. 3. Fitz. Guard 31. and Hob. in Moor Hussey's case 95. 3 Cro. 803. 3 Cro. 689. 1 Cro. 561. In all the cases its returned that they were Free-men of the City Mr. Solicitor North on the same side cited Day Savage's case Mr. Attorney General on the other side said that because it was impossible to give notice to all therefore ex necessitate rei they must take notice at their peril Hales The City has an Interest in the Orphan wherever the Orphan be And for notice he may enquire there is no impossibility of his coming to the knowledge whether she be an Orphan or no therefore if he takes her he takes her at his peril Twisden And for the Fine such a Fine was set in Langham's Case and adjudged good Let a Citizen of London live where he will his Children shall be Orphans Hales Some things are local in themselves some things adherent to the person and follow the person now this is an Interest which follows the person and is transmitted to his Children and the party must take notice of it at his peril Cox St. Albanes A Prohibition was prayed for to the City of London because the Defendant had offered a Plea to the Iurisdiction sworn and it had been refused Hales In transitory Actions if they will plead a matter that ariseth out of the Iurisdiction and swear it before Imparlance and it be refused a Prohibition shall go There was a case in which it was adjudged 1. That upon a bare surmise that the matter ariseth out of the Iurisdiction the Court will not grant a Prohibition 2. It must be pleaded and the Plea sworn and it must come in before Imparlance If all this were done we would grant a Prohibition here It was also agréed in that case that the party should never be received to assign for Error that it was out of the Iurisdiction but it must be pleaded Twisd So in this Court when there is a Plea to the Iurisdiction as that it is within a County Palatine they plead it before Imparlance and swear their Plea Twisden There was a Venire facias returnable coram nobis apud Westm whereas it should have béen ubicunque fuerimus c. yet because the Court was held here it was held to be good Hales I remember it Hales When in an inferiour Court the Venire facias is ad prox Cur ' it is naught because it is uncertain when the Court will be kept But if it be at such a day ad prox Cur. it is good Anonymus A Writ of Error of a Iudgment in White-chappel After the Record was read Hales said the acts of a Court ought to be in the present Tense as praeceptum est not praeceptum fuit But the acts of the party may be in the Preterperfect Tense as venit protulit hic in Cur ' quandam querelam suam And the Continuances are in the Preterperfect Tense as venerunt not veniunt But upon another Exception the Court gave time to move it again Moved for a melius inquirendum to be granted to the Coroner of Kent who had returned an Inquisition concerning the death of one that was killed within the Manor of Greenwich he had returned that he dyed of a Meagrim in his head when he was really killed with a Coach Hales A melius inquirendum is generally upon an Office post mortem and is directed to the Sheriff Twisden But this cannot be to the Sheriff In 22 Ed. 4. the Coroner must enquire only super visum corporis And if you will have a new inquiry you must quash this Indéed a new inquiry was granted in Miles Bartly's case Thurland prayed that the Court being the supreme Coroner would examine the misdemeanor of the Coroner Hales Make some Oath of his misdemeanor because he is a sworn Officer Without Oath we will not quash this Inquisition Newdigate said that in the case of Miles Bartly the inquiry was not Filed and that that was the reason why a new one was granted Hales Let the Coroner attend he must take the Evidence in writing and he should bring his Examination into Court. Daniel Appleford's Case A Writ of Mandamus was directed to the Master and Fellows of New-Colledge in Oxford to restore one Daniel Appleford a Fellow They return that the Bishop of Winchester did erect the Colledge and among other Laws by which the Colledge was to be governed they return this to be one viz. That if a Scholar or other Member of the said Colledge should commit any crime whereby scandal might arise to the Colledge and that it appeared by his own confession or full Evidence of the Fact that then he should be removed without any remedy and that Daniel Appleford a Fellow was guilty of enormous Crimes and was convicted and thereupon removed and they pray Iudgment whether this Court will proceed Jones By this conclusion they rely chiefly upon the Iurisdiction of the Court I will lay this for a ground that this Court hath Iurisdiction in Extrajudicial causes as well as Iudicial 11 Rep. Bagg's case And Appleford hath no remedy but this I will not say that he may not have an Action upon the Case but by that he will not recover the thing but damages And for an Assize if a man be a Corporation sole or head of a Corporation aggregate and be turn'd out wrongfully he may have an Assize but for a man that is but an inferiour Member of a Corporation no Assize lyeth for him because he is but a part of the body politick and doth not stand by himself but must joyn with others and as he cannot have an Assize so he cannot have an Appeal Dyer 209. 11 Rep. in Bagg's case 24 H. 8. 22. 25 H. 8. cap. 19. 4 Inst 340. by these Authorities it appears that we are without
Hales in that case said that upon a penalty you need not make a demand as in case of a nomnine poenae as if I bind my self to pay 20 l. on such a day and in default thereof to pay 40 l. the 40 l. must be paid without any demand Hales If a man cut and carry away Corn at the same time it is not Felony because it is but one Act but if he cut it and lay it by and carry it away afterwards it is Felony Hales If a Declaration be general Quare clausum fregit and doth not express what Close there the Defendant may mention the Trespass at another day and put the Plaintiff to a new Assignment But if he say Quare clausum vocat Dale fregit c. there the conclusion Quae est eadem transgressio will not help Fitz-gerard Maskall ERror of a Iudgment in the Kings Bench in Ireland the general Error assigned Offered 1. That the Eject was brought de quatuor molendinis without expressing whether they were Wind-mills or Water-mills Hales That is well enough The Presidents in the Register are so Secondly That it was of so many Acres Jampnor ' bruer ' not expressing how many of each Cur ' That hath always been held good It was then objected that the Record was not removed upon which it was ordered to stay Pemberton moved for a Prohibition to the Spiritual Court for that they cited the Minister of Mary-bone which is a Donative to take a faculty of Preaching from the Bishop Hales If the Bishop go about to visit a Donative this Court will grant a Prohibition But if all the pretence be that it is a Chappel and the Chaplain hired and the Bishop send to him that he must not Preach without Licence it may be otherwise Twisden Fitzherbert saith if a Chaplain of the Kings Free-Chappel keep a Concubine the Bishop shall not Visit but the King Hales Indeed whether there be all Ornaments requisite for a Church the Bishop shall not enquire nor shall he punish for not Repairing Originally Free-Chappels were Colledges and some did belong to the King and some to private men And in such a Chappel he that was in was entituled as Incumbent and not a Stipendiary To hear Counsel Moved by Stroud for a Prohibition to the Bishops Court of Exeter because they proceeded to the Probate of a Will that contained Devises of Lands as well as bequests of personal things Hales Their proving the Will signifies nothing as to the Land Stroud urged Denton's case and some other Authorities Hales The Will is entire and we are not advised to grant a Prohibition in such case Hales It is the course of the Exchequer in case of an Outlawry to prefer an Information in the nature of a Trover and Conversion against him that hath the Goods of the party Outlawed Parsons Perns TWo Women were Ioyntenants in Fée One of them made a Charter of Feoffment and delivered the Déed to the Feoffee and said to him being within view of the Land Go enter and take possession but before any actual entry by the Feoffee the feoffor and feoffee entermarry And the question was whether or no this Marriage coming between the delivery of the Deed and the Feoffees Entry had destroyed the operation of the Livery within the view Polynxfen It hath not for the power and authority that the Feoffee hath to enter is coupled with an Interest and not countermandable in Fact and if so not in Law If I grant one of my Horses in my Stable nothing passeth till Election and yet the grant is not revocable so till attornment nothing passeth and yet the Deed is not revocable If the Woman in our case had married a Stranger that would not have been a revocation Perk. 29. I shall compare it to the case of 1 Cro. 284. Burdet versus Now for the interest gotten by the Husband by the Marriage he hath no Estate in his own right If a man be seized in the right of his Wife and the Wife be attainted of Felony the Lord shall enter and oust the Husband he gains nothing but a bare perception of profits till Issue had after Issue had he has an Estate for life Where a man that hath title to enter comes into possession the Law doth execute the Estate to him 7 H. 7. 4. 2 R. 2. tit Attornment 28 Ed. 3. 11. Bro. tit Feoffment 57. Moor fol. 85. 3 Cro. 370. Hales said to the other side you will never get over the case of 38 Ed. 3. My Lord Coke to that case saith that the Marriage without Attornment is an execution of the grant but that I do not believe for the attendance of the Tenant shall not be altered without his consent The effectual part of the Feoffment is Go enter and take possession Twisden Suppose there be two Women seized one of one Acre and another of another Acre and they make an exchange and then one of them marries before Entry shall that defeat the Exchange Hales That is the same case So Iudgment was given accordingly Zouch Clare THomas Tenant for life the Remainder to his first second and third son the Remainder to William for life and then to his first second and third son and the like Remainders to Paul Francis and Edward with Remainders to the first second and third son of every one of them William Paul Francis and Edward levy a Fine to Thomas Paul having Issue two Sons at the time Then Thomas made a Feoffment And it was urged by Mr. Leak that the Remainders were hereby destroyed Hales Suppose A. be Tenant for life the Remainder to B. for life the Remainder to C. for life the Remainder to a Contingent and A. and B. do joyn in a Fine doth not C's right of Entry preserve the contingent Estates If there had béen in this case no Son born the contingent Remainders had béen destroyed but there being a Son born it left in him a right of Entry which supports the Remainders and if we should question that we should question all for that is the very basis of all Conveyances at this day And Iudgment was given accordingly Term. Pasch 24 Car. II. 1672. in B. R. Monke versus Morris Clayton AN Action was brought by Monke against the Defendants and Iudgment was given for him They brought a Writ of Error and the Iudgment was affirmed Jones moved that the money might be brought into Court the Plaintiff being become a Bankrupt Winning ' This case was adjudged in the Common-Pleas viz. a man brought an Action of Debt upon a Bond and had a Verdict and before the day in Bank became a Bankrupt it was moved that that Debt was assigned over and prayed to have the money brought into Court but the Court refused it Coleman We have the very words for us in effect for now it is all one as if Iudgment had been given for the Assignées of the Commissioners Twisden How can we
take notice that he is a Bankrupt any Execution may be stopped at that rate by alledging that there is a Commission of Bankrupts out against the Plaintiff If he be a Bankrupt you must take out a special Scire facias and try the matter whether he be a Bankrupt or not Which Jones said they would do and the Court granted Twisden If a Mariner or Ship-Carpenter run away he loses his wages due which Hales granted Henry L. Peterborough vers John L. Mordant A Trial at Bar upon an Issue out of the Chancery whether Henry Lord Peterborough had only an Estate for Life or was seized in Fee-tail The Lord Peterborough's Counsel alledged that there was a settlement made by his Father 9 Car. 1. whereby he had an Estate in Tail which he never understood till within these three years but he had claimed hitherto under a Settlement made 16 Car. 1. And to prove a Settlement made 9 Car. 1. he produced a Witness who said that he being to purchase an Estate from my Lord the Father one Mr. Nicholls who was then of Counsel to my Lord gave him a Copy of such a Deed to shew what title my Lord had But being asked whether he did see the very Deed and compare it with that Copy he answered in the negative whereupon the Court would not allow his Testimony to be a sufficient Evidence of the Deed and so the Verdict was for my Lord Mordant Cole Forth A Trial at Bar directed out of Chancery upon this Issue whether Wast or no Wast Hales By protestation I try this cause remembring the Statute of 4 Henr. 4. And the Statute was read whereby it is Enacted That no Iudgment given in any of the Kings Courts should be called in question till it were reverst by Writ of Error or Attaint He said this cause had been tried in London and in a Writ of Error in Parliament the Iudgment affirmed Now they go into the Chancery and we must try the cause over again and the same point A Lease was made by Hilliard to Green in the year 1651. afterwards he deviseth the Reversion to Cole and Forth gets an under-Lease from Green of the premisses being a Brew-house Forth pulls it down and builds the ground into Tenements Hales The question is whether this be Wast or no and if it be Wast at Law it is so in Equity To pull down a House is Wast but if the Tenant build it up again before an Action brought he may plead that specially Twisden I think the Books are pro and con whether the building of a new House be Wast or not Hales If you pull down a Malt-mill and build a Corn-mill that is Wast Then the Counsel urged that it could not be repaired without pulling it down Twisden That should have been pleaded specially Hales I hope the Chancery will not Repeal an Act of Parliament Wast in the House is Wast in the Curtelage and Wast in the Hall is Wast in the whole House So the Iury gave a Verdict for the Plaintiff and gave him 120 l. damages Term. Mich. 25 Car. II. 1673. in B. R. AN Action of Debt was brought upon a Bond in an inferiour Court the Defendant cognovit actionem petit quod inquiratur per patriam de debito This pleading came in question in the Kings Bench upon a Writ of Error but was maintain'd by the Custom of the place where c. Hales said it was a good Custom for perhaps the Defendant has paid all the Debt but 10 l. and this course prevents a Suit in Chancery And it were well if it were established by Act of Parliament at the Common Law Wild. That Custom is at Bristow Randall versus Jenkins 24 Car. 2. Rot. 311. REplevin The Defendant made Conusance as Bayliff to William Jenkins for a Rent-charge granted out of Gavel-kind Lands to a man and his Heirs The question was whether this Rent should go to the Heir at Common Law or should be partible amongst all the Sons Hardres It shall go to the eldest Son as Heir at Law for I conceive it is by reason of a Custom time out of mind used that Lands in Kent are partible amongst the Males Lamb. Perambulat of Kent 543. Now this being a thing newly created it wants length of time to make it descendible by Custom 9 H. 7. 24. A feoffment in Fee is made of Gavel-kind Lands upon Condition the Condition shall go to the Heirs at Common Law and not according to the descent of the Land Co. Litt. 376. If a warranty be annex'd to such Lands it shall descend only upon the eldest Son Now this Rent-charge being a thing contrary to common right and de novo created is not apportionable Litt. Sect. 222. 224. it is not a part of the Land for if a man levy a Fine of the Land it will not extinguish his Rent unless by agreément betwixt the parties 4 Edw. 3. 32. Bro. tit Customs 58. if there be a Custom in a particular place concerning Dower it will not extend to a Rent-charge Fitz. Dower 58. Co. Litt. 12. Fitz. Avowry 207. 5 Edw. 4. 7. there is no occasion in this case to make the Rent descendible to all for the Land remains partible amongst the Males according to the Custom And why a Rent should go so to the prejudice of the Heir I know not 14 H. 88. it is said that a Rent is a different and distinct thing from the Land Then the language of the Law speaks for general Heirs who shall not be disinherited by construction The grand Objection is whether the Rent shall not follow the nature of the Land 27 H. 8. 4. Fitzherb said he knew four Authorities that it should Fitz. Avowry 150. As for his first case I say that Rent amongst Parceners is of another nature than this for that is distreynable of Common right As for the second I say the rule of it holds only in cases of Proceedings and Trials which is not applicable to his Custom His third case is that if two Coparceners make a feoffment rendring Rent and one dies the Rent shall not survive To this I find no answer given Litt. Sect. 585. is further objected where it is said that if Land be deviseable by Custom a Rent out of such Lands may be devised by the same Custom but Authorities clash in this point He cited farther these books viz. Lamb. Peramb of Kent and 14 H. 8. 7 8. 21 H. 6. 11. Noy Randall Roberts case 51. Den. cont I conceive this Rent shall descend to all the Brothers for it is of the quality of the Land and part of the Land it is contained in the bowels of the Land and is of the same nature with it 22 Ass 78. which I take to be a direct Authority as well as an instance Co. Lit. 132. ibid 111. In some Boroughs a man might have devised his Land by Custom and in those places he might have devised a Rent
in the continuance of that Estate that is not subject to the Rent but is above all those charges now no recompence can come to such a Rent And therefore there is another reason why a Common Recovery will bar at Common Law upon an Estate Tail which was a Fée-simple conditional a Remainder could not be limited over because but a possibility but now comes that Statute De donis conditionalibus and makes it an estate tail and a Common recovery is an inherent priviledge in the Estate that was never taken away by that Statute De donis the Law takes it as a conveiance excepted out of the Statute as if he were absolutely seised in fee and this is by construction of Law It is true there can be no recompence to him that hath but a possibilitie But the business of recompence is not material as to this charge And the reason of Whites case and other cases put explain this Now what difference between this and Capels case Say they there the charge doth arise subsequent but here the charge doth arise precedent why I say the charge doth arise precedent to the Remainder but subsequent to the Estate tail for it is not to take effect till the Estate tail be determined It was doubted in the Queens time whether a Remainder for years was barred but it hath béen otherwise practised ever since and there is no colour against it Now you do agrée that the Remainder to the right Heirs of one living shall be barred for the Estate is certain though the Person be uncertain So long as the Rent doth not come within the compass and limitation of the Estate tail the Rent is extinct and killed there is nothing to keep life in it But whether doth not the Lease for years preserve it Heretofore it was a question among young men Whether if Tenant in Tail granted a Rent Charge for Life then makes a Lease for three Lives In this case though the Rent before would have dyed with Tenant in Tail yet this Rent will continue now during the three Lives which it will And it hath been questioned if he had made a Lease for years instead of the Lease for lives if that would have supported the Rent Now in our case if the Lease for years were chargeable the Rent would arise out of that But if this Rent should continue then most mens Estates in England would be shaken Wild. The Lease for years doth not preserve the Rent but the Common Recovery doth bar it For Pell Brownes case in that Case the Recovery could not barr the possibility for he was not Tenant in Tail that did suffer the Recovery but he had only a Fee simple determinable and the contingent Remainder not depend upon an Estate Tail nay did not depend by way of Remainder but by way of Contingency It is true Iustice Dodridge did hold otherwise but the rest of Iudges gave Iudgment against him upon very good reason Twisden I never heard that case cited but it was grumbled at Hales But to your knowledge and mine they always gave Iudgment accordingly A man made a gift in Tail determinable upon his non-payment of 1000 l. the Remainder over in Tail to B. with other Remainders Tenant in Tail before the day of payment of the 1000 l. suffers a common Recovery and doth not pay the 1000 l. yet because he was Tenant in Tail when he suffered the Recovery by that he had barred all and had an Estate in Fee by that Recovery At a day after Hales said the Rent was granted before the Lease for years and is not to take effect till the Estate Tail be spent and a common Recovery bars it If there be Tenant in Tail reserving Rent a common Recovery will not bar it so if a Condition be for payment of Rent it will not bar it But if a Condition be for doing a collateeal thing it is a bar And so if Tenant in Tail be with a Limitation so long as such a Tree shall stand a common Recovery will bar that Limitation Lampiere versus Mereday AN Audita Querela was brought before Iudgment entred which they could not do 9 H. 5. 1. which the Court agreed Whereupon Counsel said it was impossible for them to bring an Audita Querela before they were taken in Execution for the Plaintiff will get Iudgment signed and take out Execution on a suddain and behind the Defendants back Thereupon the Court ordered the Postea to be brought in for the Defendant to see if Execution were signed And at a day after Hales said If an Audita Querela was brought after the day in bank though the Iudgment was not entred up yet the Court would make them enter up the Iudgment as of that day So that they shall not plead Nul tiel Record Wyld said a Sheriffs bond for ease and favour was void at Common Law and so it was declared in Sir John Lenthalls case Twisden upon opening of a Record by Mr. Den said It was already adjudged in this Court that a Rent issuing out of Gavelkind Land is of the nature of the Land and shall descend as the Land doth An Action of Debt upon a Bond. Sympson moved in Arrest of Iudgment The Bond was dated in March and the Condition was for payment super vicessimum octavum diem Martii prox ' sequentem It was sequentem which refers to the day which shall be understood of the month next year If it had been sequentis then it had referred to March and then it had beén payable the next year But the Court was of Opinion that it should be understood the currant month Sympson cited a case wherein he said it had been so held Read versus Abington Hales Formerly if Execution was gone before a Writ of Error delivered or shewed to the party it was not to be a Supersedeas Wyld He must not keep the Writ in his pocket and think that will serve At another day Hales said it shall not be a Supersedeas unless shewed to the party and he must not foreslow his time of having it allowed for if it be not allowed by the Court within four days it is no Supersedeas Hales A Writ of Error taken out if it be not shewn to the Clerk of the other side nor allowed by the Court it is no Supersedeas to the Execution And that if a Writ of Error be sued bearing Teste before the Iudgment be given if the Iudgment be given before the Retorn it is good to remove it though at first he said it was so in respect of a Certiorari but not of a Writ of Error And he said that Iudgment when ever it is entred hath relation to the day in bank viz. the first day of the Term So that a Writ of Error retornable after will remove the Record when ever the Iudgment is entred Vpon a motion concerning the amending of Leather-Lane Hales If you plead Not-guilty it goes to the Repair or
with the rest to the reason why the warranty is destroyed viz. because the husband takes back as great an Estate as he warranted for then no use can be made of the warranty If a man that has Land and another warrant this Land to one and his heirs and one of them die without heirs the survivor may be vouched without question The husband never was obliged by this warranty but as to him it was meerly nominal for from the very creation of it it was impossible that it should be effectual to any purpose he cited Hob. 124. in Rolls Osburn's case The whole Court agreeing in this Opinion Iudgment was given for the Tenant Term. Trin. 26 Car. II. in Communi Banco Hamond versus Howell c. THe Plaintiff brought an Action of False Imprisonment against the Mayor of London and the Recorder and the whole Court at the Old-baily and the Sheriffs and Gaoler for committing him to prison at a Sessions there held The case was thus some Quakers were indicted for a Riot and the Court directed the Iury if they believed the Evidence to find the Prisoners guilty for that the Fact sworn against them was in Law a Riot which because they refused to do and gave their Verdict against the direction of the Court in matter of Law they committed them They were afterwards discharged upon a Habeas Corpus And one of them brings this Action for the wrongful Commitment Sergeant Maynard moved for the Defendants that they might have longer time to plead for a rule had been made that the Defendants should plead the first day of this Term. The Court declared their Opinions against the Action viz. That no Action will lie against a Iudge for a wrongful Commitment any more then for an erroneous Iudgment Munday the Secondary told the Court that giving the Defendants time to plead countenanced the Action but granting imparlances did not So they had a special imparlance till Michaelmas Term next Atkyns It was never imagined that Iustices of Oyer and Terminer and Gaol-delivery would be questioned in private Actions for what they should do in Execution of their Office if the Law had been taken so the Statute of 7 Jac. cap. 5. for pleading the general Issue would have included them as well as Inferiour Officers Birch Lake A Prohibition was granted to the Spiritual Court upon this suggestion that Sir Edward Lake Vicar-general had cited the Plaintiff ex officio to appear and answer to divers Articles The Court said that the citation ex officio was in use when the Oath ex officio was on foot but that is ousted by the 17th of Eliz. If Citations ex officio were allowed they might cite whole Counties without Presentment which would become a trick to get money And the party grieved can have no Action against the Vicar-general being a Iudge and having Iurisdiction of the cause though he mistake his power Per quod c. Anonymus BAron Feme Administrators in the right of the Feme bring an Action of Debt against Baron Feme Administrators likewise in the right of the Feme de bonis non c. of J. S. The Action is for Rent incurred in the Defendants own time and is brought in the debet detinet The Defendants plead fully administred to which the Plaintiffs demurred Serj. Hardes for the Plaintiff said the Action was well brought in the debet detinet for that nothing is Assets but the profits over and above the value of the Rent he cited Hargrave's case 5 Rep. 31. 1 Rolls 603. 2 Cro. 238. Rich Frank. ibid. 411. ibid. 549. 2 Brook 202. 1 Bulstr 22. Moor 566. Poph. 120. though if an Executor be Plaintiff in an Action for Rent incurred after the Testators death he must sue in the detinet only because whatever he recovers is Assets but though an Executor be Plaintiff yet if the Lease were made by himself he must sue in the debet detinet Then the plea of fully administred is not a good plea for he is charged for his own occupation If this plea were admitted he might give in evidence payment of Debts c. for as much as the term is worth and take the profits to his own use and the Lessor be stript of his Rent in Styles Reports 49. in one Josselyn's case this plea was ruled to be ill And of that Opinion the Court was and said that Executors could not waive a Term though if they could they ought to plead it specially for it is naturally in them and prima facie is intended to be of more value then the Rent if it should fall out to be otherwise the Executors shall not be lyable de bonis propriis but must aid themselves by special pleading For the plea they said there was nothing in it and gave Iudgment for the Plaintiff Buckly Howard DEbt upon two Bonds the one of 20 l. the other of 40 l. against an Administratrix the Defendant pleaded that the intestate was endebted to the Plaintiff in 250 l. upon a Statute Merchant which Statute is yet in force not cancel'd nor annull'd and that she has not above 40 shillings in Assets besides what will satisfie this Statute The Plaintiff replies that the Statute is burnt with Fire The Defendant demurs And by the Opinions of Wyndham Atkyns Ellis Iustices the Plaintiff had Iudgment For the Defendant by his demurrer has confessed the burning of the Statute which being admitted and agreed upon it is certain that it can never rise up against the Defendant for the Stat. of the 23 Hen. 8. cap. 6. concerning Recognisances in the nature of a Statute-Staple refers to the Statute-Staple viz. that like Execution shall be had and made and under such manner and form as is therein provided the Statute-Staple refers to the Statute-Merchant and that to the Statute of Acton Burnel 13 Ed. 1. which provides that if it be found by the Roll and by the Bill that the Debt was acknowledged and that the day of payment is expired that then c. but if the Statute be burnt it cannot appear that the day of payment is expired and consequently there can be no Execution If the Recognisee will take his Action upon it he must say hic in Cur ' prolat 15 H. 7. 16. Vaughan differ'd in Opinion he said 1. That it is a rule in Law that matter of Record shall not be avoided by matter in pais which rule is manifestly thwarted by this resolution He said it was a matter of Record to both parties and the Plaintiff could not avoid it by such a plea any more then the Defendant could avoid it by any other matter of fact He cited a case where the Obligee voluntarily gave up his Bond to the Obligor and took it from him again by force and put it in suit the Defendant pleaded this special matter and the Court would not allow it but said he might bring his Action of Trespass
