enough and Iudgment was given accordingly When this Cause was tried at the Barr which was in Easter-Term last the Lord Mohun offered to give his Testimony for the Plaintiff but refused to be sworn offering to speak upon his Honour but Iustice Wyld told him in Causes between Party and Party he must be upon his Oath The Lord Mohun asked him whether he would answer it The Iudge replyed that he delivered it as his Opinion and because he knew not whether it might cause him to be questioned in another place he desired the rest of the Iudges to deliver their Opinions which they all did and said he ought to be sworn and so he was but with a salvo jure for he said there was an Order in the House of Peers That 't is against the Priviledge of the House for any Lord to be sworn Anonymus DEBT upon the Statute for not coming to Church and concludes Per quod Actio accrevit eidem Domino Regi quer̄ ad exigend ' habend ' The Exception after Iudgment was taken that it ought to have been only Actio accrevit eidem the Plaintiff qui tam c. and not exigend ' habend ' for the King and himself Sed non allocatur For upon search of Presidents the Court were all of Opinion that it was good either way Anonymus Factor where he cannot sell but for ready Mony IN Accompt Iudgment was given quod computet and the Defendant pleads before the Auditors that the Goods whereof he was to give a reasonable accompt were bona peritura and though he was carefull in the keeping of them yet they were much the worse that they remained in his hands for want of Buyers and were in danger of being worse and therefore he sold them upon Credit to a Man beyond Sea The Plaintiff demurred and after Argument by Barrel Serjeant for the Plaintiff and Baldwin Serjeant for the Defendant the whole Court were of Opinion that the Plea was not good Curia For if a Merchant deliver Goods to his Factor ad merchandizand ' he cannot sell them upon Credit but for ready Mony unless he hath a particular Commission from his Master so to do for if he can find no Buyers he is not answerable and if they are bona peritura and cannot be sold for Mony upon the delivery the Merchant must give him authority to sell upon Trust If they are burned or he is robbed without his own default he is not lyable and in this Case it was not pleaded that he could not sell the Goods for ready Mony and the Sale it self was made beyond Sea where the Buyer is not to be found like the Case of * 1 Bulst 103. Yelv. 202. Sadock and Burton where in Accompt against a Factor he pleads that he sold the Iewel to the King of Barbary for the Plaintiffs use and upon a Demurrer the Plea was held naught for when a Factor hath a bare Authorty to sell in such Case he hath no power to give a day of payment but must receive the Mony immediately upon the Sale Therefore in the Case at Barr if the Master is not bound by the Contract of the Servant without his Consent or at least the Goods coming to his use neither shall the Servant have Authority to sell without ready Mony unless he hath a particular Order for that purpose There was another thing moved in this Case for the Plaintiff that the Plea ought to be put in upon Oath for having pleaded that he could not sell without loss he ought to swear it Fitzh Accompt 47. But no Opinion was delivered herein only the Chief Iustice said that the Plaintiff ought to have required the Plea upon Oath for otherwise it was not necessary But for the substance of the Plea it was held ill and Iudgment was given for the Plaintiff Harris's Case SErjeant Hopkins moved for a Prohibition The Case was Husband dies his Wife Executrix she dies before Probate Administration must be to the next of kin of the Husband 22 23 Car. 2. cap. 10. A Man makes a Will and appoints his Wife to be Executrix and devises a Shilling to his Daughter for a Legacy and dies the Executrix before Probate of the Will dies also intestate and whether the Goods shall be distributed by the Act for settling Intestates Estates amongst the next of kin to the Executrix or to the next of kin to the Testator her Husband was the Question Since she dying before Probate her Husband in Iudgment of Law died also intestate This Case seems to be out of the Statute the Husband having made a Will and the Act intermeddles only where no Will is made The Court delivered no Iudgment in it but seemed to incline that the Statute did extend to this very Case and that Administration must be committed to the next of kin of the Husband but if there should be no distribution it must then be according to the Will of the Testator Reder versus Bradley IT was moved to reverse a Iudgment given in an Honour Court upon a Writ of false Iudgment brought here Judgment reversed in an inferior Court where the damage was laid to 30 l. The Plaintiff declared in the Action below that there was a Communication between him and the Defendant concerning the Service of his Son and it was agreéd between them that in consideration the Plaintiff would permit his Son to serve him the Defendant promised to pay the Plaintiff 30 s. The Plaintiff avers that he did permit his Son to serve him and that the Defendant hath not paid him the 30 s. There was a Verdict for the Plaintiff and the Exceptions now taken were 1. 'T is not said that the Iurors were electi ad triand ' c. 2. He lays his damage to 30 l. of which a Court Baron cannot hold Plea for the difference taken by my Lord Coke is where Damages are laid under 40 s. Costs may make it amount to more but where 't is laid above in such Case all is coram non Judice for which reason Iudgment was reversed but in this Court the Iudge doth not pronounce the Reversal as 't is done in the Kings Bench. Lane versus Robinson Inferior Court TRespass for taking of his Cattel the Defendant justifies by vertue of an Execution in an Action of Trespass brought in a Hundred Court and the Plaintiff demurred Serjeant Pemberton took two Exceptions to the Plea 2 Cro. 443 526. Hob. 180. Sid. 348. 1. Because the inferior Court not being of Record cannot hold Plea of a Trespass quare vi armis contra pacem but it was not allowed for Trespasses are frequently brought there and the Plaintiff may declare either vi armis or contra pacem Postea 2. The Defendant reciting the Proceedings below saith taliter processum fuit whereas he ought particularly to set forth all that was done because not being in a Court
the space of 14 days after complaint made then the Sub-Commissioners of the Excise are to determine the same from whom no Appeal doth lye to the Justices of the Peace at their next Sessions which Commissioners of Excise Justices of the Peace and Sub-Commissioners amongst other things are inabled by the said Act to Issue out Warrants under their Hands c. to levie the Forfeitures and so justified the Entry under a Warrant from the Sub-Commissioners three Iustices having refused to hear and determine this Offence To this Plea the Plaintiffs demurred and had Iudgment in the Court of Kings-Bench and a Writ of Inquiry of Damages was Executed and 750 l. Damages given and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given because the Writ of Inquiry was executed the last day of the Term and the Court did immediatly rise and that he could not move the next Term because the Iudgment was given the Term before the Writ of Error was brought The Attorny General therefore said that this was a hard Case and desired a Note of the Exceptions to the Plea which he would endeavour to maintain which Mr. Pollexfen gave him and then he desired time to answer them The Exception to the Plea upon which the Iudgment was given was this Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences and so to issue out Warrants for the Forfeitures but where the Iustices or any two of them refuse And though it was said by the Defendant that three refused yet it was not said that two did refuse for there is a great difference between the allegation of a thing in the Affirmative and in the Negative for if I affirm that A. B. C. did such a thing that affirmation goes to all of them but negatively it will not hold for if I say A. B. C. did not such a thing there I must add nec eorum aliquis So if an Action be brought against several Men and a Nolle prosequi is entred as to one and a Writ of Enquiry awarded against the rest which recites That the Plaintiff did by Bill implead naming those only against whom the Inquiry was awarded and leaves out him who got the Nolle prosequi this is a variance for it should have been brought against them all 'T is true where a Iudgment is recited 't is enough to mention those only against whom it is had but the Declaration must be against all so in a Writ of Error if one is dead he must be named and so the Iustices ought all to be named in this Case viz. that the three next Iustices did not hear and determine this Offence nec eorum aliquis Wells versus Wright In Communi Banco DEBT upon Bond conditioned Bond with an insensible Condition good that if the Obligée shall pay 20 l. in manner and form following that is to say 5 l. upon four several days therein named but if default shall be made in any of the Payments then the said Obligation shall be void or otherwise to stand in full force and vertue The Defendant pleads that tali die c. non solvit 5 l. c. and upon this the Plaintiff demurred Barrel Serjeant The first part of the Condition is good which is to pay the Mony and the other is surplusage void and insensible but if it be not void it may be good by transsposing thus viz. If he do pay then the Obligation shall be void if default shall be made in Payment then it shall be good and for Authority in the Point the Case of Vernon and Alsop was cited Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill 14 Car. 2. Rot. 1786. in B. R. Where the Condition was that if the Obligée pay 2 s. per Week until the Sum of 7 l. 10 s. be paid viz. on every Saturday and if he fail in Payment at any one day that the Bond shall be void and upon the like Plea and Demurrer as here it was adjudged that the Obligation was single and the Condition repugnant The Court were all of Opinion that Iudgment should be given for the Plaintiff and the Chief Iustice said that he doubted whether the Case of 39 H. 6. 9 10. was Law Brittam versus Charnock Where the the Heir takes by the Will with a Charge he is a Purchaser and the Lands shall not be Assets DEBT upon Bond against the Defendant as Heir Vpon Riens per discent pleaded the Iury found a Special Verdict in which the Case was viz. The Father was seized of a Messuage and thrée Acres of Land in Fee and devised the same to his eldest Son the Defendant and his Heirs within four years after his decease provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts and then he deviseth his other Lands to be sold for payment of Debts c. The Father dies the Son pays the 20 l. and if this Messuage c. was Assets in the Hands of the Defendant was the Question Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets it was said because the Heir shall not take by descent but by Purchase for the Word Paying is no Condition if it should the Heir is to enter for the breach and that is the Defendant himself and for that reason it shall be a Limitation Southcot and Stowel Antea 'T is true where there is no alteration of the Estate the Heir must take by descent but in this Case there is an alteration of the Estate from what is directed by the Law viz. the manner how he shall come by the Estate for no Fee passeth to him during the four years But this was denyed by Serjeant Pemberton for he said if a Devise be of Land to one and his Heirs within four years it is a present Devise and if such be made to the Heir 't is a descent in the mean time and those Words within four years are void so that the Question will be whether the Word Paying will make the Heir a Purchaser and he held it would not He agreed that it was usual to make that a Word of Limitation and not a Condition when the Devise is to the Heir and therefore in a Devise to the Heir at Law in Fée he shall take by descent Styles Rep. 148. But if this be neither a Condition or Limitation 't is a Charge upon the Land and such a Charge as the Heir cannot avoid in Equity North Chief Iustice and Atkins Where the Heir takes by a Will with a Charge as in this Case he doth not take by Descent but by Purchase and therfore this is no Assets Moor versus Pit SPecial Verdict in Ejectment The Case was this Surrender of a Copyhold to a Disseisor whether good to extinguish the Right viz. A Copyholder for Life the Remainder for Life he in
Barr. COnspiracy Rozal declares That a Replevin was brought against him and others and that the Defendant Lampen appeared for him without any Warrant and avowed in his Name and suffered Iudgment to pass against him and that 22 l. 10 s. Damages were recovered against him at such a place Lampen pleads a Recovery in a former Action brought by the now Plaintiff the Record of which being recited in the Plea appears to be the same with this but only here the place is mentioned where the Damages were recovered which was omitted in the former Action to which Lampen had pleaded a Reteiner by one of the then Defendants in Replevin and upon a Demurrer had Iudgment But the truth of the Case was That Iudgment was not then given for him that his Plea was good for the Court were all of Opinion that it was naught but because the Declaration was not good for want of mentioning the place where the Damages were recovered which the Plaintiff had amended now The Plaintiff demurred again because of this Variance between the two Actions upon the Defendants own shewing Ex parte Quer. Post Rose and Standen Putt and Roster Sir Robert Shaftoe for the Plaintiff insisted That a Recovery in an Action is no barr where there is a substantial variance as here there is and that so it has been adjudged in the Case of Leach and Thompson 1 Roll. Abr. 353. lit B. pl. 1. where the Plaintiff declared That he at the Defendants request having promised to Marry the Defendant's Daughter he promised to pay him 1000 l. Vpon Non Assumpsit pleaded Iudgment was given for the Defendant And the Plaintiff brought another Action for the same Sum and then laid the promise to pay 1000 l. cum inde requisitus esset and it was adjudged that the former Iudgment was no bar to the last Action because there was a Material difference between the two Promises one being laid without Request and so the Money was to be paid in a convenient time and in the last the Request is made part of the Promise and must be specially alledged with the time and place where it was made So in this Case The Plaintiff had not declared right in his first Action which he had amended now and therefore the former Iudgment shall be no barr to him In Robinson's Case there was a Mistake in the Writ viz. A Formedon in Remainder for that in Reverter and held no barr so by a parity of reason there shall be no barr here because the first Declaration was mistaken Stat. 3 H. 7. c. 1. Syd 316. and it was vitium Clerici Vide 2 Cro. 284. Level versus Hall Barton Serjeant contra This is no new Action Ex parte Def. for the ground of it is not where the Damages was done or recovered but the appearing without a Warrant and so having pleaded a Reteiner and had Iudgment and now pleading that Iudgment to this Action and averring 't was for one and the same thing 't is a good barr which the Plaintiff by his Demurrer hath confessed Adjornatur Milward versus Ingram INdebitatus Assumpsit for 50 l. and quantum meruit One promise pleaded in discharge of another good before the breach Mod. Rep. 205. the Defendant confesses both but pleads That after the promise made and before the Action brought they came to an Accompt concerning divers Sums of Money and that he was found in arrear to the Plaintiff 30 s. whereupon in consideration the Defendant promised to pay him the said 30 s. the Plaintiff likewise promised to release and acquit the Defendant of all Demands The Plaintiff demurred Seys Serjeant argued for the Plaintiff Ex parte Quer. that though one promise may be discharged by another yet a duty certain cannot as in this Case where a demand was of a Sum certain by the Indebitatus besides this Plea is in nature of an Accord which cannot be good without an averment of satisfaction given Broke Accompt 46 48. Neither is it said that the Plaintiff promised in consideration that the Defendant ad instantiam of the Plaintiff had promised Ex parte Def. But it was answered by Serjeant Hopkins and admitted to be true That where a Matter is pleaded by way of accord it must be averred to be executed in all Points but that was not the present Case ◠Cro. 100. The Defendant hath pleaded that he and the Plaintiff had accounted together and so the Contract is gone by the Accompt 2. That he was discharged of the Contract by parol both which the Plaintiff had now admitted by his Demurrer And it will not be denied that a Parol discharge of an Assumpsit is good as if A. promises to perform such a Voiage within a time limited and the breach assigned was that he did not go the Voiage The Defendant pleads that the Plaintiff exoneravit eum and upon Demurrer it was held good 22 Ed. 4. 40. 3 H. 6. 37. Object If it be objected that 't is no Consideration to pay a just Debt for if 30 s. were due of right it ought to be paid and that can be no reason upon which to ground a Promise Answ 'T is a good Consideration to pay Mony on the day which the party is bound to upon Bond because it is paid without Suit or Trouble which might be otherwise a loss to the Plaintiff But in this Case here is an express Agréement and before there was only a Contract in Law Cro. Car. 8. Flight versus Crasden Curia North Chief Iustice It has béen always taken that if there be an Assumpsit to do a thing and there is no breach of the promise that it may be discharged by Parol but if it be once broken then it cannot be discharged without Release in a writing In this Case there are two Demands in the Declaration to which the Defendant pleads an Accompt stated so that the Plaintiff can never after have recourse to the first Contract which is thereby merged in the Accompt If A. sells his Horse to B. for 10 l. and there being divers other dealings between them if they come to an accompt upon the whole and B. is found in arrear 5 l. A. must bring his insimul computasset for he can never recover upon an Indebitatus Assumpsit and of the same Opinion were the other three Iustices and though it was not said ad instantiam of the Plaintiff that he promised yet it was adtunc ibidem and so should be intended that the Defendant made the Promise at the instance of the Plaintiff and so Iudgment was given for the Defendant Daws versus Sir Paul Pindar COvenant to pay a Sum of Mony within a year after one Nokes shall be admitted to the Office of Secretary to the Governour of Barbadoes Barbadoes whether governed by the Laws of England so that the Statute of buying Offices extends to it The Defendant pleads that that the
de se by Inquisition and then comes an Act of Indempnity that shall not divest the King of his Right But where nothing Vests before the Office found a Pardon before the Inquisition extinguishes all Forfeitures as it was resolved in Tomb's Case So if the Pardon in this Case had come before the Presentation the Party had been restored Statu quo c. The King can do no more the Bishop is to do the rest neither is the Presentation revoked by this Act it might have been revoked by implication in some Cases as where there is a second Presentation but such a general revocation will not do it and Iudgment was given for the Plaintiff and a Writ of Error brought but the Cause was ended by Agreement Hill versus Pheasant Gaming at several meetings whether within the Statute AN Action of Debt was brought upon the Statute of 16 Car. 2. cap. 7. made against deceitful and disorderly Gaming which Enacts That if any person shall play at any Game other than for ready Mony and shall lose any Sum or other thing played for above the Sum of 100 l. at any one time or meeting upon Tick and shall not then pay the same that all Contracts and Securities made for the payment thereof shall be void and the person winning shall pay treble the Mony lost It happened that the Defendant won 80 l. at one meeting for whcih the Plaintiff gave Security and another meeting was appointed and the Defendant won 70 l. more of the Plaintiff being in all above 100 l. And if this was within the Statute was the Question The like Case was in the Kings-Bench Trin. 25 Car. 2. Rot. 1230. between Edgberry and Roseberry and in Michaelmas Term following this Case was argued and the Court was divided which the Plaintiff perceiving Anonymus Postea desired to discontinue his Action but the better Opinion was that it was not within the Statute though if it had been pleaded That the several meetings were purposely appointed to elude the Statute Sid. 394. in might be otherwise Calthorp versus Heyton Traverse not good viz. Absque hoc quod legitimo modo oneratus IN Replevin The Defendant avowed for that the King being seised in Fee of a Mannor and of a Grange which was parcel of the Mannor granted the Inheritance to a Bishop reserving 33 l. Rent to be yearly issuing out of the whole and alledges a Grant of the Grange from Sir W. W. who claimed under the Bishop to his Ancestors in Fee in which Grant there was this Clause Viz. If the Grantee or his Heirs shall be legally charged by Distress or with any Rent due to the King or his Successors upon account of the said Grange that then it should be lawful for them to enter into Blackacre and distrein till he or they be satisfied And afterwards the Grantee and his Heirs were upon a Bill Exhibited against them in the Exchequer decreed to pay the King 4 l. per Annum as their proportion out of the Grange for which he distreined and so justified the taking The Plaintiff pleads in barr to the Avowry and traverseth that the Defendant was lawfully charged with the said Rent and the Defendant demurred Baldwyn Serjeant maintained the Avowry to be good Ex parte Def. having alledged a legal charge and that the Barr was not good for the Plaintiff traverseth quod Defendens est ligitimo modo oneratus which being part matter of Law and part likewise matter of Fact is not good and therefore if the Decree be not a legal charge the Plaintiff should have demurred But on the other side it was argued by Seys Serjeant Ex parte Quer. That the Avowry is not good because the Defendant hath not set forth a legal charge according to the Grant which must be by Distress or some other lawful way and that must be intended by some execution at Common Law for the coactus fuit to pay is not enough a Suit in Equity is no legal disturbance Moor 559. The same Case is Reported in 1 Brownl 23. Selby versus Chute Besides the Defendant doth not shew any Process taken out or who were Parties to the Decree and a Que estate in the Case of a Bishop is not good for he must pass it by Deed. North and the whole Court A Rent in the Kings Case lies in Render and not in Demand and after the Rent day is past he is oneratus and the Decree is not material in this Case for the charge is not made thereby but by the Reservation for payment whereof the whole Grange is chargeable The King may distrain in any part of the Land he is not bound by the Decree to a particular place that is in favour only to the Purchasor that he should pay no more than his proportion As to the Que estate the Defendant hath admitted that by saying bene verum est that Sir W. W. was seised The Traverse is ill and Iudgment was given for the Avowant Vaughan versus Wood. Trespass justified for taking corrupt Victualls Mod. Rep. 202. TRespass for taking Beef The Defendant pleads a Custom to choose Supervisors of Victuals at a Court Leet That he was there chosen and having viewed the Plaintiffs Goods found the Beef to be corrupt which he took and burned The Plaintiff demurrs for that the Custom is unreasonable and when Meat is corrupt and sold there are proper remedies at Law by Action on the Case or presentment at a Leet 9 H. 6. 53. 11 Ed. 3. 4. 6. Vide Stat. 18 Eliz. cap. 3. But the Court held it a good Custom and Iudgment was given for the Defendant the Chief Iustice being not clear in it Chapter of Southwel versus Bishop of Lincoln Grant of next Avoidance not bind the Successor Mod. Rep. 204. IN a Quare Impedit the Question upon pleading was Whether the Grant of the next Avoidance by the Chapter was good or not to bind the Successor The doubt did arise upon the Statute of 13 Eliz. cap. 10. which was objected not to be a publick * Yelv. 106. Act because it extends only to those who are Ecclesiastical persons or if it should be adjudged a publick Law yet this is not a good Grant to bind the Successor for though the Grant of an Avoidance is not a thing of which any profit can be made yet it is an * Cro. Eliz. 441. Hereditament within the meaning of that Statute by which among other things 't is Enacted That all Grants c. made by Dean and Chapter c. of any Lands Tythes Tenements or Hereditaments being parcel of the Possessions of the Chapter other than for the Term of 21 Years or 3 Lives from the time of the making the said Grant shall be void But it was agreed by the Court to be a general Law like the Statute of Non Residency which hath been so ruled and that this Presentment or Grant
