of the next Avoidance was not good because it was made by those who were not Head of the Corporation and it must be void immediately or not at all and Iudgment was given accordingly Threadneedle versus Lynam THere being two Mannors usually let for 67 l. 1 s. 5 d. by the year Lease by a Bishop and more than the old Rent reserved good Mod. Rep. 203. a Bishop lets one of them for 21 years reserving the whole Rent and whether this was a good Lease within the Statute of 1 Eliz. cap. 19. was the Question which depended upon the construction of the Words therein viz. All Leases to be void upon which the old accustomed Rent is not reserved and here is more than the old Rent reserved and this being a private Act is to be taken literally North Chief Iustice agreed that private Acts which go to one particular thing are to be interpreted literally but this Statute extends to all Bishops and so may be taken according to Equity and therefore he and Wyndham and Atkins Iustices held the Lease to be good But this Case was argued when Vaughan was Chief Iustice and he and Iustice Ellis were of another Opinion DE Term. Sancti Mich. Anno 27 Car. II. in Communi Banco Thorp versus Fowle No more Costs than Damages NOTA. In this Case the Court said that since the Statute which gives no more Costs than Damage 't is usual to turn Trespass into Case Cooper versus Hawkeswel Words IN an Action upon the Case for these Words I dealt not so unkindly with you when you stole a Stack of my Corn Per Curiam the Action lies Escourt versus Cole Words IN an Action on the Case for Words laid two ways the last Count was Cumque etiam which is but a recital and dubitatur whether good Sharp versus Hubbard Six Months for proving of a Suggestion THE six Months in which the Suggestion is to be proved must be reckoned according to the Calendar Months and 't is so computed in the Ecclesiastical Court Crowder versus Goodwin Justification by Process out of inferiour Court IN Assault and Battery and false Imprisonment as to the Assault c. the Defendant pleads Not-Guilty and as to the Imprisonment he justifies by a Process out an inferiour Court and upon Demurrer these Exceptions were taken to his Plea 1. The Defendant hath set forth a Precept directed Servienti ad Claven and 't is not said Ministro Curiae 2. 1 Rol. 484. Cro. Car. 254. Dyer 262. b. It was to take the Plaintiff and have him ad proximam Curiam which is not good for it should have beén on a day certain like Adams and Flythe's Case * Cro. Jac. 571. Mod. Rep. 81. where a Writ of Error was brought upon a Iudgment in Debt by Nil dicit in an inferiour Court and the Error assigned was That after Imparlance a day was given to the Parties till the next Court and this was held to be a Discontinuance not being a day certain 3. 'T is not said ad respondend ' alicui 4. Nor that the Action arose infra Burgum 5. The Precept is not alledged to be returned by the Officer To all which it was answered That a Pleint is but a Remembrance and must be short Rast 321. and when 't is entred the Officer is excused for he cannot tell whether 't is infra * Squibb versus Hole antea 29. Jurisdictionem or not And as to the first Exception a Precept may be directed to a private person and therefore Servienti ad Clavem is well enough Then as to the next Exception 't is likewise well set forth to have the Plaintiff ad proximam Curiam for how can it be on a day certain when the Iudge may adjourn the Court de die in diem Then ad respondendum though 't is not said alicui 'tis good though not so formal and 't is no Tort in the Officer but t is to be intended that he is to answer the Plaintiff in the Plaint As to the fourth Exception the Defendant sets forth that he did enter his Plaint secundum consuetudinem Curiae Burgi and when the Plaintiff declared there he shewed that the Cause did arise infra Jurisdictionem And as to the last The Officer is not punishable though he do not return the Writ The end of the Law is that the Defendant should be present at the day and if the Cause should be agreed or the Plaintiff give a Release when the Defendant is in custody no Action lies against the Officer if he be detained afterwards But the Chief Iustice doubted that for the second Exception the Plea was ill for it ought to be on a day certain and likewise it ought to be alledged infra Jurisdictionem But the other threé Iustices held the Plea to be good in omnibus and said that the inferior Court had a Iurisdiction to issue out a Writ and the Officer is excusable though the cause of Action did not arise within the Iurisdiction which ought to be shewn on the other side And so Iudgment was given for the Defendant Snow and others versus Wiseman Traverse necessary where omitted is substance TRespass for taking of his Horse The Defendant pleads that he was seised of such Lands and intitles himself to an Herriot The Plaintiff replies that another person was jointly seised with the Defendant Et hoc paratus est verificare The Defendant demurs generally because the Plaintiff should have traversed the sole Seisin But it was said for him that the sole Seisin néed not be traversed Sid. 300. because the matter alledged by him avoids the Barr without a Traverse In a Suggestion upon a Prohibition for Tythes the Plaintiff entituled himself by Prescription under an Abbot and shews the Vnity of Possession by the Statute of 31 H. 8. by which the Lands were discharged of Tythes Yelv. 231. Pl. Com. 230. 231. The Defendant pleads that the Abbey was founded within time of Memory and confesseth the Vnity afterwards and the Plea was held good for he néed not traverse the Prescription because he had set forth the Foundation of the Abbey to be within time of Memory which was a sufficient avoiding the Plaintiffs Title Yelv. 31. The Plaintiff therefore having said enough in this Case to avoid the Barr if he had traversed it also it would have made his Replication naught Cro. Jac. 221. like the Case of * Bedel and Lull where in an Ejectment upon a Lease made by Elizabeth the Defendant pleads that before Elizabeth had any thing in the Lands James was seised thereof in Fee and that it descended to his Son and so derives a Title under him and that Elizabeth was seised by Abatement The Plaintiff confesses the Seisin of James but that he devised it to Elizabeth in Fee and makes a Title under her absque hoc that she was seised by Abatement and upon a Demurrer the
the space of 14 days after complaint made then the Sub-Commissioners of the Excise are to determine the same from whom no Appeal doth lye to the Justices of the Peace at their next Sessions which Commissioners of Excise Justices of the Peace and Sub-Commissioners amongst other things are inabled by the said Act to Issue out Warrants under their Hands c. to levie the Forfeitures and so justified the Entry under a Warrant from the Sub-Commissioners three Iustices having refused to hear and determine this Offence To this Plea the Plaintiffs demurred and had Iudgment in the Court of Kings-Bench and a Writ of Inquiry of Damages was Executed and 750 l. Damages given and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given because the Writ of Inquiry was executed the last day of the Term and the Court did immediatly rise and that he could not move the next Term because the Iudgment was given the Term before the Writ of Error was brought The Attorny General therefore said that this was a hard Case and desired a Note of the Exceptions to the Plea which he would endeavour to maintain which Mr. Pollexfen gave him and then he desired time to answer them The Exception to the Plea upon which the Iudgment was given was this Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences and so to issue out Warrants for the Forfeitures but where the Iustices or any two of them refuse And though it was said by the Defendant that three refused yet it was not said that two did refuse for there is a great difference between the allegation of a thing in the Affirmative and in the Negative for if I affirm that A. B. C. did such a thing that affirmation goes to all of them but negatively it will not hold for if I say A. B. C. did not such a thing there I must add nec eorum aliquis So if an Action be brought against several Men and a Nolle prosequi is entred as to one and a Writ of Enquiry awarded against the rest which recites That the Plaintiff did by Bill implead naming those only against whom the Inquiry was awarded and leaves out him who got the Nolle prosequi this is a variance for it should have been brought against them all 'T is true where a Iudgment is recited 't is enough to mention those only against whom it is had but the Declaration must be against all so in a Writ of Error if one is dead he must be named and so the Iustices ought all to be named in this Case viz. that the three next Iustices did not hear and determine this Offence nec eorum aliquis Wells versus Wright In Communi Banco DEBT upon Bond conditioned Bond with an insensible Condition good that if the Obligée shall pay 20 l. in manner and form following that is to say 5 l. upon four several days therein named but if default shall be made in any of the Payments then the said Obligation shall be void or otherwise to stand in full force and vertue The Defendant pleads that tali die c. non solvit 5 l. c. and upon this the Plaintiff demurred Barrel Serjeant The first part of the Condition is good which is to pay the Mony and the other is surplusage void and insensible but if it be not void it may be good by transsposing thus viz. If he do pay then the Obligation shall be void if default shall be made in Payment then it shall be good and for Authority in the Point the Case of Vernon and Alsop was cited Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill 14 Car. 2. Rot. 1786. in B. R. Where the Condition was that if the Obligée pay 2 s. per Week until the Sum of 7 l. 10 s. be paid viz. on every Saturday and if he fail in Payment at any one day that the Bond shall be void and upon the like Plea and Demurrer as here it was adjudged that the Obligation was single and the Condition repugnant The Court were all of Opinion that Iudgment should be given for the Plaintiff and the Chief Iustice said that he doubted whether the Case of 39 H. 6. 9 10. was Law Brittam versus Charnock Where the the Heir takes by the Will with a Charge he is a Purchaser and the Lands shall not be Assets DEBT upon Bond against the Defendant as Heir Vpon Riens per discent pleaded the Iury found a Special Verdict in which the Case was viz. The Father was seized of a Messuage and thrée Acres of Land in Fee and devised the same to his eldest Son the Defendant and his Heirs within four years after his decease provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts and then he deviseth his other Lands to be sold for payment of Debts c. The Father dies the Son pays the 20 l. and if this Messuage c. was Assets in the Hands of the Defendant was the Question Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets it was said because the Heir shall not take by descent but by Purchase for the Word Paying is no Condition if it should the Heir is to enter for the breach and that is the Defendant himself and for that reason it shall be a Limitation Southcot and Stowel Antea 'T is true where there is no alteration of the Estate the Heir must take by descent but in this Case there is an alteration of the Estate from what is directed by the Law viz. the manner how he shall come by the Estate for no Fee passeth to him during the four years But this was denyed by Serjeant Pemberton for he said if a Devise be of Land to one and his Heirs within four years it is a present Devise and if such be made to the Heir 't is a descent in the mean time and those Words within four years are void so that the Question will be whether the Word Paying will make the Heir a Purchaser and he held it would not He agreed that it was usual to make that a Word of Limitation and not a Condition when the Devise is to the Heir and therefore in a Devise to the Heir at Law in Fée he shall take by descent Styles Rep. 148. But if this be neither a Condition or Limitation 't is a Charge upon the Land and such a Charge as the Heir cannot avoid in Equity North Chief Iustice and Atkins Where the Heir takes by a Will with a Charge as in this Case he doth not take by Descent but by Purchase and therfore this is no Assets Moor versus Pit SPecial Verdict in Ejectment The Case was this Surrender of a Copyhold to a Disseisor whether good to extinguish the Right viz. A Copyholder for Life the Remainder for Life he in
