Paper Book by the then Attorny General but by reason of a stroak cross them the Clerk omitted them in engrossing the Iudgment But upon a Motion the Court held this amendable at the Common Law Curia The Error is only a Misentry of the Writ of Enquiry and amendable without paying of Costs Mr. Aston the Secondary said that Costs were never paid in this Court upon such Amendments nor in the Common Pleas until my Lord Chief Iustice Vaughan's time but he altered the Practice and made that Rule that if you amend after a Writ of Error brought you must pay Costs Holcomb versus Petit. A Devastavit was brought against an Administrator of a rightful Executor who pleaded an insufficient Plea Administrator of a rightful ful Executor is liable to a Devastavit 30 Car. 2. c. 7. and upon a Demurrer the Question was upon the Statute of 30 Car. 2. The Title whereof is An Act to enable Creditors to recover Debts of Executors and Administrators of Executors in their own wrong which is introductory of a new Law and charges those who were not chargeable before at the Common Law but it enacts That when Executors of persons who are Executors de son tort or Administrators shall convert the Goods of any person deceased that they shall be liable as their Testator or Intestate would have been Gold held that he shall not be charged for where an Act of Parliament charges an Executor in such case an Administrator shall be likewise charged but if an Administrator be charged that shall never extend to an Executor The Rule is A majori ad minus valet Argumentum sed non e contra therefore the rightful Executor shall not be charged by this Act which only makes Executors of Executors de son tort lyable Pollexfen contra There can be no reason given why the Act should make an Administrator of an Administrator lyable to a Devastavit and not an Administrator of an Executor de son tort for the mischief will be the same and therefore a rightful Executor who wasts the Testator's Goods ought to be charged The Recital of this Act is large enough the Preamble is general and the enacting Clause expresseth Executors and Administrators of Executors de son tort but then it also mentions Administrators but not such who are their Administrators de son tort Now the Word Administrator is in it self a general Word and extends to any one who meddles with the personal Estate so that the Preamble being general and the Act remedial 't is within the same mischief Curia The Word Administrator is very comprehensive for when an Executor pleadeth he saith Plene administravit If a rightful Executor waste the Goods he is a kind of an Administrator de son tort for abusing of the Trust There is no Superiority between an Executor or an Administrator for by this Act they are both equal in power as to the Goods of the deceased Iudgment was given that the Administrator of the rightful Executor shall be liable Jenings versus Hankeys 'T IS enacted by the Statute of 13 Car. Where an Informer shall be a Witness though he hath part of the Penalty 13 Car. 2. c. 10. 2. That they who kill course hunt or take away Red or Fallow Deer in any Ground where Deer are kept c. or are aiding therein if such are convicted by Confession or Oath of one Witness before one Justice of the Peace within six Months after the Offence done shall forfeit 20 l. one Moiety to the Informer the other to the Owner of the Deer to be levied by Distress by Warrant under the Justice's Hand The Defendant was convicted by the Oath of the Informer and Mr. Shower moved that it might be quashed because the Informer is not to be admitted as a Witness he being to have a Moiety of the Forfeiture The Party to an usurious Contract shall not be admitted as an Evidence to prove the Vsury 12 Co. 68. 2 Rol. Abr. 685 because he is Testis in propria causa and by their Oath may avoid their own Bonds Mr. Pollexfen contra The Statute gives power to convict by the Oath of a credible Witness and such is the Informer 'T is not a material Objection to say That the Informer shall not be a Witness because he hath a Moiety of the Forfeiture for in Cases of the like nature the Informer is always a good Witness As upon the Statute for suppressing of Conventicles the Informer is a good Witness and yet he hath part of the Penalty for otherwise that Act would be of little force for if who sees the People met together be not a good Witness no Body else can Curia In the Statute of Robberies a Man swears for himself because there can be no other Witness he is a good Witness Harman versus Harman DEBT upon a Bond against an Administrator Notice of a Debt must be given to an Administrator who pleaded Fully administred and that he had not notice of this Bond before such a day In this Case a special Verdict was found upon which the Question was Whether Notice was necessary to be given of Debts of an inferior nature The Court gave no Opinion but they agreed that a Iudgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond and that 't is no Devastavit in an Executor to pay a Debt upon such a Contract before a Bond Debt Vaughan 94. of which he had no Notice So where an Obligor did afterwards enter into a Recognizance in the nature of a Statute 2 Anders 159. 1 Mod. 157. and Iudgment was against him upon the Bond and then he dyed his Executrix paid the Creditor upon the Statute and the Obligee brought a Scire Facias upon the Judgment on the Bond Debt and she pleaded payment of the Recognizance this was held a good Plea for she is not bound to take Notice of the Iudgments against the Testator without being acquainted therewith by his Creditors for she is in no wise privy to his Acts. DE Term. Sancti Mich. Anno 2 Jac. II. in Banco Regis 1686. Anonymus AN Information was exhibited against the Defendant for Perjury Perjury in a Deposition taken before Commissioners in Chancery setting forth that a Bill in Chancery was exhibited by one A. B. and the Proceedings thereon The Perjury was assigned in a Deposition made by the Defendant 30 Julii 1683. and taken in that Cause before Commissioners in the Country It was tried this day at the Barr and the Question was Whether the Return of the Commissioners that the Defendant made Oath before them shall be a sufficient Evidence to convict him of Perjury without their being present in Court to prove him the very same person Serjeant Pemberton for the Defendant admitted an Information will lie in this Case against him but the Commissioners must be here or some other person to prove that he was