Case could not be supposed to prevent the Forfeiture because if that had been the Iury would have found it the meaning of the Parties must make a Construction here and that seems very strong that 't is a good Lease but they gave no Iudgment Wilkinson versus Sir Richard Lloyd Where the Parties shall join in an Action where not THE Defendant covenanted that he would not agreé for the taking the Farm of the Excise of Beer and Ale for the County of York without the Consent of the Plaintiff and another and the Plaintiff alone brought this Action of Covenant and assigns for breach the Defendants agréeing for the said Excise without his Consent upon which the Plaintiff had a Verdict and 1000 l. damages given And Serjeant Pemberton moved in Arrest of Iudgment for that an Action of Covenant would not lie in this Case by the Plaintiff alone because he ought to have joined with the other both of them having a joint Interest and so is Slingsby's Case 5 Co. If a Bond is made to two joyntly and severally they must both join in an Action of Debt so here 't is a joint contract and both must be Plaintiffs So also if one covenants with two to pay each of them 20 l. they must both join 'T is true in Slingsbies Case 't was held if an Assurance is made to A. of White Acre and to B. of Black Acre and to C. of Green Acre and a Covenant with them and every of them these last Words make the Covenant several But here is nothing of a several interest no more than that one covenants with two that he will not join in a Lease without their Consent so that their Interest not being divided the Covenant shall be entire and taken according to the first Words to be a joint Covenant and the rather because if the Plaintiff may maintain this Action alone the other may bring a second Action and the Defendant will be subject to entire damages which may be given in both Judgment But the Court was of another Opinion that here was no joint Interest but that each of the Covenantees might maintain an Action for his particular damages or otherwise one of them might be remediless for suppose one of them had given his Consent that the Defendant should farm this Excise and had secretly received some satisfaction or recompence for so doing is it reasonable that the other should lose his remedy who never did consent For which reason the Plaintiff had his Iudgment Page versus Tulse Mil ' alios Vic' Midd ' THE Plaintiff brought an Action on the Case against the Sheriff for a false Return Case lies not against the Sheriff for returning a Cepi Corpus paratum habeo though the Party doth not appear Mod. Rep. 239. Ellis and Yarborough post setting forth that he sued a Capias out of this Court directed to the Sheriff of Middlesex by vertue whereof he arrested the Party and took Bail for his appearance and at the day of the Return of the Writ the Sheriff returned Cepi corpus paratum habeo but he had not the Body there at the Return of the Writ but suffered him to escape The Defendant pleads the Statute of 23 H. 6. cap. 10. and saith that he took Bail viz. two sufficient Sureties and so let him go at large c. The Plaintiff demurrs and whether this Action lies against the Defendant was the Question who refused to proceed against him by way of Amerciament or to take an Assignment of the Bail-Bond This Case depended in Court several Terms It was argued by Serjeant Pemberton and Serjeant Coniers for the Plaintiff and by Serjeant George Strode for the Defendant and Iudgment was given in Easter Term in the 29th year of this King In the Argument for the Defendant that this Action would not lie it was considered Ex parte Def. 1. What the Common Law was before the making of this Statute 2. What alteration thereof the Statute had made At the Common Law Men were to appear personally to ansswer the Writ the Form of which required it and no Attorney could be made in any Action till Edw. 1. de gratia speciali gave leave to his Subjects to appoint them and commanded his Iudges to admit them 2 Inst 377. After the Arrest the Sheriff mighttie the Party to what Conditions he pleased and he might keep him till he had complied with such Conditions which often ended in taking extravagant Bonds and sometimes in other Oppressions for remedy whereof this Statute was made in which the Clause that concerns this Case is viz. If the Sheriff return upon any person Cepi Corpus or Reddidit se that he shall be chargeable to have the Body at the day of the Return of the Writ in such form as before the making the Act so that as to the Return of the Writ this Statute hath made no alteration the Sheriff being bound to have the Party at a day as before All the alteration made of the Common Law by this Statute is that the Sheriff now is bound to let the Party out of Prison upon reasonable Sureties of sufficient persons which before he was not obliged to do and it would be a Case of great hardship upon all the Sheriffs of England if they being compellable to let out the Party to Bail should also be subject to an Action for so doing because they have him not at the day so that the intent of the Law must be when it charges the Sheriff to have the Body at the Return that he should be liable to a Penalty if the Party did not then appear not to be recovered by Action but by Amerciament Cro. Jac. 286. The Security directed by this Act is to be taken in the Sheriffs own Name 't is properly his business and for his own Indempnity and therefore it is left wholly in his power for which reason no Action will lie against him for taking insufficient Bail that being to his own prejudice in which the Plaintiff is no wise concerned for if that had beén intended by the Act some Provision would have beén made as to his being satisfied in the sufficiency of the Persons When the Security is thus taken if the Defendant doth not appear at the Return of the Writ the Plaintiff by Amerciaments shall compel him to bring in the Body or to assign the Bond either of which is a full satisfaction and as much as is required If the Sheriff refuse to take 2 Sand. 59 154 1 Roll. Abr. 807 808. Cro. Eliz. 460 852. Noy 39. Moor 428. Sid. 23. sufficient Sureties when offered he is liable to an Action on the Case at the Suit of the Defendant for his refusal and it would be very unreasonable to enforce him to have the Party in Court at the Return when he is obliged under a Penalty to let him at large This Action is grounded upon a false Return when in
truth there is no Return made or if any 't is a very imperfect Return till the Body be in Court and this is the reason why the Court will not allow it but amerce the Sheriff till he make the Party appear 't is not like a compleat Return as a Non est inventus or the Return of Nulla Bona upon a Fi. Fa. The Case of * ◠Roll Abr. 93 pl. 17. Postea Bowls and Lassels is full in the Point where it was adjudged that this Action would not lie because the Sheriff had not done any thing unjustly but what he was commanded to do by the Statute and therefore he is to be amerced if the Defendant doth not appear Ex parte Quer. But for the Plaintiff it was said that unless this Action lye he is remediless and that for two Reasons 1. Because the Assignment of the Bail Bond is at the discretion of the Court and not demandable by the Plaintiff in foro 2. The Plaintiff hath no benefit by the Amerciaments because they go to the King and in some places are granted to Patenteés now 't is agreéd that the Sheriff may be amerced and certainly if an Action be brought against him he is but in the same Case for still he is to pay And if it be objected that the Amerciaments may be compounded cheaper then the Plaintiff hath not so good remedy nor is so likely to recover his Debt as if the Action would lie which would be a greater penalty upon him than the Amerciaments on the Sheriff Neither will it follow that because the Sheriff may be amerced therefore no Action will lie against him for in many Cases he may be amerced and yet an Action on the Case will lie against him at the Suit of the Party 41 Ass pl. 12. fol. 254. Latch 187. That this Action will not lie is against the very end of the Statute and the reasonable construction thereof in the last Clause which Enacts That if the Sheriff return a Cepi Corpus he shall be charged to have the Body at the Return as before the making of the Statute now before this Law he was lyable to an Action if after such a Return made the Party did not appear and therefore this Action being grounded upon the Common Law is still preserved since no alteration hereof hath beén made by this Statute 'T is true an Action of Escape is taken away but not an Action on the Case for a false Return and upon this difference are all the Authorities cited on the other side as Cro. Eliz. 416 621. Cro. Jac. 286. Moor 428. and the Case of Bowls and Lassels And for an Authority in Point is the Case of Franklin and Andrews 24 Car. 1. where Iudgment was given for the Plaintiff in an Action brought for a false Return of Cepi Corpus and the Statute pleaded as in this Case It has béen objected that Iudgment was there given upon the defect of Pleading because the Traverse was naught 't is true there was a Traverse absque hoc quod the Defendant retornavit aliter vel alio modo but that was held good because it answered the falso alledged in the Plaintiffs Declaration In this Case there is no Traverse but 't is confessed by the Demurrer that he did falsly and deceitfully return Cepi Corpus and so the Plaintiff is at apparent damage and hath no remedy without this Action and the Defendant is at no prejudice but hath his remedy over on the Bail Bond. North Chief Iustice Wyndham and Atkins Iustices Judgment held that the Action would not lie for when the Sheriff returns Cepi Corpus paratum habeo though he have him not in Court 't is no false Return for if he hath taken Bail he hath done what by Law he ought to do if he Arrest a Man in Yorkshire the Law will not compel him to bring the Party hither to the Bar because of the charge if he make an insufficient Return neither the Party or the Court are deluded because the common method in such cases must be pursued by which the Party will have remedy This Return is true and Iustice Atkyns held that the Sheriff was not obliged by the Statute to return only a Cepi Corpus paratum habeo but might return that he took Bail for the Statute provides that if he return a Cepi Corpus he shall be chargable as before but doth not enjoyn him to make such return the Case of Bowles and Lassels is full in this point and therefore Iudgment was given for the Defendant But Iustice Scroggs was of another Opinion says he this Action being brought because the Defendant said he had the Body ready when in truth he had not was an apparent injury to the Plaintiff of whom the Statute must have some consideration for it doth not require the Sheriff to say Cepi corpus paratum habeo but he must make his Return good or otherwise those words are very insignificant and if the Statute obliges him to let the party to Bail and nothing more is thereby intended for the benefit of the Plaintiff why doth the Court amerce the Sheriff and punish him for doing what the Statute directs Therefore if the Plaintiff brings a Habeas Corpus upon the Cepi and the Defendant doth not appear the Plaintiff is then well entituled to this Action Hollis versus Carre in Cancellaria Decree of the Execution of a Fine in specie THE Lord Chancellor Finch having called to his assistance Iustice Wild and Iustice Windham to give their Opinions what relief the Plaintiff was to have for the recovering of 6000 l. which was his Ladys Portion After those Iudges had spoken shortly to the matter he put the Case Viz. The Plaintiff by his Bill demands 6000 l. due to him for his Wives Portion with Interest for non-payment according to the purport of certain Articles of Agreement dated in August 1661. and mentioned to be made between old Sir Robert Carr the Defendants Father his Lady and Son the now Defendant and Lucy Carr his Daughter on the one part and my Lord Hollis and Sir Francis his Son the now Plaintiff on the other part The Articles mention an Agreement of a Marriage to be had between the said Sir Francis Hollis and Lucy Carr with Covenants on the Plaintiffs side to settle a Ioynture c. and on the other side to pay 6000 l. and 't is agreed in the Articles that a Fine was intended to be levied of such Lands c. for securing the payment of 6000 l. c. The Marriage takes effect but old Sir Robert Carr did never Seal these Articles the Lady Carr Seals before and the Defendant after Marriage Sir Francis had Issue on his Lady Lucy one Child since dead the Lady is likewise dead the Ioynture was not made nor the Portion paid Afterward viz. Anno 1664. an Act of Parliament was made for setling old Sir Robert Carr's Estate whereby the
any other thing which lies in Grant and the Deed is lost or cancelled the Office or the thing granted falls to the ground for the Deed is the foundation and a Case was cited in the Lord Dyer If there be two Iointenants and one cancels the Deed it hath destroyed the Right of the other Quaere of these things But it was agreed that if two Men who have one Office for their Lives and the survivor of them if one surrenders to the other and then a new Grant is made to this other and a Stranger he hath debarred himself of the Survivorship and he and the Stranger are jointly seised Crossman versus Sir John Churchil IN a Quare Impedit the Plaintiffs Title was set forth in his Declaration which was also found in a Special Verdict Where an Agreement for a Presentation by turns is good that Sir George Rodney was seised of the Advowson in Fée and died seised leaving two Sisters who were his Coheirs that Sir John Rodney being also one of the same Family and pretending a Right to the Estate for preventing Suits that might happen they all enter into an Agréement by Indentures mutually executed by which it was agreed that Sir John Rodney shall hold some Lands in severalty and the Co-heirs shall hold other Lands in the like manner and as for this Advowson a temporary provision was made thereof that each of them should Present by turns and this was to continue till partition could be made then comes an Act of Parliament and confirms the Indenture and Enacts That every Agreement therein contained shall stand and that all the rest of the Lands not particularly named and otherwise disposed by the said Indenture should be held by these three in common one of the three who by Agréement was next to Present grants the next Avoidance the Church being then full to the Plaintiff and the Question was whether these threé persons were not Tenants in Common of the Advowson and if so then the Grant of the next Avoidance cannot be good by one alone because he hath not the whole Advowson but only a Right to the third part It was said that if Tenants in Common had made such an Agreément it would not have beén any division of their interest for there must be a partition to sever the Inheritance The Court were all of Opinion Curia that Iudgment should be given for the Plaintiff for there was an Agréement that there shall be a Presentation by turns and therefore for one turn each hath a Right to the whole Advowson by reason of the Act of Parliament by which that Agreement is confirmed and thereby an Interest is setled in each of them till Partition made but this Agreement would have vested no Interest in either of them without an Act of Parliament to corroborate it therefore there had been no remedy upon it but by an Action of Covenant This Case was argued four times and not one Authority cited The Earl of Shaftsbury versus Lord Digby In Banco Regis For Words upon the Statute of 2 R. 2. c. 5. Jones 49. SCandalum Magnatum The Plaintiff declares upon the Statute of 2 R. 2. cap. 5. for these Words viz. You are not for the King but for Sedition and for a Common-wealth and by God we will have your Head the next Sessions of Parliament After Verdict for the Plaintiff and 1000 l. damages given it was moved in Arrest of Iudgment and several Exceptions taken 1. As to the Recital of the Statute the Words of which are That no Man shall devise any Lies c. and the Plaintiff for the Word devise had used the Latin Word contrafacio in his Declaration which was very improper that being to counterfeit and not to devise for it should have béen machino or fingo those are more expressive Words of Devise 2. 'T is alledged that the Defendant dixit mendacia of the Plaintiff viz. haec Anglicana verba sequen̄ and doth not alledge that he spoke the Words 3. The most material Objection was a mistake in the Recital of the Statute the Words of which are That none shall speak any scandalous Words of any Dukes Earls c. the Justices of either Bench nor of any other great Officer of the Kingdom but the Plaintiff in his Declaration recites it thus viz. None shall speak any scandalous Words of any Dukes Earls c. Justices of either Bench great Officers of the Kingdom and leaves out the Words neque al so that it must be construed thus None to speak of any Dukes Earls c. being great Officers of the Kingdom and then 't is not enough that the Plaintiff is Comes but he also ought to be a great Officer of the Kingdom which is not set out in this Case But upon great Debate and Deliberation these Exceptions were overruled and the whole Court gave Iudgment for the Plaintiff As to the first Exception they said contrafacio is a legal Word and apt enough in this sense and so are all the Presidents and thus it was pleaded in the Lord Cromwel's Case As to the second Exception it was said the Mendacia which were told were the English Words which were spoken and the viz. haec Anglicana verba sequen̄ being in the Accusative Case are governed by the same Verb which governs the Words precedent viz. horribilia mendacia Besides for the supporting of an Action the viz. may be transposed and then it will be well enough viz. the Defendant spoke haec Anglicana verba viz. Lies of the Plaintiff As to the third Exception it was answered that the Plaintiff neéd not recite the Statute it being a * Sid. 348. general Law and admitting there was no necessity yet if he will undertake to recite it and mistake in a material Point 't is incurable but if he recites so much as will serve to maintain his own Action truly and mistakes the rest this will not vitiate his Declaration and so he hath done here by reciting so much of the Statute which Enacts That no Man shall speak any scandalous Words of an Earl which is enough he being an Earl to entitle him to an Action and he concludes prout per eundem Actum plenius liquet and the Court grounded themselves principally upon a Iudgment given in this Court which was thus viz. There was a Robbery committed and the Party brought an Action upon the Statute of Huy and Cry in which he recited incendia domorum 13 E. 1. cap. 1. the said Statute beginning Forasmuch as from day to day Robberies Murders burning of Houses c. and the Presidents are all so But the Parliament Roll is Incendia generally without domorum and it was strongly urged that it was a misrecital which was fatal But the Court were all of Opinion that the Plaintiffs Case being only concerning a Robbery for which the Statute was well recited and not about burning which was mistaken it was for that reason good