new Will and the Grandson should take by the Name of Son And Iustice Atkins relied on the Case of Brett and Rigden in the Commentaries where new purchased Lands passed by a Republication but a Writ of Error being brought upon this Iudgment in the Kings Bench it was reversed Anonymus In Banco Regis MR. Sanders moved for a Prohibition to the Spiritual Court in the Case of the Children of one Collet and Mary his Wife to stay Proceedings there upon a Libel against them that the said Collet had married Anne the Sister of the said Mary They both appear and confess the Matter upon which a Sentence of Divorce was to pass whereas in truth Collet was never married to Ann but it was a contrivance between him and his Wife to get themselves divorced and the Marriage declared void ab initio to defeat their Children of an Estate settled upon them in Marriage with Remainders over by bastardizing them after they had been married and lived together 16 years The Reason why a Prohibition was prayed was because Marriage or no Marriage was to be tried in pais for that the Inheritance and Freehold of Land were concerned in this Case The Court directed that they should suggest this Matter Curia and that it was a Contrivance to obtain a Sentence of Divorce to defeat them of their Estate entailed on them and then to move for a Prohibition Smallwood versus Brickhouse THE Suggestion was Spiritual Courts are proper to determine where a person is capable of making a Will Godolph 276. that B. being under the Age of sixteen years had made a Will and that the Prerogative Court proceeded to the proof of it whereas by the Common Law a person is not capable till 17 years and therefore a Prohibition was prayed And that the Common Law hath determined the time my Lord Coke's Comment upon Littleton was cited 1 Inst 89. b. where 't is said That at 18 years of Age he may make his Testament and constitute Executors and the Age of a person is triable also in pais But the Court said Curia that the Proof of Wills and the Validity of them doth belong to the Ecclesiastical Court and if they adjudge a person capable the Court will not intermeddle for 't is within their Iurisdiction to adjudge when a person is of Age to make a Will and sometimes they allow Wills made by persons of 14 years of Age and the Common Law hath appointed no time it depends wholly on the Spiritual Law and therefore a Prohibition was denied Joan Bailies Case NOTA. One Joan Bayly being in Execution Administration was committed to the Debtor in Execution the Plaintiff dyed intestate and the Right of Administration came to her and a Motion was made for a Habeas Corpus to bring her from the Compter into this Court for that having administred to her Creditor she might be discharged but it was denyed for she could not be thus discharged because non constat de persona neither can she give a Warrant of Attorny to acknowledge satisfaction therefore let her renounce the Administration and get it granted to another and then she may be discharged by a Letter of Attorny from such Administrator Anonymus Mandamus MAndamus to swear one who was elected to be one of the Eight Men of Ashburn Court it was denyed because it is incertain for it ought specially to be inserted what the Office is and what is the place of one of the Eight Men of Ashburn Court that it may appear to the Court to be such a place for which a Mandamus doth lye and though such a Writ hath been granted for one of the approved Men of Guilford yet it was specially set forth what his Office was Birch versus Lingen Trin. 34 Car. 2. in B. R. Discontinuance where amendable JVdgment was obtained upon a Bond 25 years since and in one of the Continuances from one Term to another there was a blank The Executors of the Defendant now brought a Writ of Error and the Plaintiff in the Action got a Rule to amend and insert the Continuance suggesting to the Court that it was a Iudgment of a few Terms and so aided by the Statute of 16 17 Car. 2. cap. 8. Hughes Abr. tit Costs 480. 2 Sand. 289. Moor 710. Cro. Eliz. 320 489 553 619. Cro. Jac. 211 353 528. Vpon this Rule the Plaintiff fills up the Blank and the Record was certified so filled up into the Exchequer-Chamber And Mr. Pollexfen moved for the Defendant that the Record might stand as it did at first and that the Rule was got by a trick and on a false Suggestion it being a Iudgment before the Restoration of this King and a Discontinuance not amendable for 't is the Act of the Court and for an Authority in the Point the Case of Friend and Baker was cited where after a Record certified Stiles 339. a Motion was made to amend it because day was given over to the Parties from Easter to Michaelmas-Term and so Trinity-Term left out where by the Opinion of Roll Chief Iustice that the giving of a day more than is necessary is no Discontinuance but where a day is wanting 't is otherwise But Sanders for the Plaintiff said that this was only a Misprision of the Clerk and no Discontinuance but amendable The Clerks commonly leave Blanks in the Venires and if they neglect to fill them up 't is only a Misprision and amendable by the Court and the Record being now filled up by the Rule of the Court ought not to be razed to make an Error The Chief Iustice was of Opinion That this was not a discontinuance but an insufficient continuance and an omission of the Clerk only who if he had filled up this Blank himself without Rule it could not afterwards be set aside But Iustice Jones was of another Opinion That it was such a misprision of the Clerk as was not amendable by the Statute of H. 6. since it was not the same Term and all the Proceedings being in the Breast of the Court only during the Term it ought not to be altered but left in Blank as it was for where Iudgment is entred for the Plaintiff the Court may upon just cause alter it the same Term for the Defendant but not of another Term the whole Term being but one day in Law And though the Writ of Error be returned into the Exchequer that will make no alteration for the Record it self remains still here and 't is only a Transcript that is removed thither Sed Adjornatur Anonymus TRespass for breaking of his Close The Defendants plead Power where 't is coupled with an Interest is assignable That the place where were c. the Lands of one Martin who made a Lease thereof to the Plaintiff and did thereby except the Trees growing on the same In which Lease the Plaintiff did Covenant with the said Martin his
de se by Inquisition and then comes an Act of Indempnity that shall not divest the King of his Right But where nothing Vests before the Office found a Pardon before the Inquisition extinguishes all Forfeitures as it was resolved in Tomb's Case So if the Pardon in this Case had come before the Presentation the Party had been restored Statu quo c. The King can do no more the Bishop is to do the rest neither is the Presentation revoked by this Act it might have been revoked by implication in some Cases as where there is a second Presentation but such a general revocation will not do it and Iudgment was given for the Plaintiff and a Writ of Error brought but the Cause was ended by Agreement Hill versus Pheasant Gaming at several meetings whether within the Statute AN Action of Debt was brought upon the Statute of 16 Car. 2. cap. 7. made against deceitful and disorderly Gaming which Enacts That if any person shall play at any Game other than for ready Mony and shall lose any Sum or other thing played for above the Sum of 100 l. at any one time or meeting upon Tick and shall not then pay the same that all Contracts and Securities made for the payment thereof shall be void and the person winning shall pay treble the Mony lost It happened that the Defendant won 80 l. at one meeting for whcih the Plaintiff gave Security and another meeting was appointed and the Defendant won 70 l. more of the Plaintiff being in all above 100 l. And if this was within the Statute was the Question The like Case was in the Kings-Bench Trin. 25 Car. 2. Rot. 1230. between Edgberry and Roseberry and in Michaelmas Term following this Case was argued and the Court was divided which the Plaintiff perceiving Anonymus Postea desired to discontinue his Action but the better Opinion was that it was not within the Statute though if it had been pleaded That the several meetings were purposely appointed to elude the Statute Sid. 394. in might be otherwise Calthorp versus Heyton Traverse not good viz. Absque hoc quod legitimo modo oneratus IN Replevin The Defendant avowed for that the King being seised in Fee of a Mannor and of a Grange which was parcel of the Mannor granted the Inheritance to a Bishop reserving 33 l. Rent to be yearly issuing out of the whole and alledges a Grant of the Grange from Sir W. W. who claimed under the Bishop to his Ancestors in Fee in which Grant there was this Clause Viz. If the Grantee or his Heirs shall be legally charged by Distress or with any Rent due to the King or his Successors upon account of the said Grange that then it should be lawful for them to enter into Blackacre and distrein till he or they be satisfied And afterwards the Grantee and his Heirs were upon a Bill Exhibited against them in the Exchequer decreed to pay the King 4 l. per Annum as their proportion out of the Grange for which he distreined and so justified the taking The Plaintiff pleads in barr to the Avowry and traverseth that the Defendant was lawfully charged with the said Rent and the Defendant demurred Baldwyn Serjeant maintained the Avowry to be good Ex parte Def. having alledged a legal charge and that the Barr was not good for the Plaintiff traverseth quod Defendens est ligitimo modo oneratus which being part matter of Law and part likewise matter of Fact is not good and therefore if the Decree be not a legal charge the Plaintiff should have demurred But on the other side it was argued by Seys Serjeant Ex parte Quer. That the Avowry is not good because the Defendant hath not set forth a legal charge according to the Grant which must be by Distress or some other lawful way and that must be intended by some execution at Common Law for the coactus fuit to pay is not enough a Suit in Equity is no legal disturbance Moor 559. The same Case is Reported in 1 Brownl 23. Selby versus Chute Besides the Defendant doth not shew any Process taken out or who were Parties to the Decree and a Que estate in the Case of a Bishop is not good for he must pass it by Deed. North and the whole Court A Rent in the Kings Case lies in Render and not in Demand and after the Rent day is past he is oneratus and the Decree is not material in this Case for the charge is not made thereby but by the Reservation for payment whereof the whole Grange is chargeable The King may distrain in any part of the Land he is not bound by the Decree to a particular place that is in favour only to the Purchasor that he should pay no more than his proportion As to the Que estate the Defendant hath admitted that by saying bene verum est that Sir W. W. was seised The Traverse is ill and Iudgment was given for the Avowant Vaughan versus Wood. Trespass justified for taking corrupt Victualls Mod. Rep. 202. TRespass for taking Beef The Defendant pleads a Custom to choose Supervisors of Victuals at a Court Leet That he was there chosen and having viewed the Plaintiffs Goods found the Beef to be corrupt which he took and burned The Plaintiff demurrs for that the Custom is unreasonable and when Meat is corrupt and sold there are proper remedies at Law by Action on the Case or presentment at a Leet 9 H. 6. 53. 11 Ed. 3. 4. 6. Vide Stat. 18 Eliz. cap. 3. But the Court held it a good Custom and Iudgment was given for the Defendant the Chief Iustice being not clear in it Chapter of Southwel versus Bishop of Lincoln Grant of next Avoidance not bind the Successor Mod. Rep. 204. IN a Quare Impedit the Question upon pleading was Whether the Grant of the next Avoidance by the Chapter was good or not to bind the Successor The doubt did arise upon the Statute of 13 Eliz. cap. 10. which was objected not to be a publick * Yelv. 106. Act because it extends only to those who are Ecclesiastical persons or if it should be adjudged a publick Law yet this is not a good Grant to bind the Successor for though the Grant of an Avoidance is not a thing of which any profit can be made yet it is an * Cro. Eliz. 441. Hereditament within the meaning of that Statute by which among other things 't is Enacted That all Grants c. made by Dean and Chapter c. of any Lands Tythes Tenements or Hereditaments being parcel of the Possessions of the Chapter other than for the Term of 21 Years or 3 Lives from the time of the making the said Grant shall be void But it was agreed by the Court to be a general Law like the Statute of Non Residency which hath been so ruled and that this Presentment or Grant