Milwood and Ingram 205 Monke versus Morrice and Clayton 93 Moor and Field 229 Lord Mordant versus the Earl of Peterborough 114 Moreclack and Carleton 73 Mors and Sluce 85 Mosedel the Marshall of the Kings Bench. 116 N. NAylor against Sharply and others 198 Norman and Foster 101 Nosworthy and Wildeman 42 O. OGnel versus the Lord Arlington Gardian of c. 217 Osburn and Walleeden 272 P. PAge and Tulse 239 Parker and Welby 57 Parten and Baseden 213 Parsons and Perns 91 Henry Lord Peterborough versus John Lord Mordant 94 Doctor Poordage 22 Porter and Fry 86 Prin and Smith 19 Pybus and Mitford 121 159 R. RAndal and Jenkins 96 Rawlin's Case 46 Redman and Edelfe 4 Redman 10 Redman and Pyne 19 Dominus Rex versus Vaws 24 Dominus Rex versus Turnith 26 Rich and Morrice 36 Richards and Hodges 43 Roberts and Mariot 42 289 Rogers and Danvers 165 Rogers and Davenant 194 Russel and Collins 8 S. SAvil against the Hundred of 221 Scudamore and Crossing 175 Searl and Long. 248 Sedgewicke and Gofton 106 Earl of Shaftsbury's Case 144 Slater and Carew 187 Smith and Wheeler 16 38 Smith and Bowin 25 Smith Lluellin al. Commissioners of Sewers 44 Smith's Case 209 Smith versus Smith 284 The Chapter of the Collegiate-Church of Southwell versus the Bishop of Lincoln 204 Southcote and Stowell 226 237 The Company of Stationers versus Seymor 256 Stead and Perryer 267 Strode versus the Bishop of Bathe and Wells and Sir George Hornet and Masters 230 T. TAylor and Wells 46 Taylor and Rowse Church-Wardens versus their Predecessors 65 Lord Tenham versus Mullins 119 Thredneedle and Lynham 203 Sir John Thoroughgood 107 Tildell and Walter 50 Tomlin and Fuller 27 Lord Townsend versus Hughes 232 Troy 5 Turner and Benny 61 Turner and Davies 62 V. VAughan and Casewell 7 Vaughton versus Atwood alios 202 Vere and Reyner 19 W. WAldron versus 78 Warren and Prideaux 104 Warren and Sayer 191 Watkyns and Edwards 286 Wayman and Smith 63 Wilbraham and Snow 30 Williams and Lee. 42 Williamson and Hancock 192 Wilson and Robinson 100 Wing and Jackson 215 Wood and Davies 289 Wootton and Heal. 66 Wootton and Penelope 290 Worthy and Liddal 21 Y. YArd and Ford. 69 Z. ZOuch and Clare 92 Errata PAge 40. line 2. a Conveyance with power lege a Conveyance reserving a power p. 50. l. 23. to Nicholas Love the Father if he should so long live lege to Nicholas Love the Father for a term of years if the Cestuy qui vies or any of them should so long live p. 54. l. 22. tenant for life dele for life p. 63. l. 26. pro Quer ' lege pro Defendent ' p. 109. l. 20. if tenant in tail grant a Rent lege if tenant be rendring a Rent p. 112. l. 9. of the month next year lege of the same month p. 127. l. 20. ab inconventi lege ab inconvenienti p. 128. l. 2. and lining thereupon lege and linnen Thereupon c. p. 136. l. 7. left lege lost l. 28. left lege lost p. 145. l. 20 21. repeated lege reported p. 170. l. 2. joyntly to lege joyntly and severally to p. 190. l. 31. A's ground lege B's ground p. 193. l. 5. a stranger a tenant in possession lege a stranger tenant in possession p. 206. l. 20. Shrewsbury the Liberties lege Shrewsbury and the Liberties p. 217. l. 8. shillings given lege shillings be given p. 223. l. 13 Mary it would lege Mary for if it were it would c. p. 245. l. 12. if he had lege that he had p. 262. l. 13. a verbal request lege a verbal discharge p. 271. l. 12. Heley lege Offley p. 285. l. 24. upon the Merchants lege upon the custom of Merchants The Cases of Trin. Term 29 Car. 2. in Com. B. end with page 270. and from that page to page 299. through a mistake of the Composer it 's printed C. B. instead of B. R. which the Reader is desired to to amend with his Pen. REPORTS Of divers Select Cases In the Reign of CAROLI II. Term. Mich. 21 Car. II. 1669. in Banco Regis ONe Mynn an Attorney entred a Iudgment by colour of a Warrant of Attorney of another Term then was expressed in the Warrant The Court consulting with the Secondary about it he said That if the Warrant be to appear and enter Iudgment as of this Term or any time after the Attorney may enter Iudgment at any time during his life but in the case in question the Warrant of Attorney had not those words or at any time after Wherefore the Secondary was ordered to consider the charge of the party grieved in order to his reparation Which the Court said concluded him from bringing his Action on the Case The Secondary said That in Trin. Hil. Term they could not compel the party in a Habeas Corpus to plead and go to Trial the same Term but in Michaelmas and Easter Term they could Mr. Solicitor moved for a new Writ of Enquiry into London and to stay the filing of a former because of excessive damages given but it was denied An Affidavit for the changing of a Venue made before the party was Arrested and allowed Moved in Battery for putting an Arm out of joint that the party might be held to special Bail but denied Twisd Follow the course of the Court. Mr. Sanders moved to quash an Order made by the Iustices of Peace for putting away an Apprentice from his Master and ordering the Master to give him so much Money Keeling The Statute of 5 Eliz. leaves this to their discretion An Indictment was preferred in Chester for a Perjury committed in London For which Keeling threatned to have the Liberties of the County Palatine seized if they kept not within their bounds Goodwin Harlow ERror to reverse a Iudgment in Colchester there being no appearance by the party but Iudgment upon thrée defaults recorded Revers'd Twisd If there be a Iudgment against thrée you cannot take out Execution against one or two Vpon a motion for a new Trial Twisden said That in his practice the Heir in an Action of Debt against him upon a Bond of his Ancestor pleaded riens per discent the Plaintiff knew the Defendant had levied a Fine and at the Trial it was produced but because they had not a Déed to lead the uses it was urged that the use was to the Conusor and his heirs and so the heir in by descent whereupon there was a Verdict against him and it being a just and due Debt they could never after get a new Trial. Gostwicke Mason DEbt for Rent upon a Lease for a year and so from year to year quamdiu ambabus partibus placuerit there was a Verdict for the Plaintiff for two years rent Sanders moved in Arrest of Iudgment that the Plaintiff alledges indeed that the Defendant entred and was possest the first year but mentions no entry as
Will because he hath not put it out of him there arises an Vse and a Trust for himself But in our case he hath put the Vses out of himself for there are several Vses declared But there is a further difference if Simon Mayne had declared the Vse to others absolutely and had reserved liberty to himself to have altered it by his Will that might have altered the case But here the Proviso is That if at the time of his death he shall have a Son c. so that it is reduced to him upon a Condition and Contingency As to the power of Revocation he cited the Duke of Norfolks case in Englefields case which Twisd said came strongly to this Adjourned V. infr An Information was exhibited against one for a Libel Coleman The party has confessed the matter in Court and therefore cannot plead not guilty Twisd You may plead not guilty with a relicta verificatione Horne Ivy. TResp for taking away a Ship The Defendant justifies under the Patent whereby the Canary-Company is incorporated and granted that none but such and such should Trade thither on pain of forfeiting their Ships and Goods c. and says that the Defendant did Trade thither c. the Plaintiff demurs Polynxfen He ought to have shown the Deed whereby he was authoriz'd by the Company to seize the Goods 26 H. 6. 8. 14 Ed. 4. 8. Bro. Corp. 59. though I agree that for ordinary Imployments and Services a Corporation may appoint a Servant without Deed as a Cook a Butler c. Plo. Com. 91. A Corporation cannot Licence a stranger to sell Trees without Deed 12 H. 4. 17. Nor can they make a Diuessor without Deed nor deliver a Letter of Attorney without Deed. 9 Ed. 4. 59. Bro. Corp. 24. 34. 14 H. 7. 1. 7 H. 7. 9. Rolls 514. tit Corporation Dr. Bonhams case Again the plea is double for the Defendant alledgeth two causes of a breach of their Charter viz. their taking in Wines at the Canaries and importing them here which is double Then there is a clause that gives the forfeiture of Goods and Imprisonment which cannot be by Patent 8 Rep. 125. Waggoners case Noy 123. in the case of Monopolies This Patent I take also to be contrary to some Acts of Parliament viz. 9 Ed. 3. c. 1. 2 Ed. 3. cap. 2. 2 Rich. 2. cap. 1. 11 Rich. 2. cap. 2. and these Statutes the King cannot dispence withall by a Non obstante Twisd For the first point I think they cannot seize without Deed no more then they can enter for a Condition broken without Deed. Keel We desire to be satisfied whether this be a Monopoly or not It was ordered to be argued Pryn versus Smith SCire Facias in this Court upon a Recognizance by way of Bail upon a Writ of Error in the Exchequer Chamber The Defendant pleaded that the Plaintiff did after Iudgment sue forth a Capias ad satisfaciend out of this Court to the Sheriff of Middlesex whereupon he was taken in Execution and suffered to escape by the Plaintiffs own consent Jones We have demurred because they do not lay a place where this Court was holden nor where the Plaintiff gave his consent Redman Pyne AN Action upon the Case was brought for speaking these words of the Plaintiff being a Watch-maker viz. He is a bungler and knows not how to make a good piece of work but there was no colloquium laid of his Trade Pemberton The Iury have supply'd that having found that he is a Watch-maker And it is true that words shall be taken in mitiori sensu but that is when they are doubtful Caudry's case 1 Cro. 196. Twisden I remember a Shoe-maker brought an Action against a man for saying that he was a Cobler And though a Cobler be a Trade of it self yet held that the Action lay in Glyn's time Saunders If he had said that he could not make a good Watch it would have béen known what he had meant but the words in our case are indifferent and perhaps had no relation to his Trade Ordered to stay Vere Reyner AN Action upou the Case upon a promise to carry duas carectatas c. Rotheram It s uncertain whether carectata signifies a Horse-load or a Cart-load Judgment nisi c. Twisd I have known if a Iudgment be given and there is an agréement betwéen the parties not to take out Execution till next Term and they do it before that the Court has set all aside One brought up by Habeas Corpus out of the Cinque-Ports upon an Information for breaking Prison where he was in upon an Execution for Debt Barrell moved against it Twisd Suppose a man be arrested in the Cinque-Ports for a matter arising there and then another hath cause to arrest him here is there not a way to bring him up by Habeas Corpus Barrell It was never done but there has béen a Habeas Corpus thither ad faciend recipiend Keel If a man be in Prison in the Fléet we bring him up by Habeas Corpus in case there be a Suit against him here Twisd Where shall such a man be sued upon a matter arising out of the Cinque-Ports Barrell If it be transitory he must be sued there if local elsewhere Twisd Then you grant if local that there must be a Habeas Corpus And so it was allowed in this case Two Iustices of Peace made an Order in Session-time against one Reignolds as reputed Father for the kéeping of a Bastard-child Reignolds appealed to the same Sessions where the Iustices made an Order that one Burrell should kéep it Jones moved to set aside this Order though an Order of Sessions upon an Appeal from two Iustices because he said the first Order being made in Session time that Sessions could not be said to be the next within the Stat. of 18 Eliz. and because the Iustices at the Sessions did not quash the Order made by two Iustices Keel They ought to have done that Twisd They may vacat the first Order and refer it back to two Iustices as res integra The Order being read one clause of it was that Burrell should pay 12 d. a wéek for kéeping the Child till it came to be twelve years of age which Twisden said was ill for it ought to be so long as it continues chargeable to the Parish The parties were bound over to appear at the next Assizes in Essex Darby-shire versus Cannon SYmpson moved that the Defendant having submitted to a Rule of Court for referring the matter and not performing the Award an Attachment might be granted against him Which was granted but when the party comes in upon the Attachment he may alledge that the Award is void and if it appear to be so he shall not be bound to perform it Owen Hannings IN a Trial at Bar upon a Scire facias to avoid a Patent of the Office of Searcher exception was taken to a Witness that he was to
neither Keeling If an Infant let you a House shall he not have an Action against you for the Rent Twisd I have known an Action upon the case brought by an Infant upon a promise to pay so much money in consideration that he would permit the Defendant to enjoy such a House it was long insisted upon that this was not a good consideration because not reciprocal for the Infant might avoid his promise if an Action were grounded upon it against him but it was adjudged to be a good consideration and that the Action was maintainable And in the principal case the Court gave Iudgment for the Plaintiff Nisi c. Bear versus Bennett TWisden When a man is arrested and has lain in Prison three Terms and is discharged upon Common bail whether shall the Plaintiff ever hold the Defendant to special Bail afterward for the same cause if he begins anew Keel If he may then may a man be kept in Prison for ever at that rate At last it was agreed that if he would pay the Defendant his Costs for lying so long in prison he should have special Bail Mr. Masters moved for a Prohibition to the Spiritual Court to stay a Suit there against a man for having married his Wives Sisters Daughter alledging the Marriage to be out of the Levitical degrees Cur. Take a Prohibition and demur to it for it is a case of moment Dominus Rex versus Turnith MOved to quash an Indictment upon 5 Eliz. cap. 2. for exercising a Trade in Chesthunt in Hertfordshire not having been an Apprentice to it for seven years because the Statute says they shall proceed at the Quarter-Sessions and the word Quarter is not in the Indictment Twisden That word ought to be in And I believe the using of a Trade in a Country Village as this is is not within the Statute Morton accorded Rainesford It will be very prejudicial to Corporations not to extend the Statute to Villages Twisden I have heard all the Iudges say that they will never extend that Statute further then they needs must Obj. further That there wanted these words sc Ad tunc ibidem onerati jurati for which all the three Iudges Keeling being absent conceived it ought to be quash'd A cause was removed out of London by Habeas Corpus wherein the Plaintiff had declared against the Defendant as a feme sole Merchant and Bartue moved for a Procedendo because he said they could not declare against her here as a feme sole for that she had a Husband Jones contra The Husband may then be joyned with her for he is not beyond Sea Twisd I think a Procedendo must be granted for the cause alledged It was resolved in Langlin Brewin's case in Cro. though not reported by him that if the Wife use the same Trade that her Husband does she is not within the Custom And they are to determine the matter there whether this case be within their Custom perhaps a Victualler as this Trade is is not such a Trade as their Custom will warrant and whether it will warrant it or not is in their Iudgment A Procedendo was granted Tomlin versus Fuller A Special Action on the Case was brought for keeping a passage stopt up so that the Plaintiff could not come to cleanse his Gutter After Verdict for the Plaintiff it was moved in Arrest of Iudgment that there ought to have been a request for the opening of it Answ It s true where the Nusance is not by the party himself there must be notice before the Action brought but in this case the wrong began in the Defendants own time Twisden I know this hath been ruled where a man made a Lease of a House with free liberty of ingress c. through part of the Lessors House the Lessor notwithstanding might shut up his doors and was not bound to leave them open for his coming in at one or two of the Clock at night but he must keep good hours And must the Defendant in this case keep his Gate always open expecting him wherefore it seems he ought to have laid a request Cur. It s aided by the Verdict Twisden It is not good at the Common Law and the Defendant might well have demurred for that cause Judgment pro Querente Butler Play UPon a motion for a new Trial in a cause where the matter was upon protesting a Bill of Exchange Serj-Maynard said the protest must be on the day that the money becomes due Twisden It hath been ruled That if a Bill be denied to be paid it must be protested in a reasonable time and that 's within a Fortnight but the Debt is not lost by not doing it on the day A new Trial was denied Hughes Underwood KEeling The very Sealing of the Writ of Error is a Supersedeas to the Execution Twisd There was once a Writ of Error to remove the Record of a Iudgment between such and such but some of the parties names were left out and by my Brother Wyld's advice that Writ not removing the Record they took out Execution But the Court was of Opinion that though the Record was not removed thereby of which yet they said he was not Iudge whether it was or not yet that it so bound up the cause that they could not take out Execution It is indeed good cause to quash the Writ of Error when it comes up but Execution cannot be taken out Term. Hill 21 22 Car. II. 1669. in B. R. Jefferson Dawson IN a Scire facias upon a Recognisance in Chancery entered into by one Garraway There was a demurrer to part and issue upon part And the question was whether this Court could give Iudgment upon the demurrer Jones The Iudgment upon the demurrer must be given in Chancery The Court of Chancery cannot try an Issue and therefore it is sent hither to be tryed but with the demurrer this Court has nothing to do Indeed the books differ in case of an Issue sent hither out of Chancery whether the Iudgment shall be here or there Keilway says it ought to be given here My Lord Coke in his 4 Inst says it must be given in Chancery But none ever made it a question whether Iudgment upon a demurrer were to be given here or there V. Co. Jurisdiction of Courts fol. 80. Saunders contra When there is a demurrer upon part and Issue upon part the Record being here this Court ought to give Iudgment because there can be but one Execution Keeling If the Record come hither entirely we cannot send it back again I cannot find one Authority that the Record shall be removed from hence He cited Keilway 941. 21 H. 7. Co. 2. 12. Co. Entries 678. 24 Ed. 3. fol. 65. there it is held that Iudgment shall be given here upon a demurrer Now if it must not be given here there must be two Executions for the same thing or else they must loose half for they can
such power nay if he have Children they must be living at his death Further by these Provisoes if the Contingencies do happen he hath but a power to declare the Vses he hath no Interest in him at all Litt. Sect. 463. It is one thing to have a power or possibility of limiting an Interest another to have an Interest vested 7 Rep. 11. Moor's Reports 366. about the delivery of a Ring where they hold that if it had been to have been done with his own hand it had not been forfeited The case of Sir Edward Clere is different from ours for if a man make a feoffment to the use of his last Will or to the use of such persons as shall be appointed by his last Will in this case he remains a perfect owner of the Land But if a man makes a Conveyance with power to make Leases or to make an Estate to pay Debts he hath here no Interest but a naked power The Duke of Norfolk's case is full in the point A Conveyance to the use of himself for life the Remainder to his Son in Tail with power to revoke under Hand and Seal adjudged not forfeited and yet he had a power to declare his mind as in our case Pagett's case Moor 193 194. Keeling If this way be taken a man may commit Treason pretty cheaply Twisden Whoever hath a power of Revocation hath a power of Limitation The reason is because else the feoffées would be seized to their own Vse Sir William Shelly's case in Latch Twisden There is no difference betwixt the Duke of Norfolk's case and this only here it is under his hand writing and there under his proper hand writing Afterward Term. Pasch 23 Car. 2. 1671. the Court delivered their Opinions Hales being then Chief Iustice Morton I conceive the Iudgment in the Common-Pleas is well given As for the first point whether this Conveyance made by Sir Simon Mayn be fraudulent or not the Counsel themselves have declined it and therefore I shall say nothing to it For the second I conceive no larger Interest is forfeited then during the Life of the Father If it be objected that the Father had by this Proviso jus disponendi I answer it is true he had a power if he had been minded so to do but it was not his mind and Will Now animus hominis est ipse homo but he must not only be minded so to do but he must declare his pleasure Hobart saith if a man will create a power to himself and impose a Condition or Qualification for the Execution of it it must be observed Now here is a personal and individual power seated in the heart of a man And it seems to me a stronger case then that of the Duke of Norfolk put in Englefield's case where yet the Condition was not given to the King by the Statute of Hen. 8. There was a later case adjudged in Latch betwéen Warner and Hynde a case that walked through all the Courts in Westminster-hall there by reason of the ipso declarante it could not be forfeited Rainsford I hold it is not forfeited My reason is because the Proviso is at an end and determined for when he dyed and made no Will there 's an end of the Proviso The altering of the old Trust is to be done by Sir Simon Mayn and it is inseparable from his person nothing can be more inseparable then a mans Will Moor 193. Twisd I am of the same Opinion Hales was of the same Opinion that nothing was forfeited but during Sir Simon 's life The Proviso he said did not create a Trust but potestatem disponendi which is not a Trust He said he did not understand the difference betwéen the Duke of Norfolk's case and this Accordingly the Iudgment was affirm'd In a cause wherein one Aston was Attorney Keeling said That a man may discontinue his Action here before an Action brought in the Common-Pleas But if he do begin there and then they plead another Action depending here and then they discontinue I take it the Attorney ought to be committed for this practice Twisden When I was at the Bar Error was brought and Infancy assigned when the Man was thirty years old and the Attorney was threatned to be turned out of the Roll. Serjeant Newdigate moved for a Certiorari to remove an Indictment hither from Bedford against several Frenchmen for Robbery Keeling Will it remove the Recognisances there to appear Twisden I never knew such a motion made by any but the King's Attorney or Solicitor Rainsford There is no Indictment yet before a Iudge of Assise Keeling You may have a Certiorari but it must not be delivered till the Indictment be found and then the Iudge hath the Prosecutors there and may bind them over hither and so the Trial may be here Keel A Iury was never ordered to a view before their appearance unless in an Assise Twisd Neither shall you have it here but by consent Nosworthy versus Wyldeman THe Plaintiff declares in an Indeb Assumpsit that the Defendant was endebted to him in 50 l. for so much money received of the Plaintiff by one Thomas Buckner by the appointment and to the use of the Defendant After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Plaintiff could not have an Action for money received by the Defendant to the use of the Defendant But because it might be money lent which the Defendant received to his own use though he was to make good the value to the Plaintiff the Court will presume after a Verdict that it appeared so to the Iury at the Trial. For where a Declaration will bear two constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense And accordingly the Plaintiff had Iudgment Willams versus Lee. AN Action of Account It was prayed that the Court would give further day for giving the Account the matter being referred to Auditors Twisden The Auditors themselves must give further day Keeling The Auditors are Iudges whether there be a voluntary delay or not If they find the parties remiss and negligent they must certifie to the Court that they will not account Roberts Mariott MOved to discontinue an Action of Debt upon a Bond. Keeling We will not favour Conditions Ruled that the other side should shew cause why they should not discontinue Buckly versus Turner ACtion upon the case upon a Promise The case was that Edward Turner Brother to the Defendant was endebted to the Plaintiff for a Quarters Rent and the Defendant in consideration that the Plaintiff mitteret prosequi praedictum Edwardum Turner so the words are in the Declaration promised to pay the money After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that here is not any consideration for there is no loss to the Plaintiff in sending to prosecute c. nor any benefit but
a disadvantage to the party that owed the money besides there is an uncertainty whither or to whom he should send Twisd Mittere prosequi is well enough for the Plaintiff must be at charge in it Keeling Certainly it ought to have been omitteret and if it be so in the Office-book we will mend it Twisden This being after a Verdict if you mend it they must have a new Trial for then it becomes another promise Jones moved for Iudgment and said he found the word mitto did signifie to send forbear cease or let alone as mitte me quaeso I pray let me alone in Terence And in the Latine and English Dictionary it hath the sense of forbearing Keeling I think the consideration not good unless the word mitto will admit of that sense If it have a propriety of sense to signifie forbear in reference to things as well as persons it will be well Whereupon the Dictionary being brought it was found to bear that sense And Twisden said if a word will bear divers senses the best ought to be taken after a Verdict Court Let the Plaintiff take his Iudgment Richards Hodges DEbt upon a Bond. The Condition was to save a Parish harmless from the charge of a Bastard-child The Defendant pleaded Non damnificatus The Plaintiff replies that the Parish laid out three shillings for keeping the Child The Defendant rejoyns that he tendred the money and the Plaintiff paid it de injuria sua propria Whereupon it was demurred the question being whether this re-joynder were a departure or no from the Bar Saunders It is a good Rejoynder for in our Bar we say that the Parish is not damnified that is not damnified within the intent of the Condition If I am to save a man harmless and he will voluntarily run himself into trouble the Condition of my Bond is not broken And so our Rejoynder is pursuant to our Bar and shows that there is no such damnification as can charge us Twisden The Rejoynder is a departure as in an Action of Covenant for payment of Rent if the Defendant pleads performance and the Plaintiff reply that the Rent is unpaid for the Defendant to rejoyn that it was never demanded is a departure You should have pleaded thus viz. that non fuit damnificat till such a time and that then you offered to take care of the Child and tendred c. Iudgment for the Plaintiff Nisi c. Smith Lluellyn al. Commission of Sewers THey were brought into Court by Attachment because they proceeded to Fine a person after a Certiorari delivered Twisd Sir Anthony Mildmay was a Commissioner of Sewers and for not obeying a Certiorari was Indicted of a Praemunire and was fain to get the Kings pardon And I have known that upon an unmannerly receit of a Prohibition they have been bound to the good Behaviour Keeling When there are Informations exhibited against you and you are fined a 1000 l. a man which is less then it was in King Edward the Third's time for then a 1000 l. was a great deal more then it is now you will find what it is to disobey the Kings Writ Afterwards they appeared again and Coleman said the first Writ was only to remove Presentments the second to remove Orders and we have made two Returns the one of Presentments the other of Orders A general Writ might have had a general Return Keeling Before you file the Return let a clause of the Statute of 13 Eliz. cap. 9. be read which being done he said that by the Statute of 23 Henr. 8. no Orders of the Commissioners of Sewers are binding without the Royal Assent now this Statute makes them binding without it and enacts that they shall not be Reverst but by other Commissioners Yet it never was doubted but that this Court might question the Legality of their Orders notwithstanding And you cannot oust the Iurisdiction of this Court without particular words in Acts of Parliament There is no Iurisdiction that is uncontroulable by this Court Sir Henry Hungate's case was a famous case and we know what was done in it Morton Since the making this Statute of Eliz. were those cases in my Lord Coke's Reports adjudged concerning Chester Mills If Commissioners exceed their Iurisdiction where are such matters to be reformed but in this Court If any Court in England of an inferiour Iurisdiction exceed their bounds we can grant a Prohibition Twisd I have known it ruled in 23 Car. 1. That the Statute of 13 Eliz. cap. 9. where it is said there shall be no Supersedeas c. hath no reference to this Court but only to the Chancery But this is a Certiorari whereby the King doth command the Cause to be removed voluit that it be determined here and no where else So the Court fined them for not obeying two Certioraries but fining them that brought them 5 l. a piece Jones moved That one who was Partner with his Brother a Bankrupt being Arrested might be ordered to put in Bail for the Bankrupt as well as for himself Twisden If there are two Partners and one breaks you shall not charge the other with the whole because it is ex maleficio but if there are two Partners and one of them dye the Survivor shall be charged for the whole In this case you have admitted him no Partner by Swearing him before the Commissioners of Bankrupts So not granted Rawlin's Case MOved by Sergeant Scroggs That Rawlins having personated one Spicer in acknowledging a Iudgment that therefore the Iudgment might be set aside Twisden The Statute that makes it Felony does not provide that the Iudgment shall be vacated One Tymberly escaped with his life very narrowly for he had personated another in giving Bail but the Bail was not filed Then he moved that the Defendant had paid the Fées of the Execution which the Plaintiff ought to have done So the Court granted an Attachment against the Bayliff Taylor Wells TRover Conversion decem parium tegularum valorum Anglice of ten pair of Curtains and Valons Obj. That it is not certain what is meant by a pair whether so many two's or so many Sets and that in Web Washburn's case 1652. four pair of Hangings held not good Twisden I remember that a pair of Hangings has been held naught Trover Convers pro decem Ovibus Agnis not expressing how many Ewes and how many Lambs ruled naught Another Action of Trover de velis not saying how many held to be naught It was urged that ten pair of Curtains and Valons is certain enough for by pair shall be understood two and so there are Twenty in all If it be objected that it does not appear how many of each I answer the words ten pair shall go to both Besides it is after a Verdict and therefore ought to be made good if by any reasonable construction it may If it had been ten Sets or ten Suits then without