concluded that he had not paid it and therefore they would not admit him to wage his Law without bringing sufficient Compurgators to swear that they believed he swore Truth but such not appearing the Defendant defecit de Lege and Iudgment had been given against him but he offered to bring the Mony recovered and the Costs into the Court and to go to a new Tryal it being a very hard Case upon him at the former Trial where the Demand was of a Quit-Rent of 18 d. per annum the Defendant promised that if the Plaintiff would shew his Title and satisfie him that he had a Right to demand it he would pay him the Rent and at the Tryal express Oath was made of a Promise to pay upon which the Verdict was obtained whereas it was then urged that the Freehold would come in question upon that Promise and so the inferior Court could have no Iurisdiction And afterwards the Chief Iustice said that it hath béen adjudged in the Kings Bench that an inferior Court cannot hold Plea on a quantum meruit for Work done out of the Iurisdiction though the Promise be made within and that he knew where a Person of Quality intending a Marriage with a Lady presented her with a Iewel and the Marriage not taking effect he brought an Action of Detinue against her and she taking it to be a Gift offered to wage her Law but the Court was of Opinion that the property was not changed by this Gift being to a specifical intent and therefore would not admit her to do it Quod nota Styleman versus Patrick AN Action on the Case was brought by the Plaintiff against the Defendant for eating of his Grass with his Sheep Costs allowed so that he could not in tam amplo modo enjoy his Common there was a Verdict for the Plaintiff and it was now moved that he should have no more Costs than Damages because this was a Trespass in its own nature and the Iudge of Assise had not certified that the Title of any Land was in question Bur the Court were all of Opinion Curia that this Case was not within the Statute For it was not a frivolous Action because a little damage done to one Commoner and so to twenty may in the whole make it a great Wrong if the Cause were frivolous the Iudge of Assize may mark it to be such by vertue of the Statute of 43 Eliz. cap. 6. and then there shall be no more Costs than Damages and though in this Case the Plaintiff hath in his Declaration set out a Title to his Common yet the Title of the Land cannot possibly come in question and therefore not to be certified as in Cases of Trespas neither is there any need of a Certificate if it appears by the Pleading that the Title of the Land is in question The Court being against the Defendant as to the Costs his Council then moved in Arrest of Iudgment because the Plaintiff sets forth his Right to the Common only by way of Recital with a cumque etiam Postea c. that he had a Right to Common in such a place sed non allocatur for 't is affirmative enough and afterwards he is charged with doing the Plaintiff damage and so the Case is not like to an Action of Trespas quare cum he did a Trespass for there the sense is imperfect DE Term. Sancti Hill Anno 28 29 Car. II. in Communi Banco James versus Johnson IN Trespass Que Estate where 't is pleadable Mod Rep. 231. the Defendant justified by a Prescription to have Toll and Issue being joyned thereupon the Iury found a special Verdict in which the Case upon the Pleadings was viz. Before the dissolution of Priories the Mannor now in the possession of the Defendant was parcel of the Priory of B. which came to the Crown by the said dissolution and the King made a Grant thereof to Sir Jervas Clifton in Fee together with the said Toll adeo plene as the Prior had it and the Defendant having brought down a Title by several mesne Assignments claims by vertue of a Lease from Sir Jervas for seven years then in being alledging that the said Sir Jervas and all those whose Estate he had might take Toll and whether this Pleading by a Que Estate to have Right of Toll was good in Law the Iury doubted Baldwin Serjeant for the Plaintiff Ex parte Quer. argued that the Iustification was not good because there are two sorts of Toll viz. Toll through and Toll traverse and is in the Kings High Way and the other in a Man 's own Soil and it doth not appear for which the Defendant hath justified If it be for the first then he ought to shew that he did make a Causeway or some other thing that might be an advantage to the Passengers to entitle himself to a Prescription but if it be for the other then he must also shew it was for passing upon his Soil which implies a Consideration 22 Assize Kelw. 148. Pl. Com. 236. Lord Berkley's Case 1 Cro. 710. Smith versus Sheppard by which Cases it appears that the justification ought to be certain Then as to the point in Question he said that Toll cannot be appurtenant to a Mannor and so the Pleading by a Que estate is not good but if that should be admitted yet the Mannor being vested in the Crown by the dissolution the Toll then became in gross and could never after be united to the Mannor or appurtenant thereunto But it was argued for the Defendant by Maynard Serjeant and the whole Court were clear of Opinion that the Issue was upon a particular point and the Title was admitted and that nothing remained in question but the Point in pleading And as to what had been objected That Toll cannot belong to a Mannor 't is quite otherwise for an Advowson a Rent a Toll or any Profit apprender may be appurtenant to it T is true a Man cannot prescribe by a Que Estate of a Rent Advowson Toll c. but he may of a Mannor to which these are appendant 't is likewise true that if the Defendant had said this was Toll for passing the Highway he must shew some cause to entitle himself to the taking of it as by doing something of publick advantage But this general way of pleading is the most usual and so are the Presidents and it ought to come on the other side and to be alledged that the Defendant prescribed for Toll in the High-way and in this Case though the Mannor came to the Crown the Toll remained appurtenant still and so it continued when it was granted out The difference is between a thing which was originally a Flower of the Crown and other things which are not as Catalla Felonum c. if such come again to the King they are merged in the Crown but 't is otherwise in cases of a Leet Park Warren
likewise addressed to my Lord as before making several Protestations of his Innocency But having once in a Passion said that he scorned to submit My Lord for that Reason would not remit the Damages it was therefore moved for a new Tryal upon these Reasons 1. Because the Witnesses who proved the Words were not Persons of Credit and that at the time when they were alledged to be spoken many Clergy-men were in Company with the Defendant and heard no such Words spoken 2. It was sworn that one of the Iury confessed that they gave such great damages to the Plaintiff not that he was damnified so much but that he might have the greater opportunity to shew himself noble in the remitting of them 3. And which was the principal Reason because the Damages were excessive Curia The Court delivered their Opinions seriatim and first The Chief Iustice North said In Cases of Fines for criminal Matters a Man is to be fined by Magna Charta with a salvo contenemento suo and no Fine is to be imposed greater than he is able to pay but in Civil Actions the Plaintiff is to recover by way of compensation for the damages he hath sustained and the Iury are the proper Iudges thereof This is a Civil Action brought by the Plaintiff for Words spoken of him which if they are in their own nature actionable the Iury ought to consider the damage which the Party may sustain but if a particular Averment of special damages makes them actionable then the Iury are only to consider such damages as are already sustained and not such as may happen in futuro because for such the Plaintiff may have a new Action He said that as a Iudge he could not tell what value to set upon the Honour of the Plaintiff the Iury have given 4000 l. and therefore he could neither lessen the Sum or grant a new Trial especially since by the Law the Iury are Iudges of the damages and it would be very inconvenient to examine upon what account they gave their Verdict they having found the Defendant guilty did believe the Witnesses and he could not now make a doubt of their Credibility Wyndham Iustice accorded in omnibus Atkins Iustice contra That a new Trial should be granted for 't is every days practice and he remembred the Case of Gouldston and Wood in the Kings Bench where the Plaintiff in an Action on the Case for Words for calling of him Bankrupt recovered 1500 l. and that Court granted a new Tryal because the damages were excessive The Iury in this Case ought to have respect only to the damage which the Plaintiff sustained and not to do an unaccountable thing that he might have an opportunity to shew himself generous and as the Court ought with one Eye to look upon the Verdict so with the other they ought to take notice what is contained in the Declaration and then to consider whether the Words and Damages bear any proportion if not then the Court ought to lay their hands upon the Verdict 'T is true they cannot lessen the damages but if they are too great the Court may grant a new Tryal Scroggs Iustice accorded with North and Wyndham that no new Tryal can be granted in this Cause He said that he was of Council with the Plaintiff before he was called to the Bench and might therefore be supposed to give Iudgment in favour of his former Client being prepossess'd in the Cause or else to shew himself more signally just might without considering the matter give Iudgment against him but that now he had forgot all former relation thereunto and therefore delivered his Opinion that if he had been of the Iury he should not have given such a Verdict and if he had been Plaintiff he would not take advantage of it but would overcome with Forgiveness such Follies and Indiscretions of which the Defendant had been guilty but that he did not sit there to give Advice but to do Iustice to the People He did agrèe that where an unequal Tryal was as such must be where there is any Practice with the Iury in such Case 't is good reason to grant a new Tryal but no such thing appearing to him in this Case a new Tryal could not be granted Suppose the Iury had given a scandalous Verdict for the Plaintiff as a Penny Damages he could not have obtained a new Trial in hopes to increase them neither shall the Defendant in hopes to lessen them and therefore by the Opinion of these three Iustices a new Tryal was not granted Afterwards in this Term Serjeant Maynard moved in Arrest of Iudgment and said that this Action was grounded upon the Statute of R. 2. Which consists of a Preamble reciting the Mischief and of the Enacting part in giving of a Remedy and that the Defendants Case was neither within the Mischief or the Remedy This Statute doth not create any Action by way of particular design and if the matter was now Res integra much might be said that an Action for Damages will not lye upon this Statute for the Statute of Westm 2. appoints that the Offender shall suffer imprisonment until he produces the Author of a false Report Ca. 33. and the Statute of 2 R. 2. which recites that of Westm 2. gives the same punishment and the Action is brought qui tam c. and yet the Plaintiff only recovers for himself It was usual to punish Offenders in this kind in the Star Chamber as in the * Earl of Northampton's Case where one Goodrick said of him That he wrote a Book against Garnet and a Letter to Bellarmine 12 Co. 132. intimating that what he wrote in the Book was not his Opinion but only ad captandum populum which was a great disgrace to him in those days being as much as to say he was a Papist Cro. Eliz. But the Serjeant would not insist upon that now since it hath been ruled that where a Statute prohibits the doing of a thing which if done might be prejudicial to another in such case he may have an Action upon that very Statute for his Damages But the ground on which he argued was that these words as spoken are not within the meaning of the Act for they are not actionable 1. Because they are no scandal and words which are actionable must import a great Scandal which no circumstance or occasion of speaking can excuse and if they are scandalous and capable of any mitigation by the precedent discourse the pleading of that matter will make them not actionable and for this the Lord * 4 Co. Cromwel's Case is a plain Authority the Words spoken of him were You like those that maintain Sedition against the King's Person the occasion of speaking of which was to give an account of his favouring the Puritan Preachers which was all that was intended by the former discourse for that Lord had approved a Sermon which was preached by a Parson
charged for doing a thing against Law but once an Action would not lie He then observed how the Cases which have been adjudged upon this Statute agree with the Rules he had insisted on in his Argument which Cases have not been many and those too of late times in respect of the Antiquity of the Act which was made almost 300 hundred years since Anno 1379. and for 120 years after no Action was brought the first that is Reported was 13 H. 7. Keilway 26. So that we have no contemporanea expositio of the Statute to guide an Opinion which would be a great help in this Case because they who make an Act best understand the meaning but now the meaning must be collected from the Statute it self which is the best Exposition as the Rule is given in Bonham's Case 8 Co. Vide the Case in 13 H. 7. The next Case in time is the Duke of Buckingham's Case 4 H 8. Cromp Jur. of Courts f. 13. You have no more Conscience than a Dog Lord Abergavenny against Cartwright in the same Book You care not how you come by Goods in both which Cases the Words charge the Plaintiff with particular matter and give a Narrative of something of a false Story and do not barely rest upon an Opinion In the Bishop of Norwich his Case Cro. Eliz. 1. Viz. You have writ to me that which is against the Word of God and to the maintainance of Superstition These were held actionable because they refer to his Function and greatly defame him and yet he had but 500 Marks Damages 29 30 Eliz. 1 Cro. 67. The Lord Mordant against Bridges My Lord Mordant did know that Prude robbed Shotbolt and bid me compound with Shotbolt for the same and said he would see me satisfied for the same though it cost him an hundred pounds which I did for him being my Master otherwise the Evidence I could have given would have hanged Prude These Words were held actionable and 1000 l. Damages given and in all the other Cases which have been mentioned upon this Statute and where Iudgment was given for the Plaintiff the Words always charge him with some particular Fact and are positive and certain but where they are doubtful and general and signifie only the Opinion of the Defendant they are not actionable The Words in the Case at Bar neither relate to the Plaintiff as a Peer or a Lord Lieutenant and charge him with no particular Crime so that from the authority of all these Cases he grounded his Opinion that the Action would not lie and he said If Laws should be expounded to wrack People for Words instead of remedying one Mischief many would be introduced for in such Case they would be made Snares for Men. The Law doth bear with the Infirmities of Men as Reliligion Honour and Vertue doth in other Cases and amongst all the excellent Qualities which Adorn the Nobility of this Nation none doth so much as forgiving of Injuries Solomon saith That 't is the Honour of a Man to pass by an Infirmity Which if the Plaintiff should refuse yet the Defendant if he thinks the Damages excessive is not without his remedy by Attaint for he said he could shew where an Attaint was brought against a Iury for giving 60 l. Damages He farther said that he could not find that any Iudgment had been either reversed or arrested upon this Statute and therefore it was fit that the Law should be setled by some Rule because 't is a wretched condition for People to live under such Circumstances as not to know how to demean themselves towards a Péer and since no Limits have been hitherto prescribed 't is fit there should be some now and that the Court should go by the same Rules in the Case of a Peer as in that of common person that is not to construe the Words actionable without some particular Crime charged upon the Plaintiff or unless he alledge special damages for which Reasons he held that this Action would not lye Wyndham Iustice accorded with Scroggs and the Chief Iustice North agreed with them in the same Opinion his Argument was viz. First he said that he did not wonder that the Defendant made his Case so solemn being loaded with so great damages but that his Opinion should not be guided with that or with any Rules but those of Law because this did not concern the Plaintiff alone but was the Case of all the Nobility of England but let it be never so general and the Conveniences or Incoveniences never so great he would not upon any such considerations alter the Law He said that no Action would lie upon this Statute which would not lie at the Common Law for where a Statute prohibits a thing generally and no particular Man is concerned an Offence against such a Law is punishable by Indictment but where there is a particular damage to any person by doing the thing prohibited there an Action will lie upon the Statute and so it will at the Common Law The Words therefore which are actionable upon this Statute are so at the Common Law This Statute extends only to Peers or other great Officers now every Peer as such is a great Officer he has an Office of great Dignity he is to support the King by his advice of which he is made capable by the great Eminency of his Reputation and therefore all Words which reflect upon him as he is the Kings Councellor or as he is a Man of Honour and Dignity are actionable at the Common Law In the ordinary Cases of Officers 't is not necessary to say that the Words were spoken relating to his Office as to say of a Lawyer that He is a Sot or an Ignoramus or of a Tradesman He is a Bankrupt the Action lies though the Words were not spoken of either as a Lawyer or Tradesman He did not think that Iudges were to teach Men by what Rules to walk other than what did relate to the particular matter before them all other things are gratis dicta neither would he allow that distinction that an Action would not lie where a Man spoke only his Opinion for if that should be admitted it would be very easie to scandalize any Man as I think such a Judge is corrupt or I am of Opinion that such a Privy Councellor is a Traytor and can any Man doubt whether these or such like Words are actionable or not because spoken only in the sense of the person 'T is true in some Cases where a Man speaks his own particular disesteem an Action will not lie as if I say I care not for such a Lord but that differs much where a Man speaks his Opinion with reference to a Crime for Opinions will be spread and will have an implicit Faith and because one Man believes it another will and 't is upon this ground that all the Cases which have been since the Statute are justified and so was the late
Case of * Sid. 233. the Marquess of Dorchester He is no more to be valued than the Black Dog which lies there which were Words of disesteem and only the Opinion of the Defendant in which Case Iudgment was affirmed in a Writ of Error Object If it be objected to what purpose this Statute was made if no Action lies upon it but what lay at the Common Law Answ The Plaintiff now upon the Statute must prosecute tam pro Domino Rege quam pro seipso which he could not do at the Common Law And it has beén held in the Starr-Chamber that if a Scandalum Magnatum be brought upon this Statute the Defendant cannot justifie because 't is brought qui tam c. and the King is concerned but the Defendant may explain the Words and tell the occasion of speaking of them if they are true they must not be published because the Statute was to prevent Discords Object These Words carry in them no disesteem Answ According to a Common Vnderstanding they are Words of disrespect and of great disesteem for 't is as much as to say that the Plaintiff is a Man of no Honour he is one who lives after his own Will and so is not fit to be employed under the King if any precedent discourse had qualified the speaking these Words it ought to have been shewn by the Defendant which is not done and therefore he concluded that the Words notwithstanding what was objected were actionable and so by the Opinion of him Wyndham and Scroggs Iustices Iudgment was given for the Plaintiff Atkins Iustice of a contrary Opinion Anonymus AN Action of Assault Battery Amendment after a Demurrer joyned and before Judgment given good Wounding and false Imprisonment for an hour was brought against the Defendant who pleads quoad venire vi armis Not-Guilty and as to the Imprisonment he justified as Servant to the Sheriff attending upon him at the time of the Assize from whom he received a Command to bring the Plaintiff being another of the Sheriffs Servants from the Conventicle where finding of him he to wit the Defendant did molliter manus imponere upon the Plaintiff and brought him before his Master quae est eadem transgressio To this the Plaintiff demurred and shewed for Cause 1. That the Substance of the Iustification is not good 2 Cro. 360. because the Servant could not thus justifie though his Master might for the Lord may beat his Villain without a Cause but if he command another to do it an Action of Battery lies against him 2 H. 4. 4. But though this might have been good if well pleaded yet 't is not good as pleaded here for 2. The Defendant saith quoad venire vi armis Not-Guilty Harding and Ferne Postea but saith nothing of the wounding which cannot be justified and therefore this Plea is not good for which reason it was clearly resolved that the Plea was ill but the Court inclined that the Substance of the Plea was well enough The Chief Iustice and Iustice Scroggs were of Opinion that a Man may as well send for his Servant from a Conventicle as from an Alehouse and may keep him from going to either of those places And the Chief Iustice said that he once knew it to be part of a Marriage Agreement that the Wife should have leave to go to a Conventicle But in this Case Leave was given to amend the Plea Sid. 107. and put in quoad vulnerationem Not-Guilty and it was held that though the Parties had joined in Demurrer yet the Defendant might have Liberty to amend before Iudgment given Singleton versus Bawtree Executor Traverse must be where the Charge in the Declaration is not fully answered ASsumpsit against the Defendant as Executor who pleads the Testator made one J. S. Executor who proved the Will and took upon him the Execution thereof and administred the Goods and Chattels of the Testator and so concludes in Abatement Et petit Judicium de Brevi with an Averment that J. S. Superstes in plena vita existit To this Plea the Plaintiff demurred because the Defendant ought to have traversed absque hoc that he was Executor or administred as Executor and so are all the Pleadings 9 H. 6. 7. 4 H. 7. 13. 7 H. 6. 13. But Serjeant Pemberton for the Defendant said that there is a difference when Letters of Administration are granted in case the Party die intestate and when a Man makes a Will and therein appoints an Executor for in that Case the Executor comes in immediately from the death of the Testator but when a Man dies intestate the Ordinary hath an Interest in the Goods and therefore he who takes them is Executor de son tort and may be charged as such but 't is otherwise generally where there is a Will and a rightful Executor who proveth the same for he may bring a Trover against the Party for taking of the Testators Goods though he never had the actual possession of them and therefore the taking in such case will not make a Man Executor de son tort because there is another lawful Executor but 't is true that if there be a special Administration 't is otherwise as if a Stranger doth take upon him to pay Debts or Legacies or to use the Intestates Goods such an express Administration will make him Executor de son tort and liable as in Read's Case 5 Co. So in this Case the Defendant pleads that J. S. was Executor which prima facie discharges him for to make him chargeable the Plaintiff ought in his Replication to set forth the special Administration that though there was an Executor yet before he assumed the Execution or proved the Will the Defendant first took the Goods by which he became Executor of his own Wrong and so to have brought himself within this distinction which was the truth of this Case and that would have put the matter out of dispute which not being done he held the Plea to be good and so prayed Iudgment for the Defendant The Court were of Opinion that prima facie this was a good Plea for where a Man * 2 Sand. 28. confesses and avoids he need not traverse and here the Defendant had avoided his being chargeable as Executor de son tort by saying that there was a rightful Executor who had administred the Testators whole Estate but the Surmise of the Plaintiff and the Plea of the Defendant being both in the * 2 Cro. 579. pl. 9. Sid. 341. 1 Sand. 338. affirmative no Issue can be joined thereon and therefore the Defendant ought to have traversed that he was Executor or ever administred as Executor the rather because his Plea gives no full Answer to the Charge in the Declaration being charged as Executor who pleads that another was Executor and both these matters might be true and yet the Defendant liable as Executor de son tort which