Case of * Sid. 233. the Marquess of Dorchester He is no more to be valued than the Black Dog which lies there which were Words of disesteem and only the Opinion of the Defendant in which Case Iudgment was affirmed in a Writ of Error Object If it be objected to what purpose this Statute was made if no Action lies upon it but what lay at the Common Law Answ The Plaintiff now upon the Statute must prosecute tam pro Domino Rege quam pro seipso which he could not do at the Common Law And it has beén held in the Starr-Chamber that if a Scandalum Magnatum be brought upon this Statute the Defendant cannot justifie because 't is brought qui tam c. and the King is concerned but the Defendant may explain the Words and tell the occasion of speaking of them if they are true they must not be published because the Statute was to prevent Discords Object These Words carry in them no disesteem Answ According to a Common Vnderstanding they are Words of disrespect and of great disesteem for 't is as much as to say that the Plaintiff is a Man of no Honour he is one who lives after his own Will and so is not fit to be employed under the King if any precedent discourse had qualified the speaking these Words it ought to have been shewn by the Defendant which is not done and therefore he concluded that the Words notwithstanding what was objected were actionable and so by the Opinion of him Wyndham and Scroggs Iustices Iudgment was given for the Plaintiff Atkins Iustice of a contrary Opinion Anonymus AN Action of Assault Battery Amendment after a Demurrer joyned and before Judgment given good Wounding and false Imprisonment for an hour was brought against the Defendant who pleads quoad venire vi armis Not-Guilty and as to the Imprisonment he justified as Servant to the Sheriff attending upon him at the time of the Assize from whom he received a Command to bring the Plaintiff being another of the Sheriffs Servants from the Conventicle where finding of him he to wit the Defendant did molliter manus imponere upon the Plaintiff and brought him before his Master quae est eadem transgressio To this the Plaintiff demurred and shewed for Cause 1. That the Substance of the Iustification is not good 2 Cro. 360. because the Servant could not thus justifie though his Master might for the Lord may beat his Villain without a Cause but if he command another to do it an Action of Battery lies against him 2 H. 4. 4. But though this might have been good if well pleaded yet 't is not good as pleaded here for 2. The Defendant saith quoad venire vi armis Not-Guilty Harding and Ferne Postea but saith nothing of the wounding which cannot be justified and therefore this Plea is not good for which reason it was clearly resolved that the Plea was ill but the Court inclined that the Substance of the Plea was well enough The Chief Iustice and Iustice Scroggs were of Opinion that a Man may as well send for his Servant from a Conventicle as from an Alehouse and may keep him from going to either of those places And the Chief Iustice said that he once knew it to be part of a Marriage Agreement that the Wife should have leave to go to a Conventicle But in this Case Leave was given to amend the Plea Sid. 107. and put in quoad vulnerationem Not-Guilty and it was held that though the Parties had joined in Demurrer yet the Defendant might have Liberty to amend before Iudgment given Singleton versus Bawtree Executor Traverse must be where the Charge in the Declaration is not fully answered ASsumpsit against the Defendant as Executor who pleads the Testator made one J. S. Executor who proved the Will and took upon him the Execution thereof and administred the Goods and Chattels of the Testator and so concludes in Abatement Et petit Judicium de Brevi with an Averment that J. S. Superstes in plena vita existit To this Plea the Plaintiff demurred because the Defendant ought to have traversed absque hoc that he was Executor or administred as Executor and so are all the Pleadings 9 H. 6. 7. 4 H. 7. 13. 7 H. 6. 13. But Serjeant Pemberton for the Defendant said that there is a difference when Letters of Administration are granted in case the Party die intestate and when a Man makes a Will and therein appoints an Executor for in that Case the Executor comes in immediately from the death of the Testator but when a Man dies intestate the Ordinary hath an Interest in the Goods and therefore he who takes them is Executor de son tort and may be charged as such but 't is otherwise generally where there is a Will and a rightful Executor who proveth the same for he may bring a Trover against the Party for taking of the Testators Goods though he never had the actual possession of them and therefore the taking in such case will not make a Man Executor de son tort because there is another lawful Executor but 't is true that if there be a special Administration 't is otherwise as if a Stranger doth take upon him to pay Debts or Legacies or to use the Intestates Goods such an express Administration will make him Executor de son tort and liable as in Read's Case 5 Co. So in this Case the Defendant pleads that J. S. was Executor which prima facie discharges him for to make him chargeable the Plaintiff ought in his Replication to set forth the special Administration that though there was an Executor yet before he assumed the Execution or proved the Will the Defendant first took the Goods by which he became Executor of his own Wrong and so to have brought himself within this distinction which was the truth of this Case and that would have put the matter out of dispute which not being done he held the Plea to be good and so prayed Iudgment for the Defendant The Court were of Opinion that prima facie this was a good Plea for where a Man * 2 Sand. 28. confesses and avoids he need not traverse and here the Defendant had avoided his being chargeable as Executor de son tort by saying that there was a rightful Executor who had administred the Testators whole Estate but the Surmise of the Plaintiff and the Plea of the Defendant being both in the * 2 Cro. 579. pl. 9. Sid. 341. 1 Sand. 338. affirmative no Issue can be joined thereon and therefore the Defendant ought to have traversed that he was Executor or ever administred as Executor the rather because his Plea gives no full Answer to the Charge in the Declaration being charged as Executor who pleads that another was Executor and both these matters might be true and yet the Defendant liable as Executor de son tort which
Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards
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
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
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.
as much as is required by Law 'T is true a Subject is bound to serve the King in such capacity as he is in at the time of the Service commanded but he is not obliged to qualifie himself to serve in every capacity Neither doth it appear in this Case that the Defendant was able to remove this Incapacity and that should have been shewn on the other side and all Iudges are to judge upon the Record The intent of the Statute is That if persons will not qualifie themselves they shall not execute any Office and it was made to keep Roman Catholicks out of Places but not to force them to accept of Offices of Trust in the Government and it designs no punishment for quitting but for executing of a place contrary to the Law but if this be an Offence this Information will not lie and for that 2. It was argued That if a thing be either commanded or forbidden by a Statute the transgression in either Case is an Offence punishable by Information 25 H 6. pl. 9. b. 7 H. 4. 5. but when an Act doth not generally command a thing but only sub modo the party offending is punishable no otherwise than designed by that Law as where the Statute of 18 H. 6. cap. 11. prohibits any Man from being a Iustice of the Peace unless he have 40 l. ê‘ AnÌ„ and the Statute of 5 6 E. 6. cap. 16. which makes such Bargains as are therein mentioned about buying of Offices void if such Office be forfeitable then an Information will lie but when 't is ipso facto void as in both the former Cases then 't is otherwise because the punishment is executed by the Statute it self and therefore where the avoidance is made by the Act there is no need of an Information And the Objection of impotentia voluntatis is not material to this purpose because Symony buying of Offices not subscribing the 39 Articles according to the Statute of the Queen these are all voluntary Acts yet no Information lies against such Offenders because the Statutes execute the punishment The intent of the Parliament is here declared the disability of the person makes the Office void void to all intents for the Right of Infants or Men in Prison is not saved so that admitting it to be an Offence if the Duty be not performed yet if such a qualification be requisit to make a Man to act in such an Office or perform such a Duty if that qualification be wanting the Party is only punishable by the loss of the Office The Act doth not distinguish between Offices of Trust and Profit And as to the other Objection viz. That 't is in the power of the Defendant to qualifie himself the same might as well be objected against all the Popish Recusants upon the Statute of 3 Jac. and if a Statute doth disable persons or abridge the King of their Services there is no injury done because the King himself is party to the Act but if mischiefs were never so great since they are introduced by a Law they cannot be avoided till that Law is changed 3. But admitting the Information to be good and that this is an Offence for which it will lie yet the Excommunication is a sufficient excuse it appears by the Verdict that the Defendant was absolutely disabled to be Sheriff for if he is to take the Oath and receive the Sacrament in order to it if he cannot be admitted to the Sacrament as being under the Sentence of Excommunication that is an excuse The Defendant is only argued into a Guilt for the Iury have not found any they do not say that it was in his power to yield Obedience or that he might have enabled himself they only find his incapacity and though it was a voluntary Act which was the cause of his disability yet in such Cases the Law doth not look to Causes so remote If a Man be in Prison for Debt it is his own Act for contracting it and not paying but yet an Outlary against him whilst in Prison shall be reversed because the immediate Cause viz. the Imprisonment and the Iudgment was in invitum and the Law looks no farther and so Iudgment was prayed for the Defendant But the Court were all of Opinion that this Information would lye and that the Defendant was punishable for not removing the disability it being in his power to get himself absolved from the Excommunication And so Iudgment was given against him and a Writ of Error brought c. Godfrey versus Godfrey In Communi Banco Intrat ' Hill ult Rot. 321. DEBT upon a Bond for performance of an Award Award of a lesser Sum in satisfaction of a greater and good in which the Arbitrators had taken notice of 72 l. in controversie and had awarded 50 l. in satisfaction The Defendant pleads Nullum fecerunt Arbitrium the Plaintiff replies an Award and sets it forth and assigns a Breach to which the Defendant demurred because it appeared by the Award that 72 l. was in controversie for Rent due and that 50 l. was awarded in full satisfaction of 72 l. and general Releases to be given but it did not appear that any other Matter was in Controversie between the Parties though the Submission was general and Arbitrators may reduce incertain things to a certainty but they cannot make a Debt certain to be less except there were other differences for which likewise this Release was to be given 10 H. 7. 4. But the whole Court were of Opinion that the Award was good Curia for that the Arbitrators might consider other Matters between the Parties neither did it appear by the Award that the 72 l. was due but in demand only and 't is unreasonable for him to find fault with his own case for he alledges that he ought to pay 72 l. and complains because the other Party is contented with 50 l. and demands no more Iudgment for the Plaintiff Wright versus Bull. Condition where 't is disjunctive 't is in the Election of the Party to have either DEBT upon a Bond for payment of 40 l. The Condition whereof was That if the Defendant should work out the said 40 l. at the usual Prices in packing when the Plaintiff should have occasion for himself or his Friends to imploy him therein or otherwise shall pay the 40 l. then the Bond to be void The Defendant pleads that he was always ready to have wrought out the 40 l. but that the Plaintiff did never imploy him and upon Demurrer the Plea was held ill because the Defendant did not averr that the Plaintiff had any occasion to make use of him and for that it was at his Election either to have Work or Mony Basket and Basket Antea and not having imployed him but brought his Action that is a request in Law and so he hath determined his Election to have the Mony and Iudgment was accordingly given for the