go to the Executors of A. and the Remainder there was to begin upon his dying without Issue at any time The case of Saunders and Cornish will not come to ours for there were many limitations for life successively to persons not in being c. In the case cited 1st Report 135. of an Estate for life limited to one and to every heir successively an Estate for life the limitation was naught because it would make a perpetual Free-hold and no body would know where the absolute Estate should vest So he prayed Iudgment for the Plaintiff Coleman for the Defendant I conceive this to be a void limitation Mr. Jones would make this a middle case I shall discharge him of the first point though he has taken pains to argue it and I shall rest upon this That the limitation of a term after the death of a man without Issue of his body is void The case is put as a middle case to these two viz. If a man possessed of a Lease for years Devise it to I. S. for life the Remainder to J. N. for life the Remainder to J. G. for life these Remainders are good But if he do Devise to J. S. and the Heirs of his body the Remainder over this Remainder he admits to be void because it depends upon so remote a possibility as may never happen Now I conceive it is the same thing to limit it to one for life and if he dye without Issue then to another for life as to limit it to one and the Heirs of his body with a Remainder over He would tye it up from the ordinary and Legal Construction to issue at the time of his death If it be to be understood of dying without Issue at any time then Child Baylie's case and Cornishe's case are full Authorities in the point Vide 2 Cro. 459. Rolls 612 614. There Lessée for years deviseth to one for life and after to Wms. and his Assigns and if he dye without Issue then living the Remainder to I. G. This they say is good in case of a Fée-simple but they will not allow it in case of a term for years Now Mr. Jones would by Construction bring the words then living into our case The Legal Construction of the words dying without Issue is if there be a failer of Issue at any time to come In Pell Brown's case if the words then living had not been in the Will the case had not béen so adjudged Keeling You go up Hill a little Can Barnaby take so long as there is any Issue in being of Nicholas Jones He cannot Keeling Then Barnaby's Interest depends upon a Contingency that may never happen Jones I grant if Nicholas hath Issue at the time of his death that Barnaby shall never take but if he hath none he shall Keeling If I Devise Lands to A. for life and if he dye without Issue of his body to B. A. shall have an Estate Tail So in our case the words and limitation is the same though the Devisor having but a Lease for years there cannot be an Estate Tail of it yet he intended not that Barnaby should have any Estate as long as there were any Issue in being of Nicholas his body Twisden It appears to me upon the reason of the cases that have been cited that the Remainder to Barnaby must be void because of the remote possibility But then there will be a question to whom the Remainder of the term will go if Nicholas dye without Issue whether to the Executors of Nicholas or to the Executors of Doctor Love If A. Tenant for life of a term Devise it to B. for life the Remainder to C. for life the Remainder to D. for life I have heard it questioned whether these Remainders are good or not But it hath been held that if all the Remainder-men are living at the time of the Devise it is good if all the Candles be light at once good But if you limit a Remainder to a person not in being as to the first begotten Son c. and the like there would be no end if such limitations were admitted and therefore they are void And some Iudges are of the same Opinion to this hour If I Devise a term to A. for life after the death of A. his Executors shall not have it but it shall go to the Executors of the Devisor But if it be devised to A. generally without saying for life it shall go to his Executors after his death But a Devise for life vests in him only during his life and you may make a limitation over Keeling I take it that A. carries the whole term when devised to him for life because an Estate for life is larger then the longest term Twisden As a term for years doth admit of Remainders so it doth of Reversions if you will have it so and when he deviseth to A. during his life A. shall have it for his life but the Reversion shall be to the Devisors Executors But if he Devise it to A. for life and if he dye without Issue of his body the Remainder to B. what shall become of the Reversion then Keeling You start a new point Court You shall have our Iudgments this Term. Knowles versus Richardson ERror of a Iudgment in the Common Pleas in an Action upon the Case for obstructing a Prospect Sympson The stopping of a Prospect is no Nusance and consequently no Action on the Case will lie for it Aldred's Case 9th Report is express that for obstructing a Prospect being matter of delight only and not of necessity an Action will not lye Twisden Why may not I build up a Wall that another man may not look into my Yard Prospects may be stopt so you do not darken the light Iudgment nisi c. Twisden A man may be Indicted for Perjury in a Court-Baron Jones moved to have a Trial at Bar for Lands in Northumberland of 50 l. per annum Keeling It s a great way of off and never any Iury came from thence in your time Twisden But I have been of Councel in Causes wherein Trials have been granted at Bar for Lands there We have lost Cornwall no Iuries from thence come to the Bar and we shall lose Northumberland too The other side to shew cause Keeling upon a motion of Mr. Holt's said I have known many Attachments for Arresting a man upon a Sunday but still the Affidavit contained that he might have been taken on another day Twisd So for arresting a man as he was going to Church to disgrace him Term. Trin. 22 Car. II. 1670. in B. R. Parker VVelby AN Action upon the Case against a Sheriff for making a false Return The Plaintiff sets forth that one Wright was endebted to him in 60 l. and did promise to pay him and that thereupon a Writ was sued out against him directed to the Defendant being Sheriff of Lincolnshire who took him into his custody and after
suffered him to go at large whither he would and at the day of Return he returned that he had his body ready Jones They have demurred to the Declaration which I conceive to be a good Declaration For take the case that there went a Latitat to the Sheriff and the Sheriff took the person upon it and let him go at large no body will deny but that an Action of Escape will lye against him and when he makes such a false Return as here that he has the body ready why will not an Action lie for a false Return and this is no new case but hath béen adjudged Moor. plac 596. 3 Cro. 460. ibid. 624. it is at the Plaintiffs Election to follow the Sheriff with Amercements or to bring his Action for the false Return And when this Action has been brought formerly they were forced to plead the Statute none ever demurred generally Twisden I remember a case in 21 Car. 1. Rot. 616. betwéen Franklyn Andrews where an Action upon the Case was brought against a Sheriff for such a false Return he pleaded the Statute and they held in that case that the Sheriff could not Return any thing else but Cepi corpus And old Hodson that sate here remembred the case of Langton Gardiner reported in 3 Cro. and said the Court did amerce the Sheriff for a bad Return but the Iudgment was given in that case for the Plaintiff because there was a Traverse aliter vel alio modo which could not be unless a false Return had been confessed and the Court ordered Iudgment to be entred for the Plaintiff for that cause In the case of Franklyn the Court held that upon Issue Not-guilty the Statute might be given in Evidence but upon a Demurrer you ought to plead the Statute and the general Demurrer cannot be help'd in this case unless you will say that it is a general Law Whelpdale's case is that the Statute must be pleaded because it is a particular Law but it concerns Extortion in all Sheriffs and the Statute of 13 Eliz. that concerns all Parsons touching Non-residency is held to be a general Law and it is not to be stirr'd now but if the point were to be adjudged again perhaps we might be of another Opinion Keeling They have relyed here upon the false Return and the general Demurrer I take to be well enough Morton Rainsford accorded wherefore Iudgment was given against the Plaintiff Lake versus King THe Plaintiff brought an Action upon the Case for publishing a Libell in which he was defamed c. the publication was in delivering several Printed Papers wherein the Plaintiff was slandered to several Members of a Committée of the House of Commons Jones It is true if a man make a complaint in a Legal way no Action lyeth against him for taking that course if it be in a competent Court But that that we say is not lawful in this case is his causing the matter to be Printed and Published agreeable to this case are the common cases of Letters if a man will write a scandalous Letter and deliver it to the party himself this is no Slander But if he acquaints a third person with it an Action will lie So here since he will publish this matter by Printing it or if he had but written it it might have been Actionable for the Members ought not to be prepossessed King versus Standish AN Action upon the Statute of Praemunire for impeaching in the Chancery a Iudgment given in the Kings-Bench The Defendant demurred Bigland for the Defendant The question is whether the Court of Chancery be meant within the Statute of 27 Ed. 3. 3. This question has béen controverted formerly but has not béen stirr'd within these 40 years last past It concerns the Chancery as it is a Court of Equity Now the Statute cannot be applyed to the Chancery as such for it was not a Court of Equity at that time and if so then must the Statute be applyed to other Courts where the gravamen then was Mr. Lambert in his Iurisdiction of Courts says of this Court that the King did at first determine Causes in Equity in person and that about 20 Ed. 3 the King going beyond Sea delegated this power to the Chancellor And then he says several Statutes were made to enlarge the Iurisdiction of this Court as 17 Rich. 2. cap. 6. c. But the Chancellor took not upon him ex Officio to determine matters in Equity till Edward the Fourth's time For till then it was done by the King in person or he delegated whom he pleased So that the Gravamen of that Statute could not be in the Chancery 2. It is not possible that the King can be disinherited in his own Courts and therefore the Statute must be understood of Courts that stand in opposition to the Kings Courts and only forreign Courts But this Court is held by the Kings Seal and the Iudgments in it are according to the Kings Conscience Thirdly It is said in the Statute that the Offenders shall have a day given them to appear before the King and his Council or in his Chancery c. and it is strange that the Chancery should give the remedy if that were one of the Courts wherein the Offence were incurred My fourth reason is from the penalty the penalty is very rare and great for they must be put out of the Kings Protection their Lands forfeited and their bodies imprison'd at the Kings pleasure The penalty is fitted well for those that draw the Kings Subjects out of the Kings Iurisdiction but so great a penalty to be inflicted for suing in the Kings Courts is not so reasonable If a man sue in the Ecclesiastical Court for a matter Temporal shall he incur a Premunire An Action upon the Case may lye when a man is mistaken in the Court in which he ought to sue but to make it a Praemunire seems not so reasonable The Vsurpations of the Bishop of Rome were the cause of the making of this Statute and all other Statutes of Praemunire 28 Ed. 3. cap. 1. 16 H. 6. cap. 5. the complaint was all along of the Bishop of Rome's Vsurpations but not a word of the Chancery Sir John Davies in his case of Praemunire tells us that all the Statutes were made upon this occasion Of all the Attainders of Praemunire there never was one for suing in the Chancery The great Objection is from these words in the Statute or which do sue in any other Court now say they this last disjunctive must be applyed to this Court and not to the Court or Courts mentioned before But I answer there were other Ecclesisiastical Courts within this Realm besides that that was a standing Court and had a constant dependance upon the Pope here and they were aimed at by this disjunctive Those Courts derived their Iurisdiction from the Court of Rome and not from the King There is an Authority in the point in
5 Ed. 4. 6. Now for Authorities I confess there are great ones against me 2 Cro. fol. 335. Heath Ridley Moor. 838. Courtney versus Glanvill My Lord Coke in his Chapter of Praemunire 22 Ed. 4. fol. 37. But the greatest Authority against me is the case of Throgmorton Finch reported by my Lord Coke in his Treatise of Pleas of the Crown Chapter Praemunire But the practice has béen contrary not one person attainted of a Praemunire for that cause In King James his time the matter was referred to the Counsel who all agreed that the Chancery was not meant within the Statute which Opinions are inrolled in Chancery And the King upon the report of their Reasons ordered the Chancellor to proceed as he had done and from that time to this I do not find that this point ever came in question And so he prayed Iudgment for the Defendant Saunders As to that objection that at the time when this Statute was made there were no proceedings in Equity I answer that granting it to be true yet there is the same mischief The proceedings in one part of the Chancery are coram Domino Rege in Cancellaria but an English Bill is directed to the Lord Keeper and decreed so that there is a difference in the proceedings of the same Court But admit that Courts of Equity are the Kings Courts yet they are aliae Curiae if they hold plea of matters out of their Iurisdiction 16 Ri. 2. cap. 5. Rolls first part 381. There is a common objection that if there were no relief in Chancery a man might be ruined for the Common Law is rigorous and adheres strictly to its rules I cannot answer this Objection better then it is answered to my hand in Dr. Stud. lib. 1. cap. 18. he cited 13 Ri. 2. num 30. Sir Robert Cotton's Records It is to be considered what is understood by being impeached Now the words of another Act will explain that viz. 4 H. 4. cap. 23. by that Act it appears that it is to draw a Iudgment in question any other way then by Writ of Error or Attaint One would think this Statute so fully penned that there were no room for an evasion There was a temporary Statute which is at large in Rastall 31 H. 6. cap. 2. in which there is this clause viz. That no matter determinable at Common Law shall be heard elsewhere A fortiori no matter determined at Common Law shall be drawn in question elsewhere He cited 22 Ed. 4. 36. Sir Moyle Finch Throgmorton 2 Inst 335. and Glanvill Courtney's case He put them also in mind of the Article against Cardinal Woolsey in Coke's Jurisdiction of Courts tit Chancery So he prayed Iudgment for the Plaintiff Keeling It is fit that this cause be adjourned into the Exchequer-chamber for the Opinions of all the Iudges to be had in it We know what heats there were betwixt my Lord Coke Ellesmere which we ought to avoid Turner Benny A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Action upon the Case wherein the Plaintiff declared that it was agréeed betwéen himself and the Defendant that the Plaintiff should surrender to the use of the Defendant certain Copy-hold Lands and that the Defendant should pay for those Lands a certain sum of money and then he sets forth that he did surrender the said Lands into the hands of two Tenants of the Manor out of Court secundum consuetudinem c. Exception The promise is to surrender generally which must be understood of a surrender to the Lord or to his Steward and the Declaration sets forth a surrender to two Tenants which is an imperfect surrender 1 Cro. 299. Keeling But in that case there are not the words secundum consuetudinem as in this case Jones Hill 22 Car. 1. Rot. 1735. betwixt Treburn Purchas two points were adjudged 1. That when there is an agréement for a surrender generally then such a particular surrender is naught 2. That the alledging of a surrender secundum consuetudinem is not sufficient but it ought to be laid that there was such a Custom within the Manor and then that according to that Custom he surrendred into c. accordingly is 3 Cro. 385. Coleman contra We do say that we were to surrender generally and then we aver that actually we did surrender secundum consuetudinem and if we had said no more it had béen well enough Then the adding into the hands of two Tenants c. I take it that it shall not hurt Besides we need not to alledge a performance because it is a mutual promise and he cited Camphugh Brathwait's case Hob. Twisden I remember the case of Treborne he was my Clyent And the reason of the Iudgment is in Combe's case 9th Rep. because the Tenants are themselves but Attornies And they compared it to this case I am bound to levy a Fine it may be done either in Court or by Commission but I must go and know of the person to whom I am bound how he will have it and he must direct me In the principal case the Iudgment was affirm'd Nisi c. Turner Davies AUdita Querela The point was this viz. an Administrator recovers damages in an Action of Trover and Conversion for Goods of the Intestate taken out of the possession of the Administrator himself then his Administration is revoked and the question is whether he shall have Execution of the Iudgment notwithstanding the revocation of his Administration Saunders I conceive he cannot for the Administration being revoked his Authority is gone Doctor Druries case in the 8th Report is plain And there is a President in the new book of Entries 89. Barrell I conceive he may take our Execution for it is not in right of his Administration he lays the Conversion in his own time and he might in this case have declared in his own name and he cited and urged the reason of Pakman's case 6th Report 1 Cro. Keeling He might bring the Action in his own name but the Goods shall be Assets If Goods come to the possession of an Administrator and his Administration be repealed he shall be charged as Executor of his own wrong now in this case the Administration being repealed shall he sue Execution to subject himself to an Action when done Twisden I think it hath béen ruled that he cannot take out Execution because his Title is taken away Iudgment per Cur. versus Defendentem Jordan Martin EXception was taken to an Avowry for a Rent-charge that the Avowant having distrained the Beasts of a Stranger for his Rent does not say that they were levant couchant Coleman The Beasts of a Stranger are not liable to a Distress unless they be levant couchant Roll. Distress 668. 672. Reignold's case Twisd Where there is a Custom for the Lord to seize the best Beast for a Heriot and the Lord does seize the
best Beast upon the Tenancy it must come on the other side to shew that it was not the Tenants Beast Keel The Cattel of a Stranger cannot be distrained unless they were levant couchant but it must come on the other side to show that they were not so So Judic pro Quer ' Wayman Smith AProhibition was prayed to the Court of Bristol upon this suggestion viz. That the cause of Action did not arise within the Iurisdiction of the Court Winnington There was a case here between Smith Bond Hill 17 Car. 2. Rot. 501. a Prohibition to Marleborough the suggestion grounded on Westm 1. cap. 34. granted And there needs not a Plea in the Spiritual Court to the Iurisdiction for that he cited F. N. B. 49. But he said he had an Affidavit that the cause of Action did arise out of their Iurisdiction Twisden I doubt you must plead to the Iurisdiction of the Court I remember a case here wherein it was held so and that if they will not allow it then you must have a Prohibition Winnington Fitzherbert is full Ruled that the other side shall shew cause why a Prohibition should not go and things to stay Humlock Blacklow DEbt upon a Bond for performance of Covenants in Articles of agreement The Plaintiff covenanted with the Defendant to assign over his Trade to him and that he should not endeavour to take away any of his Customers and in consideration of the performance of these Covenants the Defendant did Covenant to pay the Plaintiff 60 l. per annum during his life Saunders The words in consideratione performationis make it a Condition precedent which must be averred 3 Leon. 219. and those Covenants must be actually performed Twisden How long must he stay then till he can be entitled to his Annuity as long as he lives for this Covenant may be broken at any time That 's an Exposition that corrupts the Text. Judic nisi c. It was moved by one Hunt that the Venue might be changed in an Action of Indebitat Assumpsit brought by Mr. Wingfield Jones I conceive it ought not to be changed being in the case of a Counsellor at Law by reason of his attendance at this Court. Twisd In Mr. Bacon's case of Grays-Inn they refused to change the Venue in the like case So not granted An Indictment against one Morris in Denbigh-shire for Murther was removed into the Kings Bench by Certiorari to prevent the Prisoners being acquitted at the Grand-Sessions and the Court directed to have an Indictment found against him in the next English County viz. at Shrewsbury Vide infra Taylor Rouse Church-wardens of Downham versus their Predecessors THe Action was to make them Account for a Bell. They plead that they delivered it to a Bell-founder to mend and that it is yet in his hands The Plaintiff demurs the cause of his Demurrer was that this was no good Plea in Bar of the Account though it might be a good Plea before Auditors 1 Roll 121. Pemberton I conceive it is a good Plea for wherever the matter or cause of the Account is taken off the Plea is good in Bar. But he urged that the Action was brought for taking away bona Ecclesiae and not bona Parochianorum as it ought to have been Court The Property is not well laid So ordered to mend all and plead de novo Term. Mich. 22 Car. II. 1670. in B. R. AN Inquisition was returned upon the Statute against pulling down Inclosures They took Issue as to the damages only It was moved that before the Trial for the damages there might be Iudgment given to have them set up again having been long down Twisden When you have Iudgment for the damages then one Distringas will serve for setting up the Inclosures and the damages too As in an Action where part goes by default and the other part is traversed you shall not take out Execution till that part which is traversed be tried Vpon a motion by Mr. Dolbin for an Attachment Twisden said if a man has a Suit depending in this Court and be coming to Town to prosecute or defend it here he cannot be sued elsewhere But if a man come hither as a Witness he is protected eundo redeundo Wootton Heal. AN Action of Covenant was brought upon a Warranty in a Fine a term for years being Evicted Saunders I acknowledge that an Action of Covenant does well lye in this case but the Plaintiff assigns his breach in this viz. that one Stowell habens legale jus titulum did enter upon him and evict him which perhaps he did by virtue of a title derived from the Plaintiff himself 2 Cro. 315. Kirby Hansaker Jones contra To suppose that Stowell claimed under the Plaintiff is a foreign intendment and it might as well come on the Defendants side to show it And since that case in 2 Crook the Statute of 21 Jac. and the late Act have much strengthned Verdicts Twisden The Statutes do not help when the Court cannot tell how to give Iudgment The Plaintiff ought to entitle himself to his Action and it is not enough if the Iury entitle him Jones You have waived the title here and relyed upon the Entry of the Issue only which is non intravit c. Cur. advisare vult Lassells Catterton AN Action of Covenant for further assurance the Covenant being to make such Conveyance c. as Counsel should advise they alledge for breach that they tendred such a Conveyance as was advised by Counsel viz. a Lease and Release and set it forth with all the usual Covenants Levings moved in Arrest of Iudgment I conceive they have tendred no such Conveyance as we are bound to execute for we are not obliged to Seal any Conveyance with Covenants nor with a Warranty Besides that which they have tendred has a Warranty not only against the Covenantor but one Wilson 2 Cro. 571. 1 Rolls 424. Again our Covenant is to convey all our Lands in Bomer and the Conveyance tendred is of all our Lands in the Lordship of Bomer Twisden For the last exception I think we shall intend them to be both one And I know it hath been held that if a man be bound to make any such reasonable assurance as Counsel shall advise usual Covenants may be put in for the Covenant shall be so understood But there must not be a Warranty in it though some have held that there may be a Warranty against himself but I question whether that will hold But Weston on the other side said that the Objection as to the Warranty was fatal and he would not make any defence The King versus Morris Vid. sup MR. Attorney Finch shewed cause why a Certiorari should not be granted to remove an Indictment of Murder out of Denbighshire in Wales Twisden In 2 Car. 8 Car. it was held that a Certiorari did lye into Wales Morton By 34 H. 8. the Iustices
remedy by way of Appeal It may be objected that there can be no Appeal hither because it is a spiritual Corporation Now I say this is not a spiritual Corporation as appears by the foundation and I am of Opinion that if a Corporation be all of spirituall persons yet unless there be a spiritual end it is no spiritual Corporation but a Lay-one But if it be a spiritual Corporation yet Deprivation is a temporal act Dyer 209. Another Objection may be That the Founder hath provided that there shall be no Appeal I answer the Founder cannot by his foundation exclude Legal remedies against wrong A Custom which is the strongest Foundation doth not bind a man up from his Legal remedy Litt. Sect. 212. If a man should dispose of his Estate by Will and provide therein that if any difference should arise concerning the Execution of the same that it shall be determined by such and such and no Suit commenced upon it at the Common Law this would be a vain appointment he must not erect a Iurisdiction of his own to oust the Kings Courts of theirs Coleman I conceive this is such a Colledge as no Mandamus shall go to it in any case whatsoever for it is but a private Society and hath no influence upon the publick In Ryly's Records we find that Mandamus's were only Letters to Colledges c. and there were no Iudicial Mandamus's till Bagg's case and I never knew them go but when the party had not only a Freé-hold but one that was of publick concern Now a Fellowship of a Colledge is for a private design only to study and if you grant a Mandamus in this case whither will it go at last Then the Foundation was to a spiritual intent and what is committed to the Ecclesiastical Power and Iurisdiction this Court doth preserve Ecclesiastical men hold in Eleemosynam Litt. Sect. 136. Linwood de Religiosis domibus When Colledges are founded under rule and order it doth give the Bishop Iurisdiction so that this Court will not enquire into this matter no more than it will enquire into causes of Deprivation and matters relating to the Institution of Clergy-men It has béen denied that a Fellow of a Colledge can bring an Assize But as a Prebend hath two capacities sole and aggregate so a Fellow is a Member of a Corporation aggregate and hath a sole capacity in respect of his Fellowship For a Church-Warden who is admitted according to the course of the Ecclesiastical Law a Mandamus will not lie Vide 6 H. 7. 10. Twisden In one Patrick's case we all held that a Colledge was a Temporal Corporation Hales There is a reason given in Dyer why a Mandamus will not lye in the case there viz. because it was prayed to be awarded to a Temporal Corporation Coleman It doth appear by the Return that the Founder hath appointed a Visitor now to him there may be an Appeal and we have returned the Sentence of the Visitor and need not return the cause of the Sentence And for Books I do oppose Rolls tit Prerogative Huntly's case 209. to Specott's case and Ken's case in the Reports In our case the party has a remedy elsewhere and therefore he shall not come hither If a Mandamus shall lie for a Mastership Fellowship or Schollarship it will in time come to lie for turning out of Commons and what a combustion will this raise then The Niceties of Husband and Wife were said by the Iudges in Scott's case to be proper for the Spiritual Court and not fit to be brought before the Iudges Hales That a Mandamus lies I will not positively deny but whether is it fit for us to proceed after this Return It must be taken for granted that it is not a spiritual Corporation if it were you ought to Appeal to the Visitor and then to the Delegates It is a private Society as an Inns of Court and I confess that Mandamus's do generally respect matters of publick concern I never heard of a Mandamus for a Monk If there be a Iurisdiction in the Visitor and he hath determined the matter how will you get over that Sentence The Chancellor is Visitor of all the Kings Frée-Chappels and the 2 H. 5. doth make him so of all Colledges of the Kings Foundation Suppose a Temporal Court over which we have Iurisdiction do give Iudgment in Assize to recover an Office so long as that Iudgment stands in force do you think that we will grant a Mandamus to restore him against whom the Iudgment is given Twisden In all Eleemosinary things there are Visitors appointed either by Law or by Creation of the party Hales The Frée-Chappels of Windsor and Wolverhampton are not of Spiritual Iurisdiction Hales At this rate we should examine all Deprivations Suspensions Elections c. and by the 13 of the Qu. the Laws of the Vniversity are confirmed Hales We ought not to grant a Mandamus where there is a Visitor but in this case the Visitor hath given Sentence Mors Sluce A Trial at Bar. An Action upon the case was brought against a Master of a Ship who had taken in Goods to Transport them beyond Sea for that he so negligently kept them that they were stolen away whilst the Ship lay in the River of Thames Maynard insisted upon it that the Master was not chargeable say they he is chargeable whilest he is here but when he is gone out of the Realm he is not chargeable though the Goods be taken from him Which distinction he said had no foundation in Law Hales It will lye upon you that are for the Defendants to shew a difference betwixt a Carrier and a Master of a Ship And it will lye upon you that are for the Plaintiff to shew why the Master of a Ship should be charged for a Robbery committed within the Realm and not for a Pyracy committed at Sea It was urged for the Plaintiff that a Hoy-man and Ferry-man are bound to answer and why not the Master of a Ship The Defendant proved that there was no carelesness nor negligent default in him Maynard He is not chargeable if there be no negligence in him because he is but a Servant the owner takes the Freight Hales He is Exercitor navis If we should let loose the Master the Merchant would not be secure And if we should be too quick upon him it might discourage all Masters so that the consequence of this case is great But the Iury gave a Verdict for the Defendant the Court for the reasons aforesaid inclining that way Porter Fry EJectione firmae A special Verdict The case was A man deviseth to A. for life the Remainder to one and the Heirs of his body upon condition That if he marry without consent of such and such or dye without Heirs of the body of his Mother that then the Estate shall go to another and his Heirs He marries without their consent and he in the Remainder