damages which he sustained before the Abatement And thereupon Iudgment was given for the Plaintiff Walwyn versus Awberry and others Tythes of a Rectory shall not be sequestred for Repairs of the Chancel Mod. Rep. 258. TRespass for the taking and carrying away of four Loads of Wheat and four Loads of Rye c. The Defendants justifie for that the Plaintiff is Rector of the Rectory impropriate of B. and that the Chancel was out of Repair and that the Bishop of Hereford after Monition first given to the Plaintiff had granted a Sequestration of the Tythes of the Rectory for the repairing the Chancel and that the Defendants were Churchwardens of the Parish and that the particulars mentioned in the Declaration were Tythes belonging to the Plaintiff as Rector aforesaid and that by vertue of the said Commission they took the same for repairing of the said Chancel and that for these Tythes so taken they had accounted to the Bishop To this the Plaintiff demurred The Question was whether an Impropriate Rectory be chargeable for the Repairs of the Chancel by the Sequestration of the Tythes by the Bishop and those who argued in the negative for the Plaintiff could not deny but that Church Reparations did belong to the Ecclesiastical Courts and that as often as Prohibitions have been prayed to that Iurisdiction Consultations have been as often granted notwithstanding in many Cases the Rates for such Reparations have been very unequally imposed and the reason is because those Courts have original Iurisdiction of the Matter It was admitted also that Parishioners are bound to repair the Church and the Rector the Chappel and in this respect of their Lands and therefore if a Man hath Lands in one Town and dwell in another he shall be contributory to the Reparation of that Church where his Lands are and not where he inhabits And that all this was by the common Custom of England long before the making of the Statute of 31 H. 8. cap. 13. by which Parsonages were made Lay Fees but then it must be understood that this was no real Duty incumbent upon them but was a personal burden for which every Parishioner was chargeable proportionably to the quantity of Land which he held in the Parish in which Case if he refused to be contributory the Ordinary did never intermeddle with the possessions but always proceeded by Ecclesiastical Censures as Excommunication of the Party refusing which is the proper remedy But in case of an Appropriation in the Hands of an Ecclesiastical Corporation as Dean and Chapter c. there if a Refusal be to contribute to the Repairs the Ordinary may sequester and the reason is because a Corporation cannot be excommunicated The Ordinary may also sequester in things of Ecclesiastical Cognizance as if the King do not present so he may take the Profits within the six Months that the Patron hath to present and apply them to the Pastor of the Church by him recommended because the Ordinary hath a provisional Superintendency of the Church and there is a necessity that the Cure should be supplyed until the Patron doth present and this is a kind of Sequestration But in some Cases the Ordinary could not sequester the Profits belonging to Spiritual Persons though he was lawfully entituled to them for a particular time and purpose For by the Statute of 13 Eliz. cap. 20. 't is Enacted That if a Parson make a Lease of his Living for a longer time than he is resident upon it that such Lease shall be void and he shall for the same lose one years Profits of his Benefice to be distributed by the Ordinary amongst the Poor of the Parish Now he had no Remedy to recover the Years Profits but in the Ecclesiastical Court he could not sequester and to give him Authority so to do a supplemental Statute was made five years afterwards in the 18th year of the Queens Reign cap. 11. by which Power is given him to grant a Sequestration so that if he could not sequester in a Case of which he had a Iurisdiction by a precedent Statute à fortiori he cannot in a Case exempted as this is from his Iurisdiction But admitting a Sequestration might go then this inconveniency would follow that if other Lands should be sequestred for the same purpose the former Sequestration could not be pleaded to discharge them because the interest is not bound thereby no more than a Sequestration out of Chancery is pleadable to an Action of Trespass at the Common Law This Case cannot be distinguished from that of Jefferies in 5 Co. and from what the Civilians testified to the Court there viz. That the Churchwardens and greater part of the Parishioners upon a general warning given may make a Taxation by Law but the same shall not charge the Land but the person in respect of his Land so that 't is he that is chargeable and may be excommunicated in case of refusal to contribute but his Lands cannot be sequestred because 't is not the business of the Ordinary to meddle with the temporal possessions of Lay-men but to proceed against them by Ecclesiastical Censures and the Parishioners Lands may be as well sequestred for the Repairs of the Church as the Lands of the Impropriator for the Repairs of the Chappel for which Reasons it was held that a Sequestration would not lie Ex parte Def. But on the other side it was said that before the making of the Statute the Rector was to repair the Chancel under pain of Sequestration which the Ordinary had power to grant in case of refusal and that his Authority in many Cases was not abridged by the Statute The Case of * 2 Cro. 518. Parry and Banks was cited where in the 24th Year of H. 8. a Parsonage was appropriated to the Deanary of St. Asaph and a Vicaridge endowed which the Bishop dissolved in the 24th Year of Queen Elizabeth and Parry pretending that notwithstanding this Dissolution it was in the Kings Hands by lapse obtained a Presentation and it was resolved that after the Statute of Dissolutions which made Parsonages Lay Fees the Ordinary could not dissolve the Vicaridge where the Parsonage was in a Temporal Hand but being in that Case in the Hands of the Dean he might The Rector is to repair the Chancel because of the Profits of the Glebe which is therefore Onus reale impositum rebus personis and of that Opinion was Johannes de Atkin who wrote 100 years before Lynwood where in fol. 56. he saith That if the Chancel was out of repair it affected the Glebe And that the Constitution of the Canon Law is such will not be denied Vaugh. 327. and if so Canons being allowed are by use become parcel of the Common Law and are as much the Law of the Kingdom as an Act of Parliament for what is Law doth not suscipere magis aut minus Several Cases were put where the Bishop doth intermeddle with the
here for want of * 2 H. 4. 12. Bro Accompt 24 65 89. privity and because there is no contract 't is only a tort a disseisin and the Plaintiff might have brought an Assise for this Office which lies at the Common Law and so it hath been adjudged in Jehu Webb's Case 1 Inst 212. 8 Co. 4. Which is also given by the Statute of Westm 2. cap. 25. for a profit apprender in alieno solo The Plaintiff might have brought an Action on the Case against the Defendant for disturbing of him in his Office and that had been good because it had been grounded on the wrong In this Case the Defendant takes the Profits against the will of the Plaintiff and so there is no Contract but if he had received them by the consent of the Plaintiff 6 H. 6.9 1 Roll. Abr. 597 pl. 5. yet this Action would not lie for want of privity 'T is true in the Case of the King where his Rents are wrongfully received the party may be charged to give an accompt as Bayliff so also may the Executors of his Accomptant because the Law createth a privity but 't is otherwise in the Case of a common person 10 Co. 114. b. 11 Co. 90. b. Because in all Actions of Debt there must be a Contract or quasi ex contractu and therefore where Iudgment was had and thereupon an Elegit and the Sheriff returned that he had apprised the Goods and extended such Lands which he delivered to the Plaintiff ubi revera he did not per quod actio accrevit which was an Action of Debt but it was adjudged that it would not lie because the Sheriff had not returned that he medled with the Goods or with the value of them and therefore for want of certainty how much to charge him with this Action would not lie but an Action on the Case for a false Return but if he had returned the Goods sold for so much Mony certain Godb. 276. 2 Sand. 344. 2 Cro. 566. which he had delivered then an Action of Debt would lie for though 't is not a Contract 't is quasi ex contractu Hob. 206. 3. Point The Iury find that the Defendant received the Profits for seven years and that the Plaintiff had his Patent but two years and do not shew what was received by the Defendant within those two years and then the Court cannot apply it But on the other side it was said by Sawyer Ex parte Quer. That this Non obstante was good for where an Act of Parliament comes to restrain the Kings power and prerogative it was always held so to be and he relied upon the Iudgment of 2 H. 7. f. 6. that the King might dispense with the Statute of 23 H. 6. Pl. Com. 502. b. Dyer 303. which he affirmed to be the constant Vsage ever since and that therefore the Law is so taken to be at this day As to the second Point both he and the Sollicitor General Winnington said That an indebitatus assumpsit would lie here for where one receives my Rent I may charge him as Bayliff or Receiver or if any one receive my Mony without my order though 't is a tort yet an indebitatus will lie because by the Receipt of the Mony the Law creates a promise and the Action is not grounded on the tort but on the receipt of the Profits in this Case As to the Objection about the finding they held that to be nugatory and idle for it cannot be intended that the Damages given were for the time the Defendant received the Profits before the Plaintiff had his Patent neither is there any thing found in the Verdict to that purpose In Michaelmas-Term following Judgment the Court gave Iudgment for the Plaintiffs 1. They held that the King might dispense with this Statute for the Subject had no interest nor was in any wise concerned in the Prohibition it was made only for the ease of the King Hob. 146. and by the like reason he might dispense with the Statute of 4 H. 4. 24. That a Man shall hold the Office of Dyer 203. Aulnager without a Bill from the Treasurer and with the Statute of 31 H. 6. 5. That no Customer or Comptroller shall have any Estate certain in his Office because these and such like Statutes were made for the ease of the Sovereign and not to abridge his Prerogative and that the general Clause of Non obstante aliquo alio Statuto was sufficient 2. 4 H. 7. 6. b. Moor 458 An Indebitatus Assumpsit will lye for Rent received by one who pretends a Title for in such case an Accompt will lye wherever the Plaintiff may have an Accompt an Indebitatus will lye As to the finding 't is well enough for the Iury assess Damages occasione praemissorum in narratione mentionat which must be for the time the Plaintiff had the Office and that a Patent would make a Man an Officer before admittance Steward Executor of Steward versus Allen. Demand must be made where an Interest is to be determined DEBT for a Rent reserved upon a Lease for years in which there was a Proviso That if the Rent be behind and unpaid by the space of a Month next after any or either of the Daies of payment then the Lease to be void The Plea was That the Rent was behind a Month after a day on which it was reserved to be paid and so the Lease is void to which Plea the Plaintiff demurred because the Defendant did not say that the Plaintiff demanded the Rent for though the Rent be due without demand yet the Interest shall not be determined without it which must be expressly laid in the Pleading and of that Opinion was the Court except Iustice Atkyns who doubted Searl versus Long. Quare Impedit real mainpernors must be returned upon the Summons Pone and Grand Cape 2 Inst 124. Mod. Rep. 248. IVdgment final was given in a Quare Impedit according to the Statute of Marlebridge cap. 12. Which Serjeant Pemberton moved to set aside He said that at the Common Law the Process in a Quare Impedit was Summons Pone and Distress infinite which being found mischievous in respect of a Lapse it was therefore provided by this Statute that if the disturbers do not appear upon the Summons then they shall be Attached to appear at another day c. Now here upon the Attachment the Sheriff hath returned Attachiatus fuit by John Doe and Richard Roe who are feigned persons and not mainpernors for the Defendant hath made Oath That he did not know any such persons neither was he ever Attached so that 't is not only a matter of Form for he ought to have that notice which the Law requires it being so penal upon him 'T is probable this Mistake might arise from Mr. Dalton who in his Book of the Office of Sheriffs in the Returns of Writs
reason the Iury might find for him 'T is true he might have pleaded Plene computavit which is the general Plea But it may as well be presumed that the Verdict was against the Plaintiff because the Action would not lye and the Matter being in dubio the Court will intend it against the Pleader he not having averred to the contrary and so they held the Plea to be ill DE Termino Paschae Anno 30 Car. II. in Communi Banco Osborn versus Wright ACtion on the Case for words Viz. The Plaintiff declares that she was unmarried but about to marry one J. S. and that the Defendant to hinder her Marriage spoke these Words of her Viz. She is a Whore a Common Whore and N's Whore per quod maritagium amisit The Iury found the Defendant guilty of speaking the Words but that she did not lose her Marriage thereby and it was moved in arrest of Iudgment that these Words are not actionable being only Scolding and of that Opinion was all the Court and Iudgment was arrested Hambleton versus Justice Scroggs alios In Camera Scaccarii Serjeant at Law whether Priviledge to be Sued only in the Common-Pleas AN Assault and Battery was brought against the Defendants in the Kings-Bench to which one of them pleaded that he was a Serjeant at Law and so ought to have his Priviledge to be sued by Bill in the Common Pleas and in no other Court To this Plea the Plaintiff demurred and Iudgment was given in my Lord Chief Iustice Hales's time by the Opinion of him and the whole Court of Kings-Bench That a Serjeant at Law might be sued there and was not suable in the Court of Common-Pleas only 2. That in this Action the Defendant should not have his Priviledge because it was brought against him and another And afterwards a Writ of Error was brought upon this Iudgment returnable before the Lord Chancellor and Chief Iustices of the Kings-Bench and Common-Pleas and the Errors were argued before the two Chief Iustices at Serjeants-Inn in Chancery Lane Mr. Holt for the Plaintiff in the Writ of Error Ex parte Quer. That a Serjeant at Law is to be sued only in the Court of Common-Pleas and not elsewhere because there is an absolute necessity of his Attendance there He is sworn and no other person can plead at that Bar and therefore if he should be sued in any other Court Vaugh. 155. it would be an Impediment to the Business of that Court where not only the Officers but their Servants have Priviledge In the 11th of E. 4. 2. There was some discourse about the Priviledge of Serjeants at Law where it was held that he is not to be sued in that Court by Bill but by Original but either way he is to have his Priviledge So the Servant of an Officer is not to be sued by Bill Cro. Car. 84. but he is still to have the Priviledge of the Court and so had Serjeant Hedley's Clerk in the Reign of King Charles the first The Serjeants receive a kind of Induction to the Bar and have a place assigned them and that they ought to have Priviledge the very Words of the Writ are observable Viz. mentioning a Serjeant at Law ex officio incumbit in Curia illa And though it hath been said and given as an answer to that Case in Cro. Car. That where the Serjeants Clerk was Arrested in an Inferior Court as in that Case he was there he shall have Priviledge but not against the other great Courts in Westminster-Hall this is a difference never yet taken notice of in any Book nor doth the Writ warrant this distinction 2. He shall have his Priviledge though he be joyned with another because the Action is joynt and several and the one may be found guilty and the other acquitted and it would be an easie way to oust a Man of his Priviledge if it might be done by joyning him with another who hath none 14 H. 4. 21. But the Person with whom the Serjeant is joyned may be sued in the Common-Pleas likewise so that he shall not hinder him from having Priviledge who of right ought to have it 10 E. 4. 15. Offley contra As to the first point Ex parte Def. the Court of Kings-Bench agreed that a Serjeant at Law shall always have the Priviledge of the Court of Common-Pleas against all Inferiour Courts but not against the other Courts in Westminster Hall for he may be sued in any of them A Serjeant is not like the Common Officers of the Court for they are to be attendant there and no where else but a Serjeant at Law is not confined to that Court alone he may be assigned of Council in any other Court and doth usually put his hand to Pleas both in the Kings-Bench and the Exchequer but a Philazer or Attorny of that Court cannot practise in his own Name in any other All Cases of Priviledge ought to be taken strictly And that which was cited concerning the Priviledge of a Serjeants Clerk is not like this because the Arrest was in an Inferiour Court In the 11 E. 4. 2. b. The Chief Iustice of the Kings-Bench came to the Common-Pleas Bar and told a Serjeant who he had assigned for a Pauper That if he would not come into that Court and plead for his Clyent he would forejudge him so that if he could be fetch'd out of the Common Pleas and carried to the Kings-Bench he is not confined to that Court alone In the 5 H. 5. nu 10. Complaint was made that the Subjects of the King were not well served in his Courts the Parliament thereupon Ordered that one Martin and others should take upon them the Dignity of Serjeants at Law so that it appears that their Business lies in other Courts as well as in that of the Common-Pleas 2. As to the second Point Here is a joynt Action for any thing that appears to the contrary 2 Rol. Abr. 275. pl. 4. and the Plaintiff may proceed against one in the Kings-Bench and therefore the other shall be ousted of his Priviledge if he have any in the Common-Pleas Moor 556. 20 H. 6. 32. North Chief Iustice said That he always took it to be an uncontroverted point That a Serjeant at Law should be sued only in the Court of Common-Pleas by Bill he is bound by Oath to be there and when he brings a Writ of Priviledge 't is always out of that Court and no other Curia advisare vult The Attorny General versus Sir John Read In Scaccario INformation A special Verdict was found Disability by a Statute ought to be removed by the Party to enable himself to execute an Office The Case was thus Viz. Sir John Read 1 Apr. 24 Car. 2. was by Sentence in the Spiritual Court divorced a Mensa Thoro and for Non payment of Alimony was excommunicated Afterwards it was Enacted by the Statute of 25 Car. 2.