Anno 30 Car. II. in Communi Banco The Case of one Randal and his Wife an Administrator c. Judgment may be avoided without a Writ of Error by a Plea where the Party is a Stranger to it DEBT upon a Bond against the Defendant as Administrator They plead a Iudgment recovered against the Intestate in Hillary Term 26 27 Car. 2. and that they had not Assets ultra The Plaintiff replies that there was an Action against the Intestate but that he dyed before Iudgment and that after his death Iudgment was obtained and kept on foot per fraudem The Defendant traversed the Fraud but did not answer the death of the Intestate and upon a Demurrer it was said for the Plaintiff that the Iudgment was ill and that he being a Stranger to it could neither bring a Writ of Error or Deceit and had no other way to avoid it but by Plea and that 't is put as a Rule That where Iudgment may be reversed by a Writ of Error the Party shall not be admitted to do it by Plea but a Stranger to it must avoid it by Plea because he is no Party to the Iudgment as if a Scire Facias be brought against the Bail 't is a good Plea for them to say that the Principal was dead before Iudgment given by way of excusing themselves to bring in the Body but 't is not good to avoid the Iudgment because 't is against the Record Cro. Eliz. 199. which must be avoided by Writ of Error 1 Roll. Abr. 449 742. The Court were of Opinion that the Plaintiff might avoid the Iudgment without a Writ of Error especially in this Case where 't is not only erroneous but void Hill versus Thorn IN an Arbitrament it was held by the Court Rules in an Award that if two things be awarded the one within and the other not within the Submission the later is void and the breach must be assigned only upon the first 2. If there be a Submission of a particular difference and there are other things in Controversie if in such Case a general Release is awarded 't is ill and it must be shewed on the other side to avoid the Award for that cause 3. If the Submission be of all differences till the 10th day of May 1 Sand. 33. and a Release awarded to be given of all differences till the 20th day of May if there be no differences between those two days the Award is good if any it must be shewed in Pleading 1 Roll. Abr. 257. otherwise the Court will never intend it 4. Smith and Shelbury Antea That reciprocal Covenants cannot be pleaded in barr of another and that in the assigning of a Breach of Covenant 't is not necessary to averr performance on the Plaintiffs side Staples versus Alden DEBT upon a Bond conditioned to deliver forty pair of Shooes within a Month at Holborn-Bridge to Henry Knight a Common Carrier to G. for the use of the Obligee Tender of Goods to the Man shall be a Tender to the Master The Defendant pleaded that in all that space of a Month Henry Knight did not come to London but that such a day at Holborn-Bridge he delivered forty pair of Shooes to A. G. the Carriers Porter To this Plea the Plaintiff demurred for that the Condition being to do something to a Stranger the Defendant at his peril ought to perform it 33 H. 6. 13. 4 H. 7. 4. like the Case where the Action of Debt was brought upon a Bond conditioned that the Defendant should give such a Release as the Iudge of the Prerogative Court should think fit the Defendant pleaded that the Iudge did not appoint any Release and it was adjudged no good Plea because the Obligation is on his part and he ought to tender a Release to the Iudge Cro. Eliz. 716. But on the other side it was said that a delivery to the Servant is a delivery to the Master himself and if parcels of Goods are delivered to the Porter and lost an Action lies against the Master Curia The Court absente North Chief Iustice held the Plea to be good and that such a Construction was to be made as was according to the intent of the Parties and that a delivery to the Man was a delivery to the Master whereupon Iudgment was given for the Defendant Gillmore versus Executor of Shooter In Banco Regis A new Act shall not take away an Action to which the Plaintiff was entituled at the Commencement of the Act. INdebitatus Assumpsit There was a Treaty of Marriage between the Plaintiff who was of kin to the Testator and the Daughter of one Harris with whom he afterwards had 2000 l. as the Marriage Portion and Mr. Shooter in his Life time promised to give the Plaintiff as much or to leave him worth so much by his Will This Promise was made before the 24th day of June before this Action brought the Marriage took effect Harris paid the 2000 l. and Shooter dyed in September following having made no payment of the Mony or any Provision for the Plaintiff by his Will This Action was commenced after Shooter's death and upon the Tryal a Special Verdict was found upon the Act of Frauds and Perjuries 29 Car. 2. c. 29 Car. 2. which Enacts That from and after the 24th day of June in the year 1677. no Action shall be brought to charge any person upon any Agreement made in consideration of Marriage c. unless such Agreement be in Writing c. And that this was a bare Promise without Writing And by Wyld and Jones absente Twisden Iudgment was given for the Plaintiff for it could not be presumed that the Act had a retrospect to take away an Action to which the Plaintiff was then intituled For if a Will had been made before the 24th day of June and the Testator had dyed afterwards yet the Will had been good though it had not been in pursuance of the Statute Aster versus Mazeen In C. B. IN Covenant Breach assigned did relate to three Covenants the Declaration concludes sic fregit Conventionem and good the Plaintiff declared upon an Indenture in which the Defendant had covenanted that he was seised in Fee c. and would free the Premisses from all Incumbrances in which there was also another Covenant for quiet Enjoyment and the Breach assigned was upon an Entry and Eviction by another and concludes sic Coventionem suam praedictam fregit in the singular Number And upon a Demurrer to the Declaration Maynard Serjeant said That the Breach did relate to all the three Covenants and therefore the Conclusion was ill because he did not shew what Covenant in particular and if he should obtain a Iudgment upon such a Declaration the Recovery could not be pleaed in Barr to another Action brought upon one of the other Covenants But Conyers for the Plaintiff said that Conventio is
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
word extends to no other than Webbs Bargains Body to his Son Francis and that Margaret should have it for Life Cann dies the Meadow was not one of Webb's Bargains Thomas had Issue Thomas the Lessor of the Plaintiff Henry made a Feoffment in Fée to A. and B. to the use of himself and his Wife and to the Heirs of their two Bodies Remainder to his own right Heirs with Warranty against all persons and died without Issue the Lessor of the Plaintiff enters being his Cousin and Heir and of full age when Henry died In this Case it was held that if it had béen found that Margaret had an Estate for Life and that Henry entred in her Life time that it had beén then a Warranty commenced by Disseisin and would not have bound Thomas the Reversioner But as it was those two Iudges held it no Barr because the Warranty began with the Feoffment to uses and Henry being himself the Feoffeé it returned instantly to him and was extinct as to the Reversion because that was revested in him in Fée and therefore they held he could have no benefit either by Voucher or Rebutter it being destroyed at the same time it was created But Berkly and Richardson Iustices held that quoad the Estate of Henry's Wife the Warranty had a Continuance and the ground of the contrary opinion might be because Iustice Jones said there was no such Resolution as is mentioned to be the fourth in Lincoln Colledge Case yet he affirmeth that very Resolution in his own Reports fol. 199. There is a Clause in the * 27 H. 8. c 10. Statute of Vses difficult to be understood by which 't is Enacted That every Cestuy que use may take such Advantage of vouching c. as the Feoffees themselves might so that Cestuy que use have the Estate executed in him before the first day of May 1536. which was a year after the making that Statute so that the Clause seems to be exclusive of all others who shall come in afterwards Answ But he supposed the Intention of the Law Makers to be That there should be no more Conveyances to Vses But because they presumed that at first Men might not know of it therefore lest the Parties should be any ways prejudiced they gave liberty till such a time to Vouch or Rebutt within which time they might have some knowledge of the Statute and then it was supposed they would make no more Limitations to Vses But though they imagined them to be left expiring yet they revived Since then the Parliament gave leave to Vouch or Rebutt whilst they could in reason think there would be any Conveyance to Vses 't is but reasonable whilst they do continue that the Parties should Rebutt especially since most Conveyances at this day are made to Vses Windham Iustice accord in omnibus and so Iudgment was given as aforesaid Anonymus DOwer The Tenant pleads That a Lease was made by the Husband for 99 years before any title of Dower did accrue which Lease was yet in being and shews that the Lessor afterwards granted the Reversion to J. S. and died and that J. S. devised to the Tenant for Life The Demandant replies That the Lessor made a Feoffment in Fee absque hoc that the Reversion was granted prout c. The Tenant Demurrs Newdigate Serjeant for the Demandant argued That the Plea was not good to which he tooke several Execeptions 1. Except The Tenant by his Plea confesseth That the Demandant ought to have Iudgment of the Reversion expectant upon the Lease for 99 years de tertia but doth not say parte 2. Except Here is the Grant of a Reversion pleaded and 't is not hic in Curia prolat ' Then for the Matter as 't is pleaded 't is not good He agreed if Dower be brought against Lessee for years he may discharge himself by pleading the continuance of his Lease during which time the Demandant can have no Execution but here the Tenant is no ways concerned in the Lease 't is Littleton's Case None shall take advantage of a Release but he who is party or privy and therefore the Lessee in this Case being party might have pleaded this but the Tenant is altogether a Stranger Before the Statute of Gloucester cap 11. If the Demandant had recovered in a real Action against the Tenant the Termor had been bound because at the Common Law no body could falsifie the Recovery of a Free-hold but he who had a Free-hold himself this Statute prevents that Mischief and Enacts That the Termor shall be received before Judgment to defend the Right of his Term upon the default of the Tenant and though the Iudgment cannot be hindred thereby yet Execution shall be suspended during the Term and therefore in Dyer 263. b. The Lady Arundel brought Dower against the Earl of Pembroke who made default and before Iudgment the Termor prays to be received upon this Statute and pleads a Lease made by the Husband after Coverture which was assigned to him and that Dower de tertia parte of the Rent of this Lease was assigned to the Demandant by the Court of Augmentations which was afterwards confirmed by Letters Patents that she accepted it and concludes That the Plea of the Tenant was by Collusion between him and her to make him lose his Term And this was held ill for the Reason given by my Lord * Hob 316. Not for that reason but because that Court could not assign Dower and so the Letters Patents of Confirmation could not make that good which was void before Hobart That it is absurd to admit two Persons to dispute the Interest of a third Man But whether the Traverse is good or not if the Plea is naught Iudgment ought to be given for the Demandant Jones Serjeant contra The Pleading is well enough 1. The Tenant confesseth That the Demandant ought to have Iudgment of the Reversion de tertia which is well enough omitting the word parte because he claims a third part of such Tenements and the Tenant confesses she ought to have Iudgment which is full enough if the words de tertia parte were wholly omitted 2. He agreed That whoever Claims under a Deed must shew it but the Tenant in this Case did not defend himself by any Title from the Deed for the substance of the Plea which secured him was That a Lease of 99 years was in being and by his alledging the Devise of an Estate to him for Life made by the Grantee of the Reversion he did but allow the Demandant's Writ to be true which mentions him as Tenant of the Free-hold Then for the Matter of the Plea he says it was good and that the Tenant might well plead the Lease for years By the * 3 Inst 32. b. Statute of Merton Damages are given in Dower where the Husband died seised which he did in this Case but yet no Damages ought to be paid here but for the third part