of Jerman it was held that all my Estate comprehends all my Title and Interest in the Land If a man deviseth all his Inheritance this carries the Fee-simple of his Land and the word all his Estate is as comprehensive as that Hales Wyld By a Grant or Release of totum statum suum the Fee-simple will pass if the words had been all my Tenant-right Lands it had been otherwise but the word Estate is more then so if a man deviseth all his Copy-hold Estate will not all his whole Interest pass Adjornatur Norman Foster AN Action of Debt upon a Bond to perform Covenants in an Indenture of Lease one Covenant is for quiet enjoyment and the Plaintiff assigns for breach that a Stranger entred but does not say that he had Title Hales Habens Titulum at that time would have done your business My Lord Dyer's case is that another entred claiming an Interest but that is not enough for he may claim under the Lessee himself He mentioned the cases in Moor 861. Hob. 34. Tisdale Essex If the Covenant had been to save him harmless against all lawful and unlawful Titles yet it must appear that he that entred did not claim under the Lessee himself Hales If I Covenant that I have a lawful right to grant and that you shall enjoy notwithstanding any claiming under me these are two several Covenants and the first is general and not qualified by the second And so said Wyld and that one Covenant went to the Title and the other to the possession Dyer 328. An Assumpsit to enjoy sine interruptione alicujus that is whether by Title or by Tort a quiet possession being to be intended to be the chief cause of the Contract 3 Leon. 43. 2 Cro. 425 315. 444. Adjornatur Angell convicted of Barretry produced a Pardon which was of all Treasons Murders Felonies and all Penalties Forfeitures and Offences The Court said the words all Offences will pardon all that is not capital Blackburn Graves A Copy-holder surrenders to the use of several persons for years successive the Remainder in Fee to J. S. Wyld An admittance of a particular Tenant is an admittance of all the Remainders to all purposes but only the Lords Fine and if the Custom be that the Fine paid by the first Tenant shall go to all the Remainders then the admittance of the first man is to all intents and purposes an admittance of all that come after In this case the possession of the Lessée for years is the possession of the Remainder-man In one Baker Dereham's case there was a surrender to the use of a man and his Heirs of Copy-hold Land that discended according to the Custom of Borough-English the surrenderee dyed before admittance and the Opinion of the Court was that the right would discend to the youngest according to the Custom Vpon a case moved Hales said That if a Tenant in Common bring a personal Action without his fellow joyning in the Suit the Defendant ought to take advantage of it in abatement but if he plead Not-guilty it shall be good but then he shall recover damages only for a moiety If a Tenant in Common seal a Lease of Ejectment he shall recover but a moiety A Iustice of Peace committed a Brewer for not paying the duty of Excise the Brewer was brought into Court by Habeas Corpus Sympson It ought to appear that he was a common Brewer Hales The Statute doth prohibit the bringing of a Certiorari but not a Habeas Corpus And want of averment of a matter of fact may be amended in a Return in Court and if it be not true at their peril be it So it was mended Money owing upon a Iudgment given in the Kings Court cannot be attached Term. Hill 25 26 Car. II. 1673. in B. R. Baker Bulstrode DEbt upon a Bond. The Condition was to Seal and execute a Release to the Plaintiff The Defendant demurs because the Plaintiff did not alledge in his Declaration a tender of a Release It was urged that the Condition was not to make but only to Seal and Execute c. But per Curiam he is bound to do it without a tender And the word Execute or the word Seal comprehends the making And Lamb's case was cited Warren Prideaux Trin. 24 Car. 2. Rot. 1472. A Distress and Avowry for Toll The prescription was for Toll in consideration of maintaining the Key and keeping a Bushel to measure Salt viz. That in consideration thereof he and those c. have had time out of mind c. a Bushell of Salt of every Ship that comes laden with Salt into Slipper-point For the Avowant it was alledged that the maintaining of the Key is for publick good Co. Magn. Cart. 222. Rolls 265. It s true it is not alledged that they did actually use the Weights and Measures 1 Leon. 231. but it being alledged that the Ship came within Slipper-point it is enough to charge the Plaintiff with the payment As for the Distress taken which is part of the Ships lading viz. Salt it is objected that it cannot be distrained because it is part of the thing from which the duty ariseth but I answer that this is not like to a Distress upon Land nor to be judged of according to the rules allowed in cases of such Distresses There were cited on this side 21 H. 7. 1. 3 Cro. 710. Smith Shepheard Dyer 352. Courtney contra I conceive this prescription ought to have some consideration and to be grounded on a meritorious cause to bind a Subject The keeping of the Bushell is no meritorious cause because it is presumed that the party hath the use of it himself Hales The prescription is not for a Port but a Wharfe If any man will prescribe for a Toll upon the Sea he must alledge a good consideration because by Magna Charta and other Statutes every one hath liberty to go and come upon the Sea without impediment Wyld This Custom or Prescription is laid to have a Bushell of Salt of every Ship that comes within the Slipper-point if a Ship be driven in by stress of weather and goes out again the first opportunity that presents shall that Ship pay Hales If he had said that he had a Port and was bound to maintain that Port and that he and all those whose Estate he had c. that might have been a good Prescription but in this case there must be a special inducement and compensation to the Subject by reason of those Statutes by which all Merchants and others have liberty to come in and go out They inclin'd that the Prescription was not good Anonymus A Trial at Bar concerning the River of Wall-fleet the question was whether had not the right of Fishing there exclusive of all others Hales In case of a private River the Lords having the Soil is a good evidence to prove that he hath the right of Fishing and it puts the
not Repair but if you will discharge your self you must do it by prescription or ratione tenurae and say that such an one ratione tenurae or such part of the Parish hath always used time out of mind c. Anonymus AN Action of Debt upon a Bond the Condition Whereas one Bardue did give by his Will so much if he should pay it such a day c. The Defendant pleads bene verum est he did give him so much by his Will and Testament but he revoked that and made another last Will. The Court said he was estopped to plead so Hales It doth not appear when the Bond was made and it shall be intended to be made after the parties death Iudgment pro Querente Deereing versus Farrington AN Action of Covenant declaring upon a Deed by which the Defendant assignavit transposuit all the money that should be allowed by any Order of a Forreign State to come to him in lieu of his share in a Ship Tompson moved that an Action of Covenant would not lye for it was neither an express nor implied Covenant 1 Leon. 179. Hales You should rather have applyed your self to this viz. whether it would not be a good Covenant against the party as If a man doth demise that is an implied Covenant but if there be a particular express Covenant that he shall quietly enjoy against all claiming under him that restrains the general implyed Covenant But it is a good Covenant against the party himself If I will make a Lease for years reserving Rent to a Stranger an Action of Covenant will lye by the party for to pay the Rent to the Stranger Then it was said it was an Assignment for maintenance Hales That ought to have been averred Then it was further said that an Assignment transferring when it cannot transfer signifies nothing Hales But it is a Covenant and then it is all one as if he had covenanted that he should have all the money that he should recover for his loss in such a Ship Twisd seemed to doubt But Iudgment Lord Mordant versus Earl of Peterborough TRial at Bar the question was Whether the Earl of Peterborough was Tenant for life only of the Mannor of Mayden The Defendant did not appear the Plaintiff thereupon desired to examine his Witnesses that so he might preserve their Evidence Twisd When they do not appear what good will that do you for they will say you set up a man of straw and pull him down again There was a former Deed of entail with a power of revocation in it and after the Deed exhibited was made whereby the Estate was otherwise settled and there was a Ioynture to the present Lady and done by persons of great Learning in the Law The Revocation was to be by Deed under my Lords Hand and Seal in the presence of thrée Witnesses Now the question was whether this second Deed was a revocation in Law and an Execution of that power And the Court told the Counsel they should find it specially if they would but they refused Hales In 16 Car. Snape and Sturts case If there be a power of revocation and a Lease for years is made it doth suspend quoad the term but after it is good Then it hath been questioned formerly if there be such a power and the person makes a Lease and Release whether it was a Revocation But shall we conceive the learned Counsel in this case would have ventured upon an implicit revocation and not have made an express revocation So that you must be non-suit or find it specially But the issue being If he wee only Tenant for life he said he must go back to the Chancery to amend it for by the Deéd produced he hath an Estate for life and the Reversion in Fee Burgis versus Burgis In Chancery A Man having a long Lease settled it in Trust upon himself for life the Remainder to his Wife for life the Remainder to the first Son of their two bodies the Remainder to the second Son and so to the tenth Son And if they should have no Son or Sons then the Remainder to such Daughter and Daughters of their bodies c. The man and his wife died and left only a Daughter who preferred her Bill against the Trustees for the executing of this Remainder to her The question is whether this Remainder be a good Remainder or whether it be void And the Lord Keeper Finch held it was a void Remainder because it doth depend upon so many and such remote Contingencies for otherwise it would be a perpetuity And he said he would allow one Contingency to be good viz. that to the first Son though the first Son was not in esse at the time of his decease And he said he did deny my Lord Cokes Opinion in Leon. Lovells case which saith that in case of a Lease settled to one and the heirs males of his body when he dies the Estate is determined for he said it shall go to his Executors And he said there was the same case with this in this Court Backhurst versus Bellingham And he said that the Common Law did complain that this Court did encroach upon them whereas they are beholding to this Court for their rules in Equity as Formerly when Ecclesiastical persons made Leases a misnosmer would avoid them but Elsmere in his time would notwithstanding the misnosmer make them good And he cited a case in Dyer and Matthew Mannings case Leon. Lovell and Lampetts case and Child and Bailies case Another case in Chancery One mortgaged Lands then confest a Iudgment and died The Mortgagée buys of the heir the Equity of Redemption for 200 l. The Bill was preferred by the Creditor by Iudgment against the Mortgagée and Heir either to be let in by paying the Mortgage money or else that the 200 l. received by the heir might be Assets And the Court said that the Mortgagees Estate should not be stirred But it was left by my Lord to be made a case whether the two hundred pounds should be Assets in the hands of the heir Mosedell the Marshal of the K. B's Case A Trial at Bar An Action of Debt brought against Mosedell for the escape of one Reynolds The Plaintiff said he could prove that he was at London three long Vacations Twisd It is hard to put three Escapes upon the Marshal for he may be provided only for one and he cannot give in Evidence a Fresh pursuit but it must be pleaded Hales I always let them give in evidence a Fresh suit upon a Nil debet And Wild said it was generally done So they gave evidence of an Habeas corp ad test ' and that the Prisoner went down too long before-hand and stayed too long after the Assizes were done at Wells in Somerset-shire and that he went back threescore miles beyond Wells before he retorned again for London Hales If an Habeas Corpus be granted to bring a person into
pleaded A special Verdict that the Lands are Copyhold Lands and surrendred to the use of one for eleven years the Remainder for five years to the Daughter the Remainder to the right heirs of the Tenant for eleven years The eleven years expire the Daughter is admitted the five years expire And there being a Son and Daughter by one Venter and a Son by another Venter the Son of the first Venter dies before admittance and the Daughter of the first Venter and her Husband bring Trover for cutting down of Trees And the question was if the admittance of Tenant for years was the admittance of the Son in Remainder Levings I conceive it is and then the Son is seized and the Daughter of the whole blood is his heir and he cited 4 Rep. 23. 3 Cro. 503. Bunny's case Wyld The Estate is bound by the Surrender Hales If a man doth surrender to the use of John Styles till admitted there is no Estate in him but remains in the Surrenderor but he hath a right to have an admittance If a surrender be to J. S. and his heirs his heir is in without admittance if J. S. dies About this hath indeed been diversity of Opinion but the better Opinion hath been according to the Lord Coke's Opinion I do not see any inconvenience why the admission of Tenant for life or years should not be the admittance of all in Remainder for Fines are to be paid notwithstanding by the particular Remainders and so the Books say it shall be no prejudice to the Lord. Twisd I think it is strong that the admission of Lessee for years is the admission of him in Remainder for as in a case of possessio fratris the Estate is bound so that the Sister shall be heir so here the Estate is bound and goes to him in Remainder Hales I shall not prejudice the Lord for if a Fine be assessed for the whole Estate there is an end of the business but if a Fine be assessed only for a particular Estate the Lord ought to have another If a surrender be to the use of A. for life the Remainder to his eldest Son c. or to the use of A. and his heirs and then A. dies the Estate is in the Son without admittance whether he takes by purchase or descent And Iudgment was given accordingly Draper versus Bridwell Rot. 320. ALL the Court held that an Action of Debt would lye upon a Iudgment after a Writ of Error brought Twisden They in the Spiritual Court will give Sentence for Tythes for rakings though they be never so unvoluntarily left which our Law will not allow of Wyld said that Actions personal transitory though the party doth live in Chester yet they may be brought in the Kings Courts Hales Shew a President where a man can wage his Law in an Action brought upon a Prescription for a duty as in an Action of Debt for Toll by Prescription you cannot wage your Law Pybus versus Mitford Postea THe Chief Iustice delivered his Opinion Wyld Rainsford and Twisden having first delivered theirs Hales I think Iudgment ought to be given for the Defendant whether the Son take by descent or purchase I shall divide the case 1 Whether the Son doth take by descent 2 Admitting he doth not whether he can take by purchase We must make a great difference betweén Conveyances of Estates by way of use and at Common Law A man cannot convey to himself an Estate by a Conveyance at Common Law but by way of Vse he may But now in our case here doth doth retorn by operation of Law an Estate to Michael for his life which is conjoyned with the Limitation to his heirs The reason is because a Limitation to the heirs of his body is in effect to himself this is perfectly according to the intention of the parties Objection The use being never out of Michael he hath the old use and so it must be a Contingent use to the heirs of his body But I say we are not here to raise a new Estate in the Covenantor but to qualifie the Estate in Fee in himself for the old Estate is to be made an Estate for life to serve the Limitation Further Objection It shall be the old Estate in Fee as if a man deviseth his Lands to his heirs the heir is in of the old Estate But I answer if he qualifie the Estate the Son must take it so as in Hutton fo So in this case is a new qualification Roll 789. 15 Jac. If a man makes a Feoffment to the use of the heirs of the body of the Feoffor the Feoffor hath an Estate Tail in him Pannel versus Fenne Moor 349. Englefield and Englefield 2 I conceive if it were not possible to take by descent this would be a Contingent use to the heirs of the body Objection It is limited to the heir when no heir in being Why I say it would have come to the heir at Common Law if no express Limitation had been and it cannot be intended that he did mean an heir at Common Law because he did specially limit it Fitz. tit Entayle 23. An Assise for the Serjeant at Mace's place in the House of Commons The Plaintiff had his Patent read The Court asked if they could prove Seisin They answered that they had recovered in an Action upon the case for the mean profits and had Execution Court For ought we know that will amount to a seisin Twisden Vpon your grant since you could not get seisin you should have gone into Chancery and they would have compelled him to give you seisin Hales A man may bring an Action upon the case for the profits of an Office though he never had seisin So the Record was read of his Recovery in an Action upon the case for the profits Hales This is but a seisin in Law not a seisin in Fact The Counsel for the Plaintiff much urged that the Recovery and Execution had of the profits was a sufficient seisin to entitle them to an Assise It was objected that the Plaintiff was never invested into the Office Hales said That an investiture did not make an Officer when he is created by Patent as this is but he is an Officer presently But if he were created an Herald at Arms as in Segars case he must be invested before he can be an Officer a person is an Officer before he is sworn Hales You are the Pernor of the profits and they have recovered them is not this a Seisin against you They shall find it specially but they chose rather to be Non-suit because of the delay by a special Verdict And the Court told them they could not withdraw a Iuror in an Assise for then the Assise would be depending The Roll of the Action sur le case fuit 19 Car. 2. Mich. Rot. 557. Term. Trin. 15 Car. II. 1663. Judge Hide 's Argument in the Exchequer-Chamber Manby versus Scott A Feme Covert departs
receive the bodies of James Earl of Salisbury Anthony Earl of Shaftsbury and Philip Lord Wharton Members of this House and keep them in safe custody within the said Tower during his Majesties pleasure and the pleasure of this House for their high Contempt committed against this House And this shall be a sufficient Warrant on that behalf To the Constable c. John Browne Cler ' Parl ' The Earl of Shaftsbury's Counsel prayed that the Retorn might be Filed and it was so And Friday following appointed for the debating of the sufficiency of the Retorn and in the mean time directions were given to his Counsel to attend the Iudges and the Attorny-General with their Exceptions to the Retorn and my Lord was remanded till that day And it was said that though the Retorn was Field the Court could remand or commit him to the Marshal at their Election And on Friday the Earl was brought into Court again and his Counsel argued the insufficiency of the Retorn Williams said That this cause was of great consequence in regard the King was touched in his Prerogative The Subject in his Liberty and this Court in its Iurisdiction The cause of his Commitment which is retorned is not sufficient for the general allegation of high Contempts is too uncertain for the Court cannot judge of the Contempt if it doth not appear in what act it is Secondly It is not shewed where the Contempt was committed and in favour of Liverty it shall be intended they were committed out of the House of Peers Thirdly The time is uncertain so that peradventure it was before the last Act of general Pardon 1 Roll 192 193. and 219. Russells case Fourthly It doth not appear whether this Commitment were on a Conviction or an Accusation only It cannot be denied but that the Retorn of such Commitment by any other Court would be too general and uncertain Moore 839. Astwick was bailed on a Retorn Quod commissus fuit per mandatum Ni. Bacon Mil. Domini Custodis magni Sigilli Angliae virtute cujusdam Contempt ' in Curia Cancellariae fact ' and in that book it appears that divers other persons were bailed on such general Retorns and the cases have been lately affirmed in Bushells case repeated by the Lord Chief Iustice Vaughan where it is expresly said that on such Commitment and Retorns being too general and uncertain the Court cannot believe in an implicite manner that in truth the Commitment was for causes particular and sufficient Vaughans Rep. 14. accord 2 Inst 52 53 55. and 1 Roll 218. And the Commitment of the Iurors was for acquitting Pen and Mead contra plenam manifestam Evidentiam and it was resolved to be too general for the Evidence ought to appear as certain to the Iudge of the Retorn as it appeared before the Iudge authorized to Commit Russells case 137. Now this Commitment being by the House of Peers will make no difference for in all cases where a matter comes in Iudgment before this Court let the question be of what nature it will the Court is obliged to declare the Law and that without distinction whether the question began in Parliament or no. In the case of Sir George Binion in C. B. there was a long debate whether an Original might be Filed against a Member of Parliament during the time of priviledge and it was urged that it being during the Sessions of Parliament the determination of the question did belong to the Parliament But it was resolved an Original might be Filed and Bridgman then being Chief Iustice said That the Court was obliged to declare the Law in all cases that come in Iudgment before them Hill 24 E. 4. Rot. 4. 7. 10. in Scacc ' in Debt by Rivers versus Cousin The Defendant pleads he was a Servant to a Member of Parliament and ideo capi seu arrest ' non debet and the Plaintiff prays Iudgment and quia videtur Baronibus quod tale habetur privilegium quod magnates c. et eorum familiares capi seu arrestari non debent Sed nullum habetur privilegium quod non debent implacitari Ideo respondeat oustr ' So in Treymiards case a question of priviledge was determined in this Court Dyer 60. In the 14 E. 3. in the case of Sir John and Sir Geoffrey Staunton which was cited in the case of the Earl of Clarendon and is entred in the Lords Iournal an Action of Waste depended between them in the Common-Pleas and the Court was divided and the Record was certified into the House of Parliament and they gave direction that the Iudgment should be entred for the Plaintiff Afterwards in a Writ of Error brought in this Court that Iudgment was reversed notwithstanding the Objection That it was given by Order of the House of Lords for the Court was obliged to proceed according to the Law in a matter which was before them in point of Iudgment The construction of all Acts of Parliament is given to the Courts at Westminster And accordingly they have adjudged of the Validity of Acts of Parliament They have searched the Rolls of Parliament Hob. 109. Lord Hudsons case They have determined whether the Iournals be a Record Hob. 110. When a point comes before them in Iudgment they are not foreclosed by any Act of the Lords If it appears that an Act of Parliament was made by the King and Lords without the Commons that is Felo de se and the Courts of Westminster do adjudge it void 4 H. 7. 18. Hob. 111. and accordingly they ought to do If this Retorn contains in it that which is fatal to it self it must stand or fall thereby It hath been a question often resolved in this Court when a Writ of Error in Parliament shall be a Supersedeas And this Court hath determined what shall be said to be a Session of Parliament 1 Roll 29. and if the Law were otherwise there would be a failour of Iustice If the Parliament were Dissolved there can be no question but the Prisoner should be discharged on a Habeas Corpas and yet then the Court must examine the cause of his Commitment and by consequence a matter Parliamentary And the Court may now have cognisance of the matter as clearly as when the Parliament is Dissolved The party would be without remedy for his Liberty if he could not find it here for it is not sufficient for him to procure the Lords to determine their pleasure for his Imprisonment for before his enlargement he must obtain the pleasure of the King to be determined and that ought to be in this Court and therefore the Prisoner ought first to resort hither Let us suppose for it doth not appear on the Retorn and the Court ought not to enquire of any matter out of it that a supposed contempt was a thing done out of the House it would be hard for this Court to remand him Suppose he were committed to a Forreign prison during the
of ordinary Iurisdiction If this Commitment had been by any inferiour Court it could not have been maintained But the Commitment is by a Court tht is not under the comptroll of this Court and that Court is in Law sitting at this time and so the expressing of the Contempt particularly is matter which continues in the deliberation of the Court 'T is true this Court ought to determine what the Law is in every case that comes before them and in this case the question is only whether this Court can judge of a Contempt committed in Parliament during the same Session of Parliament and discharge one committed for such Contempt When a question arises in an Action depending in this Court the Court may determine it but now the question is whether the Lords have capacity to determine their own priviledges and whether this Court can comptroll their determination and discharge during the Session a Peer committed for Contempt The Iudges have often demanded what the Law is and how a Statute should be expounded of the Lords in Parliament as in the Statute of Amendments 40 E. 3. 84. 6. 8. Co. 157 158. a fortiori the Court ought to demand their Opinion when a doubt arises on an Order made by the House of Lords now sitting As to the duration of the Imprisonment doubtless the pleasure of the King is to be determined in the same Court where Iudgment was given As also to the determination of the Session the Opinion of Coke is good Law and the addition of Proviso's in many Acts of Parliament is only in majorem cautelam Jones Attorney General to the same effect As to the uncertainty of the Commitment it is to be considered that this case differs from all other cases in two circumstances First the person that is a Member of the House by which he is committed I take it upon me to say that the case would be different if the person committed were not a Peer Secondly The Court that doth commit which is a superiour Court to this Court and therefore if the Contempt had been particularly shewn of what Iudgment soever this Court should have been as to that Contempt yet they could not have discharged the Earl and thereby take upon them a Iurisdiction over the House of Peers The Iudges in no age have taken upon them the Iudgment of what is Lex consuetudo Parliamenti but here the attempt is to engage the Iudges to give their Opinion in a matter whereof they might have refused to have given it if it had been demanded in Parliament This is true if an Action be brought where priviledge is pleaded the Court ought to judge of it as an incident to the Suit whereof the Court was possessed but that will be no warrant for this Court to assume a Iudgment of an original matter arising in Parliament And that which is said of the Iudges power to expound Statutes cannot be denied but it is not applicable in this case By the same reason that this Commitment is questioned every Commitment of the House of Commons may be likewise questioned in this Court It is objected That there will be a failer of Iustice if the Court should not discharge the Earl but the contrary is true for if he be discharged there would be a manifest failer of Iustice for Offences of Parliament cannot be punished any where but in Parliament and therefore the Earl would be delivered from all manner of punishment for his Offence if he be discharged For the Court cannot take Bail but where they have a Iurisdiction of the matter and so delivered out of the hands of the Lords who only have power to punish him It is objected That the Contempt is not said to be committed in the House of Peers but it may well be intended to be committed there for it appears he is a Member of that House and that the Contempt was against the House And besides there are Contempts whereof they have cognizance though they are committed out of the House It is objected That it is possible this Contempt was committed before the general pardon but surely such Injustice should not be supposed in the supream Court and it may well be supposed to be committed during the Session in which the Commitment to Prison was It would be great difficulty for the Lords to make their Commitments so exact and particular when they are imployed in the various affairs of the Realm and it hath been adjudged on a Retorn out of the Chancery of a Commitment for a Contempt against a Decreé that it was good and the Decrée was not shewn The limitation of the Imprisonment is well for if the King or the House determine their pleasure he shall be discharged for then it is not the pleasure of both that he should be detained and the addition of these words during the pleasure is no more than was before imply'd by the Law for if these words had been omitted yet the King might have pardoned the Contempt if he would have expressed his pleasure under the Broad Seal If Iudgment be given in this Court that one should be imprisoned during the Kings pleasure his pleasure ought to be determined by Pardon and not by any act of this Court. So that the King would have no prejudice by the Imprisonment of a great Minister because he could discharge him by a Pardon the double limitation is for the benefit of the Prisoner who ought not to complain of the duration of the Imprisonment since he hath neglected to make application for his discharge in the ordinary way I confess by the determination of the Session the Orders made the same Session are discharged but I shall not affirm whether this present Order be discharged or no because it is a Iudgment but this is not the present case for the Session continues notwithstanding the Royal Assent given to several Bills according to the Opinion of Cooke and of all the Iudges Hutton 61 62. Every Proviso in an Act of Parliament is not a determination what the Law was before for they are often added for the satisfaction of those that are ignorant of the Law Winington Solicitor General to the same purpose In the great case of Mr. Selden 5 Car. 1. the Warrant was for notable Contempts committed against us and our Government and stirring up Sedition and though that be almost as general as in our case yet no objection was made in that cause in any of the arguments Rushworths Collections 18 19. in the Appendix But I agree that this Retorn could not have béen maintained if it were of an inferiour Court but during the Session this Court can take no cognizance of the matter And the inconveniency would be great if the Law were otherwise taken for this Court might adjudge one way and the House of Peers another way which doubtless would not be for the advantage or liberty of the Subject for the avoiding of this mischief it was agreed by