Anno 30 Car. II. in Communi Banco The Case of one Randal and his Wife an Administrator c. Judgment may be avoided without a Writ of Error by a Plea where the Party is a Stranger to it DEBT upon a Bond against the Defendant as Administrator They plead a Iudgment recovered against the Intestate in Hillary Term 26 27 Car. 2. and that they had not Assets ultra The Plaintiff replies that there was an Action against the Intestate but that he dyed before Iudgment and that after his death Iudgment was obtained and kept on foot per fraudem The Defendant traversed the Fraud but did not answer the death of the Intestate and upon a Demurrer it was said for the Plaintiff that the Iudgment was ill and that he being a Stranger to it could neither bring a Writ of Error or Deceit and had no other way to avoid it but by Plea and that 't is put as a Rule That where Iudgment may be reversed by a Writ of Error the Party shall not be admitted to do it by Plea but a Stranger to it must avoid it by Plea because he is no Party to the Iudgment as if a Scire Facias be brought against the Bail 't is a good Plea for them to say that the Principal was dead before Iudgment given by way of excusing themselves to bring in the Body but 't is not good to avoid the Iudgment because 't is against the Record Cro. Eliz. 199. which must be avoided by Writ of Error 1 Roll. Abr. 449 742. The Court were of Opinion that the Plaintiff might avoid the Iudgment without a Writ of Error especially in this Case where 't is not only erroneous but void Hill versus Thorn IN an Arbitrament it was held by the Court Rules in an Award that if two things be awarded the one within and the other not within the Submission the later is void and the breach must be assigned only upon the first 2. If there be a Submission of a particular difference and there are other things in Controversie if in such Case a general Release is awarded 't is ill and it must be shewed on the other side to avoid the Award for that cause 3. If the Submission be of all differences till the 10th day of May 1 Sand. 33. and a Release awarded to be given of all differences till the 20th day of May if there be no differences between those two days the Award is good if any it must be shewed in Pleading 1 Roll. Abr. 257. otherwise the Court will never intend it 4. Smith and Shelbury Antea That reciprocal Covenants cannot be pleaded in barr of another and that in the assigning of a Breach of Covenant 't is not necessary to averr performance on the Plaintiffs side Staples versus Alden DEBT upon a Bond conditioned to deliver forty pair of Shooes within a Month at Holborn-Bridge to Henry Knight a Common Carrier to G. for the use of the Obligee Tender of Goods to the Man shall be a Tender to the Master The Defendant pleaded that in all that space of a Month Henry Knight did not come to London but that such a day at Holborn-Bridge he delivered forty pair of Shooes to A. G. the Carriers Porter To this Plea the Plaintiff demurred for that the Condition being to do something to a Stranger the Defendant at his peril ought to perform it 33 H. 6. 13. 4 H. 7. 4. like the Case where the Action of Debt was brought upon a Bond conditioned that the Defendant should give such a Release as the Iudge of the Prerogative Court should think fit the Defendant pleaded that the Iudge did not appoint any Release and it was adjudged no good Plea because the Obligation is on his part and he ought to tender a Release to the Iudge Cro. Eliz. 716. But on the other side it was said that a delivery to the Servant is a delivery to the Master himself and if parcels of Goods are delivered to the Porter and lost an Action lies against the Master Curia The Court absente North Chief Iustice held the Plea to be good and that such a Construction was to be made as was according to the intent of the Parties and that a delivery to the Man was a delivery to the Master whereupon Iudgment was given for the Defendant Gillmore versus Executor of Shooter In Banco Regis A new Act shall not take away an Action to which the Plaintiff was entituled at the Commencement of the Act. INdebitatus Assumpsit There was a Treaty of Marriage between the Plaintiff who was of kin to the Testator and the Daughter of one Harris with whom he afterwards had 2000 l. as the Marriage Portion and Mr. Shooter in his Life time promised to give the Plaintiff as much or to leave him worth so much by his Will This Promise was made before the 24th day of June before this Action brought the Marriage took effect Harris paid the 2000 l. and Shooter dyed in September following having made no payment of the Mony or any Provision for the Plaintiff by his Will This Action was commenced after Shooter's death and upon the Tryal a Special Verdict was found upon the Act of Frauds and Perjuries 29 Car. 2. c. 29 Car. 2. which Enacts That from and after the 24th day of June in the year 1677. no Action shall be brought to charge any person upon any Agreement made in consideration of Marriage c. unless such Agreement be in Writing c. And that this was a bare Promise without Writing And by Wyld and Jones absente Twisden Iudgment was given for the Plaintiff for it could not be presumed that the Act had a retrospect to take away an Action to which the Plaintiff was then intituled For if a Will had been made before the 24th day of June and the Testator had dyed afterwards yet the Will had been good though it had not been in pursuance of the Statute Aster versus Mazeen In C. B. IN Covenant Breach assigned did relate to three Covenants the Declaration concludes sic fregit Conventionem and good the Plaintiff declared upon an Indenture in which the Defendant had covenanted that he was seised in Fee c. and would free the Premisses from all Incumbrances in which there was also another Covenant for quiet Enjoyment and the Breach assigned was upon an Entry and Eviction by another and concludes sic Coventionem suam praedictam fregit in the singular Number And upon a Demurrer to the Declaration Maynard Serjeant said That the Breach did relate to all the three Covenants and therefore the Conclusion was ill because he did not shew what Covenant in particular and if he should obtain a Iudgment upon such a Declaration the Recovery could not be pleaed in Barr to another Action brought upon one of the other Covenants But Conyers for the Plaintiff said that Conventio is
new Will and the Grandson should take by the Name of Son And Iustice Atkins relied on the Case of Brett and Rigden in the Commentaries where new purchased Lands passed by a Republication but a Writ of Error being brought upon this Iudgment in the Kings Bench it was reversed Anonymus In Banco Regis MR. Sanders moved for a Prohibition to the Spiritual Court in the Case of the Children of one Collet and Mary his Wife to stay Proceedings there upon a Libel against them that the said Collet had married Anne the Sister of the said Mary They both appear and confess the Matter upon which a Sentence of Divorce was to pass whereas in truth Collet was never married to Ann but it was a contrivance between him and his Wife to get themselves divorced and the Marriage declared void ab initio to defeat their Children of an Estate settled upon them in Marriage with Remainders over by bastardizing them after they had been married and lived together 16 years The Reason why a Prohibition was prayed was because Marriage or no Marriage was to be tried in pais for that the Inheritance and Freehold of Land were concerned in this Case The Court directed that they should suggest this Matter Curia and that it was a Contrivance to obtain a Sentence of Divorce to defeat them of their Estate entailed on them and then to move for a Prohibition Smallwood versus Brickhouse THE Suggestion was Spiritual Courts are proper to determine where a person is capable of making a Will Godolph 276. that B. being under the Age of sixteen years had made a Will and that the Prerogative Court proceeded to the proof of it whereas by the Common Law a person is not capable till 17 years and therefore a Prohibition was prayed And that the Common Law hath determined the time my Lord Coke's Comment upon Littleton was cited 1 Inst 89. b. where 't is said That at 18 years of Age he may make his Testament and constitute Executors and the Age of a person is triable also in pais But the Court said Curia that the Proof of Wills and the Validity of them doth belong to the Ecclesiastical Court and if they adjudge a person capable the Court will not intermeddle for 't is within their Iurisdiction to adjudge when a person is of Age to make a Will and sometimes they allow Wills made by persons of 14 years of Age and the Common Law hath appointed no time it depends wholly on the Spiritual Law and therefore a Prohibition was denied Joan Bailies Case NOTA. One Joan Bayly being in Execution Administration was committed to the Debtor in Execution the Plaintiff dyed intestate and the Right of Administration came to her and a Motion was made for a Habeas Corpus to bring her from the Compter into this Court for that having administred to her Creditor she might be discharged but it was denyed for she could not be thus discharged because non constat de persona neither can she give a Warrant of Attorny to acknowledge satisfaction therefore let her renounce the Administration and get it granted to another and then she may be discharged by a Letter of Attorny from such Administrator Anonymus Mandamus MAndamus to swear one who was elected to be one of the Eight Men of Ashburn Court it was denyed because it is incertain for it ought specially to be inserted what the Office is and what is the place of one of the Eight Men of Ashburn Court that it may appear to the Court to be such a place for which a Mandamus doth lye and though such a Writ hath been granted for one of the approved Men of Guilford yet it was specially set forth what his Office was Birch versus Lingen Trin. 34 Car. 2. in B. R. Discontinuance where amendable JVdgment was obtained upon a Bond 25 years since and in one of the Continuances from one Term to another there was a blank The Executors of the Defendant now brought a Writ of Error and the Plaintiff in the Action got a Rule to amend and insert the Continuance suggesting to the Court that it was a Iudgment of a few Terms and so aided by the Statute of 16 17 Car. 2. cap. 8. Hughes Abr. tit Costs 480. 2 Sand. 289. Moor 710. Cro. Eliz. 320 489 553 619. Cro. Jac. 211 353 528. Vpon this Rule the Plaintiff fills up the Blank and the Record was certified so filled up into the Exchequer-Chamber And Mr. Pollexfen moved for the Defendant that the Record might stand as it did at first and that the Rule was got by a trick and on a false Suggestion it being a Iudgment before the Restoration of this King and a Discontinuance not amendable for 't is the Act of the Court and for an Authority in the Point the Case of Friend and Baker was cited where after a Record certified Stiles 339. a Motion was made to amend it because day was given over to the Parties from Easter to Michaelmas-Term and so Trinity-Term left out where by the Opinion of Roll Chief Iustice that the giving of a day more than is necessary is no Discontinuance but where a day is wanting 't is otherwise But Sanders for the Plaintiff said that this was only a Misprision of the Clerk and no Discontinuance but amendable The Clerks commonly leave Blanks in the Venires and if they neglect to fill them up 't is only a Misprision and amendable by the Court and the Record being now filled up by the Rule of the Court ought not to be razed to make an Error The Chief Iustice was of Opinion That this was not a discontinuance but an insufficient continuance and an omission of the Clerk only who if he had filled up this Blank himself without Rule it could not afterwards be set aside But Iustice Jones was of another Opinion That it was such a misprision of the Clerk as was not amendable by the Statute of H. 6. since it was not the same Term and all the Proceedings being in the Breast of the Court only during the Term it ought not to be altered but left in Blank as it was for where Iudgment is entred for the Plaintiff the Court may upon just cause alter it the same Term for the Defendant but not of another Term the whole Term being but one day in Law And though the Writ of Error be returned into the Exchequer that will make no alteration for the Record it self remains still here and 't is only a Transcript that is removed thither Sed Adjornatur Anonymus TRespass for breaking of his Close The Defendants plead Power where 't is coupled with an Interest is assignable That the place where were c. the Lands of one Martin who made a Lease thereof to the Plaintiff and did thereby except the Trees growing on the same In which Lease the Plaintiff did Covenant with the said Martin his
Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards
upon complaint made and Conviction he shall forfeit 500 l. so that as to himself whatever he doth in his Office is void but it was never the intent of the Act to work a Mischief or Wrong to Strangers for the Law favours what is done by one in reputed authority as if a Bishop be created who upon a Presentation made admits a Parson to a Benefice or collates by Lapse the former Bishop not being deprived or removed such acts are good and not to be avoided Cro. Eliz 699. Cro Car. 97. 2 Cro. 260. But admitting it to be an Error it cannot now be assigned for such because the Parties in Pleading have allowed the proceedings to be good upon Record and there is Iudgment against the Defendant but if he had been taken upon that Iudgment he might have brought an Action of false Imprisonment 2 Cro. 359. Cro. Eliz. 320. Wild Iustice You shall not assign that for Error which you might have pleaded especially having admitted it by pleading and one Musgrave's Case was cited which was that there is an Act of Parliament which lays a Tax upon all Law proceedings and makes them void if the Kings Duty be not paid and it was adjudged That if the Duty was not paid but admitted in pleading you shall not afterwards alledge what before was admitted viz. That the Duty was not paid Vpon a Writ of Error in Parliament it cannot be assigned for Error that the Chief Iustice of the Kings-Bench had not taken this Oath the same might be also of a Writ of Error in the Exchequer Chamber for an Error in Fact cannot be there assigned Sid. 253. but at the last the Iudgment was Reversed See the Reasons thereof by the Chief Iustice Jones in his Reports folio 81. Higginson versus Martin in C. B. IN an Action of Trespass and false Imprisonment If Cause of Action doth not arise within the Jurisdiction tho' Judgment is given below an Action will lie here the Defendant justifies by Process issuing out of the Court of Warwick upon a Iudgment obtained there and sets forth that there was a Plaint there entered in placito transgressionis to which the Defendant appeared super quo taliter processum fuit that Iudgment was given against him upon which he was taken and Imprisoned The Plaintiff replies That the Cause of Action did not arise within the Iurisdiction of that Court. The Defendant rejoyns that the Plaintiff is now estopped to say so for that the Declaration in the Inferiour Court against the now Plaintiff did alledge the cause of Action to be infra jurisdictionem of the Court to which he pleaded and Iudgment was given against him The Plaintiff demurrs And Newdigate Serjeant took Exceptions to the Plea 1. Ex parte Quer. 'T is said a Plaint was entered in placito transgressionis but 't is not said what kind of Trespass it was whether a clausum fregit or other Trespass 2. 'T is said that the Defendant appeared super quo taliter processum fuit that Iudgment was given for the Plaintiff Antea and no mention was made of any Declaration and the pleading taliter processum est in an Inferiour Court is not good 3. The Iustification is ill because the Inferiour Court had no Iurisdiction and so the Proceedings are coram non Judice for the Plaintiff in his Replication saith That the Trespass for which the Recovery was had in the Court of Warwick Moor 422. Latch 180. Cro. Jac. 184. was done at a place out of the Iurisdiction of the Court which the Defendant hath admitted by relying on his Plea by way of Estoppel 4. It did not appear by what Authority the Court at Warwick was held whether by Grant or Prescription These Exceptions were answered by Serjeant Hopkins Ex parte Def. and first he said That the Plaintiff there sets forth that levavit quandam querelam in placito transgressionis which was well enough Secondly taliter processium fuit is the shorter and better way of Pleading and therefore in a Scire Facias nothing is recited but the Iudgment 't is true in a Writ of Error the whole Record must be set out but that is not necessary here Thirdly 't is too late now to question the Iurisdiction of the Inferiour Court after the Party hath admitted it below he ought first to have pleaded to the Iurisdiction but now is Estopped by his own admittance there and since Iudgment is given upon it 't is not now to be questioned but however this being in the Case of an Officer if it was out of the Iurisdiction he is bound to execute the Process of the Court and so this is a good excuse for him Dyer 61. 10 Co. 77. But let the Pleadings be good or bad if the Declaration here be ill the Plaintiff cannot have Iudgment and that it was so he said that the Writ alledged an Imprisonment generally but the Count an Imprisonment donec he paid 5 l. 10 s. which is variant and the Prothonotaries said that the Writ used always to mention donec c. Curia But the Court were all of Opinion that the Count was well enough for there was no matter therein contained which was not in the Writ the Imprisonment was the Gist of the Action and the donec c. might have been given in Evidence because 't is only an aggravation and a consequence of the Imprisonment so that the Count is not larger but more particular than the Writ And as to the two first Exceptions the Court was also of Opinion that there was no difficulty in them or in the last Exception but thought the Plea was well enough as to those And they also agreed that the Officer in this Case was to be discharged for though the Process be erronious yet he is to obey and not to examine 2 Cro. 3. Weaver versus Clifford The great doubt in this Case was upon the third Exception as to the point of Iurisdiction Sid. 151. Latch 181. and whether the other Defendant who was the Plaintiff below should be likewise discharged was the Question And as to that the Chief Iustice and Wyndham Iustice were of Opinion That this was no good justification as to the Plaintiff below for if the cause of Action did arise without the Iurisdiction of which he is bound to take notice the proceedings quoad him are all coram non Judice and he cannot justifie the serving of any Process so that if the Trespass was done out of the Iurisdiction of the Court the Defendant below may bring an Action against the Plaintiff and is not concluded here by the proceedings there but may alledge the cause of Action to arise out of the Iurisdiction and as to his being Estopped by admitting of the Iurisdiction below that cannot be because an admittance cannot give the Court a Iurisdiction where it had none originally and so he said it was resolved in one Squib's Case in a