take Bail but the Sheriff himself must do it and therefore an Action on the Case must lye against the Bayliff for not carrying the Party before the Sheriff in order to put in Bail but an Action of false Imprisonment will not lye 2. The action is laid quare vi armis c. in ipsum the Plaintiff insultum fecit ipsum imprisonavit ut Prisonat à tali loco ad talem locum adducebat detinuit contra consuetudinem Angliae sine cause rationabili per spacium trium dierum The Defendant pleaded quoad venire vi armis necnon totam transgressionem praeter the taking and deteining him three days non Culp and as to that he pleaded the Latitat Warrant and Arrest ut supra but the Verdict being only against the Defendant upon the second Issue and nothing appearing to be done upon this and entire Damages given 't is for that reason ill North Chief Iustice If the Writ and Warrant were good then the refusing Bail is an Offence within the Statute of 23 H. 6. And as 't is an Oppression so 't is an Offence also at the Common Law but an Action on the Case and not of false Imprisonment lyeth against the Officer for it would be very unreasonable by the refusal of Bail to make the Arrest tortious ab initio A special Action on the Case had therefore been the proper remedy against the Sheriff but not against the Officer for an Escape will not lye against him but it must be brought against the Sheriff Kren versus Kirby Surrender by a Disseisor not good IN Ejectment the Lessor of the Plaintiff claimed under a Surrender made to him by William Kirby who had an Estate in the Land after the decrease of his Father but entred during his Life and thereby became a Disseisor and his Estate being now turned into a Right he made the Surrender to the Lessor of the Plaintiff all which was found by special Verdict at the Tryal and it was adjudged that the Surrender was void It was pretended at the Trial that the Father who was Tenant for Life had suffered a Common Recovery in the Lords Court and so his Estate was forfeited for which the Son might enter and then his Surrender is good But the Court answered that without a particular Custom for the purpose the suffering a Recovery would work no Forfeiture of the Estate but if it did 't is the Lord and none else who can enter And so Iudgment was given for the Defendant Duck versus Vincent DEBT upon Bond conditioned to perform Covenants Plea to debt upon bond not good one of which was for payment of so much Mony upon making such Assurances The Defendant pleaded he paid the Mony such a day but doth not mention when the Assurance was made that it might appear to the Court the Mony was immediately paid pursuant to the Condition and for that reason the Court were all of Opinion that the Plea was not good And Iudgement was given for the Plaintiff upon Demurrer Smith versus Shelberry IN Assumpsit the Plaintiff declared that he was possessed of a Term of 80 years Assumpsit upon a mutual promise and it was agreed between him and the Defendant that he should assign all his interest therein to the Defendant who proinde should pay 250 l. and that he promised that in consideration that the Plaintiff at his request had likewise promised to perform all on his part that he would also perform all on his part and then sets forth that the Defendant had paid a Guinea in part of the said 250 l. and that he viz. the Plaintiff obtulit se to assign the Premisses by Indenture to the Defendant which was written and sealed and woud have delivered it to him but he refused and assigns the breach in Non-payment of the Mony to which the Defendant demurred And it was said for him by Baldwin Serjeant Ex parte Def. that this was not a good Declaration because the Assignment ought to precede the Payment and that it was not a mutual promise neither was the obtulit se well set forth but this was a Condition precedent on the Plaintiffs side without the performance whereof no Action would lie against the Defendant Vide 7 Co. Ughtreds Case fol. 10. b. because it was apparent by the Plaintiffs own shewing that the Mony was not to be paid till the Assignment made for the Plaintiff is to assign and the Defendant proinde which is as much as to say pro assignatione is to pay the Mony Like the Case in Dyer 76. a. Assumpsit against the Defendant that he promised pro 20 Marks to deliver 400 Weight of Wax to the Plaintiff the Pronoun Pro makes the Contract conditional Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Declaration good and that it was a mutual promise and that the Plaintiff need not averr the performance Hill Thorn Postea for in such Cases each has remedy against the other and 't is as reasonable that the Plaintiff should have his Mony before he make the Assignment as that the Defendant should have the Term assigned before he paid the Mony And of that Opinion was the Court only Iustice Atkins doubted Ellis Iustice cited a Case adjudged in the King's Bench which was as he thought Stiles Rep. 186 Postea very hard viz. An Assignment was made between A. and B. that A. should raise Souldiers and that B. should transport them beyond Sea and reciprocal promises were made for the performance as in this Case that A. who never raised any Souldiers may yet bring his Action upon this promise against B. for not transporting them which is a far stronger Case than this at Barr. It was agréed here that the Tender and Refusal had it beén well pleaded would have amounted to and have been equivalent with a full performance but the Plaintiff hath not done as much as he might for he should have delivered the Indenture to the Defendants use and then have tendered it But Iudgment was given for the Plaintiff Hays versus Bickerstaffe Covenant not conditional by the words paying and performing IN Covenant brought by the Lessee who declared that the Lessor covenanted with him that he paying the Rent and performing the Covenants on his part to be performed shall quietly enjoy The breach assigned was a disturbance by the Lessor who pleads that till such a time the Plaintiff did quietly enjoy the thing demised without disturbance but then he cut down Wood which was contrary to his Covenant and then and not before he entred and so by the Plaintiffs not performing his Covenant the Defendants Covenant ceases to oblige him whereunto the Plaintiff demurred The Question was Whether the Defendants Covenant was conditional or not For if it amount to a Condition then his Entry is lawful but if it be a Covenant 't is otherwise for then he
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
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
to shew that the Proceedings of that Court did not alter but interpret the Law But admitting the Case of the Duke of Norkfolk to be Law yet it concerns not this because the Sub Marshal there was taken as a Deputy but there is no such Officer as a Sub-Warden for Duckenfield had it for Life And then a Deputy being a person removable at pleasure will not be so considered in Law as one who hath a more fixed Estate for having nothing to lose it cannot be intended that he will be so careful in the execution of his Office as the other and therefore 't is reasonable in such Case that the Superiour should answer But he who hath a Freehold for Life hath an Estate of some value in the Law which he cannot be supposed easily to forfeit and therefore 't is reasonable that he alone should be lyable for his own Miscarriages for if the Defendant should be charged by the same reason the Grantee of the Reversion may be charged who is altogether an innocent person and so may be liable to a vast Sum for the Fault of another for which Reasons he prayed Iudgment for the Defendant The Court delivered no Opinion this Term Judgment but took time to advise and afterwards in Easter Term following Rainsford Chief Iustice delivered the Opinions of Twisden Wild and Jones Iustices who said they were all agreéing in the main Point but thought the Verdict imperfect and not to warrant the Plaintiffs Case for he declared that at the time when the Grant was made to Duckenfield when the Commitment was and when the Escape was suffered and ever since that Duckenfield was insufficient and not able to answer the Plaintiff but the Iury in the Special Verdict do not find the insufficiency at that time when this Action was brought But as to the main Question they were of Opinion that the Defendant was Superior and that he is chargeable for this insufficiency of Duckenfield but if he had béen sufficient when the Plaintiff brought this Action it might have been otherwise but his Inability being fully averred in the Declaration and the Defendant denying it and the Iury having found nothing against it but there being strong Suspicions of the truth of the Fact the Court would not make an intendment to the contrary The Iury have found expresly that Duckenfield was insufficient at the time of the Escape which was within six Weeks of the time when the Action was commenced so that having once found him disabled unless it appear that he was of Ability afterwards the Court will not intend him so but rather that he was insufficient at the time of the Action brought for there being strong surmises of it and there being no ground within the Record to intend him sufficient a Fact may be collected that is not found in the Verdict Fulwoods Case 4 Co. The King versus Moor. Difference between a prohibitory Clause and a Clause which gives a Penalty in a Statute AN Information was brought upon the Statute of the 4th 5th of Philip and Mary cap. 8. which Enacts That if any Person c. above the Age of 14 shall after the first day of April next after the making the Statute unlawfully take a Maid or Woman unmarried being within the Age of 16 years c. the Party shall suffer two years Imprisonment or pay such Fine as shall be assessed in the Star Chamber and that the Defendant existens supra aetatem quatuordecim annorum did take a young Maid away unmarried and kept her three days contra formam Statuti upon which he was found Guilty and now moved in Arrest of Iudgment 1. It was said for the Defendant that this Court could not Fine him upon this Statute because when the Informer entitles himself by a Statute he must take the remedy therein prescribed and so 't is not like an Information at the Common Law for in such case this Court might Fine the Plaintiff 2. It is not averred that the party offending was above the age of 14 years at the time of taking but only that he being above the age of 14 such a day did take Where there are not Negative Words the Court of Kings Bench is not restrained Mod. Rep. 34. Sid. 359. Sir William Jones contra If the first Objection hath any weight in it 't is to bring the Party to an Imprisonment for the space of two years which is a punishment directed by that Statute but the Fine is limited to the Star Chamber and those Offences which were punishable there are likewise to be punished here because there are no Negative words in this Statute to abridge the authority of this Court which is never restrained but when the Statute directs before whom the Offence shall be Tried and not elsewhere It was the Opinion of my Lord Chief Iustice Hales That where there is a prohibitory Clause in a Statute and another Clause which gives a Penalty if the Party will go upon the prohibitory Clause Postea he is not confined to the manner expressed in the Statute but if he will go upon the Penalty he must then pursue what the Statute directs The first part of this Statute is but a Declaration of the Common Law the second Clause is introductive of a new Law as to the Court of Star Chamber but is not a restriction as to this Court which might have punished the Defendant if there had been no such Law The first Clause is prohibitory viz. That it shall not be lawful for any person to take away a Maid unmarried and upon this Clause this Information is brought The second Clause is distinct and directs the punishment viz. Upon Conviction to suffer Imprisonment for two years Now by taking away the Court of Star Chamber this prohibitory Clause is not repealed upon which a Man may be Indicted without demanding the Penalty and the Statute having directed that the Offence shall be heard and determined before the Kings Council in the Star Chamber or before the Iudge of Assise and no Negative words to restrain this Court therefore the Chief Iustice who is the Iudge of * Cro. Car. 463. Assise in the County of Middlesex may hear and determine this Offence and by consequence Fine the Party if he be found Guilty As to the second Objection That it is not averred that the Party offending was above the age of 14 years at the time of the taking it had been better if it had been said tunc existen ' supra aetatem quatuordecim annorum but notwithstanding 't is well enough for 't is said that being above the age of 14 years such a day he did take c. so that it cannot be otherwise but that he was of such an age at the time when the Maid was taken and the Iury found him Guilty contra formam Statuti which may likewise be an Answer to the first Objection for he being found Guilty contra formam