this whole Court in the case of Barnadiston and Soames that the Action for the double Retorn could not be brought in this Court before the Parliament had determined the right of the Election lest there should be a difference between the Iudgments of the two Courts When a Iudgment of the Lords comes into this Court though it be of the reversal of a Iudgment of this Court this Court is obliged to execute it but the Iudgment was never examined or corrected here In the case of my Lord Hollis it was resolved that this Court hath no Iurisdiction of a misdemeanour commited in the Parliament when the Parliament is determined the Iudges are Expositors of the Acts and are intrusted with the lives liberties and fortunes of the Subjects And if the Sessions were determined the Earl might apply himself to this Court for the Subject shall not be without place where he may resort for the recovery of his liberty but this Session is not determined For the most part the Royal Assent is given the last day of Parliament as saith Plow Partridges case Yet the giving of the Royal Assent doth not make it the last day of the Parliament without a subsequent Dissolution or Prorogation And the Court Iudicially takes notice of Prorogations or Adjournments of Parliament Cro. Jac. 111. Ford versus Hunter And by consequence by the last Adjournment no Order is discontinued but remains as if the Parliament were actually assembled Cro. Jac. 342. Sir Charles Heydon's case so that the Earl ought to apply himself to the Lords who are his proper Iudges It ought to be observed that these Attempts are primae Impressionis and though Imprisonments for Contempts have been frequent by the one and the other House till now no person ever sought enlargement here The Court was obliged in Iustice to grant the Habeas Corpus but when the whole matter being disclosed it appears upon the Return that the case belongs ad aliud examen they ought to remand the party As to the limitation of the Imprisonment the King may determine his pleasure by Pardon under the Great Seal or Warrant for his discharge under the Privy Seal as in the case of Reniger Fogassa Plow 20. As to the Exception that no Commitment is returned the Constable can only shew what concerns himself which is the Warrant to him directed and the Writ doth not require him to return any thing else As to the Exception that he is otherwise named in the Commitment then in the Writ the Writ requires the body of Anthony Earl of Shaftesbury quocunque nomine Censeatur in the Commitment The Court delivered their Opinion and first Sir Thomas Jones Justice said such a Retorn made by an ordinary Court of Iustice would have been ill and uncertain but the case is different when it comes from this high Court to which so great respect hath been paid by our Predecessors that they deferred the determination of doubts conceived in an Act of Parliament until they had received the advice of the Lords in Parliament But now instead thereof it is demanded of us to comptroll the Iudgment of all the Peers given on a Member of their own House and during the continuance of the Session The cases where the Courts of Westminster have taken cognizance of Priviledge differ from this case for in those it was only an incident to a case before them which was of their cognizance but the direct point of the matter now is the Iudgment of the Lords The course of all Courts ought to be considered for that is the Law of the Court Lane's case 2 Rep. And it hath not been affirmed that the usage of the House of Lords hath been to express the matter more punctually on Commitments for Contempts And therefore I shall take it to be according to the course of Parliament 4 Inst 50. it is said that the Iudges are Assistants to the Lords to inform them of the Common Law but they ought not to judge of any Law Custom or usage of Parliament The objection as to the continuance of the Imprisonment hath received a plain answer for it shall be determined by the pleasure of the King or of the Lords and if it were otherwise yet the King could pardon the Contempt under the Great Seal or discharge the Imprisonment under the Privy Seal I shall not say what would be the consequence as to this Imprisonment if the Session were determined for that is not the present case but as the case is this Court can neither Bail nor discharge the Earl Wyld Justice The Retorn no doubt is illegal but the question is on a point of Iurisdiction whether it may be examined here this Court cannot intermeddle with the transactions of the high Court of Peers in Parliament during the Session which is not determined and therefore the certainty or uncertainty of the Retorn is not material for it is not examinable here but if the Session had béen determined I should be of Opinion that he ought to be discharged Rainsford Chief Justice This Court hath no Iurisdiction of the cause and therefore the form of the Retorn is not considerable we ought not to extend our Iurisdiction beyond its due limits and the Actions of our Predecessors will not warrant us in such Attempts The consequence would be very mischievous if this Court should deliver the Members of the Houses of Peers and Commons who are committed for thereby the business of the Parliament may be retarded for perhaps the Commitment was for evil behaviour or undecent Reflections on the Members to the disturbance of the affairs of Parliament The Commitment in this case is not for safe custody but he is in Execution on the Iudgment given by the Lords for the Contempt and therefore if he be bailed he will be delivered out of Execution because for a Contempt in facie Curiae there is no other Iudgment or Execution This Court hath no Iurisdiction of the matter and therefore he ought to be remanded And I deliver no Opinion if it would be otherwise in case of Prorogation Twisden Justice was absent but he desired Justice Jones to declare that his Opinion was that the party ought to be remanded And so he was remanded by the Court. Term. Trin. 26 Car. II. 1674. in B. R. Pybus versus Mitford ante 121. THis case having been several times argued at the Bar received Iudgment this Term. The case was Michael Mitford was seised of the Lands in question in Fee and had Issue by his second wife Ralph Mitford and 23. Jan ' 21 Jac. by Indenture made betwéen the said Michael of the one part and Sir Ralph Dalivell and others of the other part he covenanted to stand immediately seised after the date of the said Indenture amongst others of the Lands in question by these words viz. To the use of the Heirs Males of the said Michael Mitford begotten or to be begotten on the body of Jane his wife the
is the same imprisonment Serjeant Jones for the Plaintiff took exceptions to this plea as 1. The Court is ill pleaded to be held coram Vicecomite for in a County Court the suitors are Iudges Cr. Jac. 582. and though this Court holdeth plea upon a questus est nobis which is the Kings Writ yet that doth not alter the nature of the Court nor its Iurisdiction Jentleman's case 6 Rep. 11. 2. The Custom of holding this Court de quindecem diebus in quindecem dies is void being not only against Magna Cart. 35. but against the 2 3 Edw. 6. cap. 25. which enacts That no County Court c. shall be longer deferred then one month from Court to Court c. any Usage Custom Statute or Law to the contrary notwithstanding 3. He took these exceptions to the Custom 1. It is absurd that if upon a questus est nobis the party affirm quandam querelam that then c. for a questus est nobis is an Action upon the case and this quaedam querela may be in any other Action though never so remote the plaint ought to be in pursuance of the Writ and so to have been pleaded 2. As this Custom is laid it does not appear that the plaint ought to arise within the Iurisdiction of the Court. 3. It is against the Law that in any inferiour Court a Capias should be awarded before Summons 1 Rolls 563. Seaburn Savaker 2 Rolls 277. placit ' 2. Pasch 16 Jac. Bankes Pembleton The 4th exception to the Declaration was that it does not appear whether this Writ were purchased out of the Chancery of the City of Durham or of that of the County the words ex Cur. Cancellar Dunelm are applicable to either 5. Here is not an averment that the cause of Action did arise within the County Palatine it is said indeed that he was endebted and did assume within the County but it is the contract and cause of the debt that entities the Court there to the Action 6. He says that he did levare quandam querelam but does not say that it was super brevi de questus est nobis nor that it was in placito praedict ' nor makes any application at all of the plaint to the Writ and then the plaint not appearing to be warranted by the Writ and being for above 40 shillings the proceedings are coram non Judice 7. The Sheriffs Warrant is to Arrest si inventus fuerit in balliva tua and it does not appear that the Bayliff had any Bayliwick If the County were divided into several divisions and each Bayliff allotted to a several division this ought to have been shown and that the place where this Arrest was made was within this Bayliffs proper division 8. Of the Defendants own showing the Court was not held according to the Custom alledged viz. de quindecim diebus in 15 dies for the last Court is said to have been held the 12th of March and the next after that on the 26th Turner for the Defendant argued that the imprisonment was lawful To the first exception he said that the Court mention'd in the bar is not a County-Court nor so pleaded it is pleaded as it is Cur ' vocat Cur ' Comitat ' and there were never any Suitors known there to be Iudges It is not to be examined according to the rules of County Courts properly so called for we plead it to be according to the Custom of the County Palatine of Durham which is an exempt Iurisdiction As for the exception to its being held de 15 diebus in 15 dies the answer to the first exception answers this also The Iudges of Assize in Writs of false Iudgment have allowed this Custom and affirm'd Iudgments given in this Court of which we have many Presidents For the third exception concerning the validity of the Custom to the first exception against it he answered that a Bar is good enough if it be to a common intent and the common intent is that the quaedam querela must be pursuant to the questus est nobis and in this case it was so the questus est nobis and the precept upon which the Plaintiff was arrested are both in an Action of the case upon a promise And to the second that the cause of Action is shown to arise within the Iurisdiction for the promise which is the ground of this Action is said to have been made infra Comitat Palatin To the third exception that in inferiour Courts it is illegal to award a Capias before Summons but this Court is in a County Palatine and such Courts are like to the Courts at Westminster and have the same Authority Rowlandson landson Sympson 1 Rolls 801. placito 11. and the Customs of those Courts are as good Warrants for their proceedings as the Custom of the Kings Bench is for their issuing Latitats To the fourth he said it was a forreign intendment to suppose a Court of Chancery in the City of Durham a Court of Equity cannot be by grant and there is no prescription in the City of Durham to hold plea in Equity To the fifth he said the promise was laid to have beén made within the Iurisdiction To the sixth ut supra To the seventh that this Precept was according to the form of all their Precepts in like cases To the eigth that taking both days inclusively there are 15 days But admitting that there were some defect in the proceedings yet since that Court can issue such a Writ as this is it is sufficient to excuse the Officer 10 Rep. the case of the Marshalsey Cur ' This is not a County Court but a Court vocat ' Cur ' Com' and it is within a County Palatine and for both those reasons not in the same degree with other County Courts And though it were a County Court it might by prescription be held before the Sheriff as a Court Baron may by a special prescription be held coram Seneschallo and so it hath béen adjudged in the case of Armyn Appletoft Cr. Jac. 582. there is no such special prescription as there ought to be but a general prescription for a Court Baron and every Court Baron must be prescribed for The County Palatine of Durham is not of late standing like that of Lancaster but is immemorial and a Custom there is of great Authority As to the objection against quandam querelam why it may not be as allowable for a man there to bring a questus est nobis and declare in what plaint he will as it is here to arrest a man and declare against him in any Action But admitting the proceedings irregular yet since the Court can issue a Capias that excuses the Officer in this Action and Iudgment was given for the Defendant Nisi causa c. Term. Pasch 26 Car. II. in Communi Banco Brooking versus Jennings alios THe Plaintiff declared as Executor against the
grant There is likewise a clause of warranty of which the Grantee should lose the benefit in a great measure if he were in the Post for then he shall not vouch and there are Opinions that he cannot rebut as in Spirt Bence's case There is also a Covenant that after the sealing and delivery and due execution of c. the party shall quietly enjoy c. now what execution can be meant but by Livery of seisin Foxe's case 8 Rep. has been objected in which it is resolved that the Reversion in that case should pass by way of bargain and sale though the words of grant were demise grant set and to Farm let all words proper to a Common-Law-Conveyance I answer the consideration of money there expressed is so strong a consideration as to carry it that way but the consideration of natural Affection is not so strong and so the cases are not alike the consideration of money has been held so strong as to carry an Estate of Fee-simple in an use without words of Inheritance Winnington contra He insisted upon the intention of the party the consideration of blood and natural affection and the necessity of making this deed good by way of Covenant to stand seized because it could not take effect any other way The clause of warranty and covenant for quiet enjoyment he said were but forms of Conveyances and words of Clerks but the effectual words are those that contain the inducement of the party to make the Conveyance and the words that pass the Estate he cited Plowd queries placito 305. Rolls 2 part 787. placito 25. 1 Inst 49. Poph. 49. in Fosters case which had been cited against him he said the deed was as unformal to pass the Estate one way as another In Osburn Churchman's case he said this point was started but that the resolution was not upon this point it came in question neither upon a special Verdict nor a demurrer Tibs Purplewell's case 40 41 Eliz. Rolls 2 part 786 787. answers all Objections against our case and is in form and substance the same with it He cited one Saunders Savin's case adjudged in the late times in the Common-Pleas viz. That where a man seiz'd in Fee of a Rent-charge granted it to a Kinsman for life and the grantor dyed before attornment it was resolved that upon the sealing and delivery of the deed an use arose Wherefore he prayed that the Iudgment might be affirmed Turner Chief Baron of the Exchequer Turner and Littleton Barons and Atkyns Wyndham and Ellis Iustices of the Court of Common-Pleas were for affirming the Iudgment Vaughan Chief Iustice of the Common Pleas and Thurland puisne Baron contra The six Iudges argued 1. That in a Covenant to stand seized those words of covenanting to stand seized to the use of c. are not absolutely necessary and that it is sufficient if there are words that are tantamount 2. That no Conveyance admits of such variety of words as does this of a Covenant to stand seized 3. That Iudges have always endeavoured to support Deeds ut res magis valeat c. 4. That the grantor in this case by putting in plenty of words shews that he did not intend to tye himself up to any one sort of Conveyance 5. That if the words give and grant had been alone in the deed there would have been no question and that if so then utile per inutile non vitiatur 6. That every mans deed must be taken most strongly against himself 7. That the words give and grant enure sometimes as a grant sometimes as a Covenant sometimes as a Release and must be taken in that sense which will best support the intent of the party 8. That the very point of this case has received two full determinations upon debate and that it were a thing of ill consequence to admit of so great an uncertainty in the Law as now to alter it 9. That there is here a clear intent that the daughter should have this Estate a Deed a good consideration to raise an use and words that are tantamount to a Covenant to stand seized Wherefore the Iudgment was affirm'd Thurland said The intention of the party was not a sure rule to construe deeds by that if Lands were given in connubio soluto ab omni servitio the intent of the giver is to make a gift in Frank-marriage but the Common Law that delights in certainty will not understand his words so because he does not say in libero maritagio In our case the first intent of the Father was to settle the Land upon his Daughter his second intent was to do it by such or such a Conveyance what Conveyance he meant to do it by we must know by his words the words give and grant do generally and naturally work upon something in esse strained constructions are not favoured in the Law Nor ought Heirs to be disinherited by forced and strained constructions If this Deed shall work as a Covenant to stand seized it will be in vain to study forms of Conveyances it is but throwing in words enough and if the Lands pass not one way they will another He cited Crook 279. Blitheman Blitheman's case And 34 35 Dyer 55 he said Pitfield Pierce's case in March was later then that of Tibs Purplewell and of better Authority Vaughan accordant It is not clear that the words give and grant are sufficient to raise an use but supposing that they are by a forced Exposition when nothing appears to the contrary will it thence follow that they may be taken in a sense directly contrary to their proper and genuine sense in such a place as this where all the other parts of the deed are wholly inconsistent with and will not by any possibility admit of such a construction he mentioned several clauses in the deed which he said were proper only to a Conveyance at Common Law He appealed to the Law before the Statute of Vses and said that where an use would not rise by the Common Law there the Statute executes no possession and that by such a deed as this no use would have risen at the Common Law but the Iudgment was affirmed Gabriel Miles his Case HE and his Wife recovered in an Action of Debt against one Cogan 200 l. and 70 l. damages the Wife dies and the Husband prays to have Execution upon this Iudgment The Court upon the first motion enclin'd that it should not survive to the Husband but that Administration ought to be committed of it as a thing in Action but this Term they agreed that the Husband might take out Excution and that by the Iudgment it became his own debt due to him in his own right And accordingly he took out a Scire facias Beaumond Long 's case Cr. Car. 208. was cited Anonymus THe Plaintiff in an Ejectione firmae declared upon a Lease made the tenth day of October habend '
the Wife does but nominate what person shall take by the Will This is a plain case and free from uncertainty and ambiguity which else the word dispose will be liable to But Iudgment was given ut supra Howell versus King TRespass for driving Cattel over the Plaintiffs ground The case was A. has a way over B's ground to Black-Acre and drives his Beasts over A's ground to Black-acre and then to another place lying beyond Black-acre And whether this was lawful or no was the question upon a demurrer It was urged that when his Beasts were at Black-acre he might drive them whither he would Rolls 391. nu 40. 11 H. 4. 82. Brook tit chimin On the other side it was said that by this means the Defendant might purchase a hundred or a thousand Acres adjoyning to Black-acre to which he prescribes to have a way by which means the Plaintiff would lose the benefit of his Land and that a Prescription presupposed a grant and ought to be continued according to the intent of its original Creation The whole Court agreed to this And Iudgment was given for the Plaintiff Warren qui tam c. versus Sayre THe Court agreed in this case that an Information for not coming to Church may be brought upon the Stat. of 23 Eliz. only reciting the clause in it that has reference to Stat. 1. of the Queen and that this is the best and surest way of declaring Term. Hill 26 27 Car. II. in Com. Banco Williamson Hancock Hill 24 25 Car. 2. Rot. 679. TEnant for life the Remainder in Tail Tenant for life levies a Fine to J. S. and his heirs to the use of himself for years and after to the use of Hannah and Susan Prinne and their heirs if such a sum of money were unpaid by the Conusor and if the money were paid then to the use of the Conisor and his heirs And this Fine was with general warranty The Tenant for life died the money unpaid and the warranty descended upon the Remainder-man in Tail And the question was whether the Remainder-man were bound by this warranty or not Serjeant Maynard argued that because the Estate of the Land is transferred in the Post before the warranty attaches in the Remainder-man that therefore it should be no Bar. He agréed that a man that comes in by the limitation of an use shall be an Assignee within the Statute of 32 H. 8. cap. 34. by an equitable construction of the Statute because he comes in by the limitation of the party and not purely by Act in Law but this case of ours is upon a collateral garranty which is a positive Law and a thing so remote from solid reason and equity that it is not to be stretch'd beyond the maxime That the Cestuy que use in this case shall not vouch is confessed on all hands and there is the same reason why he should not rebutt He said the resolution mentioned in Lincoln Colledge case was not in the case nor could be the warranty there was a particular warranty contra tunc Abbatem Westmonasteriensem successores suos which Abby was dissolved long before that case came in question He said Justice Jones upon the arguing of Spirt Bence's case reported in Cr. Car. said that he had been present at the Iudgment in Lincoln Colledge case and that there was no such resolution as is there reported Serjeant Baldwin argued on the other side that at the Common Law many persons might rebutt that could not take advantage of a warranty by way of Voucher as the Lord by Escheat the Lord of a Villain a Stranger a Tenant in possession 35 Ass placito 9. 11 Ass placito 3. 45 Ed. 3. 18. placito 11. 42 Ed. 3. 19. b. a fortiori he said he that is in by the limitation of an use being in by the act of the party though the Law co-operate with it to perfect the assurance shall rebutt The Court was of Opinion that the Cestuy que use might rebutt that though Voucher lies in privity an abater or intruder might rebutt F. N. B. 135. 1 Inst 385. As to Serjeant Maynard's Objection that he is in the Post they said they had adjudged lately in Fowle Doble's case that a Cestuy que use might rebutt So it was held in Spirt Bence's case Cr. Car. and in Jones 199. Kendal Foxe's case That Report in Lincoln Colledge case whether there were any resolution in the case or no is founded upon so good reason that Conveyances since have gone according to it Atkyns said there was a difficult clause in the Statute of Uses viz. That all and singular person and persons c. which at any time on this side the first day of May c. 1536. c. shall have c. By this clause they that came in by the limitation of an use before that day were to have the like advantages by Voucher or Rebutter as if they had béen within the degrees If the Parliament thought it reasonable why was it limited to that time Certainly the makers of that Law intended to destroy Vses utterly and that there should not be for the future any Conveyances to Vses But they supposed that it would be some small time before all people would take notice of the Statute and make their Conveyances accordingly and that might be the reason of this clause But since contrary to their expectations Vses are continued he could easily be satisfied he said that Cestuy que use should rebutt Wyndham was of Opinion that Cestuy que use might vouch he said there was no Authority against it but only Opinions obiter They all agreed for the Defendant and Iudgment was given accordingly Rogers versus Davenant Parson of White-Chappel NOrth Chief Justice The Spiritual Court may compell Parishioners to repair their Parish-Church if it be out of Repair and may Excommunicate every one of them till it be repaired and those that are willing to contribute must be absolved till the greater part of them agrée to assess a Tax but the Court cannot assess them towards it it is like to a Bridge or a High-way a Distringas shall issue against the Inhabitants to make them Repair it but neither the Kings Court nor the Iustices of Peace can impose a Tax for it Wyndham Atkyns Ellis accorded The Church-Wardens cannot none but a Parliament can impose a Tax but the greater part of the Parish can make a By-Law and to this purpose they are a Corporation But if a Tax be illegally imposed as by a Commission from the Bishop to the Parson and some of the Parishioners to assess a Tax yet if it be assented to and confirmed by the major part of the Parishioners they in the Spiritual Court may proceed to Excommunicate those that refuse to pay it Compton Vx. versus Ireland Mich. 26 Car. 2. Rot. 691. SCire facias by the Plaintiffs as Executors to have Execution of a Iudgment
obtained by their Testator unde Executio adhuc restat faciend The Defendant confesseth the Iudgment but says that a Cap. ad satisf issued against him upon which he was taken and was in the custody of the Warden of the Fleet and that he paid the sum mentioned in the condemnation to the Warden of the Fleet who suffered him to go at large The Plaintiff demurred This the Court held to be no plea but that it was a voluntary escape in the Warden and Iudgment was given for the Plaintiff Haley's Case PEr Cur ' If a Habeas Corpus be directed to an inferiour Court returnable two days after the end of the Term yet the inferiour Court cannot proceed contrary to the Writ of Habeas Corpus North cited the case of Staples Steward of Windsor who hardly escaped a Commitment because he had proceeded after a Habeas Corpus delivered to him though the value were under five pounds and would not make a Return of it The King against Sir Francis Clerke Ent. Hill 24. 25 Car. 2. Rot. 594. THe case upon a special Verdict was thus viz. The King being seized in Feé of the Mannor of Leyborn in Kent to which the Advowson of the Church of Leyborn is appendant which Mannor came to him by the dissolution of Monasteries having been part of the possessions of the Abbot of Gray-Church granted the Mannor to the Archbishop of Canterbury and his Successors saving the Advowson Afterward the King presents to the Church being void J. S. The Archbishop of Canterbury grants the Mannor and the Advowson to the King his Heirs and Successors which grant is confirmed by the Dean and Chapter the King grants the Mannor with the appurtenances and this Advowson naming it in particular which lately did belong to the Archbishop of Canterbury and to the Abbot of Gray-Church together with all priviledges profits commodities c. in as ample manner as they came to the Kings hand by the grant of the Archbishop or by colour or pretence of any grant from the Archbishop or confirmation of the Dean and Chapter or by surrender of the late Abbot of Gray-Church or as amply as they are now or at any time were in our hands to Sir Edw. North and his heirs c. The question was whether or no by this grant the Advowson passed Serjeant Newdigate The King is not apprised of his title and therefore the grant void 1 Rep. 52. a. for he thought this Advowson came to him by grant from the Archbishop He cited Moor 318. Inglefields case If the King be deceived in Déed or in Law his grant is void Brook Patents 104. 1 Rep. 51 52. 1 Rep. 46 49. 10 Rep. Arthur Legat's case Hob. 228 229 230 c. ibid. 223 243. Dyer 124. 1 Rep. 50. Hob. 170. Moor 888. 1 Rep. 49. 2 Rep. 33. 11 Rep. 90. 9 H. 6. 28. b. 2 Rolls 186. Hob. 323. Coke's Entries 384. Serjeant Hardes contra He laid down four grounds or rules whereby to construe the Kings Letters Patents 1. Where a particular certainty precedes it shall not be destroyed by an uncertainty or a mistake coming after 2 Cr. 34. Yel 42. 2. Cr. 48. 3 Leon. 162. 1 And. 148. 29 Ed. 3. 71. b. 10 H. 4. 2. Godb. 423. Markham's case cited in Arthur Legate's case 10 Rep. 2. There is a difference when the King mistakes his title to the prejudice of his tenure or profit and when he is mistaken only in some description of his grant which is but supplimental and not material nor issuable 21 Ed. 4. 49. 33 H. 7. 6. ◠H. 8. 1. 38 H. 6. 37. 9 Ed. 4. 11 12. Lane's Reports 111. 2 Co. 54. 1 Bulstr 4. 3. Distinct words of relation in the Kings grant are good to pass away any thing Dyer 350 351. 9 Rep. 24. c. Whistler's case 10 Co. 4. When the Kings grants are upon a valuable consideration they shall be construed favourably for the Patentée for the honour of the King 18 Ed. 1. de Quo warranto 2 Inst 446 447. 6 Rep. Sir John Molyn's case 10 Co. 65. a. Then he applyed all these rules to the case in question and prayed Iudgment Afterward Serjeant Maynard argued against the passing of the Advowson He said those two descriptions of the Advowson viz. belonging lately to the Archbishop of Canterbury and formerly to the Abby of Gray-Church are coupled together with a Conjunctive et so that both must be true So here is a falsity in the first and material part of the grant viz. the description of the thing granted though the Advowson of Leyborn be named yet it is so named as to be capable of a generality for there may be more Advowsons then one belonging to that Mannor This falsity goes to the title of the Church No subsequent words will aid this misrecital for the description of the thing granted ends there The following words viz. adeo plene c. and whatever comes after do but set out how fully and amply he should enjoy the thing granted and being no part of its description cannot enlarge it or make it more certain 8 H. 4. 2. Serj. Turner contra cited these books viz. Bacon's Elements 96. 1 Leon. 120. Veritas nominis tollit errorem demonstrationis 29 Ed. 3. 7 8. 1 And. 148. Plowd Comm. 192. 2 Co. Doddington's case 10 Co. 113. 19 Ed. 3. Fitzherb grants 58. 10 H. 4. 2. Sir John L'Estranges case Markham's case 10 Co. in Arthur Legate's case Cr. Car. 548. Ann Needler's case in Hob. 9 H. 6. 12. Brook Annuity 3. Baker Bacon's case Cr. Jac. 48. Bozoun's case 4. Rep. 6 Co. 7. Cr. Jac. 34. 1 Leon. 119 120. 2 Rolls Prerog le Roy 200. 8 Co. 167. 21 Ed. 4. 46. 8 Co. 56. Rolls tit Prerog 201. 10 Co. 64. 9 Co. the Earl of Salop's case 1 Inst 121. b. Moor 421. 2 Rolls 125. This Term the Court gave their Iudgment that the Advowson did well pass In this grant there are as large words and the same words that are in Whistlers case 10 Rep. and the King is not here deceived neither in the value nor in his title And Iudgment was given accordingly Furnis VVaterhouse IT was moved for a Supersedeas to stay proceedings upon a Grand Cape in Dower quia erronice emanavit because the return of the Summons was not according to the Stat. of 31 Eliz. cap. 3. the Stat. is after Summons 2. The Land lieth in a Ville called Heriock and the Return is of a Proclamation of Summons at the Parish-Church of Halyfax and it does not appear that the Land lies within that Parish 3. The Return is proclamari feci secundum formam Statuti and it is not returned to have been made upon the Land Hob. 33. Allen Walter These were all held erronious and the Grand Cape was superseded Term. Pasch 26 Car. II. in Communi Banco Naylor against Sharply and others Coroners of the County Palatine of Lancaster A