inconvenient that the Capias against the Defendant should be delivered to the new Sheriff and not the Supersedeas which was to admit the Charge and not the Discharge Westby's Case 3 Co. 73. And it was the constant practice not only to deliver the Supersedeas but the very Book in which 't is allowed and this he said appeared by the Certificates of many Vnder-Sheriffs which he had in his hand 2. If the Sheriff hath an Exigent against B. who appears and brings a Supersedeas to the old Sheriff and then a new Sheriff is made if he hath not the Supersedeas he may return him outlawed by vertue of the Exigent so in the Case of a Iudgment set aside for Fraud or Practice and a Supersedeas granted and the like in the case of an Estrepment which is never returned and it would be an endless work upon the coming in of every Sheriff to renew this Writ As to the Objection that the old Sheriff may have occasion to plead it As often as such occasion happens he may have recourse to it in the Office of the new Sheriff and he can have no Title to it by the direction of the Writ for that is Vicecomiti Berks and not to him by express Christian and Sirname and of that Opinion was all the Court and Iudgment was given accordingly nisi causa c. Hamond versus Howel Recorder of London An Action will not lie against a Judge for what he doth judicially tho' erroniously Mod. Rep. 184. FAlse Imprisonment The Defendant pleads specially the Substance of which was that there was a Commission of Oyer and Terminer directed to him amongst others c. and that before him and the other Commissioners Mr. Penn and Mr. Mead two Preachers were indicted for being at a Conventicle to which Indictment they pleaded Not-Guilty and this was to be tried by a Iury whereof the Plaintiff was one and that after the Witnesses were sworn and examined in the Cause he and his Fellows found the Prisoners Penn and Mead Not-Guilty whereby they were acquitted quia the Plaintiff male se gesserit in acquitting them both against the direction of the Court in Matter of Law and against plain Evidence the Defendant and the other Commissioners then on the Bench fined the Iury 40 Marks a-piece and for Non-payment committed them to New-gate c. The Plaintiff replies de injuria sua propria absque hoc that he and his Fellows acquitted Penn and Mead against Evidence and to this the Defendant demurred Serjeant Goodfellow who would have argued for the Defendant said that he would not offer to speak to that Point whether a Iudge can fine a Iury for giving a Verdict contrary to Evidence since the Case was so lately and solemnly resolved by all the Iudges of England in * Vaugh. 146. Bushel's Case that he could not fine a Iury for so doing But admit a Iudge cannot fine a Iury yet if he doth no Action will lie against him for so doing because 't is done as a Iudge 12 H. 4. 3. 27 Ass pl. 12. 1 Roll. Abr. 92. Liter Q. pl. 1. But the Court told him that he neéd not to labour that Point but desired to hear the Argument on the other side what could be said for the Plaintiff Serjeant Newdigate argued that this Action would lie 1. It must be admitted that the Imprisonment of the Iury was unlawful and then the consequence will be that all that was done at that time by the Commissioners or Iudges was both against Magna Charta and other Acts of Parliament the Petition of Right c. and therefore their Proceedings were void or at least very irregular to imprison a Iury-man without Presentment or due Process in Law and consequently the party injured shall have an Action for his false Imprisonment In 10 H. 6. f. 17. In an Action brought for false Imprisonment the Defendant justifies the Commitment to be for Suspicion of Felony but because he did not shew the ground of such Suspicion the Iustification was not good The Trial of Penn and Mead and all incidents thereunto as swearing the Iury examining of the Witnesses taking of the Verdict and acquitting the Prisoner were all within the Commission but the fining of the Iury and the imprisoning of them for Non-payment thereof was not justifiable by their Commission and therefore what was done therein was not as Commissioners or Iudges If this Action will not lie then the Party has a Wrong done for which he can have no remedy for the order for paying of the Fine was made at the Old-Bayly upon which no Writ of Error will lie and though the Objection that no Action will lie against a Iudge of Record for what he doth quatenus a Iudge be great the Reason of which is because the King himself is de jure to do Iustice to his Subjects and because he cannot distribute it himself to all persons he doth therefore delegate his Power to his Iudges and if they misbehave themselves the King himself shall call them to account and no other person 12 Co. 24 25. But that concerns not this Case because what was done here was not warranted by the Commission and therefore the Defendant did not act as a Iudge and this difference hath beén taken and allowed that in the Case of an Officer if the Court hath Iurisdiction of the Cause no Action will lie against him for doing what is contrary to his Duty but if all the Proceédings are coram non Judice and so void an Action doth lie 10 Co. 77. So in the Case of a Iustice of the Peace or Constable where he excéeds his particular Iurisdiction so if a Iudge of Nisi Prius doth any thing not warranted by his Commission 't is void And that the Commissioners here had no power to impose this Fine he argued from the very nature of the pretended Offence which was neither a Crime or in any wise punishable because what the Plaintiff did was upon his Oath and for that reason it hath béen adjudged in the Case * Bridgman 131. Agard and Wild that an Action would not lie against one of the Grand Iury after an acquittal for procuring one to be indicted for Barretry because he is upon his Oath and it cannot be presumed that what he did was in Malice The Habeas Corpus gives the Party Liberty but no Recompence for his Imprisonment that must be by an Action of False Imprisonment if otherwise there would be a failure of Iustice and it might encourage the Iudges to act ad libitum especially in inferior Courts where Mayors and Bayliffs might punish Iuries at their pleasures which would not only be a grievance to the Subject but a prejudice to the King himself because no Iuries would appear where they are subject to such arbitrary Procéedings An Action on the Case lies against a Iustice of the Peace for refusing to take an Oath of a Robbery committed 1 Leon. 323.
and yet it was objected that there he was a Iudge Quaere Brook 204. March 117. for which Reasons he prayed Iudgment for the Plaintiff Curia But the whole Court were of Opinion that the bringing of this Action was a greater Offence that fining of the Plaintiff and committing of him for Non-payment and that it was a bold attempt both against the Government and Iustice in general The Court at the Old-Bayly had Iurisdiction of the Cause and might try it and had power to punish a Misdemeanour in the Iury they thought it to be a Misdemeanour in the Iury to acquit the Prisoners which in truth was not so and therefore it was an Error in their Iudgments for which no Action will lie How often are Iudgments given in this Court reversed in the Kings Bench And because the Iudges have been mistaken in such Iudgments must that needs be against Magna Charta the Petition of Right and the Liberties of the Subject These are mighty words in sound but nothing to the Matter There hath not béen one Case put which carries any resemblance with this those of Iustices of the Peace and Mayors of Corporations are weak instances neither hath any Authority been urged of an Action brought against a Iudge of Record for doing any thing quatenus a Iudge That Offences in Iury-men may be punished without Presentment is no new Doctrin as if they should either eat or drink before they give their Verdict or for any contempt whatsoever but 't is a new Doctrin to say that if a Fine be set on a Iury-man at the Old-Bayly he hath no remedy but to pay it for a Certiorari may be brought to remove the Order by which it was imposed and it may be discharged if the Court think fit As to what hath been Objected concerning the Liberty of the Subject that is abundantly secured by the Law already a Iudge cannot impose upon a Iury for giving their Verdict contrary to Evidence if he doth any thing unjustly or corruptly complaint may be made to the King in whose Name Iudgments are given and the Iudges are by him delegated to do Iustice but if there be Error in their Iudgments as here 't is void and therefore the Barons of the Exchequer might refuse to issue Process upon it and there needs no Writ of Error for the very Estreats will be vacated Though the Defendants here acted erroneously yet the contrary Opinion carried great colour with it because it might be supposed very inconvenient for the Iury to have such liberty as to give what Verdicts they please so that though they were mistaken yet they acted judicially and for that Reason no Action will lie against the Defendant and Iudgment was given accordingly The Case of the Warden of the Fleet. COmplaint was made by Serjeant Turner on the part of the Parishioners of St. Brides London against the Warden of the Fleet and his Prisoners for that he suffered several of them to be without the Walls of his Prison in Taverns and other Houses adjoyning to the Prison and fronting Fleet-Ditch where they committed Disorders and when the Constable came to keep the Peace and to execute a Warrant under the Hand and Seal of a Iustice of Peace they came in a tumultuous manner and hindered the execution of Iustice and rescued the Offenders and often beat the Officers the Warden often letting out 20 or 30 of his Prisoners upon any such occasion to inflame the Disorder It was prayed therefore That this Court to which the Prison of the Fleet doth immediately relate might give such Directions to the Warden that these Mischiefs for the future might be prevented and that the Court would declare those Houses out of the Prison to be subject to the Civil Magistrate The Court were all of Opinion but Iustice Atkins Curia who doubted that nothing can properly be called the Prison of the Fleet which is not within the Walls of the Prison and that the Warden cannot pretend an exemption from the Authority of the Civil Magistrate in such places as are out of the Prison Walls though Houses may be built upon the Land belonging to the Fleet for the preservation of the Kings Peace is more to be valued than such a Private Right But Iustice Atkyns said if such places were within the Liberties of the Fleet he would not give the civil Magistrate a Iurisdiction in prejudice of the Warden but thought it might be fit for the Court to consider upon what reason it was that the Warden of the Fleet applied such Houses to any other uses than for the benefit of the Prisoners whereupon the Court appointed the Prothonotaries to go thither and give them an account of the matter and they would take farther Order in it St. Mary Magdalen Bermondsey Church in Southwark In Scaccario Rate for Building a Church shall be set by the Parishioners Jones 89. Mod. Rep. 236. IN a Prohibition it was the Opinion of the whole Court That if a Church be so much out of Repair that 't is necessary to pull it down and that it cannot be otherwise repaired that in such case upon a general warning or notice given to the Parishioners much more if there be notice given from House to House the major part of the Parishioners then present and meeting according to such notice may make a Rate for pulling down of the Church to the Ground and Building of it upon the old Foundation and for making of Vaults where they are necessary as they were in this Church by reason of the springing Water and though the Rate be higher than the Mony paid for doing all this yet 't is good and the Churchwardens are chargeable for the Overplus they not being able to compute to a Shilling That if any of the Parishioners refuse to pay their Proportion according to the Rate they may be Libelled against in the Spiritual Court and if the Libel alledge the Rate to be pro reparatione Ecclesiae generally though in strictness Ecclesia contains both the Body and Chancel of the Church yet by the Opinion both of the Court of Common Pleas and of the Exchequer It shall be intended that the Rate was only for the Body of the Church but in this Case it was made appear clearly that the Rate was only for the Body and that the Minister was at the charge of the Chancel And both Courts agreed That when a Prohibition is moved and desired on purpose to stop so good a Work as the Building a Church the Court will not compel the Parties to take Issue upon the Suggestion when upon examination they find it to be false and therefore will not grant a Prohibition for if the Rate be unduly imposed the Party grieved hath a Remedy in the Spiritual Court or may Appeal if there be a Sentence against him The Bishop or his Chancellor cannot set a Rate upon a Parish but it must be done by the Parishioners themselves
without any actual Entry 2 Cro. 604. and the Bargaineé thereby is capable of a Release though he cannot bring an Action of Trespass without Entry for when Mony is the Consideration of making the Bargain and Sale 't is executed by the Statute of Vses and so the Release upon it is good but if the Deed be not executed 't is otherwise But this being to support a Common Recovery Antea Addison and Otway was to be favoured and therefore the Court took time to consider till the next Term and then The Chief Iustice said That if a real Action be brought against A. who is not Tenant to the Praecipe and a Recovery be had against him the Sheriff can turn him out who is in possession but if he who is not in possession comes in by Voucher he is estopped to say afterwards that he was not party to the Writ so that he who is bound must be Tenant or Vouchee or claim under them Conveyances have been altered not so much by the Knowledge of the Learned as by the Ignorance of Vnskilful Men in their Profession The usual Conveyance at Common Law was by Feoffment to which Livery and Seisin were necessary the Possession being given thereby to the Feoffee Antea Lord Salisburies Case but if there was a Tenant in Possession and so Livery could not be made then the Reversion was granted and the particular Tenant always attorned and upon the same reason it was that afterwards a Lease and Release was held a good Conveyance to pass an Estate but at that time it was made no question but that the Lessee was to be in actual Possession before the Release Afterwards Vses came to be frequent and Settlements to Vses were very common by reason whereof many inconveniencies were introduced to prevent which the Statute of the 27th of H. 8. was made by which the Vse was united to the Possession for before that Statute Vses were to be executed according to the Rules of Equity but now they are reduced to the Common Law and are of more certainty and therefore are to be construed according to the Rules of Law At the Common Law when an Estate did not pass by Feffoment the Lessor or Vendor made a Lease for years and the Lessee actually entred and then the Lessor granted the Reversion to another and the Lessee attorned and this was good Afterwards when an Inheritance was to be granted then also was a Lease for years usually made and the Lessee entred as before and then the Lessor released to him and this was good But after the Statute of Vses it became an Opinion That if a Lease for years was made upon a valuable Consideration a Release might operate upon that without an actual Entry of the Lessee because the Statute did execute the Lease and raised an Vse presently to the Lessee Sir Francis Moor Serjeant at Law was the first who practised this way Nota. But because there were some Opinions that where Conveyances may enure two ways the Common Law shall be preferred unless it appear that the party intended it should pass by the Statute thereupon the usual course was to put the Words Bargain and Sale into the Lease for a Year to bring it within the Statute and to alledge that the Lease was made to the intent and purpose that by the Statute of Vses the Lessee might be capable of a Release but notwithstanding this Mr. Noy was of the Opinion That this Conveyance by Lease and Release could never be maintained without the actual Entry of the Lessee This Case goes farther than any that ever yet came into Iudgment for Mony is not mentioned here to be the Consideration or any thing which may amount to it unless the Pepper Corn which he held to be a good Consideration The Lease and Release are but in nature of one Deed and then the intent of the Parties is apparent that it should pass by the Satute and eo instanti that the Lease is executed the Reservation is in force The Case put by Littleton in Sect. 459. is put at the Common Law and not upon the Statute where he saith That if a Lease be made for years and the Lessor releaseth all his Right to the Lessee before Entry such Release is void because the Lessee had only a Right and not the Possession which my Lord Coke in his Comment upon it calls an interesse termini and that such Release shall not enure to enlarge the Estate without the Possession which is very true at the Common Law but not upon the Statute of Vses And therefore Iudgment was given by the whole Court Judgment that the Word Grant in the Lease will make the Land pass by way of Use that the Reservation of a Pepper Corn was a good consideration to raise an Vse to support a Common Recovery that this Lease being within the Statute of Vses there was no need of an actual Entry to make the Lessee capable of the Release for by vertue of the Statute he shall be adjudged to be in actual possession and so a good Tenant to the Praecipe and Iudgment was given accordingly in Michaelmas Term following Kendrick versus Bartland THE Plaintiff brought an Action on the Case for stopping the Water going to his Mill with a Continuando c. Continuando laid after a Nusance abated yet Damages shall be recovered for what was done before The Defendant pleads that the stopping was contra voluntatem and that tali die which was betwéen the first and the last day laid in the Continuando the Plaintiff himself had abated the Nusance and so he had no cause of Action To this Plea the Plaintiff demurred and Serjeant Baldwyn who argued to maintain the Plea did not relye upon that part of it where the Defendant saith that the stopping of the Water was involuntary because he doing the thing it could not be contra voluntatem but the Question would be whether the Plaintiff had any cause of Action to recover damages after the Abatement of the Nusance and he said that he had abated it before the Action brought and counted for damages after the Abatement for which he had no Cause of Action and this he had confessed by his Demurrer But the Court were of Opinion that it was not a good Plea and took this difference between a Quod permittat or an Assize for a Nusance and an Action on the Case for the same for the end of a Quod permittat or an Assise was to abate the Nusance 2 Cro. 207 618 but the end of an Action on the Case was to recover damages therefore though the Nusance was removed the Plaintiff is intituled to his damages that accrued before and 't is usual in Actions of this nature to lay the Sid. 319. Continuando for longer time than the Plaintiff can prove but he shall have damages for what he can prove and so here he shall recover the