Toll c. which were first created by the King 9 Co. Abbot de Strata Marcella's Case So that this Toll is not become in gross by the dissolution whereupon Iudgment was given for the Defendant Sir William Turner's Case Amendment not after issue joyned DEbt qui tam c. for 100 l. against Sir William Turner being a Iustice of Peace in London for denying his Warrant to suppress a seditious Conventicle of one Mr. Turner in New-street This Cause was to be tried by Nisi prius this Term before the Chief Iustice And now the Plaintiff moved to amend one Word in the Declaration wherein he was mistaken for he had laid the Meeting to be at Turner's Mansion House and upon Enquiry he understood the place of Meeting was not at his Mansion House but at a little distance from it and so prayed the word Mansion might be struck out But the Chief Iustice said that after Issue joyned Curia and the Cause set down to be tried and this being a penal Statute no President could be shewn of an Amendment in such case and therefore would not make this the first and so Leave was given to the Plaintiff to discontinue upon payment of Costs Brown versus Johnson IN Accompt The Plaintiff declares against the Defendant Time where 't is made parcel of the issue not good for that upon the first of March 22 Car. 2. abinde to the first of May 27 Car. 2. he was his Bayliff and Receiver of 80 Piggs of Lead The Defendant pleads that from the said first day of March 22 Car. 2. to the first day of May 27 Car. 2. he was not the Plaintiffs Bayliff or Receiver of the said 80 Piggs of Lead hoc paratus est verificare To this the Plaintiff demurred and assigned specially for cause that the times from the first of March to the first of May are made parcel of the Issue which ought not to be because the Plaintiff in his Declaration must alledge a time for Form sake but the Defendant ought not to tye him up to such time alledged for he might have said he was not Bayliff modo forma And for this the Case of Lane and Alexander was cited where the Defendant by Ejectment makes a Title by Copy of Court Roll granted to him 44 Eliz. and the Plaintiff replies his Title by the like Grant 1 Junii 43 Eliz. The Defendant maintains his Barr and traverseth that the Queen 1 Junii 43 year of her Reign granted the said Land by Copy and upon Demurrer it was adjudged that the traversing of the day is matter of substance which being made part of the Issue is naught But on the other side it was objected that time is material and that in Actions of Accompt 't is proper to make it parcel of the Issue for a Man may be Bayliff for two but not for three years and a Release may be pleaded from such a time to such a time Fitz. Accompt 30. Rast Entry f. 8. 19 pl. 1. f. 20. pl. 6. f. 22. pl. 2. 1. Then Exceptions were taken to the Plea first for that the Plaintiff having charged the Defendant as Receiver of 80 Piggs of Lead the Defendant pleads and that he was not Receiver thereof but doth not say of any part thereof for which reason the Court held the Plea ill because he might retain 79 and yet not 80 Piggs but to plead generally ne unques Receptor is well enough though it was urged that if it had been found against him upon such an Issue that he had received any parcel of the Lead he should have accompted 24 H. 4. 21. 2 Roll. 3. 14. 32 H. 6. 33. Fitz. Accompt 16. Cro. Eliz. 850. Fitz. Accompt 14. Rast Entry 18 19 20. 2. The Defendant concludes hoc paratus est verificare whereas it should be de hoc ponit se super patriam but the Court doubted of this because it was not specially assigned Postea 3. The Plaintiff charged the Defendant as his Bayliff upon the first of March and the Defendant pleads that he was not his Bayliff from the first of March so he excludes that day and this the Court held to be incurable and likewise that the time ought not to be made parcel of the Issue 2 Sand. 317 318. and so Iudgment was given quod computer Abraham versus Cunningham Administrator sells a Term afterwards an Executor appears and renounces yet the Sale was adjudged void Jones 72. 1 Vent 303. IN a special Verdict in Ejectment the Case upon the Pleadings was Viz. Sir David Cunningham being possessed of a Term for years made his Will and therein appointed his Son Sir David Cunningham to be his Executor and dyed Sir David the Executor in the year 1663. made his Will also and therein appointed David Cunningham his Son and two others to be his Executors and dyed those two Executors dye and B. a Stranger takes out Administration cum Testamento annexo and continues this Administration from the year 1665. to the year 1671. in which time he made an Assignment of this Term to the Lessor of the Plaintiff for which he had received a thousand Pounds And in the year 1671. the surviving Executor of Sir David the Executor made Oath in the Archbishops Court that he never heard of his Testators Will 'till then nor ever saw it before and that he had not medled with the Estate nor renounced the Executorship 6 Co. Packmans Case Then a Citation goes to shew cause why the Administration should not be repealed and Sentence was given that it should be revoked upon which the Executor enters and the Lessor of the Plaintiff entred upon him This Case was argued by Saunders for the Plaintiff Ex parte Quer. and Levints for the Defendant And first it was said in behalf of the Plaintiff that the Authorities in the Books were strong on his side that the first Administration was well granted 'T is true if a Man make a Will and Administration is granted and that Will is afterwards proved such Administration is void as in Greysbrook and Foxes Case Pl. Com. But in this Case after the death of Sir David Cunningham the Executor his Testator is dead Intestate for to make an Executor there must be first the naming of him then there must be some concurring act of his own to declare his assent that he will take onus executionis upon him for no man can make another Executor against his will so that if after the death of the first Executor those other Executors appointed by him had made such a Declaration as this surviving Executor hath since done their Testator had dyed Intestate 7 E. 4. 12 13. The Executor is made by the Testator and the Ordinary is empowered by the Statute to make the Administrator where the person dies Intestate so that 't is plain there cannot be an Executor and Administrator both together If he who is
inconvenient that the Capias against the Defendant should be delivered to the new Sheriff and not the Supersedeas which was to admit the Charge and not the Discharge Westby's Case 3 Co. 73. And it was the constant practice not only to deliver the Supersedeas but the very Book in which 't is allowed and this he said appeared by the Certificates of many Vnder-Sheriffs which he had in his hand 2. If the Sheriff hath an Exigent against B. who appears and brings a Supersedeas to the old Sheriff and then a new Sheriff is made if he hath not the Supersedeas he may return him outlawed by vertue of the Exigent so in the Case of a Iudgment set aside for Fraud or Practice and a Supersedeas granted and the like in the case of an Estrepment which is never returned and it would be an endless work upon the coming in of every Sheriff to renew this Writ As to the Objection that the old Sheriff may have occasion to plead it As often as such occasion happens he may have recourse to it in the Office of the new Sheriff and he can have no Title to it by the direction of the Writ for that is Vicecomiti Berks and not to him by express Christian and Sirname and of that Opinion was all the Court and Iudgment was given accordingly nisi causa c. Hamond versus Howel Recorder of London An Action will not lie against a Judge for what he doth judicially tho' erroniously Mod. Rep. 184. FAlse Imprisonment The Defendant pleads specially the Substance of which was that there was a Commission of Oyer and Terminer directed to him amongst others c. and that before him and the other Commissioners Mr. Penn and Mr. Mead two Preachers were indicted for being at a Conventicle to which Indictment they pleaded Not-Guilty and this was to be tried by a Iury whereof the Plaintiff was one and that after the Witnesses were sworn and examined in the Cause he and his Fellows found the Prisoners Penn and Mead Not-Guilty whereby they were acquitted quia the Plaintiff male se gesserit in acquitting them both against the direction of the Court in Matter of Law and against plain Evidence the Defendant and the other Commissioners then on the Bench fined the Iury 40 Marks a-piece and for Non-payment committed them to New-gate c. The Plaintiff replies de injuria sua propria absque hoc that he and his Fellows acquitted Penn and Mead against Evidence and to this the Defendant demurred Serjeant Goodfellow who would have argued for the Defendant said that he would not offer to speak to that Point whether a Iudge can fine a Iury for giving a Verdict contrary to Evidence since the Case was so lately and solemnly resolved by all the Iudges of England in * Vaugh. 146. Bushel's Case that he could not fine a Iury for so doing But admit a Iudge cannot fine a Iury yet if he doth no Action will lie against him for so doing because 't is done as a Iudge 12 H. 4. 3. 27 Ass pl. 12. 1 Roll. Abr. 92. Liter Q. pl. 1. But the Court told him that he neéd not to labour that Point but desired to hear the Argument on the other side what could be said for the Plaintiff Serjeant Newdigate argued that this Action would lie 1. It must be admitted that the Imprisonment of the Iury was unlawful and then the consequence will be that all that was done at that time by the Commissioners or Iudges was both against Magna Charta and other Acts of Parliament the Petition of Right c. and therefore their Proceedings were void or at least very irregular to imprison a Iury-man without Presentment or due Process in Law and consequently the party injured shall have an Action for his false Imprisonment In 10 H. 6. f. 17. In an Action brought for false Imprisonment the Defendant justifies the Commitment to be for Suspicion of Felony but because he did not shew the ground of such Suspicion the Iustification was not good The Trial of Penn and Mead and all incidents thereunto as swearing the Iury examining of the Witnesses taking of the Verdict and acquitting the Prisoner were all within the Commission but the fining of the Iury and the imprisoning of them for Non-payment thereof was not justifiable by their Commission and therefore what was done therein was not as Commissioners or Iudges If this Action will not lie then the Party has a Wrong done for which he can have no remedy for the order for paying of the Fine was made at the Old-Bayly upon which no Writ of Error will lie and though the Objection that no Action will lie against a Iudge of Record for what he doth quatenus a Iudge be great the Reason of which is because the King himself is de jure to do Iustice to his Subjects and because he cannot distribute it himself to all persons he doth therefore delegate his Power to his Iudges and if they misbehave themselves the King himself shall call them to account and no other person 12 Co. 24 25. But that concerns not this Case because what was done here was not warranted by the Commission and therefore the Defendant did not act as a Iudge and this difference hath beén taken and allowed that in the Case of an Officer if the Court hath Iurisdiction of the Cause no Action will lie against him for doing what is contrary to his Duty but if all the Proceédings are coram non Judice and so void an Action doth lie 10 Co. 77. So in the Case of a Iustice of the Peace or Constable where he excéeds his particular Iurisdiction so if a Iudge of Nisi Prius doth any thing not warranted by his Commission 't is void And that the Commissioners here had no power to impose this Fine he argued from the very nature of the pretended Offence which was neither a Crime or in any wise punishable because what the Plaintiff did was upon his Oath and for that reason it hath béen adjudged in the Case * Bridgman 131. Agard and Wild that an Action would not lie against one of the Grand Iury after an acquittal for procuring one to be indicted for Barretry because he is upon his Oath and it cannot be presumed that what he did was in Malice The Habeas Corpus gives the Party Liberty but no Recompence for his Imprisonment that must be by an Action of False Imprisonment if otherwise there would be a failure of Iustice and it might encourage the Iudges to act ad libitum especially in inferior Courts where Mayors and Bayliffs might punish Iuries at their pleasures which would not only be a grievance to the Subject but a prejudice to the King himself because no Iuries would appear where they are subject to such arbitrary Procéedings An Action on the Case lies against a Iustice of the Peace for refusing to take an Oath of a Robbery committed 1 Leon. 323.