to chuse every year two Surveyors to take care that no unwholsome Victuals were sold within the Precinct of that Mannor and that they were sworn to execute their Office truly for the space of a year and that they had power to destroy whatever corrupt Victuals they found exposed to sale and that the Defendants being chosen Surveyors and sworn to execute the Office truly examining the Plaintiffs meat who was also a Butcher found a side of Beef corrupt and unwholsome and that therefore they took it away and burnt it prout eis bene licuit c. The Plaintiff demurs North. This is a case of great consequence and seems doubtful It were hard to disallow the Custom because the design of it seems to be for the preservation of mens health And to allow it were to give men too great a power of seizing and destroying other men's Goods There is an Ale-taster appointed at Leets but all his Office is to make Presentment at the Leet if he finds it not according to the Assize Wyndham Atkyns Ellis It is a good reasonable Custom It is to prevent evil and Laws for prevention are better then Laws for punishment As for the great power that it seems to allow to these Surveyors it is at their own peril if they destroy any Victuals that are not really corrupt for in an Action if they justifie by virtue of the Custom the Plaintiff may take issue that the Victuals were not corrupt But here the Plaintiff has confessed it by the demurrer Atkyns said if the Surveyors were not responsible the Homage that put them in must answer for them according to the rule of respondeat superior Iudgment was given for the Plaintiff unless c. Thredneedle Lynham's Case UPon a special Verdict the case was thus The Iury found that the Lands in the Declaration are and time out of mind had been parcel of the demesnes of the Mannor of Burniel in the County of Cornwall which Mannor consists of demesnes viz. Copy-hold tenements demisable for one two or three lives and services of divers Free-hold Tenants that within the Mannor of Burniel there is another Mannor called Trecaer consisting likewise of Copy-holds and Free-holds and that the Bishop of Exeter held both these Mannors in the right of his Bishoprick Then they find the Statute of 1. Eliz. in haec verba They find that the old accustomed yearly Rent which used to be reserved upon a demise of these two Mannors was 67 pounds 1 s. and 5 d. then they find that Joseph Hall Bishop of Exeter demised these two Mannors to one Prowse for 99 years determinable upon three lives reserving the old and accustomed Rent of 67 l. 1 s. and 5 d. that Prowse living the Cestuy que vies assigned over to James Prowse the demesnes of the Mannor of Trecaer for that afterwards he assigned over all his Interest in both Mannors to Mr. Nosworthy excepting the demesnes of Treacer then in the possession of James Prowse That Mr. Nosworthy when two of the lives were expired for a sum of money by him paid to the Bishop of Exeter surrendred into his hands both the said Mannors excepting what was in the possession of James Prowse and that the Bishop Joseph Hall's Successor redemised unto him the said Mannors excepting the demesnes of Trecaer and excepting one Messuage in the occupation of Robert and excepting one Farm parcel of the Mannor of Burniel for three lives reserving 67 l. 1 s. 5 d. with a nomine poenae and whether this second Lease was a good Lease and the 67 l. 1 s. 5 d. the old and accustomed Rent within the intention of the Statute of 1 Eliz. was the question After several arguments at the Bar it was argued at the Bench in Michaelmas Term Ann. 26 Car. 2. And the Court was divided viz. Vaughan Ellis against the Lease Atkyns Wyndham for it This Term North Chief Justice delivered his Opinion in which he agreed with Atkyns Wyndham so that Iudgment was given in maintenance of the Lease and the Iudgment was affirmed in the Kings Bench upon a Writ of Error The Chapter of the Collegiate Church of Southwell versus the Bishop of Lincoln and J. S. Incumbent c. IN a Qua. imp the Incumbents Title was under a grant made by the Plaintiffs who were seized of the Advowson ut de uno grosso in the right of their Church of the next avoidance one Esco being then Incumbent of their Presentation to Edward King from whom by mean assignments it came to Elizabeth Bley who after the death of Esco presented the Defendant Vpon a demurrer these points came in question 1. Whether the grantors were within the Statute of the 13 Eliz. or not 2. Whether a grant of a next avoidance be restrained by the Statute 3. If the grant be void whether it be void ab initio or when it becomes so And 4. Whether the Statute of 13 Eliz. shall be taken to be a general Law for it is not pleaded Serjeant Jones For the first point argued that the Grantors are within the Statute the words are Deans Chapters which he said might well be taken severally for of this Chapter there is no Dean If they were to be taken joyntly then a Dean were not within this Law in respect of those possessions which he holds in the right of his Deanry but the subsequent general words do certainly include them and would extend even to Bishops but that they are superiour to all that are expressed by name For the second he said the Statute restrains all gifts grants c. other then such upon which the old Rent c. He cited Cr. Eliz. 440. 5. Co. the case of Ecclesiastical persons 10 Co. the Earl of Salisbury's case For the third point he held it void ab initio it must be so or good for ever For here is no Dean after whose death it may become void as in Hunt Singleton's case the Chapter in our case never dies For the fourth point he argued that it is a general Law because it concerns all the Clergy Holland's case 4 Rep. Dumpor's case ibid. 120. b. Willmote contra North Chief Justice Atkyns Wyndham Ellis Iustices all agreed upon the three first points as Serjeant Jones had argued Atkyns doubted whether the 13 of Eliz. were a general Law or not but was over-ruled They all agreed that the Action should have been brought against the Patron as well as against the Ordinary and the Incumbent but that being only a plea in abatement that the Defendant has waived the benefit thereof by pleading in Bar. And Iudgment was given for the Plaintiff Nisi causa c. Hunt Singleton's case being mentioned Atkyns said he thought it a hard case considering that the Dean and the Chapter were all persons capable that a grant should hold in force as long as the Dean lived and determine then He thought they being a Corporation aggregate of
persons who were all capable that there was no difference betwixt that case and this Ellis said that in Floyd Gregories case reported in Jones it was made a point and that Jones in his argument denied the case of Hunt Singleton he said that himself and Sir Rowland Wainscott reported it and that nothing was said of that point but that my Lord Coke followed the Report of Serjeant Bridgeman who was three or four years their puisne and that he mistook the case Milword Ingram THe Plaintiff declares in an Action of the case upon a quantum meruit for 40 shillings and upon an Indebitat Assumpsit for 40 shillings likewise The Defendant acknowledged the promises but further says that the Plaintiff and he accounted together for divers sums of money and that upon the foot of the Account the Defendant was found to be endebted to the Plaintiff in 3 shillings and that the Plaintiff in consideration that the Defendant promised to pay him those 3 shillings discharged him of all demands The Plaintiff demurred The Court gave Iudgment against the demurrer 1. They held that if two men being mutually endebted to each other do account together and the one is found in arrear so much and there be an express agréement to pay the sum found to be in arrear and each to stand discharged of all other demands that this is a good discharge in Law and the parties cannot resort to the original Contracts But North Ch. Just said if there were but one Debt betwixt them entring into an account for that would not determine the Contract 2. They held also that any promise might well be discharged by paroll but not after it is broken for then it is a Debt Jones Wait. SHrewsbury Cotton are Towns adjoining Sir Samuel Jones is Tenant in Tail of Lands in both Towns Shrewsbury Cotton are both within the Liberties of the Town of Shrewsbury Sir Samuel Jones suffers a Common Recovery of all his Lands in both Vills but the Praecipe was of two Messuages and Closes thereunto belonging these were in Shrewsbury and of c. mentioning those in Cotton lying and being in the Ville of Shrewsbury in the Liberties thereof And whether by this Recovery the Lands lying in Cotton which is a distinct Ville of it self not named in the Recovery pass or not was the question Serjeant Jones argued against the Recovery He cited Cr. Jac. 575. in Monk Butler's case Cr. Car. 269 270. 276. he said the Writ of Covenant upon which a Fine is levied is a personal Action but a Common Recovery is a real Action and the Land it self demanded in the Praecipe There is no President he said of such a Recovery He cited a case Hill 22 23 Car. 2. Rot. 223. Hutton 106. Marche's Reports one Johnson Baker's case which he said was the case in point and resolved for him But the Court were all of Opinion that the Lands in Cotton passed And gave Iudgment accordingly Ellis said if the Recovery were erroneous at least they ought to allo 〈…〉 t till it were reversed Lepping Kedgewin AN Action in the nature of a Conspiracy was brought by the Plaintiff against the Defendant in which the Declaration was insufficient The Defendant pleaded an ill plea but Iudgment was given against the Plaintiff upon the insufficiency of the Declaration Which ought to have been entred Quod Defendens eat inde sine die but by mistake or out of design it was entred Quia placitum praedictum in forma praedicta superius placitat ' materiaque in eodem contenta bonum sufficiens in lege existit c. ideo consideratum est per Cur ' quod Quer ' nil capiat per billam The Plaintiff brings a new Action and declares aright The Defendant pleads the Iudgment in the former Action and recites the Record verbatim as it was To which the Plaintiff demurred And Iudgment was given for the Plaintiff nisi causa c. North Chief Justice There is no question but that if a man mistakes his Declaration and the Defendant demurs the Plaintiff may set it right in a second Action But here it is objected that the Iudgment is given upon the Defendants plea. Suppose a Declaration be faulty and the Defendant take no advantage of it but pleads a plea in bar and the Plaintiff takes issue and the right of the matter is found for the Defendant I hold that in this case the Plaintiff shall never bring his Action about again for he is estopped by the Verdict Or suppose such a Plaintiff demur to the plea in bar there by his demurrer he confesseth the fact if well pleaded and this estops him as much as a Verdict would But if the plea were not good then there is no Estoppel And we must take notice of the Defendants plea for upon the matter as that falls out to be good or otherwise the second Action will be maintainable or not The other Iudges agreed with him in omnibus Atkinson Rawson THe Plaintiff declares against the Defendant as Executor The Defendant pleads that the Testator made his Will and that he the Defendant suscepto super se onere Testamenti praedict c. did pay divers sums of money due upon specialties and that there was a Debt owing by the Testator to the Defendants Wife and that he retained so much of the Testators Goods as to satisfie that Debt and that he had no other Assets The Plaintiff demurred because for ought appears the Defendant is an Executor de son tort and then he cannot retain for his own debt The Plaintiffs naming him in his Declaration Executor of the Testament of c. will not make for him for that he does of necessity he cannot declare against him any other way and of that Opinion was all the Court viz. that he ought to entitle himself to the Executorship that it may appear to the Court that he is such a person as may retain And accordingly Iudgment was given for the Plaintiff Term. Hill 27 28 Car. II. in Com. Banco Smith's Case A Man dies leaving Issue by two several Venters viz. by the first three Sons and by the second two Daughters One of the Sons dies intestate the elder of the two surviving Brothers takes out Administration and Sir Lionel Jenkins Iudge of the Prerogative Court would compell the Administrator to make distribution to the Sisters of the half-blood He prayed a Prohibition but it was denied upon advice by all the Iudges for that the Sisters of the half-blood being a kin to the Intestate and not in remotiori gradu then the Brother of the whole blood must be accounted in equal degree Anonymus AN Action was brought against four men viz. two Attornies and two Solicitors for being Attornies and Solicitors in a cause against the Plaintiff in an inferiour Court falso malitiose knowing that there was no cause of Action against him and
also for that they sued the Plaintiff in another Court knowing that he was an Attorney of the Common-Pleas and priviledged there Per tot ' Cur ' there is no cause of Action For put the case as strong as you will suppose a man be retained as an Attorney to sue for a debt which he knows to be released and that himself were a witness to the Release yet the Court held that the Action would not lye for that what he does is only as Servant to another and in the way of his Calling and Profession And for suing an Attorney in an inferiour Court that they said was no cause of Action for who knows whether he will insist upon his priviledge or not and if he does he may plead it and have it allowed Fits al. versus Freestone IN an Action grounded upon a promise in Law payment before the Action brought is allowed to be given in Evidence upon non Assumpsit But where the Action is grounded upon a special promise there payment or any other legal discharge must be pleaded Bringloe versus Morrice IN Trespass for immoderately riding the Plaintiffs Mare the Defendant pleaded that the Plaintiff lent to him the said Mare licentiam dedit eidem aequitare upon the said Mare and that by virtue of this Licence the Defendant and his Servant alternatim had rid upon the Mare The Plaintiff demurs Serj. Skipwith pro Quer ' The Licence is personal and incommunicable as 12 H. 7. 25. 13 H. 7. 13. the Dutchess of Norfolk's case 18 Ed. 4. 14. Serj. Nudigate contra This Licence is given by the party and not created by Law wherefore no Trespass lyeth 8 Rep. 146 147. per Cur ' the Licence is annexed to the person and cannot be communicated to another for this riding is matter of pleasure North took a difference where a certain time is limited for the Loan of the Horse and where not In the first case the party to whom the Horse is lent hath an interest in the Horse during that time and in that case his Servant may ride but in the other case not A difference was taken betwixt hiring a Horse to go to York and borrowing a Horse in the first place the party may set his Servant up in the second not Term. Pasch 28 Car. II. in Communi Banco Anonymus A Man upon marriage Covenants with his Wives relations to let her make a Will of such and such Goods she made a Will accordingly by her husbands consent and dyed After her death her Will being brought to the Prerogative Court to be proved a Prohibition was prayed by the Husband upon this suggestion that the Testatrix was foemina viro cooperta and so disabled by the Law to make a Will Cur ' Let a Prohibition go Nisi causa c. North. When a question ariseth concerning the Iurisdiction of the Spiritual Court as whether they ought to have the Probate of such a Will whether such a disposition of a personal Estate be a Will or not whether such a Will ought to be proved before a peculiar or before the Ordinary whether by the Archbishop of one Province or another or both and what shall be bona notabilia in these and the like cases the Common Law retains the Iurisdiction of determining there is no question but that here is a good surmise for a Prohibition to wit that the woman was a person disabled by the Law to make a Will the Husband may by Covenant depart with his right and suffer his Wife to make a Will but whether he hath done so here or not shall be determined by the Law we will not leave it to their decision it is too great an invasion upon the right of the Husband In this case the Spiritual Court has no Iurisdiction at all they have the Probate of Wills but a Feme-covert cannot make a Will If she disposeth of any thing by her Husbands consent the property of what she so disposeth passeth from him to her Legatee and it is the gift of the husband If the Goods were given into anothers hands in trust for the wife still her Will is but a Declaration of the trust and not a Will properly so called But of things in Action and things that a Feme-Covert hath as Executrix she may make a Will by her Husbands consent and such a Will being properly a Will in Law ought to be proved in the Spiritual Court. In the case in question a Prohibition was granted against the Hambrough Company THe Plaintiff brought an Action of Debt in London against the Hambrough-Company who not appearing upon Summons and a Nihil being returned against them an Attachment was granted to attach Debts owing to the Company in the hands of 14 several persons by Certiorari the cause was removed into this Court and whether a Procedendo should be granted or not was the question Serjeant Goodfellow Baldwin and Barrell argued that a debt owing to a Corporation is not attachable Serjeant Maynard Scroggs contra Cur ' We are not Iudges of the Customs of London nor do we take upon us to determine whether a debt owing to a Corporation be within the Custom of forrein Attachment or not This we judge and agree in that it is not unreasonable that a Corporation's debts should be attached If we had judged the Custom unreasonable we could and would have retained the cause For we can over-rule a Custom though it be one of the Customs of London that are confirmed by Act of Parliament if it be against natural reason But because in this Custom we find no such thing we will return the cause Let them proceed according to the Custom at their peril If there be no such Custom they that are aggrieved may take their remedy at Law We do not dread the consequences of it It does but tend to the advancement of Iustice and accordingly a Procedendo was granted per North Chief Justice Wyndham Ellis Atkyns aberat Anonymus PEr Cur ' if a man is indicted upon the Statute of Recusancy Conformity is a good plea but not if an Action of Debt be brought Parten Baseden's Case PArten brought an Action of Debt in this Court against the Testator of Baseden the now Defendant aâ—d had Iudgment After whose death there was a devastavit returned against the Defendant Baseden his Executor he appeared to it and pleaded and a special Verdict was found to this effect viz. that the Defendant Baseden was made Executor by the Will and dwelt in the same house in which the Testator lived and died and that before Probate of the Will he possest himself of the Goods of the Testator prized them inventoried them and sold part of them and paid a Debt and converted the value of the residue to his own use that afterwards before the Ordinary he refused and that upon his refusal administration was committed to the Widow of the deceased And the question was whether or no the
Defendant should be charged to the value of the whole personal Estate or only for as much as he converted Serjeant Barrell argued That he ought to be charged for the whole because 1. He is made Executor by the Will and he is thereby compleat Executor before Probate to all intents but bringing of Actions 2. He has possession of the Goods and is chargeable in respect of that 3. He caused some to be sold and paid a Debt which is a sufficient administration There is found to discharge him 1. His refusal before the Ordinary But that being after he had so far intermeddled avails nothing Hensloe's case 9 Co. 37. An Executor de son tort he confessed should not be charged for more then he converted and shall discharge himself by delivering over the rest to the rightful Executor But the case is different of a rightful Executor that has taken upon him the burden of the Will The second thing found to discharge him is the granting of Administration to another but that is void because here is a rightful Executor that has administred in which case the Ordinary has no power to grant Administration Hob. 46. Keble Osbaston's case The third thing found to discharge him is the delivery of the Goods over to the Administrator but that will not avail him for himself became responsible by his having possession and he cannot discharge himself by delivering the Goods over to a stranger that has nothing to do with them If it be objected that by this means two persons will be chargeable in respect of the same Goods I answer that payment by either discharges both Cr. Car. Whitmore Porter's case The Court was of Opinion that the committing of Administration in this case is a mere void act A great inconvenience would ensue if men were allowed to Administer as far as they would themselves and then to set up a beggarly Administrator they would pay themselves their own Debts and deliver the residue of the Estate to one that 's worth nothing and cheat the rest of the Creditors If an Administrator bring an Action it is a good plea to say that the Executor made by the Will has administred Accordingly Iudgment was given for the Plaintiff Major Stubbing versus Birde Harrison REsolved that a plea may be a good plea in abatement though it contain matter that goes in bar they relyed upon the case in 10 H. 7. fol. 11. which they said was a case in point and Salkell Skelton's case 2 Rolls Reports and Iudgment was given accordingly Term. Trin. 28 Car. II. in Communi Banco PEr North Chief Iustice if there are Accounts betwéen two Merchants and one of them becomes Bankrupt the course is not to make the other who perhaps upon stating the Accounts is found endebted to the Bankrupt to pay the whole that originally was entrusted to him and to put him for the recovery of what the Bankrupt owes him into the same condition with the rest of the Creditors but to make him pay that only which appears due to Bankrupt on the foot of the Account otherwise it will be for Accounts betwixt them after the time of the others becoming Bankrupt if any such were Wing Jackson TRespass Quare vi armis the Defendant insultum fecit upon the Plaintiff was brought in the County Court and Iudgment there given for the Plaintiff But it was reversed here upon a Writ of false Iudgment because the County Court not being a Court of Record cannot fine the Defendant as he ought to be if the cause go against him because of the vi armis in the Declaration but an Action of Trespass without those words will lie in the County Court well enough Anonymus A Vicar libell'd in the Spiritual Court for Tythes of of young Cattle and surmised that the Defendant was seised of Lands in Middlesex of which Parish he was Vicar and that the Defendant had Common in a great Waste called Sedgemore-Common as belonging to his Land in Middlesex and put his Cattle into the said Common The Defendant prayed a Prohibition for that the Land where the Cattle went was not within the Parish of Middlesex The same Plaintiff libelled against the same Defendant for Tythes of Willow-Faggots who suggests to have a Prohibition the payment of 2 d. a year to the Rector for all Tythes of Willow The same Plaintiff libelled also for Tythes of Sheep The Defendant to have a Prohibition suggests that he took them in to feed after the Corn was reaped pro melioratione agriculturae infra terras arabiles non aliter As for the first of these no Prohibition was granted because of that clause in 2 Edw. 6. whereby it is enacted that Tythes of Cattle feeding in a Waste or Common where the Parish is not certainly known shall be paid to the Parson c. of the Parish where the owner of the Cattle lives For the second they held that a modus to the Rector is a good discharge against the Vicar For the third they held that the Parson ought not to have Tythe of the Corn and Sheep too which make the ground more profitable and to yield more Per quod c. Ingram versus Tothill Ren. REplevin Trevill leased to Ingram for 99 years if Joan Ingram his wife Anthony John Ingram his Sons should so long live rendring an Heriot or 40 shillings to the Lessor and his Assigns at the election of the Lessor his heirs and Assigns after their several deaths successive as they are named in the Indenture Trevill deviseth the Reversion John dyes and then Joan dies and the question was whether or no a Heriot were due to the Devisee upon the death of Joan. The Court agreed that the Avowry was faulty because it does not appear thereby whether Anthony Ingram was alive or not at the time of the distress taken for if he were dead the Lease would be determined North. Though Anthony were alive the Devisee of Trevill could not distrain for the Heriot for that the reservation is to him and his Assigns and although the Election to have the Heriot or 40 shillings given to the Lessor his heirs or Assigns yet that will not help the fault in the reservation Ellis There is another fault in the pleading for it is pleaded that Trevill made his Will in writing but it is not said that he dyed so seized for if the Estate of the Devisor were turned to a right at the time of his death the Will could not operate upon it Also it is said that the Avowant made his Election and that the Plaintiff habuit notitiam of his Election but it is not said by whom notice was given for these causes Iudgment was given for the Plaintiff It was urged likewise against the Avowant that no Heriot could be due in this case because Joan did not die first but the course of succession is interrupted and that a Heriot not being due of
have the security given by the Defendant for his appearance it is all one to him whether it be good or no. Strode contra Why must the Sheriff always aver that he has taken sufficient Sureties if their sufficiency be not material Why is an Action allowed to lie if the Sheriff take no Sureties at all since according to my Brothers Opinion the party has no interest in them If the Law be as they argue the Statute has left the Plaintiff in a worse condition then he was at the Common Law for it has deprived him of the remedy that he had before and the Amercements belong not to him but to the King Cur ' The sufficiency of the bail is not material it is only for the Sheriffs own security If he take no bail at all an Action lies against him for then he does not act by colour of this Law Atkyns The Statute is not advantagious to the Plaintiff at all unless the Sheriff let go the prisoner without taking any bail and then he must render treble damages And by the Opinion of the whole Court Iudgment was given for the Defendant Moor versus Field A Custom was alledged that all persons in a Parish that had Shéep upon their ground on Candlemas-day should be discharged of Tythes of all Sheep that should be upon their ground after in that year upon payment of full Tythes for all the Sheep that were there upon that day and this was adjudged an unreasonable Custom Serjeant Turner argued for it and cited Rolls Abr ' 2 part 647 648. Term. Hill 28 29 Car. II. Communi Banco Strode versus l'Evesque de Bath Wells and Sir George Horner and Masters QUare Impedit the Plaintiff entitles himself by vertue of a Grant of the next Avoidance made by Sir George Horner and counts that Sir George was seized in fee of the Mannor of Dowling to which the advowson was appendant and presented J. S. who was admitted instituted c. and that then he granted the next Avoidance to the Plaintiff and that J. S. died and it belongs to him to present Serjeant Barton The Plaintiff has failed in his Count he says That Sir George was seized and presented but he does not say That he presented tempore pacis F. N. B. 33. Hob. 102. 6 Co. 30. 1 Inst 249. F. N. B. 31. 5 Co. 72. Vaug. 53. Strode When the Plaintiff makes his Title by a Presentation he ought to say That it was tempore pacis but Sir Georges Title is by reason of his being seized of the Mannor of Dowling to which the Advowson is appendant So that the difference as to that will be betwixt an Advowson in gross and an Advowson appendant Cur. When a man shews a precedent Right and then alledges a Presentation in pursuance of that Right as in this case the Plaintiff does in Sir George Horner there it needs not be alledged to have been tempore pacis but where no Title is alledged so that the Presentation only makes the Title there it must be pleaded tempore pacis Davies Cutt. DAvies as Administrator to Eliz. B. a feme Covert brings an Action of Debt upon a Bond against Cutt. The Defendant pleads That Administration of the Wives goods ought de jure to be committed to the Husband who was then alive upon this there was a Demurrer and it was resolved for the Plaintiff for he is rightful Administrator till his Letters of Administration are repealed James Johnson TRespass For taking and driving away some Beasts of the Plaintiff the Defendant justifies for that he and all they whose Estate he has in such a Mannor the Mannor of Blythe have had a Toll for all Beasts driven over the said Mannor viz. ½ d. a Beast if under twenty and if above then 4 d. a score Issue being joyned upon this justification a special Verdict was found viz. That the Mannor aforesaid was parcel of the Possessions of the Priory of Blythe that the Prior had by Prescription such a Toll as appurtenant to the said Mannor that by the dissolution it came to the Crown and so to Sir Gervase Clifton and at last to one Bingley in whose Right as Servant to him the Defendant justifies but then they conclude that if the Defendant may entitle himself to it by a que estate they find for the Defendant if not then for the Plaintiff Serjeant Baldw. For the Plaintiff it does not appear whether the Toll which the Defendant claims be a Toll-thorough or a Toll-traverse or what sort of Toll it is A Toll-thorough is against common Right because it is to be taken in the Kings High-way And no Prescription can be for it unless he that claims it shew that the Subject has some advantage by it And when a man claims a Toll-traverse he must lay it to be for a way over his own Freehold Keil 148. Statham Toll 2. Pl. 236. Moor 574. Cr. Eliz. 710. Keil 152. A Toll supposeth a Grant from the Crown and therefore when the Mannor of Blythe came to the Crown the Toll was disjoyned from the Mannor and became in gross Nor can a Toll be appendant to a Mannor nor claimed by a que estate Serjeant Maynard The Iury have found exactly whatever the Defendant has disclosed in his Plea and have made a special conclusion upon a Point of pleading Toll may be appurtenant to a Mannor as well as any other profit a prendre Nor does it become in gross by the Mannor coming to the Crown The difference is as to that betwixt things that had a being in the Crown before they were granted out to Subjects and things which had not 9. Rep. The Case of the Abbot of Strata Marcella There is no such legal difference between a Toll-thorough and a Toll-traverse as has been offered the words are used promiscuously in our Books A Toll-thorough may be by Prescription without any reasonable cause alledged of its commencement for having been paid time out of mind the true cause of its beginning in the intendment of the Law cannot be known And for the que estate indeed a thing that lies in grant cannot be claimed by a que estate directly by it self but it may be claimed as appurtenant to a Mannor by a que estate in the Mannor c. Cur. accord and gave Iudgment for the Defendant Atkyns When Toll is claimed generally it shall be intended Toll-thorough and so is the case in Cr. Eliz. 710. Smith Shepheard Lord Townsend versus Hughes AN Action upon the Stat. de Scandalis Magnatum for these words viz. My Lord Townsend is an unworthy Person and does things against Law and Reason Vpon issue Not Guilty there was a Verdict for the Plaintiff and four thousand pounds damages given The Defendant moved for a new Trial because of the excessiveness of the damages and a President was cited a of new Trial granted upon that ground and no other And Atkins was for granting a new Trial. North