there hath put down these feigned Attachers for Examples sake from whence the Sheriff in this Case might inferr that they need not be real persons as in truth they ought both upon the Summons Pone and Distress and he cited a Case lately adjudged where the like Return was made upon the Grand Cape and the Iudgment set aside and of this Opinion was the whole Court and said Where the Process is so fatal the Party ought to be duly served and that the Sheriff ought to have gone to the Church and to have seised the Profits and if there be nothing to return a Nihil and though the Iudgment was given before the Term or long since yet when 't is Irregular 't is to be set aside and so it was now and being moved again the Court continued of their former Opinion The like Case was moved in Michaelmas-Term following between Fleming and Lee where the Patron Defendant was thus summoned and never appeared and the Incumbent did cast an Essoign and a Case was cited betwéen Vivian and the Bishop of London Mich. 23 Car. 2. in C. B. where the like Iudgment was set aside But on the other side it was objected that leaving due notice upon the Summons was as much as was required for the other Writs are only to give the Defendant time to plead and therefore 't is not necessary that notice should be given upon every one of the Writs for if once served 't is enough 11 H. 6. 3 4. 36 H. 6. 23. 8 H. 6. 8. Long 5 to E. 4. 26. 29 E. 3. 42 43. Doctor and Stud. 125 126. 21 H. 6. 56. But the Court were of Opinion that the Defendant having not appeared nor cast an Essoign and Iudgment final being given Curia it was reason that all the Process should be served really of which there had been no occasion if he had either appeared or essoined and therefore the Process not being duly served Iudgment was set aside Rast Ent. 217. And they held that the Essoign of the other Defendant was no wise binding to the Patron Defendant because they may sever in Pleading and so that Iudgment was likewise set aside DE Term. Sancti Mich. Anno 29 Car. II. in Communi Banco Sir John Otway versus Holdips Executor c. Bond to pay 40 l. when an Accompt shall be stated 't is a Covenant and not a Solvendum DEBT upon Bond brought by the Plaintiff against the Defendant as Executor wherein the Testator did acknowledge himself to be indebted to the Plaintiff in 40 l. which he thereby did covenant to pay when such a Bill of Costs should be stated by two Attornies indifferently to be chosen between them and sets forth in his Declaration that he named one Attorny and desired the now Defendant to name another which he refused and so intitles himself to this Action The Defendant pleads Non detinet to which the Plaintiff demurred But the Plea was not offered to be maintained because the Executor cannot plead Non detinet but where the Testator himself might plead Nil debet which in this Case he could not do But it was insisted that the Declaration is not good because the Mony was to be paid upon an accompt stated which not being done by the Plaintiffs own shewing 't is not yet due and this ought to be taken as penned viz. Solvendum and not an express Covenant But on the contrary it was held not to be a Solvendum but a Covenant to pay the Mony the Debt and the Duty being in the first place ascertained but if it be a Solvendum and repugnant to the Obligatory Clause 't is void 21 Ed. 4.36 As the Defendant would have it expounded it would be in his power totally to defeat the Bond either way for if he would never chuse an Attorny there could be never any thing due The whole Court were of Opinion that it was not a Solvendum but a Covenant which did not take away the Duty ascertained by the Obligation and if it should not be a Covenant but an entire Bond then it would be in the Power of the Obligor whether ever it shall be payable but be it either the one or the other the Plaintiff having named an Attorny ought to recover and Iudgment was accordingly given for him Dunning versus Lascomb DEBT on a Bond the Condition was to pay Mony when a Ship should go from A. to C. and from thence to Bristol and should arrive there or at any other Port of discharge in England the Ship going from A. to C. took in Provisions at Bristol but not to be discharged there but proceeded in her Voiage to Cales and was cast away And by the Opinion of the Court the Mony was not payable but if he had never intended to perform the Voyage it might have been otherwise 1 Roll. Abr. 142. 39 H. 6.10 Iudgment for the Defendant nisi Atkins versus Bayles AN Information was exhibited against the Defendant Outlary pleaded to an Information good being a Iustice of the Peace for refusing to grant his Warrant to suppress a Conventicle The Defendant pleads an Outlary in disability and the Plantiff demurred 1. 3 Inst 194. This Plea is not good because the King is interested qui tam c. and therefore where the Informer dies the Attorny General may proceed 2. The Statute gives power to any person to inform c. by which general Words the Disability of this person is removed But the Court held that there was no colour in either of these Objections 3. 'T is not pleaded sub pede sigilli sed non allocatur for it need not be so pleaded being in the same Court 4. 'T is not averred that the Plaintiff was the same person who was outlawed but it was answered that the praedictus makes that certain and that though the King be interessed yet the Informer only is Plaintiff and intituled to the benefit and that though he was disabled yet he might sue for the King Moor 541. Dyer 227. b. Cro. Eliz. 583. but not for himself and therefore Iudgment was given that the Plea was good Harwood Bincks versus Hilliard c. Notice where 't is agreed to be in writing must be so pleaded BY an Agreement between the Plaintiffs and the Testator of the Defendant a parcel of Lands was to be sold for 400 l. but if it did not arise to so much then they covenanted with each other to repay proportionable to the Abatement and the Defendant's Testator covenanted for himself and his Executors to pay his proportion to the Plaintiffs so as the Plaintiffs gave him notice in writing of the said Sale by the space of ten days but doth not say that such notice was to be given to his Executors or Administrators And now the Plaintiffs averred that they gave notice accordingly to the Defendant who was Executor and the breach assigned was that he hath not paid c. The
Defendant demands Dyer of the Indenture wherein was a variance between the Covenant which was for notice to be given to the Testator and this Declaration by which notice is averred to be given to the Executor and for this reason he demurred And Serjeant Dolben Recorder of London argued for him that this was in the Nature of a Condition precedent and therefore they ought to have given the Testator notice which according to the Agreement ought also to have been personal which not being done but only notice given to his Executor did make a material and fatal difference between the Covenant and this Declaration 14 H. 6. 1. 1 H. 6. 9. And that in this Case there was no Covenant by the Testator at all for all agree to pay their proportions and the Testator should pay his part which is not a Covenant Barrel Serjeant on the other side said that the Executor doth represent the person of the Testator and that though this Covenant was to give notice to the Testator yet if the Declaration had been of a Covenant to give notice to him his Executors and Administrators c. it had been no material variance so as to prejudice the Action of the Plaintiff because 't is no more than what the Law implies Pl. Com. 192. And upon the first opening this Matter this Term the Chief Iustice and Iustice Atkins enclined that the notice ought to be personal and that the variance was material But afterwards in Hillary Term following mutata opinione the whole Court agreed it to be otherwise because the Covenant runs in Interest and Charge and so the Executor is bound to pay and therefore 't is necessary that he should have notice and that there was no material difference between the Declaration and the Covenant And lastly Antea that the Testator being a Party to the Deed his Agreement to pay amounts to a Covenant though the formal Words of Covenant Grant c. were wanting But then Serjeant Dolben perceiving the Opinion of the Court insisted that the Declaration was naught for another reason viz. they had not declared that this notice was given in writing which is expresly agreed in the Covenant to which it was answered that the Defendant having pleaded that he gave notice secundum formam effectum Conditionis it was well enough But he said that would not help the want of Substance Dyer 243. b. and cited a Case where an Action of Debt was brought for the performance of an Award so as the same was delivered in Writing c. The Defendant pleaded Non deliberavit in scriptis The Plaintiff replyed and set forth the Award in Writing but did not directly answer the Plea of delivering it in Writing only by way of Argument and upon Demurrer there omnes Justiciarii contra Querentem and so they were in this Case that the notice must be pleaded in Writing and that secundum formam Conditionis was not good And so Iudgment was given for the Defendant Frosdick versus Sterling THE Plaintiff alone brought an Action on the Case against the Defendant and sets forth Baron and Feme where the Action if it s not discharged shall survive to her they must both join that he and his Wife in her Right were seised of a Messuage Bake-House and Cole-Yard c. and that the Defendant had erected two Houses of Office so near the said Bake-House that the Walls thereof became foundrous and the Air so unwholesome that he lost his Custom and that the Defendant had digged a Pit so near the said Cole-Yard that the Walls thereof were in danger of falling and that he had built another Wall so near the said Messuage that he had stopped an old Light therein Vpon Not-guilty pleaded there was a Verdict for the Plaintiff And now Serjeant George Strode moved in Arrest of Iudgment for that the Wife should have been joyned in this Action for where she may maintain an Action for a tort done in the Life-time of her Husband if she survive and where she may also recover Damages in such Cases she must joyn and it hath been adjudged that she ought to joyn with her Husband for stopping a way upon her Land Cro. Car. 418. 1 Roll. Abr. 348. pl. 1. 20 H. 6. 1. â— Ed. 4. 15. Cro. El. 461. So also for cutting down Trees on the Ioynture of the Wife made to her by a former Husband by reason whereof the present Husband lost the Loppings they both joyned for though the wrong was done to his Possession and he might have Released yet because there was also a wrong done to the Inheritance they ought both to joyn Cro. Car. 438. 3 Inst 650. So it hath been adjudged that the Husband and Wife in Right of the Wife jojned in an Action of Debt upon the Statute of 2 E. 6. cap. 13. for not setting out of Tythes and held good and where the Wife cured a wound 2 Cro. 205 399. 9 E. 4. 55. both joyned in the Action 11 H. 4. 16. 46. E. 3. 3. The Court held That where the Action if not discharged shall survive to the Wife they ought both to joyn which if they had done here it would have been hard to have maintained this Action because entire Damages are given and for losing the Custom to his Bake-house the Husband alone ought to have brought the Action He may bring an Ejectment of the Lands of his Wife but Iudgment was stayed till moved on the other side Barker versus Warren Justification where 't is not local a Traverse of the place makes the Plea naught AN Action was brought against a Carrier and laid in London for losing of Goods there which were delivered to him at Beverly in Yorkshire to re-deliver at London The Defendant pleads That he was robbed of the said Goods at Lincoln absqe hoc that he lost them in London And the Plaintiff demurred 1. For that Robbery is no excuse for a Common Carrier so that the Plea is not good in substance 2. This was no local Iustification so that the Traverse was ill But on the other side it was said by Serjeant Hopkins that the Plea was good and that the Defendant might Traverse the place For in Trespass for the taking of Goods in Coventry the Defendand pleaded that the Plaintiff did deliver the Goods to him at London to deliver at Dale by force whereof he took them at London and delivered them at Dale accordingly absque hoc that he took them at Coventry and held good for by his Plea he hath confessed the delivery and the taking both at one time and place and he could not have pleaded the delivery at London and justifie the taking at Coventry because the Possession is confessed by the first delivery at London and therefore the justification of the taking at Coventry had been inconsistent 24 H. 6. 5. But it had been otherwise if the Defendant had justified because the Plaintiff
particular Estate to support it for it shall descend to the Heir till the Contingency happen 't is not like a Remainder at the Common Law which must vest eo instanti that the particular Estate determines but the Learning of Exeecutory Devises stands upon the Reasons of the old Law wherein the intent of the Devisor is to be observed For when it appears by the Will that he intends not the Devisee to take but in futuro and no disposition being made thereof in the mean time it shall then descend to the Heir till the Contingency happen but if the intent be that he shall take in praesenti and there is no incapacity in him to do it he shall not take in futuro by an executory Devise Sid. 153. pl. 2. A Devise to an Infant in ventre sa mere is good and it shall descend to the Heir in the mean time for the Testator could not intend he should take presently he must first be in rerum natura 3 Co. 20. a. 1 Inst 378. a. If an Estate be given to A. for Life the Remainder to the right Heirs of B. this is a contingent Remainder and shall be governed by the Rules of the Law for if B. dye during the Life of A. 't is good but if he survive 't is void because no Body can be his right Heir whilst he is living and there shall be no descent to the Heir of the Donor in the mean time to support this contingent Remainder that so when B. dies his right Heirs may take In this Case a Fée did vest in Benjamin presently and therefore after his death without Issue the Defendant is his Heir and hath a good Title if not as Heir at Law yet she may take by way of Executory Devise as Heir of the Body of her Father which though it could not be whilst he was living because nemo est haeres viventis yet after his death she was Heir of his Body and was then of Age at which time and not before she was to take by the Will That Elizabeth the general Heir had only an Estate for years till Benjamin should or might be of Age And so by the Opinion of the whole Court Iudgment was given for the Defendant Evered versus Hone. SPecial Verdict in Ejectment wherein the Case was thus viz. A Man hath Issue two Sons Thomas his eldest and Richard his youngest Son Thomas hath Issue John Richard hath Issue Mary The Father devised Lands to his Son Thomas for Life Constructi-of Words in a Devise and afterwards to his Grandson John and the Heirs Males of his Body and if he die without Issue Male then to his Grandaughter Mary in Tail and charged it with some Payments in which Will there was this Proviso viz. Provided if my Son Richard should have a Son by his now Wife Margaret then all his Lands should go to such first Son and his Heirs he paying as Mary should have done Afterwards a Son was born and the Question was whether the Estate limited to Thomas the eldest Son was thereby defeated And the Court were all clear of Opinion that this Proviso did only extend to the Case of Mary's being intituled and had no influence upon the first Estate limited to the eldest Son Anonymus IN the Exchequer Chamber before the Lord Chancellor Executor of an Executor de son tort not liable at Law the Lord Treasurer and two Chief Iustices the Case was thus viz. The Plaintiff had declared against the Defendant as Executor of Edward Nichols who was Executor of the Debtor The Defendant pleads that the Debtor died intestate and Administration of his Goods was granted to a Stranger absque hoc that Edward Nichols was ever Executor but doth not say or ever administred as Executor for in truth he was Executor de son tort The Plaintiff replies that before the Administration granted to the Stranger Edward Nichols possessed himself of divers Goods of the said Debtor and made the Defendant Executor and dyed and the Defendant demurred and Iudgment was given for the Plaintiff but reversed here for an Executor of an Executor de son tort is not lyable at Law though the Lord Chancellor said he would help the Plaintiff in Equity But here Administration of the Goods of the Debtor was granted before the death of the Executor de son tort so his Executorship vanished and nothing shall survive The Lady Wyndham's Case IF Flotsam come to land and is taken by him who hath no Title the Action shall not be brought at the Common Law and no Proceedings shall be thereon in the Court of Admiralty for there is no need of Condemnation thereof as there is of Prizes By the Opinion of the whole Court of Common Pleas. Rose versus Standen Action where misconceived by the Plaintiff and Verdict against him no Barr to a new Action IN Accompt for Sugar and Indigoe the Defendant pleaded that the Plaintiff brought an Indebitatus Assumpsit a quantum meruit and an insimul computasset for 100 l. due to him for Wares sold to which he pleaded Non assumpsit and that there was a Verdict against him and then averrs that the Wares mentioned in that Action are the same with those mentioned here in the Action of Accompt The Plaintiff demurred and it was said for him that he had brought his former Action on the Case too soon for if no Accompt be stated the Action on the Case on the Insimul computasset will not lye and so the former Verdict might be given against him for that Reason Ex parte Def. But on the contrary the Defendant shall not be twice troubled for the same thing and if the Verdict had been for the Plaintiff that might have been pleaded in Barr to him in a new Action Curia 2 Cro. 284. But the Court were of another Opinion that this Plea was not good and that if the Plaintiff had recovered it could not have been pleaded in Barr to him for if he misconceives his Action and a Verdict is against him and then brings a proper Action the Defendant cannot plead that he was barred to bring such Action by a former Verdict Antea Putt and Roster Postea Rosal and Lamper Ante. because where 't is insufficient it shall not be pleaded in Barr as in Debt upon Bond the Defendant pleaded another Action upon the same Bond and the Iury found Non est factum the Entry of the Verdict was that the Defendant should recover damages eat inde sine die but not quod Querens nil capiat per Breve so no Iudgment to barr him 2 Cro. 284. But pending one Action another cannot be brought for they cannot both be true If no Accompt be stated the Action on the Case upon an Insimul computasset would not lye the Insimul computasset implies an Accompt and upon Non assumpsit pleaded the Defendant might have given payment in Evidence and for that
as much as is required by Law 'T is true a Subject is bound to serve the King in such capacity as he is in at the time of the Service commanded but he is not obliged to qualifie himself to serve in every capacity Neither doth it appear in this Case that the Defendant was able to remove this Incapacity and that should have been shewn on the other side and all Iudges are to judge upon the Record The intent of the Statute is That if persons will not qualifie themselves they shall not execute any Office and it was made to keep Roman Catholicks out of Places but not to force them to accept of Offices of Trust in the Government and it designs no punishment for quitting but for executing of a place contrary to the Law but if this be an Offence this Information will not lie and for that 2. It was argued That if a thing be either commanded or forbidden by a Statute the transgression in either Case is an Offence punishable by Information 25 H 6. pl. 9. b. 7 H. 4. 5. but when an Act doth not generally command a thing but only sub modo the party offending is punishable no otherwise than designed by that Law as where the Statute of 18 H. 6. cap. 11. prohibits any Man from being a Iustice of the Peace unless he have 40 l. ê‘ AnÌ„ and the Statute of 5 6 E. 6. cap. 16. which makes such Bargains as are therein mentioned about buying of Offices void if such Office be forfeitable then an Information will lie but when 't is ipso facto void as in both the former Cases then 't is otherwise because the punishment is executed by the Statute it self and therefore where the avoidance is made by the Act there is no need of an Information And the Objection of impotentia voluntatis is not material to this purpose because Symony buying of Offices not subscribing the 39 Articles according to the Statute of the Queen these are all voluntary Acts yet no Information lies against such Offenders because the Statutes execute the punishment The intent of the Parliament is here declared the disability of the person makes the Office void void to all intents for the Right of Infants or Men in Prison is not saved so that admitting it to be an Offence if the Duty be not performed yet if such a qualification be requisit to make a Man to act in such an Office or perform such a Duty if that qualification be wanting the Party is only punishable by the loss of the Office The Act doth not distinguish between Offices of Trust and Profit And as to the other Objection viz. That 't is in the power of the Defendant to qualifie himself the same might as well be objected against all the Popish Recusants upon the Statute of 3 Jac. and if a Statute doth disable persons or abridge the King of their Services there is no injury done because the King himself is party to the Act but if mischiefs were never so great since they are introduced by a Law they cannot be avoided till that Law is changed 3. But admitting the Information to be good and that this is an Offence for which it will lie yet the Excommunication is a sufficient excuse it appears by the Verdict that the Defendant was absolutely disabled to be Sheriff for if he is to take the Oath and receive the Sacrament in order to it if he cannot be admitted to the Sacrament as being under the Sentence of Excommunication that is an excuse The Defendant is only argued into a Guilt for the Iury have not found any they do not say that it was in his power to yield Obedience or that he might have enabled himself they only find his incapacity and though it was a voluntary Act which was the cause of his disability yet in such Cases the Law doth not look to Causes so remote If a Man be in Prison for Debt it is his own Act for contracting it and not paying but yet an Outlary against him whilst in Prison shall be reversed because the immediate Cause viz. the Imprisonment and the Iudgment was in invitum and the Law looks no farther and so Iudgment was prayed for the Defendant But the Court were all of Opinion that this Information would lye and that the Defendant was punishable for not removing the disability it being in his power to get himself absolved from the Excommunication And so Iudgment was given against him and a Writ of Error brought c. Godfrey versus Godfrey In Communi Banco Intrat ' Hill ult Rot. 321. DEBT upon a Bond for performance of an Award Award of a lesser Sum in satisfaction of a greater and good in which the Arbitrators had taken notice of 72 l. in controversie and had awarded 50 l. in satisfaction The Defendant pleads Nullum fecerunt Arbitrium the Plaintiff replies an Award and sets it forth and assigns a Breach to which the Defendant demurred because it appeared by the Award that 72 l. was in controversie for Rent due and that 50 l. was awarded in full satisfaction of 72 l. and general Releases to be given but it did not appear that any other Matter was in Controversie between the Parties though the Submission was general and Arbitrators may reduce incertain things to a certainty but they cannot make a Debt certain to be less except there were other differences for which likewise this Release was to be given 10 H. 7. 4. But the whole Court were of Opinion that the Award was good Curia for that the Arbitrators might consider other Matters between the Parties neither did it appear by the Award that the 72 l. was due but in demand only and 't is unreasonable for him to find fault with his own case for he alledges that he ought to pay 72 l. and complains because the other Party is contented with 50 l. and demands no more Iudgment for the Plaintiff Wright versus Bull. Condition where 't is disjunctive 't is in the Election of the Party to have either DEBT upon a Bond for payment of 40 l. The Condition whereof was That if the Defendant should work out the said 40 l. at the usual Prices in packing when the Plaintiff should have occasion for himself or his Friends to imploy him therein or otherwise shall pay the 40 l. then the Bond to be void The Defendant pleads that he was always ready to have wrought out the 40 l. but that the Plaintiff did never imploy him and upon Demurrer the Plea was held ill because the Defendant did not averr that the Plaintiff had any occasion to make use of him and for that it was at his Election either to have Work or Mony Basket and Basket Antea and not having imployed him but brought his Action that is a request in Law and so he hath determined his Election to have the Mony and Iudgment was accordingly given for the