there hath put down these feigned Attachers for Examples sake from whence the Sheriff in this Case might inferr that they need not be real persons as in truth they ought both upon the Summons Pone and Distress and he cited a Case lately adjudged where the like Return was made upon the Grand Cape and the Iudgment set aside and of this Opinion was the whole Court and said Where the Process is so fatal the Party ought to be duly served and that the Sheriff ought to have gone to the Church and to have seised the Profits and if there be nothing to return a Nihil and though the Iudgment was given before the Term or long since yet when 't is Irregular 't is to be set aside and so it was now and being moved again the Court continued of their former Opinion The like Case was moved in Michaelmas-Term following between Fleming and Lee where the Patron Defendant was thus summoned and never appeared and the Incumbent did cast an Essoign and a Case was cited betwéen Vivian and the Bishop of London Mich. 23 Car. 2. in C. B. where the like Iudgment was set aside But on the other side it was objected that leaving due notice upon the Summons was as much as was required for the other Writs are only to give the Defendant time to plead and therefore 't is not necessary that notice should be given upon every one of the Writs for if once served 't is enough 11 H. 6. 3 4. 36 H. 6. 23. 8 H. 6. 8. Long 5 to E. 4. 26. 29 E. 3. 42 43. Doctor and Stud. 125 126. 21 H. 6. 56. But the Court were of Opinion that the Defendant having not appeared nor cast an Essoign and Iudgment final being given Curia it was reason that all the Process should be served really of which there had been no occasion if he had either appeared or essoined and therefore the Process not being duly served Iudgment was set aside Rast Ent. 217. And they held that the Essoign of the other Defendant was no wise binding to the Patron Defendant because they may sever in Pleading and so that Iudgment was likewise set aside DE Term. Sancti Mich. Anno 29 Car. II. in Communi Banco Sir John Otway versus Holdips Executor c. Bond to pay 40 l. when an Accompt shall be stated 't is a Covenant and not a Solvendum DEBT upon Bond brought by the Plaintiff against the Defendant as Executor wherein the Testator did acknowledge himself to be indebted to the Plaintiff in 40 l. which he thereby did covenant to pay when such a Bill of Costs should be stated by two Attornies indifferently to be chosen between them and sets forth in his Declaration that he named one Attorny and desired the now Defendant to name another which he refused and so intitles himself to this Action The Defendant pleads Non detinet to which the Plaintiff demurred But the Plea was not offered to be maintained because the Executor cannot plead Non detinet but where the Testator himself might plead Nil debet which in this Case he could not do But it was insisted that the Declaration is not good because the Mony was to be paid upon an accompt stated which not being done by the Plaintiffs own shewing 't is not yet due and this ought to be taken as penned viz. Solvendum and not an express Covenant But on the contrary it was held not to be a Solvendum but a Covenant to pay the Mony the Debt and the Duty being in the first place ascertained but if it be a Solvendum and repugnant to the Obligatory Clause 't is void 21 Ed. 4.36 As the Defendant would have it expounded it would be in his power totally to defeat the Bond either way for if he would never chuse an Attorny there could be never any thing due The whole Court were of Opinion that it was not a Solvendum but a Covenant which did not take away the Duty ascertained by the Obligation and if it should not be a Covenant but an entire Bond then it would be in the Power of the Obligor whether ever it shall be payable but be it either the one or the other the Plaintiff having named an Attorny ought to recover and Iudgment was accordingly given for him Dunning versus Lascomb DEBT on a Bond the Condition was to pay Mony when a Ship should go from A. to C. and from thence to Bristol and should arrive there or at any other Port of discharge in England the Ship going from A. to C. took in Provisions at Bristol but not to be discharged there but proceeded in her Voiage to Cales and was cast away And by the Opinion of the Court the Mony was not payable but if he had never intended to perform the Voyage it might have been otherwise 1 Roll. Abr. 142. 39 H. 6.10 Iudgment for the Defendant nisi Atkins versus Bayles AN Information was exhibited against the Defendant Outlary pleaded to an Information good being a Iustice of the Peace for refusing to grant his Warrant to suppress a Conventicle The Defendant pleads an Outlary in disability and the Plantiff demurred 1. 3 Inst 194. This Plea is not good because the King is interested qui tam c. and therefore where the Informer dies the Attorny General may proceed 2. The Statute gives power to any person to inform c. by which general Words the Disability of this person is removed But the Court held that there was no colour in either of these Objections 3. 'T is not pleaded sub pede sigilli sed non allocatur for it need not be so pleaded being in the same Court 4. 'T is not averred that the Plaintiff was the same person who was outlawed but it was answered that the praedictus makes that certain and that though the King be interessed yet the Informer only is Plaintiff and intituled to the benefit and that though he was disabled yet he might sue for the King Moor 541. Dyer 227. b. Cro. Eliz. 583. but not for himself and therefore Iudgment was given that the Plea was good Harwood Bincks versus Hilliard c. Notice where 't is agreed to be in writing must be so pleaded BY an Agreement between the Plaintiffs and the Testator of the Defendant a parcel of Lands was to be sold for 400 l. but if it did not arise to so much then they covenanted with each other to repay proportionable to the Abatement and the Defendant's Testator covenanted for himself and his Executors to pay his proportion to the Plaintiffs so as the Plaintiffs gave him notice in writing of the said Sale by the space of ten days but doth not say that such notice was to be given to his Executors or Administrators And now the Plaintiffs averred that they gave notice accordingly to the Defendant who was Executor and the breach assigned was that he hath not paid c. The
gave him the Goods at London by force whereof he took them at London absque hoc that he took them at Coventry because by such Gift or Delivery he might justifie the taking any where as well as where the delivery was made 2. That the Declaration was ill for the Agreement was to deliver the Goods at London and the breach was that he left them at London and so but argumentative Aston pl. Red. 62. Herns Pleader 76. Brownl Pleadings 139. But the Court were of Opinion that the Declaration was good and the Plea was naught in substance but if it had been good the Traverse notwithstanding had been ill because the justification was not local 2 Cro. 45 372 though Iustice Scroggs was of a contrary Opinion And Iudgment was given for the Plaintiff Nota Visne altered Propter necessiatem The Plaintiff had leave given by the Court to alter the Visne from London to Middlesex because all the Sittings in London were on a Saturday and his Witness was a Jew and would not appear that day Mendyke versus Stint PRohibition was prayed to the Sheriffs Court of London Prohibition to the Sheriffs Court after Verdict and Judgment comes too late The Suggestion was That the Plaintiff was sued in that Court in an Action on the Case and sets forth the Proceedings at large that there was a Verdict against him there and averred that the Contract upon which he was sued there revera was made in Middlesex and so the cause of Action did not arise within their Iurisdiction and upon Demurrer to the Prohibition Serjeant Pemberton argued 2 Inst 229 243 601. West 1. c. 35. F. N. B. 45. b. Hob. 106. 1. That a Prohibition doth lie to any Court as well Temporal as Spiritual where such Courts exceed their Bounds for both those Iurisdictions are united to the Imperial Crown it may be granted to the Dutchy Court if they hold Plea of Lands not parcel of the Dutchy 2. Though the Iury have here found that the Defendant assumpsit modo forma yet such finding as to time and place is not material nor is it any Estoppel in a new Action laid in another County to aver that it was for the same thing 'T is true both time and place may be made material by pleading and so it had been in this Case if the Iury had found the place precisely for it would have been an Estoppel The Verdict therefore is nothing and all they have done is coram non Judice The Case of * Antea Squib and Holt. Squib and Hole he cited as an Authority in point where it was adjudged no Escape in the Officer to let a Man at Liberty who was in Execution upon a Bond sued in an Inferior Court the Bond not being made within the Iurisdiction thereof Ex parte Def. But Maynard Dolben Goodfellow and Sympson Serjeants contra They agreed that where it appears by the Plaintiffs Libel that the Court had no Iurisdiction there a Prohibition lies at any time but if what is in the Declaration is laid infra jurisdictionem there the Party must plead extra jurisdictionem and if they refuse to plead to the Plea a Prohibition will lie after Sentence But here is an Action on the Case brought of which the Sheriffs Court can hold Plea and which is laid to be infra jurisdictionem and not denied by the Plaintiff in his Plea and therefore now after Verdict and Iudgment he comes too late for a Prohibition and upon this difference Prohibitions have been usually either granted or denied to the Spiritual Courts Though the Court hath not cognisance of the Cause yet the Proceedings are not coram non Judice for if it be alledged to be within the Iurisdiction and the Defendant takes no exception to it and then Sentence is given against him he hath there by admitted the Iurisdiction So where a Man sued for a Legacy in the Prerogative Court where the Will was proved Stiles 45. by the Opinion of Rolls C. J. 2 Roll. Abr. 318. and Sentence given and an Appeal to the Delegates and Sentence affirmed and then a Prohibition granted but without notice upon the Statute of 23 H. 8. cap. 9. for that the Parties lived in another Diocess but the Plaintiff having allowed the Iurisdiction in all the former proceedings though the Prohibition was granted the Court would not compel the Party to appear and plead but granted a Consultation Cro. Car. 97. Smith versus the Executors of Pondrel In Hillary-Term 1675. in B.R. between Spring and Vernon and in Michaelmas-Term in 22 Car. 2. B. R. Buxton's Case and in Hillary Term the 22 23 Car. 2. in the same Court between Cox and St. Albon Prohibitions were denied after the Iurisdiction adadmitted by Pleading Mod. Rep. 81. The Chief Iustice Wyndham and Atkyns upon the first Argument enclined that a Prohibition ought to be granted because the admittance of the Party cannot give a Iurisdiction where originally there was none but afterwards they were all of Opinion That the Prohibition should not go but said that the Plaintiff in the Inferiour Court ought to have been Non-suited if it appeared upon the Evidence that the Cause of Action did arise extra jurisdictionem In this Case these things were agreed by the Court. 1. Sid. 151. That if any matter appears in the Declaration which sheweth that the Cause of Action did not arise infra jurisdictionem there a Prohibition may be granted at any time 2. If the subject matter in the Declaration be not proper for the Iudgment and determination of such Court there also a Prohibition may be granted at any time 3. If the Defendant who intended to plead to the Iurisdiction is prevented by any Artifice as by giving a short day or by the Attornies refusing to plead it c. or if his Plea be not accepted or is over-ruled in all these Cases a Prohibition likewise will lie at any time And the Chief Iustice and Wyndham Iustices were of Opinion that after the Defendant had admitted the Iurisdiction by pleading to the Action especially if Verdict and Iudgment pass the Court will not examine whether the Cause of Action did arise out of the Iurisdiction or not But Atkyns and Scroggs Iustices said nothing to this last point but that many times an advantage given by the Law was lost by coming too late and instanced that a Visne may be changed in time but not if the Party come too late so if the time of the promise be laid above six years from the time of the Action brought if the Statute of Limitations be not pleaded the Defendant cannot take afterwards advantage of it Whereupon a Prohibition was denied and Iudgment was given for the Defendant Birch versus Wilson Plea tho' it amount to a general Issue if it doth disclose matter of Law besides it shall not be demurred unto IN an Action on the Case the Plaintiff declared