Windham and Scroggs contr for that the Iury are the sole Iudges of the damages At another day it was moved in arrest of Iudgment That the words are not actionable And of that Opinion was Atkyns But North Windham Scroggs contr And so the Plaintiff had Iudgment Atkyns The occasion of the making of the Stat. of 5 Rich. 2. appears in Sir Robert Cotton's Abr. of the Records of the Tower fol. 173. num 9. 10. he says there That upon the opening of that Parliament the Bishop of St. Davids in a Speech to both Houses declared the Causes of its being summoned and that amongst the rest one of them was to have some restraint laid upon Slanderers and Sowers of Discord which sort of men were then taken notice of to be very frequent Ex malis moribus bonae Leges The Preamble of the Act mentions false News and horrible Lyes c. of things which by the said Prelates c. were never said done nor thought So that it seems designed against telling stories by way of News concerning them The Stat. does not make or declare any new Offence Nor does it inflict any new Punishment All that seems to be new is this 1. The Offence receives an aggravation because it is now an Offence against a positive Law and consequently deserves a greater Punishment as it is held in our Books That if the King prohibit by his Proclamation a thing prohibited by Law that the Offence receives an aggravation by being against the King's Proclamation 2. Though there be no express Action given to the party grieved yet by operation of Law the Action accrews For when ever a Statute prohibits any thing he that finds himself grieved may have an Action upon the Statute 10 Rep. 75. 12 Rep. 100. there this very Case upon this Statute was agreed on by the Iudges So that that is the second new thing viz. a further remedy An Action upon the Stat. 3. Since the Stat. the party may have an Action in the tam quam Which he could not have before Now every lye or falsity is not within the Stat. It must be horrible as well as false We find upon another occasion such a like distinction It was held in the 12 Rep. 83. That the High-Commission Court could not punish Adultery because they had Iurisdiction to punish enormous Offendors only So that great and horrible are words of distinction Again it extends not to small matters because of the ill consequences mentioned Debates and Discord betwixt the said Lords c. great peril to the Realm and quick subversion and destruction of the same Every word imports an aggravation The Stat. does not extend to words that do not agree with this Description and that cannot by any reasonable probability have such dire effects The Cases upon this Statute are but few and late in respect of the antiquity of the Act. It was made Anno 1379. for a long time after we hear no tydings of an Action grounded upon it And by reading it one would imagine that the makers of it never intended that any should be But the Action arises by operation of Law not from the words of the Act nor their intention that made it The first Case that we find of an Action brought upon it is in 13 H. 7. which is 120 years after the Law was made so that we have no contemporanea expositio which we often affect That Case is in Keil 26. the next in 4 H. 8. where the Duke of Buckingham recovered 40 l. against one Lucas for saying that the Duke had no more conscience than a Dog and so he got money he cared not how he came by it He cited other Cases and said he observed That where the words were general the Iudges did not ordinarily admit them to be actionable otherwise when they charged a Peer with any particular miscarriage Serjeant Maynard observed well That the Nobility and great men are equally coucerned on the Defendants part for Actions upon this Statute lie against them as well as against the meanest Subject Acts of Parliament have been tender of racking the King's Subjects for words And the Scripture discountenances mens being made Transgressors for a word I observe that there is not one case to be met with in which upon a motion in arrest of Iudgment in such an Action as this the Defendant has prevailed The Court hath sometimes been divided the matter compounded the Action has abated by death c. but a positive Rule that Iudgment should be arrested we find not So that it is time to make a President and fix some Rules according to which men may demean themselves in converse with great persons Misera est servitus ubi jus est vagum Since we have obtained no Rules from our Predecessors in Actions upon this Statute we had best go by the same Rules that they did in other Actions for words In them when they grew frequent some bonnds and limits were set by which they endeavoured to make these Law certain The Actions now encrease The stream seems to be running that way I think it is our part to obviate the mischief So he was of Opinion That the Iudgment ought to be arrested but the Court gave Iudgment for the Plaintiff North. There are three sorts of Hab. Corp. in this Court 1. Hab. Corp. ad respondendum and that is when a man hath a cause of suit against one that is in prison he may bring him up hither by Hab. Corp. and charge him with a Declaration at his own suit 2. There is a Hab. Corp. ad faciendum recipiendum and that Defendants may have that are sued in Courts below to remove their Causes before us Both these Hab. Corp. are with relation to the suits properly belonging to the Court of Common Pleas. So if an inferiour Court will proceed against the Law in a thing of which we have Conisance and commit a man we may discharge him upon a Hab. Corp. this is still with relation to Common Pleas. A third sort of Hab. Corp. is for priviledged Persons But a Hab. Corp. ad subjiciendum is not warranted by any Presidents that I have seen Term. Pasch 29 Car. II. in Communi Banco Hall Booth NOrth In Actions of Debt c. the first Process is a Summons if the Defendant appears not upon that a Cap. goes and then we hold him to Bail The reason of Bail is upon a supposition of Law that the Defendant flies the Iudgment of the Law And this supposition is grounded upon his not appearing at the first For if he appear upon the Summons no Bail is required And this is the reason why it is held against the Law for any inferiour Court to issue out a Capias for the first Process For the liberty of a man is highly valued in the Law and no man ought to be abridged of it without some default in him A Church is in decay the Bishops Court must
were and perhaps they were in the Province of York The Court gave Iudgment for the Plaintiff nisi causa c. chiefly for the first and fourth Reasons Page Tulse MIdd ' sc Henricus Tulse nuper de Lond ' Miles Robertus Jeffries nuper de Lond ' Miles nuper vicecom ' Com' praedict ' attachiati fuer̄ ad respondendum Thomae Page de placito transgress super casum c. unde idem Tho. per Bale Attornatum suum queritur quare cum quidem Sam. Wadham alias Waddam Term. Sanct. Trin. Ann. Regni Dom. Regis nunc vicesimo sexto antea indebitatus fuisset eidem Tho. Page in 34 libris monetae Angliae idemque Tho. pro obtentione earund ' eodem Term. Sanct ' Trin. anno vicesimo sexto supradict ' debito modo prosecutus fuisset extra Cur Domini Regis nunc coram ipso Rege eadem curia apud Westmonast ' in praedict ' Com' Mid tunc existente quoddam praeceptum ipsius Domini Regis versus praedict ' Samuelem Vicecom ' Midd ' direct per quod eid tunc Vicecomiti praecept fuit quod caperet praefatum Samuelem si c. enum salvo c. ita quod haberet corpus ejus cor dict Dom. Rege apud Westmonast die Veneris prox post tres septimanas Sancti Mich. prox ' sequent ad respondendum eidem Tho. de placito transgr ac etiam billae ipsius Tho. versus praedict ' Sam. pro triginta quatuor libris super assumptionem secund ' consuetud ' Cur dict' Dom ' Regis cor ipso Rege exhibend ' quod idem vicecomes haberet ibi tunc praeceptum illud c. quod quidem praeceptum idem Thomas postea ante return ' ejusd ' scil quarto die Jul. anno vicesimo sexto supradict ' apud Westmonast ' in Com. praedict ' praefat Henric̄ Roberto tunc Vicecom ' praedict ' Com' Midd deliberavit ea intentione quod praedict ' Samuel virtute praecepti illius caperetur arrestaretur ad praed diem return̄ ejusdem in dict' cur ' dict' Dom ' Regis coram ipso Rege secundum consuetudinem ejusdem cur ' custodiae Marischalli Marischalciae Dom ' Regis cor ' ipso Rege committeretur ad intentionem quod idem Tho. versus praefat Samuel custodiae ejusdem Marischalli Marischalciae sic commissum in custod ' sua existent secund ' consuetudinem dict' Cur ' dict' Dom ' Regis coram ipso Rege per bill ipsius Tho. versus praed ' Samuel in eadem Cur ' exhibend ' in placito transgressionis super casum super assumptionem ipsius Sam. pro praed 34 libris eid Tho. solvend ' pro recuperatione earund ' narraret implacitaret quod praed ' Sam. antequam ipse ab hujusmodi custod ' praedict ' Marischall Mariscalciae deliberetur aut ad largum ire dimitteretur imponeret in eadem Cur ' in praed ' placito transgressionis super casum sufficientes manucaptores eid Tho. inde responsur ' secund ' consuetudinem Cur ' illius virtute cujus quidem praecepti praedictus Henricus Robertus postea ante return̄ ejusdem scil 14 die Julij ann 26 supradict ' tunc vicecom ' Com' praed ' ut praefertur existentes praefat Samuel apud Westmonaster ' praedict ' in Com' praedict ' ceperunt arrestaverunt ipsum Samuel in custodia sua ex causa praedict ' habuerunt detinuerunt praedicti tamen Henricus Robertus officij sui Vicecom ' debitum in vera justa executione praecepti istius iis ut praefertur direct ' deliberat minime curantes sed machinantes ipsum Thomam minus rite praegravare in prosecutione sectae suae praedictae penitus frustrare de assentione obtentione praedict ' 34 librarum omnino impedire praedict Samuelem in custodia sua in forma praedict ' detent existent eodem Thoma de praedict ' 34 libris seu aliquo denario inde minime satisfacto sine licentia contra voluntatem ipsius Thomae vicesimo secundo die Septembris Ann. 26 supradicto apud Westm ' praed ' extra custodiam ipsorum Henrici Roberti tunc Vicecom ' Com' praedict ' existent ad largum ire quo voluit libere voluntarie ire evadere permiserunt nihilo minus ad praed diem returni praecepti praed ' ipsi praectid ' Henricus Roberus Vicecom ' praed ' Com' Midd ' ut praefertur existentes in praedict ' Cur dicti Dom. Regis coram ipso Rege apud Westmonaster ' praedict ' in ipsius Tho. grave damnum praejudicium falso fradulenter returnaverunt praeceptum praedict in forma sequente viz. quod ipse virtute cujusdam brevis sibi direct cepisset corpus praedict Samuelis cujus quidem corpus ad diem locum in eodem praecept content cor dict' Domino Rege parat habuerunt prout per idem praecept sibi praecipiebatur ubi revera praedict Henricus Robertus corpus praedicti Samuelis ad locum in praecept praedict content non parat habuerunt juxta exigentiam praecept praedict return suum praedict sed praedictus Samuel post evasionem suam praedict seipsum ad loca eidem Thomae penitus incognita elongavit retraxit quorum praetext idem Tho. non solum in prosecutione sectae suae praedictae manifesto retardatus existit verum etiam de obtentione praedictar 34 librarum ei ut praefertur debit omnino impeditus defraudatus existit ad dampum ipsius Tho. 40 librarum inde producit sectam Et praedictus Henricus Robertus per Joh. Tister Attornatum suum veniunt Defendunt vim injuriam quando c. dicunt quod praedictus Thomas actionem suam praedictam inde versus eos habere seu manutenere non debet quia dicunt quod cum per quendam Actum in Parliamento Domini Henrici nuper Regis Angliae c. sexti post conquestum apud Westomaster in Com. Midd. 24 die Februarij anno Regni sui 23 Tent editum inter alia inactitatum existit authoritate ejusdem Parliamenti quod Vicecomes sub-vicecomes Clericus Vicecom Seneschallus sive Ballivus Franchesiae vel Ballivus sive Coronator non caperet aliquid colore Officii per ipsum nec per aliquam personam ad ejus usum de aliqua persona pro confectione alicujus return sive panell pro copia ejusd panell praeterquam 4 denarios quod praedict Vicecomes omnes alii Officiar Ministri praedicti emitterent extra prisonam Angl. should let out of prison omnimodas personas per ipsos vel eorum aliquos arrestat seu existent in eorum Custodia vigore alicujus brevis billae sive warrant in aliqua actione personali vel causa indictamenti pro transgressione super rationabili securitate sufficientium personarum habentium sufficiens infra Com ubi tales personae sint ad ballivum sive manucaptionem tradit ad
the Sheriff because he is compellable to let him to bail but this is an Action at the Common Law for a false Return which if it should not be maintainable the design of the Statute would be defrauded for the Plaintiff cannot controll the Sheriff in his taking bail but he may take what persons and what bail he pleaseth and if he should not be chargeable in an Action for not having the body ready the Plaintiff could never have the effect of his Suit and although the Sheriff be chargeable he will be at no prejudice for he may repair his loss by the bail-bond and it is his own fault if he takes not security sufficient to answer the Debt The last clause in the Statute is That if any Sheriff return a Cepi corpus or reddidit se he shall be chargeable to have the body at the day of the Return as he was before c. that if implies a Liberty in the Sheriff not to return a Cepi corpus or reddidit se But notwithstanding by the opinion of North Chief Justice Wyndham Atkyns Justice the Plaintiff was barred Bowles Lassel's case they said was a strong case to govern the point and the return of paratum habeo is in effect no more then if he had the body ready to bring into Court when the Court should command him and it is the common practice only to amerce the Sheriff till he does bring in the body and therefore no Action lies against him for it is not reasonable that he should be twice punished for one Offence and that against the Court only Scroggs delivered no Opinion but Iudgment was given ut sup Cockram Welby ACtion upon the Case against a Sheriff for that he levied such a sum of money upon a Fieri facias at the Suit of the Plaintiff and did not bring the money into Court at the day of the return of the Writ Per quod deterioratus est dampnum habet c. the Defendant pleads the Statute of 21 Jac. of Limitations To which the Plaintiff demurs Serjeant Barrell This Action is within the Statute It ariseth ex quasi contractu Hob. 206. Speak Richard's case It is not grounded on a Record for then nullum tale Recordum would be a good plea which it is not it lies against the Executors of a Sheriff which it would not do if it arose ex maleficio Pemberton This Action is not brought upon the Contract if we had brought an Indebitatus Assumpsit which perhaps would lie then indeed we had grounded our selves upon the Contract and there had been more colour to bring us within the Statute but we have brought an Action upon the case for not having our money here at the day Per quod c. North. An Indebitatus Assumpsit would lie in this case against the Sheriff or his Executor and then the Statute would be pleadable I have known it resolved that the Statute of Limitations is not a good plea against an Attorny that brings an Action for his Fees because they depend upon a Record here and are certain Next Trinity Term the matter being moved again the Court gave Iudgment for the Plaintiff Nisi causa c. if the Fieri facias had been returned then the Action would have beén grounded upon the Record and it is the Sheriffs fault that the Writ is not returned but however the Iudgment in this Court is the foundation of the Action Debt upon the Stat. of 2 Edw. 6. for not setting out Tythes is not within the Stat. for oritur ex maleficio so the ground of this Action is maleficium and the Iudgment here given In both which respects it is not within the Statute of Limitations Barrow Parrot PArrot had married one Judith Barrow an Heiress Sir Herbert Parrot his Father and an ignorant Carpenter by vertue of a dedimus potestatem to them directed took the conusance of a Fine of the said Judith being under age and by Indenture the use was limited to Mr. Parrot and his wife for their two lives the remainder to the Heirs of the Survivor about two years after the wife died without issue and Barrow as heir to her prayed the relief of the Court. Vpon examination it appear'd that Sir Herbert did examine the woman whether she were willing to levy the fine and asked the husband and her whether she were of age or not both answered that she was She afterwards being privately examin'd touching her consent answered as before and that she had no constraint upon her by her husband but she was not there question'd concerning her age Sir Herbert Parrot was not examined in Court upon Oath because he was accused and North said this Court could no more administer an Oath ex Officio then the Spiritual Court could North Wyndham There is a great trust reposed in the Commissioners and they are to inform themselves of the parties age and a voluntary ignorance will not excuse them But Atkyns opposed his being fined he cited Hungates case Mich. 12 Jac. Cam. Stell 12. Cook 122 123. where a Fine by Dedimus was taken of an Infant and because it was not apparent to the Commissioners that the Infant was within age they were in that Court acquitted But North Wyndham Scroggs agreed that the Son should be fined for that he could not possibly be presumed to be ignorant of his Wifes age Atkyns contra But they all agreed that there was no way to set the Fine aside Term. Trin. 29 Car. II. in Communi Banco Searle Long. QUare Impedit against two one of the Defendants appears the other casts an essoyn wherefore he that appear'd had idem dies then he that was essoyn'd appears and the other casts an essoyne Afterward an issued for their not Attachment appearing at the day and so Process continued to the great distress which being return'd and no appearance Iudgment final was ordered to be entred according to the Statute of Marlebr cap. 12. It was moved to have this rule discharged because the party was not summoned neither upon the Attachment nor the great distress and the Sureties returned upon the Process were John Doo Richard Roo an Affidavit was produced of Non-summons and that the Defendant had not put in any Sureties nor knew any such person as John Doo Richard Roo It was objected on the other side that they had notice of the suit for they appeared to the Summons and it appeared that they were guilty of a voluntary delay in that they forched in essoyne and the Stat. of Marlebr is peremptory wherefore they prayed Iudgment Serjeant Maynard for the Defendants If Iudgment be entred against us we have no remedy but by a Writ of Deceit Now in a Writ of Deceit the Sumners and veyors are to be examin'd in Court and this is the Trial in that Action but feigned persons cannot be examined It is a great abuse in the Officers to return such
feigned names The first cause thereof was the ignorance of Sheriffs who being to make a return looked into some Book of Presidents for a form and finding the names of John Doo and Rich. Roo put down for examples made their return accordingly and took no care for true Sumners and true Manucaptors For Non-appearance at the return of the great Distress in a plea of Quare Impedit final Iudgment is to be given and our right bound for ever which ought not to be suffered unless after Process legally served according to the intention of the Statute In a case Mich. 23. of the present King Iudgment was entred in this Court in a plea of Quare impedit upon non-appearance to the great Distress but there the party was summoned and true Summoners returned upon non-appearance an Attachment issued and real Sumners return'd upon that but upon the Distress it was return'd that the Defendants districti fuerunt per bona catalla manucapti per Joh. Doo Rich. Roo and for that cause the Iudgment was vacated Cur ' The design of the Statute of Marlebridge was to have Process duly executed which if it were executed as the Law requires the Tenant could not possibly but have notice of it For if he do not appear upon the Summons an Attachment goes out that is a command to the Sheriff to seize his body and make him give Sureties for his appearance if yet he will not appear then the great distress is awarded that is the Sheriff is commanded to seize the thing in question if he come not in for all this then Iudgment final is to be given Now the issue of this Process being so fatal that the right of the party is concluded by it we ought not to suffer this Process to be changed into a thing of course It is true the Defendant here had notice of the Suit but he had not such notice as the Law does allow him And for his fourching in essoyn the Law allows it him Accordingly the Iudgment was set aside Anonymus FAlse Judgment out of a County Court the Record was vitious throughout and the Iudgment reversed and ordered that the Suitors should be amerced a Mark but the Record was so imperfectly drawn up that it did not appear before whom the Court was held and the County Clark was fined Five pounds for it Cessavit per biennium the Defendant pleads Non-tenure He commenceth his plea quod petenti reddere non debet but concludes in abatement Serjeant Barrell He cannot plead this plea for he has imparled Cur̄ Non-tenure is a plea in bar the conclusion indeed is not good but he shall amend it Barrell Non-tenure is a plea in abatement The difference is betwixt Non-tenure that goes to the tenure as when the Tenant denies that he holds of the demandant but says that he holds of some other person which is a plea in bar and Non-tenure that goes to the Tenancy of the Land as here he pleads that he is not Tenant of the Land and that goes in abatement only The Defendant was ordered to amend his plea. Addison versus Sir John Otway TEnant in tail of Lands in the Parishes of Rippon Kirby-Marleston in the Towns of A. B. C. Tenant in Tail makes a Deed of bargain and sale to J. S. to the intent to make J. S. Tenant to the Praecipe in order to the suffering of a common Recovery of so many Acres in the Parishes of Rippon Kirby-Marlestone Now in those Parishes there are two Towns called Rippon Kirby-Marlestone and the Recovery is suffered of Lands in Rippon Kirby-Marlestone generally all this was found by special Verdict and further that the intention of the parties was that the Lands in question should pass by the said recovery and that the Lands in question are in the Parishes of Rippon Kirby-Marlestone but not within the Townships and that the bargainor had no Lands at all within the said Townships The question was whether the Lands in question should pass by this Recovery or not Shaftoe They will pass The Law makes many strained constructions to support common Recoveries and abates of the exactness that is required in adversary Suits 2 Rolls 67. 5 Rep. Dormer's case Eare Snow Plo. Com. Sir Moyle Finche's case 6 Rep. Cr. Jac. 643. Ferrers Curson In Stork Foxe's case Cr. Jac. 120 121. where two Villes Walton Street were in the Parish of Street and a man having Lands in both levied a Fine of his Lands in Street his Lands in Walton would not pass but there the Conusor had Lands in the Town of Street to satisfie the grant but in our case it is otherwise He cited also Rolls Abridgm Grants 54. Hutton 105. Baker Johnson The Deed of bargain and sale and the Recovery make up in our case but one assurance and construction is to be made of both together as in Cromwells case 2 Report The intention of the parties Rules Fines and Recoveries and the intention of the parties in our case appears in the Deed and is found by the Verdict Rolls Abridgm 19. 2 part Winch. 122. per Hob. Cr. Car. 308. Sir George Symond's case betwixt which last case and ours all the diffreence is that that case is of a Fine and ours of a Common Recovery betwixt which Conveyances as to our purpose there is no difference at all He cited Jones Wait's case Trin 27 Car. 2. in this Court and a case 16 Reg. nunc in B. R. when Hide was Chief Iustice betwixt Thynne Thynne North. The Law has always stuck at new niceties that have been started in cases of Fines and Common Recoveries and has gotten over almost all of them I have not yet seen a case that warrants the case at Bar in all points Nor do I remember an Authority expresly against it and it seems to be within the reason of many former resolutions But we must be cautious how we make a further step Wyndham I think the Lands in question will pass well enough and that the Deed of bargain and sale which leads the uses of the Recovery does sufficiently explain the meaning of the words Rippon Kirby Marlestone in the recovery I do not so much regard the Iuries having found what the parties intention was as I do the Deéd it self in which he expresses his own intention himself and upon that I ground my Opinion Atkyns agreed with Wyndham Indeed when a place is named in legal proceedings we do prima facie intend it of a Ville if nothing appears to the contrary stabitur praesumptio donec probetur in contrarium In this case the Evidence of the thing it self is to the contrary The reason why prima facie we intend it of a Ville is because as to civil purposes the Kingdom is divided into Villes He do not intend it of a Parish because the division of the Kingdom into Parishes is an Ecclesiastical distribution to Spiritual purposes
But the Law in many cases takes notice of Parishes in civil affairs and Custom having by degrees introduced it we may allow of it in a Recovery as well as in a Fine Scroggs accordant If an Infant levy a Fine when he becomes of full age he shall be bound by the Deed that leads the Vses of the Fine as well as by the Fine it self because the Law looks upon both as one assurance So the Court was of Opinion that the Lands did pass It was then suggested that Iudgment ought not to be given notwithstanding for that the Plaintiff was dead But they said they would not stay Iudgment for that as this case was For between the Lessor of the Plaintiff and the Defendant there was another cause depending and tryed at the same Assizes when this issue was tryed and by agreément between the parties the Verdict in that cause was not drawn up but agreed that it should ensue the determination of this Verdict and the title to go accordingly Now the submission to this Rule was an implicite agreement not to take advantage of such occurrences as the death of the Plaintiff in an Ejectione firmae whom we know to be no wise concerned in point of interest and many times but an imaginary person It was said also to have Iudgment that there lived in the County where the Lands in question are a man of the same name with him that was made Plaintiff This the Court said was sufficient and that were there any of that name in rerum natura they would intend that he was the Plaintiff Cur̄ We take notice judicially that the Lessor of the Plaintiff is the person interested and therefore we punish the Plaintiff if he release the Action or release the damages Accordingly Iudgment was given Anonymus DEbt upon an Obligation was brought against the Heir of the Obligor hanging which Action another Action was brought against the same Heir upon another Obligation of his Ancestor Iudgment is given for the Plaintiffs in both Actions but the Plaintiff in the second Action obtains Iudgment first And which should be first satisfied was the question Barrel He shall be first satisfied that brought the first Action North. It is very clear That he for whom the first Iudgment was given shall be first satisfied For the Land is not bound till Iudgment be given But if the Heir after the first Action brought had aliened the Land which he had by descent and the Plaintiff in the second Action commenced after such alienation had obtained Iudgment and afterward the Plaintiff in the first Action had Iudgment likewise in that case the Plaintiff in the first Action should be satisfied and he in the second Action not at all What if the Sheriff return in such a case that the Defendant has Lands by descent which indeed are of his own purchase North. If the Sheriffs return cannot be traversed at least the party shall be relieved in an Ejectione firmae Dominus Rex versus Thorneborough Studly THe King brought a Quare Impedit against the Bishop of _____ and Thorneborough and Studly and declares That Queen Elizabeth was seised in see of the Advowson of Redriff in the County of Surrey and presented J. S. that the Quéen died and the Advowson descended to King James who died seized c. and so brings down the Advowson by descent to the King that now is Thorneborough the Patron pleads a Plea in Bar upon which the King demurs Studly the Incumbent pleads confessing Queen Elizabeths seisin in feé in right of her Crown but says that she in the second year of her Reign granted the Advowson to one Bosbill who granted to Ludwell who granted to Danson who granted to Hurlestone who granted to Thorneborough who presented the Defendant Studly and traverseth absque hoc that Queen Elizabeth died seized The Defendants Council produced the Letters Patents of secundo Reginae to Bosbill and his Heirs The King's Council give in evidence a Presentation made by Queen Elizabeth by usurpation anno 34 Regni sui of one Rider by which Presentation the Advowson was vested again in the Crown The Presentation was read in Court wherein the Queen recited that the Church was void and that it appertained to her to present North Chief Justice Is not the Queen deceived in this Presentation for she recites that it belongs to her to present which is not true If the Queen had intended to make an usurpation and her Clerk had been instituted she had gained the Fee-simple but here she recites that she had right Maynard When the King recites a particular Title and has no such Title his Presentation is void but not when his recital is general as it is here And this difference was agreed to in the Kings Bench in the Case of one Erasmus Dryden The Defendants Council shewed a Iudgment in a Quare Impedit against the same Rider at the suit of one Wingate in Queen Elizabeths time whereupon the Plaintiff had a writ to the Bishop and Rider was ousted Wingate claimed under the Letters Patents of the Second of the Queen viz. by a Grant of one Adie to himself to which Adie one Ludwell granted it anno 33 Eliz. Baldwin It appears by the Record of this Iudgment that a writ to the Bishop was awarded but no final Iudgment is given which ought to be after the three points of the writ enquired North. What is it that you call the final Iudgment there are two Iudgments in a Quare Impedit one that the Plaintiff shall have a writ to the Bishop and that is the final Iudgment that goes to the right betwixt the parties And the Iudgment at the Common Law There in another Iudgment to be given for Damages since the Stat. of West 2. cap. 5. after the points of the writ are enquired of Which Iudgment is not to be given but at the instance of the party Pemberton This Wingate that recovered was a stranger and had no title to have a Quare Impedit Now I take this difference where the King has a good Title no recovery against his Clerk shall affect the King's Title he shall not be prejudiced by a Recovery to which he is no party If the King have a defeasible Title as in our case by Vsurpation there if the rightful Patron recover against the King's Incumbent the King's Title shall be bound though he be not a party for his Title having no other Foundation than a Presentation when that is once avoided the Kings Title falls together with it But though the Kings Title be only by Vsurpation yet a Recovery against his Clerk by a stranger that has nothing to do with it shall not predudice the King covin may be betwixt them and the King be tried Now Wingate had no Right for he claimed by Grant from one Adie to whom Ludwell granted ann 33 Eliz. But we can prove this Grant by Ludwell to have been void for in the 29th of the