Habens legale jus titulum need not shew what Title the disturber had after Verdict 213 In a Bond to pay 40 l. when an Accompt is stated by two Attornies to be chosen between the Parties 't is a Covenant and not a solvendum 266 Breach is assigned relating to three Covenants and concludes sic Conventionem fregit 't is good 311 Where an Agreement to pay will amount to a Covenant 269 Covenants reciprocal cannot be pleaded in bar to each other 34 75 76 309 Breach where assigned and not necessary to aver performance on the part of the Plaintiff 309 Court Inferiour the cause of Action must arise within the Jurisdiction 30 Judgment therein arrested because the Damages were laid to 30 l. 101 102 For not saying that the Jurors were electi ad triand ' 102 Taliter processum fuit and the proceedings not set forth at large well enough in a Plea but not in a Writ of Error 102 195 Vi armis contra pacem whether good or not 102 Cannot hold Plea for work done without the Jurisdiction though the Promise be made within 141 Cause of Action must appear to be within the Jurisdiction to oust the Courts above 197 Where it doth not appear that the Court was held either by Grant or Prescription good 197 198 If the cause of Action doth not appear to be within the Jurisdiction though there is a Judgment recovered below yet an Action of Trespass will lye and false Imprisonment upon the taking out of that Judgment 197 If upon Evidence it appear that the cause of Action did arise extra Jurisdictionem the Plaintiff must be non-suit 273 If Jurisdiction be admitted in pleading and Verdict and Judgment thereon t is too late for a Prohibition Ibid. Court Ecclesiastical In what Case a Bishop shall administer an Oath in Temporal Matters 118 Custom One cannot be pleaded in bar to another 105 In pleading it must be strictly alledged 41 Where 't is a reasonable Custom for the Lord to have derelict Lands 107 D. Day Vide Plea WHere 't is excluded being alledged in the Declaration it makes the Plea ill 146 'T is but punctum temporis and of no consideration in the Law 281 Release of all demands usque 26 April a Bond dated that day is not released 281 Debt Upon the Sheriffs Bond will be good though the Statute be not pleaded 36 Will lye upon the Contract where the whole Term is assigned 174 175 176 Whether it will lye for a Fine set by a Steward for 't is ex quasi contractu 230 It must be upon the Contract or ex quasi contractu 262 Deed. Where 't is lost the Party must make Oath of it to entitle himself to a Bill in Equity to have it performed in Specie 173 Demand Must be made where an Interest is to be determined 264 Devise To a Man and his Heirs if the Devisee die in the Life time of the Devisor his Heir takes nothing 313 Republication makes it a new Will ibid. To the Heir at Law makes a Limitation and not a Condition 7 To an Infant in ventre sa mere if there is a sufficient description of him 't is good 9 Where the word paying makes a Fee where not 26 To him till he be of Age then to him in Fee he dyed within Age yet a Free-hold vested in him presently 289 To him in Fee when of Age if he dye before then to the Heirs of the Body of R. and their Heirs he died living R. within Age his Sister and Heir shall take by way of Executory devise 289 Executory devise how it differs from a contingent Remainder at Common Law ibid. Construction of words therein 290 Departure From his Plea 31 Disability By a Statute where it ought to be removed by the Party to enable himself to execute an Office 299 Discharge By Parol good before the breach of promise but not afterwards 259 Discontinuance Where amendable 316 In pleading the Plaintiff declared of taking several things the Defenant justifies as to part and saith nothing of the residue 259 In the Adjournment of a Court where a day certain is not given 59 Distress Cannot be of Sheaves of Corn in Shocks for Rent 61 Distribution Shall be equally made amongst the Children of the whole and half Blood 204 205 206 Disturbance Coactus fuit to pay is a sufficient Disturbance 55 E. Escape THE Plaintiff declared upon Process in an Inferiour Court and the Bond was not made infra Jurisdictionem the Action would not lye 29 30 Debt thereon lies against the Warden of the Fleet as Superior where the Grantee for Life is insufficient 119 After an Escape the Plaintiff may have a Capias ad satisfaciendum or Scire facias at his Election 136 Whether it will lye against the Sheriff for taking insufficient Bail 181 Election In disjunctive Conditions where the Election is in the Obligor 201 304 'T is at the Plaintiffs Election to have a Ca. Sa. or Scire facias after an Escape 136 Enclosure Where a Custom is good to Enclose in a Common Field 105 Entry Not necessary to avoid an Estate in case of a Limitation 7 Error Where a Writ of Error will lye upon a Fine in the Old Bayly 219 Error in Fact cannot be assigned in the Exchequer-Chamber 194 If one be dead after the Judgment he must be named in a Writ of Error 285 Where a Judgment shall be avoided by a Plea without a Writ of Error 276 Estate Where the word Body makes an Estate for Life and no Tail 16 Estoppel Good by a Fine levied by a Remainder man in Tail 90 No Uses can be declared of a Fine by Estoppel 90 One who has no Estate levies a Fine 't is good by Estoppel 115 Evidence A Decree in Chancery or Sentence in in the Ecclesiastical Court read as Evidence of the fact 231 232 Excuse If one Man doth not perform his Covenant 't is no Excuse for the breach on the other side 75 76 What is a good Plea by way of Excuse and what not 27 28 29 Executor De son tort cannot retain 51 Where the Judgment shall be de bonis Testatoris 108 What is requisite to make an Executor 147 What must be done when he refuseth Ibid. De son tort where he may be of a Term but not of a Term in futuro because he cannot enter 175 Cannot plead non detinet where the Testator could not plead nil debet 266 Executor of an Executor de son tort where not liable at Law 293 294 Where he pleads a Judgment kept on Foot by fraud 36 Explain A Man grants Tenementa praedicta then follows totum quicquid habet whether these subsequent words shall explain or enlarge the Grant 112 113 c. Execution Payment of the Mony to the Marshal the Defendant may be taken again in Execution at the Suit of the Plaintiff 212 213 Executory Decree Is of no force in Equity 232 Existen
Where 't is good without the word tunc where not 129 Of words where the Pronoun pro makes the Contract conditional 33 34 F. Factor WHere he cannot sell but for ready Mony 100 101 Factum valet quod fieri non debet 194 Failure Of Record certified 246 Feoffment To Uses the Estate is executed presently 208 209 Fine Of Lands in a Lieu conus good 49 In a Scire facias to have such Fine excuted the Vill must be named 48 Good by Estoppel levied by a Remainder man in Tail 90 No Uses can be declared of such Fine ibid. Fine sur concessit the nature and effect of it 110 111 112 By such a Fine nothing shall pass but what lawfully may 111 Fines shall work a disseisin where they can have no other interpretation 112 Fines in Criminal Cases must be with Salvo contenemento 150 Flotsam Where it shall be sued for at Common Law and not in the Admiralty 294 Forbearance And doth not say from the making of the promise hucusque held good 24 Formedon In Descender the difference in pleading between that and a Formedon in Remainder or Reverter 94 25 Fraction Where an Estate shall pass by Fractions where not 114 115 G. Gaming WHat Acts amount to make it penal within the Statute 54 Not within the Statute where the Security is given to a third person 279 Grant of the King Where a false recital shall not make it void 2 3 Where the first description is full the misrecital afterwards shall not make it void 2 3 4 He may grant what he hath not in possession 107 Where words shall be rejected rather than his Grant shall be void ibid. Where an Advowson passeth though not named 2 Where a thing will pass by general words ibid. Misrecital where it doth not concern his Title shall not make the Grant void 2 3 Grant of a common Person Of the next Avoidance where it shall not bind the Successor 56 Must be taken according to usual and common intendment 193 Grant where the word in a Deed will make a thing pass by way of Use 253 Guardian In Socage where a doubt is of his sufficiency he may be compelled to give Security 177 H. Harmless vide Condition COndition to save harmless the Plea indempnem conservavit generally is not good 240 305 Habeas Corpus Cannot be granted by the Court of Common Pleas in Criminal Cases 198 199 306 Heir Where he takes by the Will with a Charge he comes in by Purchase and not by Descent and the Lands shall not be Assets 286 Where a general Replication to Riens per descent is good 50 51 Where he shall have a thing though not named 93 Hors de son Fee When to be pleaded 103 I. Ieofails THE Statute of 16 and 17 Car. 2. helps a misrecital in a proper County but not where the County is mistaken 24 An immaterial Issue not arising from the matter is not helped after a Verdict 137 Inducement Not such certainty required as in other Cases 70 Indebitatus Assumpsit Where it will not lie for want of Privity 262 263 Imparlance Tout temps prist not good after an Imparlance 62 Implication Where a Man shall have an Estate for Life by Implication 208 Imprisonment False Imprisonment will not lye against a Judge for committing of a Jury Man for finding against Evidence 218 It lies not against an Officer for refusing Bail but a special Action on the Case lies against the Sheriff for it 32 Information Upon the Statute of Philip and Mary for taking away a Maid unmarried within the Age of sixteen years 128 It will not lie where the Punishment is executed by the Statute 302 Infant When he may make a Will 315 Interest Where 't is vested in the King 53 Where it differs from an Authority 79 What words give an Interest 80 81 Where the word Interest signifies the Estate in the Land 134 Intention Of the Parties where to be considered 76 77 80 111 116 234 280 281 310 Where a thing shall be intended and where not 227 280 282 Grants where they shall be taken according to common intendment 193 Ioynder in Action Covenant to two not to do a thing without their consent one may bring the Action 82 Issue Where Time shall be made parcel of the Issue 145 Iudge and Iudgment Judge cannot fine a Jury for finding against Evidence 218 Action will not lie against him for what he doth judicially though erroneously 221 Judgment may be avoided by Plea without a Writ of Error 308 Iustification Vide Pleading Where 't is local you must traverse both before and after 68 Under a Lease for the Life of another Man and doth not averr that the Life is in being ill 93 Where 't is not local a Traverse makes the Plea naught 270 271 By vertue of a particular Estate you must shew the commencement of it 70 Where it is general and yet good 144 In Assault Battery and Wounding and saith nothing to the Wounding not good 167 Of a Servant by Command of his Master and good ibid. In Assault Battery and Imprisonment for 11 l. 10 s. the Defendant justifies by a Warrant for the 11 l. and saith nothing of the 10 s. not good upon Demurrer 177 Where 't is but of part the general words Quoad residuum transgressionis will not supply the rest 259 K. King THE Defendant cannot justifie in a Scandalum Magnatum brought upon the Statute of R. 2. because the King is a Party tam pro Domino Rege quam pro seipso 166 Where his Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be charged by the Statute of 13 Eliz. 247 248 Difference between the Case of the King and of a common person 263 A person disabled by Outlary may sue for him but not for himself 267 Where an Interest is vested in him it shall not be divested by a general Pardon 53 L. Lease BY a Bishop and more than the old Rent reserved good 57 Where it shall be made by the words Covenant Grant and Agree and where not 80 81 Lessee for years assigns over his whole Term whether Debt will lie on the Contract or not 174 175 Liberties What is meant by the Word 48 Limitation of Action Extends to Indebitatus Assumpsit though not named in the enacting Clause 71 72 73 Statute no Barr where the Sheriff levyed Goods by a Fieri Facias and did not pay the Mony within nine years 212 Doth not extend to an Action on the Case Indebitatus Assumsit Quantum meruit and Insimul computasset 311 312 Limitation of Estate What are good words to take by Purchase from a Stranger 210 211 Limitation of Estate when void makes the Estate absolute 227 Livery Secundum formam Chartae where good or not 78 79 M. Mannor WHere a thing becomes in gross it can never after be united to it 144 What may be appurtenant to it ibid. N. Negative WOrds must
be in an Act of Parliament to restrain the power of the Courts at Westminster 128 Negative pregnant 138 Negative Plea that three did not such a thing it must be said nec eorum aliquis 284 285 Non Obstante Where it makes a Grant good 107 Where a general Non obstante will not dispense with a particular Statute 261 Notice Where the Agreement is that it shall be in writing it must be so pleaded 268 Where 't is made to the Testator alone it shall not be personal but is good if given to the Executor 268 269 O. Oath EX Officio lawful 118 Where it ought to be made of the loss of a Deed to entitle a Man to a Bill in Equity 173 Office and Officer Grant thereof to two and the Survivor one surrenders and another is admitted the benefit of Survivorship is gon 95 96 Of the Warden of the Fleet not to be granted for years 120 Where a person recomended proves insufficient the recommender shall be liable 121 In an Office of Trust there shall be no Survivorship 260 Officer excusable for executing an erroneous Process 196 Ordinary When his Power began 148 Outlary Pleaded in Disability to an Information and good 267 268 Where it needed not to be pleaded sub pede sigilli being in the same Court 267 P. Parish HOW it differs from a Vill 237 Pardon Where nothing vests but by Office found a Pardon restores the Party 53 Where the thing it self is pardoned and the consequence not 52 Parliament Where the time of the Session is misrecited and yet good 241 Where the Court ought to take notice of the commencement of a private or general Act 241 Difference between an Adjournment and a Prorogation 242 Partners The Action cannot be brought against one without setting forth the death of the other 280 If Judgment be against one the Goods of the other may be taken in Execution ibid. Paying In the Case of an Heir is not a Condition but a Limitation 286 Place Where it shall be intended not being laid in the pleadings 304 Pleas and Pleading What the Parties have admitted in pleading shall be good though the Jury find otherwise 5 Shall not afterwards be assigned for Error 193 194 Pleading of a Grant of a Reversion without hic in Curia prolat ' whether good or not 19 In Dower that the Demandant ought to have Judgment de tertia and doth not say parte and yet good 17 18 19 Award nullum fecerunt arbitrium de praemissis whether good without adding nec de aliqua parte 27 28 29 Plea to a Bond not good 33 A Judgment ultra quod no Assets where good 36 Estoppel you must relie upon it and not conclude with a Traverse 37 38 One promise in discharge of another where good or not 43 44 Of an accord in must be averred to be executed in all points 43 Replication where the Heir pleads a Settlement in Tail and a Lease for 99 years and that he had not Assets praeter the Reversion a general Replication of Assets is good because the praeter is idle 50 51 Justification in Trespass for taking corrupt Victuals held good 56 Justification by Arrest upon process out of an Inferiour Court 58 59 Justification by the Defendant where he must shew the Commencement of his Estate or not 70 71 Where 't is incertain 76 Touts temps prist not good after Imparlance 62 Profert hic in Curia where it must be pleaded formally 77 78 It must be pleaded when the Title is by Deed either as party or privy 64 De injuria propria sua where a Servant is Defendant 't is good without a Traverse 68 Plea where 't is naught with a Traverse ibid. Where the Defendant may plead any thing which amounts to a performance 139 Where the Defendant was charged with receiving 80 Pigs of Lead and he saith that he was not Receiver but omits aliquam partem inde the Plea was ill 146 Hoc paratus est verificare where good or not ibid. The Defednant was charged as Bayliff 1 Martii he saith he was not from the 1st of March and so excludes the day 146 In Covenant for not Repairing the Defendant pleads recuperavit generally and held good after Verdict 176 Affirmative Plea ought to be particular as if the Defendant pleads a Conveyance made he must shew what 239 Of another Action depending for the same Cause in another Court 246 Where good though it amounts to the general Issue 274 275 276 277 278 Argumentative Plea where good 276 Negative Plea viz. that three did not such a thing the Defendant must say nec eorum aliquis 284 Otherwise in an affirmative Plea ibid. Plea puis darrein Continuance must be certified as part of the Record of Nisi Prius 307 Non damnificatus generally no good Plea where the person and Lands are to be indempnified 305 Where a Judgment shall be avoided by a Plea without bringing of a Writ of Error the party being a Stranger to it 308 Prescription Not to be pleaded against another without a Traverse of the first 104 Must be alledged with a Seisin in Fee and not for Life 318 To a Modus where good 320 Presentation The King being entituled by the Symony of the Patron presents though the Symony be pardoned the Presentee shall not be removed 52 53 54 Between three by turns they are Tenants in Common of the Advowson and one may grant the next Avoidance the Church being full 97 How it must be pleaded tempore pacis 184 185 Possibility A Grant made thereof and good 106 107 By an Executor before Probate is but a Possibility and yet good 108 Priviledge Will not extend to a Case of necessity 182 Of a Serjeant at Law 296 Of an Attorny of the Kings Bench 181 Process Where an Action will not lie against the Defendant for doing a thing in Execution of the Process of Law 244 Prohibition To the Bishops Commission to set Rates upon the Parishioners to repair the Church 8 Prohibition printed in English and dispersed a Crime fit to be punished 119 Not granted for a Rate for building of a Church 222 223 Where it shall be granted at any time 273 Where a Sentence of Divorce was intended to adnul a Marriage 314 Upon a Suggestion of Excommunication because he refused to accuse himself 278 Power Where 't is coupled with an Interest 't is assignable 317 Promise Where they are mutual the performance need not be averred 33 34 Purchase Where the Heir takes by Purchase the Ancestor must depart with his whole Fee 208 Where the Heir shall take by Purchase and where by Descent 286 Q. Quare Impedit REal Mainpernors must be returned upon the Summons Pone and Grand Cape if the disturber do not appear and not John Doe and Richard Roe 264 265 Que Estate Where 't is pleadable 143 144 R. Rates FOR building of a Church shall be set by the Parishioners 222 Recital Where a Title is set