taken in Execution 1 Cro. 239. Hob. 180. Rol. Rep. 233. 2. The Promise here was not to pay the Mony absolutely but sub modo so that the Evidence did not maintain the Action and the Plaintiff was Nonsuited Nichols versus Ramsel Release of all Demands usque 26 Apr. a Bond dated that day is not released TRespass done 24 Martii 26 Car. 2. usque 26 Augusti 28 Car. 2. diversis diebus vicibus c. The Defendant pleaded that on the 24th day of April in the 26th year of King Charles the Second he paid the Plaintiff 6 d. which he received in full satisfaction of all Trespasses usque ad the said 24th day of April absque hoc that he was guilty ad aliquod aliud tempus praeter praedictum 24 Aprilis anno 26 Car. 2. aut aliquo tempore postea but leaveth out the 24th day of April and for that Reason the Plaintiff demurred because the Defendant had not answered that day for the Word usque excludes it So where Debt was brought upon a Bond dated 9 Julii the Defendant pleaded a Release of all Actions Owen ' 50. 2 Rol. Abr. 521. c. the same day usque diem dati ejusdem scripti the Bond was not discharged because the Release excludes the 9th day on which it was made But Serjeant Weston contra Though generally in pleading the Word usque is exclusive yet in the Case of Contracts because of the intent of the Parties 't is inclusive and therefore in one Nichol's Case 20 Car. 2. in B. R. Rot. 21. the Term was not named a Lease was made Habendum from Lady-day usque Festum Sancti Michaelis 1665. paying the Rent reserved at Michaelmas during the Term the Rent shall be paid on Michaelmas-day 1665. and so the day shall not be excluded So where a Man prescribes to put Cattle from and immediately after Lady-day where they are to stay till Michaelmas-day the putting them in on Lady-day and driving them away on Michaelmas-day is not justifiable in strictness yet it hath been allowed good So in a Devise the Question was whether the Testator was of Age or not and the Evidence was that he was born the first day of January in the Afternoon of that day and died in the Morning on the last day of December And it was held by all the Iudges that he was of full Age for there shall be no fraction of a day North Chief Iustice said that prima facie this is to be intended good for a day is but Punctum temporis and so of no great consideration But the other three Iustices were of Opinion that the Word Usque was exclusive and that the Plaintiff should not be put to shew that there was a Trespass done on the 24th of April and said that in a Release of all Demands till the 26th of April a Bond dated that day is not released wherefore Iudgment was given for the Plaintiff Trevil versus Ingram COvenant to pay an Herriot post mortem J. S. or 40 s. at the election of the Plaintiff Release of all Demands doth not barr a future Duty Mod. Rep. 216. and sets forth the death of J. S. and that afterwards he chose to have the 40 s. for which he brought this Action and assigns the Breach for Non payment The Defendant pleaded that the Plaintiff released to him all Actions and Demands c. But this Release was made in the Life time of J. S. and there was an Exception in it of Herriots The Plaintiff demurred and Serjeant George Strode argued that this Action was not discharged by that Release and cited Hoes Case 5 Co 70. where it was held that a Duty incertain at first which upon a Condition precedent was to be made certain afterwards was but a possibility which could not be released that the Duty in this Case was incertain because the Plaintiff could not make his Election till after the death of J. S. A Covenant to repair 2 Cro. 170. Roll. Abr. 407. But a Release of all Covenants in such an Indenture had been a Barr 5 Co. 71. a. and a Release pleaded to it within thrée days after the date of the Indenture And upon a Demurrer it was held that it being a future Covenant and not in demand at the time of the Release although it was of all Demands yet that Covenant was not thereby released So here neither the Herriot nor the 40 s. were either of them in demand at the time of the Release given and it plainly appears by the Exception in the Release that it was the intention of the Parties not to release the Herriots 2 Cro. 623. and of that Opinion was the whole Court whereupon Iudgment was given for the Plaintiff North Chief Iustice It is the Opinion of * Sect. 508 510. 2 Roll. Abr. 408. Sid. 141. Littleton That a Release of all Demands doth Release a Rent And of that Opinion was Iustice Twisden in the Argument of Hen and Hanson 's Case though it was resolved there that a Release of all Demands did not discharge a Rent reserved upon a Lease for years because such Rent is executory and incident to the Reversion 2 Cro. 486. and grows every year out of the Land but when it is severed from the Reversion as by assigning over the whole Term then it becomes a Sum in gross and is due upon the Contract and in that Case a Release of all Demands discharges a Rent afterwards due DE Term. Sancti Hill Annis 29 30 Car. II. in Communi Banco Shambrok versus Fettiplace PRohibition Prescription to have an Isle in a Church because of repairing no good cause for a Prohibition Hob. 69. The Question was whether a Prescription be good to an Isle in a Church which he and all those c. used to repair as belonging to a Mannor where he had no Dwelling House but only Land and Serjeant Geo. Croke argued that it was good and cited the Case of Boothby and Bayly where such a Prescription as this was held to be a good ground for a Prohibition Vide Moor Rep. 878. contra The Court inclined that it was not good but ordered the Prohibition to go and the Defendant to plead that it might come Iudicially before them to be argued Dashwood versus Cooper alios in Cammera Scaccarii ERror of a Iudgment in Trespass In a Negative Plea viz. That three did not such a thing it must be said nec eorum aliquis wherein Cooper and others brought an Action of Trespass against Dashwood for entring into a Brew-house and keeping of possession and taking away of 50 s. The Defendant pleaded That the Plaintiffs had committed an Offence against the Statute of 12 Car. 2. cap. 23. by which it is Enacted That all Offences thereby prohibited except in London shall be heard by two or more of the next Justices of Peace and in case of their neglect or refusal by
Plaintiff Blackbourn versus Conset Place where it shall be intended tho' not laid in the Pleading IN Replevin the Avowant pleads an Execution taken out and that a Term for years was extended and an Assignment thereof made by the Sheriff but alledges no place where the Assignment was made But upon Demurrer it was held good for it shall be intended to be assigned where the Land doth lie Hall versus Carter Bond to render himself a Prisoner good IN an Action of Debt upon a Bond the Defendant craves Oyer of the Condition which was That if another person who was arrested at the Suit of the Plaintiff and for whom the Defendant was now bound should give such Security as the Plaintiff should approve of for the payment of 90 l. to him Sid. 132. pl. 4. or should render his Body to Prison at the return of the Writ then the Obligation to be void The Defendant pleads the Statute of 23. H. 6. cap. 10. That this Bond was given pro easimento favore And this Case coming to be argued upon a Demurrer the question was whether such Bond be within the Statute or not And the Court were of Opinion that it was not If the Sheriff takes Bond in another Man's name to elude the Statute such Bond is void but the Plaintiff may give directions to the Officer to take such Bond as this to himself 't is only an expedient to prevent a new Arrest and the Agreement of the Plaintiff makes it good If a Capias be taken out against the Defendant and a third person gives the Plaintiff a Bond that the Defendant shall pay the Mony or render himself at the Return of the Writ 't is a good Bond and not within the Statute because 't is not by the direction of the Officer but by the agreement of the Plaintiff and there is no Law that makes the Agreement of the Parties void and if the Bond was not taken by such Agreement it might have been traversed But Iustice Atkyns doubted because a Bond to render himself a Prisoner is void Bewfages's Case 10 Co. But if it had been to pay the Mony or appear at the Return of the Writ it had been good But notwithstanding Iudgment was given for the Plaintiff Shaxton versus Shaxton THE Condition of a Bond was Non damnificatus not a good Plea where the person and Lands are to be indempnified Antea That the Defendant should save harmless Thomas Shaxton and the Mortgaged Premisses and should pay the Interest for the prinicipal Sum. The Defendant pleads that Thomas Shaxton non fuit damnificatus for that the Defendant had paid the 120 l. principal mony with all the arrears of Interest due at such a day And upon a Demurrer this was held no good Plea because the first matter non damnificatus goes to the Person and not to the Premisses And so Iudgment was given for the Plaintiff Anonymus After acquittal for a Common Trespass an Action on the Case will not lie Sid. 465 466. Antea THE Defendant was Indicted for a Common Trespass and Acquitted and now was Plaintiff in an Action on the Case against the Prosecutor And by the Opinion of the Chief Iustice the Action will lie for the Charges and Expences in defending the prosecution which the acquittal proves to be false and the Indicting him proves to be malicious for if he had intended any thing for his own benefit or recompence he might have brought a civil Action and then if he had been found Not Guilty he would have had his Costs allowed Though the prosecution be for a Trespass for which there is a probable cause yet after Acquittal it shall be accounted malicious the Difference only is where the Indictment is for a Criminal matter but where 't is for such a thing for which a Civil Action will lie the Party can have no reason to prosecute an Indictment it is only to put the Defendant to charges and make to him pay Fees to the Clerk of the Assises Penrice and Wynn's Case Habeas Corpus may be granted in Civil matters SErjeant Maynard moved for a Habeas Corpus for them being committed to the Poultry Compter by the Commissioners of Bankrupts for refusing to be examined and sworn touching their Knowledge of the Bankrups Estate The Process against them in this Court was an Attachment of Priviledge which was a Civil Plea and of which the Court had Iurisdiction and therefore the Habeas Corpus must be granted And the Chief Iustice said that it might be without motion because all the Habeas Corpus's in that Court were ad faciendum recipiend and they issue of course Antea but in the Kings-Bench they are ad subjiciendum which are in Criminal Causes and not to be granted without motion Then the Serjeant moved that the Sheriff might Return his Writ which was done and being filed he took Exceptions to the Return by which the ground of the Commitment appeared to be by virtue of a Warrant under the Hands and Seals of the Commissioners c. which he said was ill for want of an Averment of their refusal to come and be sworn for it did not appear that they did refuse and they ought not to be committed without refusing so that should have been positively averred viz. That they did refuse and still do for if they are willing at any time they ought to be discharged and so they were but were ordered to put in Bail upon the Attachment Abbot versus Rugeley THE Plaintiff declared in an Action of Assault and Battery to which the Defendant pleaded non cul Plea puis darrein continuance must be certified as part of the Record of Nisi prius and at the Assises a Plea was put in puis darrein continuance and a Demurrer thereunto The Court were clear of Opinion That if the Plea had been issuable it could not have been then tried neither could the Demurrer be there argued but must be certified up hither by the Iudge of Assise as part of the Record of Nisi prius Yelv. 180. Hawkins versus Moor. Ballard versus Oddey It was ruled in this Case The Contract it self must be Usurious to make it void 1 Sand. 295. Mod. Rep. 69. That to avoid a Security by reason of Vsury the Contract it self must be usurious for if the Party takes afterwards more than is allowed that will not make it so so that if the Agreement of the Parties be honest but made otherwise by the mistake of a Scrivener yet 't is not Vsury As if a Mortgage be for 100 l. with a Proviso to be void on payment of 106 l. at the end of one year and no Covenant for the Mortgagor to take the Profits till default be made in paiment so that in strictness the Mortgagee is intituled both to the Interest and the Profits yet if this was not express'd the Agreement is not Vsury DE Term. Sanctae Trin.