Queen he had made a Prior Grant to one Danson of which Grant we here produce the Inrolment This Grant to Danson was an effectual Grant for anno 11 Jacobi a Presentation was made by J. R. Th. Danson which proves that this Grant took effect and the Defendant himself deduceth the Title of his own Patron under that Grant Barrel Wingate is not to be accounted a stranger for he makes Title by the Letters Letters Patents of 2 Eliz. so that he encounters the Queen with her own Grant and his Title under that Grant was allowed by the Court who gave Iudgment accordingly There was no faint Pleader in the Case as appears by the Record that has been read And covin shall not be presumed if it be not alledged We deduce our Title under the Grant made to Danson 29 Eliz. in our plea but that is only by way of inducement to our traverse Cur. By that Iudgment temp Regin Eliz. the Quéens Title was avoided We must not presume that Wingate had a Title Ex diuturnitate temporis omnia presumuntur solemniter esse acta That Quare Impedit was brought when the matter was fresh Without doubt Danson would have asserted his Title against Wingate if he had had any The Defendant did not do prudently in conveying a Title to his Patron under the Grant made to Danson but issue being taken upon the Quéens dying seized he shall not be concluded to give in Evidence any other Title to maintain the Issue Vpon which Evidence the Iury found for the Defendant that Queen Elizabeth did not die seized North said He was clearly of Opinion That the Kings Title by Vsurpation should be avoided by a Recovery against his Clerk though the Recoverer were a meer stranger The Company of Stationers against Seymour THe Company brought an Action of Debt against Seymour for printing Gadbury's Almanacks without their leave Vpon a special Verdict found the question was Whether the Letters Patents whereby the Company of Stationers had granted to them the sole printing of Almanacks were good or not The Iury found the Stat. of 13 14 Car. 2. concerning Printing They found a Patent made by King James of the same Priviledge to the Company in which a former Patent of Queen Elizabeths was recited and they found the Letters Patents of the King that now is Then they found that the Defendant had printed an Almanack which they found in his verbis figuris and that the said Almanack had all the essential parts of the Almanack that is printed before the Book of Common Prayer but that it has some other additions such as are usual in common Almanacks c. Pemberton The King may by Law grant the sole-printing of Almanacks The Art of Printing is altogether of another consideration in the eye of the Law than other Trades and Mysteries are the Press is a late Invention But the Exorbitancies and Licentiousness thereof has ever since it was first found out been under the care and restraint of the Magistrate For great Mischiefs and Disorder would ensue to the Common-wealth if it were under no Regulation and it has therefore always been thought fit to be under the Inspection and Controul of the Government And the Stat. 14. Car. 2. recites that it is a matter of publique Care In England it has from time to time been under the Kings own Regulation so that no Book could lawfully be printed without an Imprimatur granted by some that derive authority from him to Licence Books But the question here is not Whether the King may by Law grant the sole-Printing of all Books but of any and of what sort of Books the sole-printing of Law-Books is not now in question that seémed to be a point of some difficulty because of the large extent of such a Patent and the uncertainty of determining what should be accounted a Law-Book and what not And yet such a Patent has been allowed to be good by a Iudgment in the House of Péers When Sir Orlando Bridgeman was Chief Justice in this Court there was a question raised concerning the validity of a Grant of the sole-printing of any particular Book with a Prohibition to all others to print the same how far it should stand good against them that claim a Property in the Copy paramount to the Kings Grant and Opinions were divided upon the Point But the Defendant in our Case makes no Title to the Copy only he pretends a nullity in our Patent The Book which this Defendant has printed has no certain Author and then according to the Rule of our Law the King has the property and by consequence may grant his Property to the Company Cur. There is no difference in any material part betwixt this Almanack and that that is put in the Rubrick of the Common-Prayer Now the Almanack that is before the Common-Prayer proceeds from a publick Constitution it was first setled by the Nicene Council is established by the Canons of the Church and is under the Government of the Archbishop of Canterbury So that Almanacks may be accounted Prerogative Copies Those particular Almanacks that are made yearly are but applications of the general Rules there laid down for the moveable Feasts for ever to every particular year And without doubt this may be granted by the King This is a stronger Case than that of Law-Books which has been mentioned The Lords in in the Resolution of that Case relyed upon this That Printing was a new Invention and therefore every man could not by the Common Law have a liberty of printing Law-Books And since Printing has been invented and is become a common Trade so much of it as has been kept inclosed never was made common but matters of State and things that concern the Government were never left to any mans liberty to print that would And particularly the sole Printing of Law-Books has been formerly granted in other Reigns Though Printing be a new Invention yet the use and benefit of it is only for men to publish their Works with more ease than they could before Men had some other way to publish their Thoughts before Printing came in and forasmuch as Printing has always been under the Care of the Government since it was first set on foot we may well presume that the former way was so too Queen Elizabeth King James and King Charles the First granted such Patents as these and the Law has a great respect to common usage We ought to be guided in our Opinions by the Iudgment of the House Peérs which is express in the point the ultimate resort of Law and Iustice being to them There is no particular Author of an Almanack and then by the Rule of our Law the King has the Property in the Copy Those additions of Prognostications and other things that are common in Almanacks do not alter the Case no more than if a man should claim a property in another mans Copy by reason of some inconsiderable
to have gone to one Iustice c. first as the Statute directs that he might take order and direction in it and then if he could not compound and agree it he might have applyed himself to the Sessions For the Statute intended there should be if possible a Composure in private and the power of the Session is Conditional viz. if the one Iustice cannot end it In Case of a Bassard Child they cannot go to the Sessions per Saltum and we doubt they cannot in this Case It is a new Case And then the matter will be whether this ought to be set down in the Pleading Adjornatur Rex versus Ledginham INformation setting forth that he was Lord of the Mannor of Ottery St. Mary in the County of Devonshire wherein there were many Copyholders and Freéholders and that he was a man of an unquiet mind and did make unreasonable Distresses upon several of his Tenants and so was communis oppressor perturbator pacis It was proved at the Trial that he had distrained four Oxen for three pence and six Cows for eight pence being Amercements for not doing Suits of Court and that he was Communis oppressor perturbator pacis The Defendant was found guilty It was moved in arrest of Iudgment that the Information is ill laid First It is said he disquieted his Tenants and vexed them with unreasonable distresses It is true that is a fault but not punishable in this way For by the Statute of Marlebridge cap. 4. V. 2 In. 106 7. he shall be punished by grievous Amercements and where the Statute takes care for due punishment that method must be observed 2. As to the matter it self they do not set forth how much he did take nor from whom so that the Court cannot judge whether it is unreasonable or no nor could we take Issue upon them 3. As to the words Communis oppressor perturbator pacis they are so general that no Indictment will lie upon them 2 Ro. 79. Jones 302. Cornwalls Case which indeed goeth to both the last points Twisden Communis oppressor c. is not good such general words will never make good an Indictment save only in that known Case of a Barretor for Communis Barrectator is a term which the Law takes notice of and understands It is as much as I have heard Iudges say as a common Knave which contains all Knavery For the other point an Information will not lie for taking outragious distresses It is a private thing for the which the Statute gives a remedy viz. by an Action upon the Statute tam quam Cur̄ It is naught Adjorn Roberts versus Marriot AN Action of Debt brought upon a Bond to submit to an award The Defendant pleads Nullum fecerunt arbitrium The Plaintiff replies and sets forth an award made by two Prebends of Westminster and that it was delivered to the party according to the condition of the Bond c. The Defendant rejoyns that it was not delivered c. Et hoc paratus est verificare The Plaintiff demurs Serjant Baldwynne and Winington pro defend Jones pro querente Cur. The Defendant having first pleaded Nullum fecer ' arb and then in his Rejoynder that it was not delivered which is a Confession that there was an award made has committed a departure and so it has been judged If he had pleaded Nullum fec̄ arbitrium c. absque hoc that it was tendered c. it had been naught and it is as bad now Also when the Plaintiff replies that the award was delivered and the Defendant saith It was not he should have concluded to the Country and not as he doth hoc paratus est verificare for otherwise the party might go in infinitum and there would be no end of pleading Note there was an Exception taken to the award viz. that it was awarded that there should be a release of all Specialties among other things whereas Specialties were not submitted Cur. Then the award is void as to that only But indeéd if the breach had been assigned in not releasing the Specialties it had béen against the Plaintiff But now take Iudgment Wood versus Davies TRov conv de tribus struibus foeni Anglice Ricks of Hay Moved in arrest of Iudgment that it was too uncertain For no man could tell how much was meant by strues It was urged it should have been so many Cart loads or the like For loads was adjudged uncertain in Glyn's time here But Rainsford and Moreton who only were in Court judged it well enough John Wooton versus Penelope Hele. Vide Mich. 21 Rot. 210. COvenant upon a Fine The Plaintiff declares That whereas quidem finis se levavit in Curia nuper pretens Custodum libertatis Angliae authoritate Parliamenti de Banco apud Westmonnast ' c. a die Sancti Michaelis in unum mensem anno Domini 1649. Coram Olivero St. John Johanne Pulison Petro Warburton Leonard ' Atkins Justic̄ c. inter praed Johannem Wotton c. quer ' praed ' Johannem Hele Penelopen Hele per nomina Johannis Hele Armigeri Penelopes uxoris ejus deforc̄ inter alia de uno Messuagio c. Per quem finem praed ' Johannes Hele Penelope concesserunt praed tenementa praed John W. habendum tenendum c. pro termino 99 annorum proximorum post decessum Gulielmi Wootton c. si Johannes Wootton modo querens Gracia Wootton tamdiu vixerint aut eorum Alter tamdiu vixerit praed ' J. H. Penelope haered ipsius Johannis Warrant̄ praed Jo. W. praed ' tenementa c. Contra omnes homines pro toto termino praed prout per Recordum finis praed c. plenius apparet Virtute cujus quidem finis praed J. W. fuit possessionat̄ de interesse praed termini c. sic inde possessionat̄ existens praed ' Guliel W. c. postea scil sexto die c. obierunt post quorum mortem praed J. W. in tenementa praed c. intravit fuit inde possessionat̄ c. sic inde possessionat̄ existens praed J. H. postea scil c. obiit praed Penelope ipsum supervixit idem Johannes W. in facto dicit quod quidem Hugo Stowel Armiger post commensationem termini praed durante termino illo ante diem Impetrationis hujus Billae scil c. habens legale jus titulum ad tenementa praed c. in super possessionem termini praed ipsius J. W. in eisdem intravit ipsumque J. W. contra voluntatem ipsius J. W. per debitum Legis processum a possessione occupatione tenementorum praed ejecit expulit amovit ipsumque J. W. sic inde expuls a possessione sua inde custodivit Extra tenuit adhuc Extra tenet Contra formam effectum finis warrant̄ praed sic idem praed J. W. dicit quod praed
lay in the River whether it lies or not 85 Action upon the Case upon a Promise on consideration to bring two men to make Oath before two men not authoriz'd by Law to administer an Oath 166 Action against the Coronors of a County Palatine for a false Return the Action laid in Middlesex 198 199 V. Attorney Action upon the Case lies not for suing an Attorney in an inferior Court 209 Action upon the Case for that the Defendant had taken away his Goods and hidden them in such secret places that the Plaintiff could not come at them to take them in Execution adjudged that it does not lie 286 Administrators An Administrator recovers Damages in an Action of Trover and Conversion for Goods of the Intestate taken out of his own possession then his Administration is revoked whether can he now have Execution 62 63 Administrators plead fully administred to an Action of Debt for Rent incurr'd in their own time Which was held to be an ill plea. 185 186 The Action lies against them in the debet detinet for Rent incur'd in their own time ibid. They cannot waive a term for years ibid. Debt upon an Obligation against an Administrator The Defendant pleads a Statute acknowledged by the Intestate to the Plaintiff which Statute is yet in force the Plaintiff replies That it is burnt The Defendant demurs 186 187 A Stranger takes out Administration to a Feme Covert and puts a Bond in Suit the Defendant pleads That the Husband is de jure Administrator to the Wife and is yet alive 231 V. Distribution Annuity An Action lies for an Annuity against the Rector of a Church though the Church be drown'd 200 201 Appearance In an Action brought by Executors some of whom are under age all the Plaintiffs appear by Attorney whether well or no 47 72 276 277 c. Apprentices Vide p. 2. Enditement for exercising a Trade in a Village not having served seven years as an Apprentice 26 An Action of Covenant lies against an Infant Apprentice upon his Indenture of Apprenticeship c. by the custom of London 271 Concerning the Power of the Justices in discharging Masters of their Apprentices Vide 286 287 Whether may a Difference between a Master and an Apprentice be brought originally before the Sessions or not V. 287 Arbitrement and Arbitrators An Award that one of the Parties shall discharge the other from his undertaking to pay a Debt to a third person a good Award 9 The Power of the Arbitrators and of the Umpire cannot concur 15 274 275 The staying of a Cause is implied in referring it to Arbitrators 24 Inter alia arbitratum fuit naught 36 Arrest Attachment for arresting a man upon a Sunday or as he is going to Church 56 Assault and Battery What makes an Assault 3 Justification in an Action of Assault and Battery 168 169 For striking a Horse whereon the Plaintiff rode whereby that Horse ran away with him so that he was thrown down and another Horse ran over him 24 Pleading in an Action of Assault and Battery 36 Assets Assets in equity V. 115. Attachment Against a man for not performing an Award submitted to by Rule of Court 21 V. Arrest Attorney Whether are Attorneys within the Statute against Extortion or not 5 6 If an Attorney be sued time enough to give him two Rules to plead within the Term Judgment may be given 8 Not compellable to put in special Bail 10 Whether can an Attorney of the Kings Bench be debar'd from appearing for his Client in the Court at Stepney 23 24 Ill practices of Attorneys 41 An Attorney ought not to waive his Court 118 An Action lies not against an Attorney for suing in a Cause as Attorney knowing that the Plaintiff has no Cause of Action 209 Audita Querela Can be brought before Judgment enter'd 111 V. 170 Outlawry pleaded in disability 224 Avowry Whether needs he that distrains Cattel for a Rent-Charge set forth in his Avowry that they were Levant and Couchant 63 Exceptions to an Avowry for a Heriot 216 217 The Husband alone may avow for a Rent due to him in right of his Wife 273 B. Bail THree men bring an Action and the Defendant puts in bail at the Suit of four 5 V. Baron and Feme The course of the Court in taking bail 16 The reason of the Law in requiring bail 236 Special bail denied in Battery 2 V. Attorney V. p. 25. Bankrupt A Plaintiff has Judgment and before Execution becomes Bankrupt moved that the money may be brought into Court 93 Accounts between two Merchants and one of them becomes Bankrupt how far shall the other be a Debtor or Creditor 215 Baron and Feme Baron and Feme are sued in Trover and Conversion and the Wife arrested she shall be discharg'd upon common Bail 8 The Husband must pay for the Wives Apparrel unless she elope and he give not order to trust her 9 Whether or no and in what cases the Husband is bound by the Contract of the Wife and in what cases not 124 c. Husband and Wife recover in Action of Debt and have Judgment the Wife dies the Hushand shall have Execution 179 180 V. Tit. Avowry Bar. Judgment in a former Action pleaded in Bar of a second 207 Bastard-Children Orders of Sessions made upon the 18th of Eliz. for the keeping of them by the reputed Fathers 20 Bill of Exchange Needs not be protested on the very day that it becomes due 27 V. Tit. Indebitat assumpsit Borough-English Copyhold Land of the tenure of Borough-English surrendred to the use of another person and his heirs who dies before admittance the Right shall descend to the youngest Son 102 C. Cap. Excommunicatum MIsnosmer cannot be pleaded to a Cap. Excomm for the party has no day in Court 70 Certiorari To remove an Enditement of Robbery whether it removes the Recognizances to appear 41 To remove an Enditement of Murder out of Wales 64 68 Cinque-Ports Hab. Corp. to remove one out of the Cinque-Ports 20 Citation Citation ex officio not according to Law 185 Common Whether may a Corporation prescribe for a common sans number in gross 6 7 Condition That if the Obligor bring in Alice and John Coats when they come to their ages of 21 years c. to give Releases c. these words must be taken respectively 33 The Condition of a Bond for the parties appearance at a certain day and concludes If the party appear then the Condition to be void 35 36 Condition precedent or not 64 An Estate is given by Will upon Condition that if the Devisee marry without the consent of c. then a stranger to enter c. whether is this a Condition or a Limitation 86 c. 300 c. Condition of a Bond is to seal and execute a Release is the Obligor bound to do it without a tender 104 A Bond is dated in March the Condition is to pay money super 28 diem
had bona notab in divers Diocesses and the Archbishop of Canterbury committed Administration to the Defendant and concludes in Bar. V. Divers exceptions taken to the Plea 239 V. Administrators Evidence V. Copy A suspension of a rent may be given in Evidence upon nil debet pleaded 35 118 Evidence of a Deed. 94 An Action of Debt brought upon an Escape May a fresh Suit be given in Evidence upon nil debet pleaded 116 Copies and Exemplifications allowed to be given in Evidence when the Originals are burnt 117 Pleinment administer pleaded Payment of some Debts c. and delivering over the residue of the personal Estate to the Infant Executor when he comes of age may be given in Evidence 174 In an Action of Assumpsit grounded upon a Promise in Law payment may be given in Evidence not where the Action is grounded upon an express Promise 210 Hear-says how far allowable in Evidence 283 Depositions in Chancery allow'd to be read 283 284 F. False Imprisonment IN an Action of false Imprisonment the Defendant Justifies by vertue of a Warrant out of a Court within the County Palatine of Durham V. 170 171 172. several exceptions to the pleading The Defendant in false Imprisonment justifies by vertue of an Order of the Court of Chancery nought 272 Felony To cut down Corn and carry it away at the same time is no Felony But to cut it down and lay it by and carry it away afterwards is Felony 89 Feme sole Merchant V. 26. Fieri facias The Sheriff may execute a Writ of Fieri facias upon the Goods of the Defendant in the hands of his Administrator he dying after the Teste of the Writ and before Execution 188 Fine V. Ejectione firmae An interest for years in what Cases bar'd by a Fine and in what not 217 Fishing Common and several Pischary and fishing in publick and in private Rivers 105 106 Forcible Entry Enditement of forcible Entry 73 Forfeiture A man settles a term in trust for himself during his life and afterwards in trust for several of his Friends provided that if he have any issue of his body at the time of his death the trust shall cease and the assignment be to the use of such issue provided also that if he be minded to change the Uses that he may have power so to do by writing in the presence of two or more Witnesses or by his last Will. Then he commits Treason and is attainted by Act of Parliament and dies having issue Male at the time of his death but without making any revocation of the Uses of this settlement no more of this term is forfeited than during his own life only 16 17 38 39 40 Forma Pauperis A man that is admitted in Forma pauperis is not to have a new Trial nor is suffer'd to remove an Action out of an inferior Court 268 Formedon in Descender Exceptions to the Count. 219 220 Foreign Attachment Whether or no is a Debt due to a Corporation within the Custom of Foreign Attachment 212 Fraudulent Conveyance A Deed may be voluntary and yet not fraudulent V. 119 G. Gager de Ley. A Man cannot wage his Law in an Action brought upon a Prescription for a duty 121 Gardian Infant Tenant in a Common Recovery is admitted by Gardian ad sequendum whether that be Error or not 48 49 Gavelkind A Rent de novo granted out of Gavelkind-land shall descend according to the descent of the Land 96 97 c. Grant le Roy. V. 195 196 c. H. Habeas Corpus WHat time to plead has the party that comes in upon a Habeas Corpus 1 Habeas Corpus to remove one out of the Cinque-Ports 20 V. Excise Though the Return be filed the Court of Kings Bench may remand or commit the Prisoner to the Marshalsey at their Election 144 A Member of the House of Lords committed by the House for a Contempt cannot be set at liberty the Court of Kings Bench upon a Habeas Corpus be the Cause of his Commitment what it will 144 145 146 c. Habeas Corpus though returnable two days after the end of the Term yet ties up the inferior Court 195 Whether does a Habeas corpus ad subjiciendum lie in Court of Common Pleas 235 Heir Two Actions of Debt against an Heir upon two several Obligations of his Ancestor The Plaintiff in the second Action obtains Judgment first and whether shall be first satisfied 253 I. Jeoffails WAnt of an averment helpt after Verdict 14 V. 199 Inclosures Inquisition upon the Statute against pulling down Inclosures 66 Indebitatus assumpsit Indebitat assumpsit pro opere facto lies well enough 8 For money received of the Plaintiff by one Thomas Buckner by the appointment and to the use of the Defendant Good after a Verdict 42 Lies not against the Executors of a Treasurer of Sub-Treasurer of a Church or the like 163 An Action is brought upon an indebitat assumpsit and quantum meruit the Defendant pleads That the Plaintiff and himself accounted together and that the Plaintiff in consideration that the Defendant promised to pay him what was found due to him upon the foot of the Account discharged him of all former Contracts 205 206. and held to be a good Plea Indebitat assumpsit will not lie upon a Bill of Exchange accepted 285 286 Indebit assumpsit for Wares sold and no Evidence given of an agreement for the price 295 Indictment An Act of Parliament creates a new Offence and appoints other ways of proceeding than by Endictment yet if there are no negative words an Indictment lies 34 Indictment for these words viz. When ever a Burgess of Hull puts on his Gown Satan enters into him 35 Moved to quash an Inditement because the year of our Lord in the caption was in figures 78 Infant A man declares That the Defendant in consideration that the Plaintiff would let him take so much of his Grass promised c. held to be good Consideration though the Plaintiff were an Infant 25 V. tit Appearance V. tit Apprentice V. tit Recovery V. tit Notice Information An Information does not lie against a Lord for taking unreasonable Distresses of several of his Tenants 71 288 V. tit Recusants Intendments V. 67. Issue V. 72. Judge No Action upon the Case lies against a Judge upon a wrongful commitment 184 185 Juries If a Knight be but return'd on a Jury when a Peer is concern'd it 's not material whether he appear and give his Verdict or no 226 L. Labourers AN Enditement for retaining a Servant without a Testimonial from his last Master quasht for imperfection 78 Lease A Licence to enjoy till such a time whether it be a Lease or no and how to be pleaded 14 15 Uncertain limitations and impossible limitations of commencements of Leases 180 A Bishops Lease good upon which the whole rent is reserved upon part of what was accustomably demised 203 204 Libel V. 58. Limitation V. Condition
in the Mannor 232 R. Recovery sc Common Recovery VIde Gardian Whether can an Infant that suffers a Common Recovery reverse it when he comes of age 49 What shall be bar'd by a Common Recovery and what not 108 109 c. A Common Recovery suffered of Lands in Shrewsbury and the Liberties thereof good to pass Lands in the Liberties of Shrewsbury though lying out of the Town of Shrewsbury 206 The pleading of a Common Recovery V. 218 219 There are two Parishes adjoyning Rippon and Kirby-Marstone and within those two Parishes are two Towns of the same names A man has Lands within the Parishes but not within those Towns and suffers a recovery of Lands in Rippon and Kirby-Marstone generally but the Deed to lead the Uses mentions the Lands as lying in the Parishes of Rippon and Kirby-Marstone 250 c. Recusance and Recusancy An Information for not coming to Church may be brought upon the Stat. of 23 Eliz. reciting the clause in it that refers to 1 Eliz. 191 To an Endictment for Recusancy Conformity is a good Plea but not to an Action of Debt 213 Reddendo singula singulis V. 33. Release A man makes a Release of all Demands and Titles quid operatur 99 100 Reparations of Churches Parishioners how compellable to repair their Parish-Church 194 236 237 The greater part of the Parish shall conclude the Lesser for enlarging the Church as well as repairing it 236 237 The Chancel of a Parish-Church whereof the Rectory is Impropriate is out of repair Whether can the Ordinary sequester the Tythes 258 259 c. Request An Action for keeping a passage stopt up so that the Plaintiff could not come to cleanse his gutter ought the Plaintiff to lay a Request 27 Reservation A Heriot or 40 s. reserved to the Lessor and his Assigns at the Election of the Lessor his Heirs and Assigns yet cannot the Devisee of the Lessor have either the Heriot or 40 s. 216 217 Return false Return Action upon the Case against a Sheriff for that he arrested such a one at the Plaintiffs Suit and suffered him to go at large and at the day of the return of the Writ returned that he had his body ready The Defendant demurs generally 57 In a like Action the Defendant pleads the Stat. of 23 H. 6. cap. 10. and adjudged against the Plaintiff 239 240 V. Action upon the Case Robbery An Action lies against the Hundred upon the Statute of Winchester though the Robbery were not committed in the High-way 221 S. Scandalum Magnatum MY Lord _____ is an unworthy person and does things against Law and Reason Actionable 232 233 c. Scire Facias Scire facias upon a Recognizance in Chancery there is a demurrer to part and issue upon part Judgment must be given in the Court of Kings Bench upon the whole Record 29 Scias facias against Executors to have execution of a Judgment obtained against their Testator they plead That a Ca. Sa. issued against him upon which he was taken and that he paid the money to the Warden of the Fleet who suffered him to go at large This held to be no plea. 194 Seal Whether does the Seals being broken off invalidate a Deed c. given in Evidence 11 Seisin of an Office What shall be a Seisin of an Office and what not 122 123 Serjeants at Law What Serjeants Rings ought to weigh 9 Priviledge of Serjeants 226 Statute-Merchant and Staple V. Administrators Summons V. 197. Supersedeas The very sealing a Writ of Error is a Supersedeas to the Execution 28 The Stat. of 13 Eliz. cap. 9. where it is said there shall be no Supersedeas c. hath no reference to the Court of Kings Bench but only to the Chancery 45 A Writ of Error in Parliament in what Cases is it a Supersedeas and in what Cases not 106 285 V. 112 Whether is a Sheriff obliged at his years end to deliver a Writ of Supersedeas over to the new Sheriff 222 Survivor The Condition of a Bond is That if the Obligor shall pay yearly a sum of money to two strangers during their two lives that then c. Resolved that the payment is to cease upon the death of either of them 187 T. Tenant in Common TEnant in Common sues without his Companion 102 Tender and Refusal Where ever Payment will do Tender and Refusal will do 77 78 Toll Toll-thorough 47 48 V. Prescription Toll-thorough and Toll-traverse 231 232 Trespass Justification in Trespass 75 Whether does an Action of Trespass lie for immoderately riding a lent Mare 210 In an Action of Trespass it appears upon Evidence that the Fact if true was Felony yet does not this Evidence destroy the Plaintiffs Action Otherwise if it had appear'd upon the Declaration 282 283 Trover and Conversion A Sheriff may have an Action of Trover and Conversion for Goods taken by himself in Execution upon a Fieri facias 30 31 Trover and Conversion decem paririum tegularum valorum Angl. of ten pair of Curtains and Vallance held good 46 47 V. 135 136 c. many Cases of Trover and Conversion and of pleading in that Action Trover and Conversion de tribus struibus foeni 289 290 Trial. Motion for a new Trial. 2 An Action of Covenant is laid at York issue is joyn'd upon a matter in Barwick where shall the Trial be 36 37 c. Tythes Turfe Gravel and Chalk not tythable 35 If the Endowment of the Vicarage be lost small Tythes must be paid according to Prescription 50 Tythes of Cattel feeding in a Common where the Parish is not certainly known 216 A modus to the Rector is a good Discharge against the Vicar ibid. A Parson shall not have Tythe both of Corn and of Sheep taken in pro melioratione agriculturae infra terras arabiles c. ibid. V. tit Custom V. Venire Facias A Venire Facias returnable coram nobis apud Westm held good 81 Venue A Venue refused to be changed because the Plaintiff was a Counsellor at Law 64 Verdict When a Declaration will bear two Constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense 42 43 Matters helpt after Verdict 70 74 75 V. tit Jeofails View A Jury never ordered to View before their appearance but in an Assize 41 Ville What makes a Ville in Law 78 117 118 Visitation of Churches What Ecclesiastical Persons are visitable and what not 11 12 Vniversity Indebitat assumpsit against a Colledge in Oxford the Chancellor of the University demands Conusance whether is his Cause within the Priviledge of the University or not 163 164 Voluntary Conveyance What shall be said to be a Voluntary Conveyance within the Statute of Bankrupts and what not 76 Voucher A Tenant in an Assize avoucheth out of the line is it peremptory or not 7 8 Vses V. Covenant to stand seised V. 175 176 c. A man granted a Rent to one to the use of another and Covenants with the Grantee to pay the Rent to him to the use of the Cestuy que use The Grantee brings an Action of Covenant 223 Whether is the reservation of a Pepper-Corn a sufficient Consideration to raise an Use or not 262 263 Vsury V. 69. W. Wages IF a Mariner or Ship-Carpenter run away he looseth his Wages due 93 Warrant of Attorney Judgment enter'd of another Term than is expressed in the Warrant of Atturney 1 Warranty Feme Tenant in tail remainder to her Sisters in Fee the Tenant in tail and her Husband levy a Fine to the use of them two and the Heirs of the body of the Wife the remainder to the right Heirs of the Husband with Warranty against them and the Heirs of the Wife The Wife dies without issue 181 He that comes to Land by the limitation of an Use may rebut 192 193 Waste What is Waste and what not 94 95 Will. A Will drawn in the form of a Deed. 117 Whether must the Will of a Feme Covert be proved 211 The pleading of a Will of Land 217 Witnesses Who are good Witnesses and who are not 21 73 74 107 283 FINIS