to Sir Edward Biggs against the Countess as Administratrix of the Earl of Plymouth wherein the Plaintiff sets forth a Writing by which the Earl had given power to Sir Edward to be the Collector and Receiver of his Mony and Rents and that he promised to allow him 100 l. per Annum for his pains and in default of payment thereof that Sir Edward should detein the same which Writing was in these Words following viz. I do direct and appoint Sir Edward Biggs to take and receive to his own use 100 l. of lawful Mony of England out of the first Mony which he shall receive of mine The Action was brought for 75 l. being his Salary for three quarters of a year and Iudgment by Nil dicit It was argued this Term and in Easter Term by Councel on both sides It was agreed on all sides that the Earl left sufficient Assets to satisfie all his Bond Creditors but not enough to pay Debts upon simple Contract First it was said for the Plaintiff in the Errors that no Action of Debt will lie against an Executor upon a Mutuatus 11 Co. Godfreys Case because the Testator might have waged his Law but this was not much insisted on 2. That admitting an Action would lye yet this is an erronious Iudgment because the Suit was for 75 l. for three quarters Salary when by the Writing Sir Edward was to serve the Earl a whole year and this being an entire Contract shall not be seperated Therefore he cannot be well entituled to the Actionn unless his Testator had served a year and he had averred it so in his Declaration As where a Covenant was to pay 2 s. Yelv. 133. 7 Co. 10. Allen 9. for copying every Quire of Paper and the Breach assigned that he copyed 4 Quire and 3 sheets for which 8 s. and 3 d. was due to the Plaintiff 't is true he had Iudgment but it was reversed because it was an entire Covenant of which no apportionment could be made pro rata 3. That which was chiefly insisted on was to make these words amount to an Obligation that so it might be satisfied amongst the Bond Creditors But those who argued for the Plaintiff in the Errors said that it cannot be an Obligation for it was only a bare Letter of Attorney and an Authority and no more for there were no words to oblige the Earl or which can make a Warranty and therefore if the Mony was not received the Party to whom the Note was given could not resort back to him who made it had they been both living neither shall the Plaintiff now to his Administratrix Like the common Cases of the assigning of Iudgment if the Assignee doth not receive the Mony he cannot have an Action against the Assignor who only directs and appoints him so to do But on the other side Ex parte Def. the second Objection was thus answered viz. That this being only an Executory thing the Plaintiff may now bring an Action for so long time as his Testator served and this may be apportioned secundum ratam if the Law should be otherwise the Case of all Servants would be bad for they are generally hired for a year and not usually serve so long In an Assumpsit to pay for a years board Sid. 225. and the Plaintiff had declared only for three quarters of a year but yet had Iudgment because as the Book saith if there be any variance in the Agreement 't is for the advantage of the Defendant The 3d. Vaughan 92 93. Pl. Com. 182. Dyer 21. Objection answered viz. When a Man is indebted to another by simple Contract which is aknowledged by Deed an Action of Debt will lie against his Executor for any thing which is under Hand and Seal will amount to an Obligation especially where the Debt is confessed Now there are words in this Deed to shew that Mony was due and that makes it a Bond. But the Court was of Opinion that this was an entire Agreement and therefore the Action not well brought for three quarters Salary and for this reason the Iudgment was reversed Nisi c. Chapman versus Lamphire AN Action on the Case was brought for scandalous words spoken of the Plaintiff Words spoken of a Carpenter where actionable who declared that he was a Carpenter and a Freeman of the City of London and that he got great Sums of Mony by buying of Timber and Materials and by building of Houses and that the Defendant having discourse of him and of his Trade spoke these words viz. He is broken and run away and will never return again There was a Verdict for the Plaintiff and a Motion was now made in arrest of Iudgment for that a Carpenter was not a Trade within the Statute of Bankrupts and a day being given to speak to it again Mr. Pollexfen argued that before the Statutes made against Bankrupts words spoken reflecting upon a man in his Trade were actionable even at the Common Law because it might be the occasion of the loss of his Livelyhood 1 Rol. Abr. 59. pl. 6. Hutton 60. and therefore it was actionable to say of a Scrivener that he is broken and run away and dares not shew his Face and yet a Scrivener was not within the Statutes of Bankrupcy before the Act of 21 Jac. therefore the Action must lie at the Common Law because words disparage him in his Trade But the Councel for the Defendant said that these words were not actionable for they do not tend to his disparagement he may be broke and yet as good a Carpenter as before The Case of one Hill in 2 Car. Latch 114. in this Court was much stronger than this the words spoken of him were viz. Hill is a base broken Rascal and hath broken twice already and I will make him break the third time the Plaintiff had Iudgment but it was arrested A Carpenter builds upon the Credit of other men and so long as the words do not touch him in the skill and knowledge of his Profession they cannot injure him Chief Iustice The Credit which the Defendant hath in the World may be a means to support his skill for he may not have an opportunity to shew his Workmanship without those Materials for which he is entrusted The Iudges were divided in Opinion two against two and so the Plaintiff had his Iudgment there being no Rule made to stay it so that he had his Iudgment upon his general Rule for Iudgment but if it had been upon a Demurrer or Special Verdict then it would have been adjourned to the Exchequer Chamber Goring versus Deering IN an Appeal for the Murder of Henry Goring Esq Auterfoits convict of Manslaughter no good Plea in an Appeal for Murder brought by his Widow The Defendant pleaded that he was indicted for the said Murder at the Sessions-house in the Old Bayly in Middlesex that he was found guilty of Manslaughter
the first words the Legacy is released then the subsequent words viz. all Actions Suits and demands whatsoever which he had against the Defendant as Executor of Lawford must mean something 'T is true where general words are at the beginning of a Release and particular words follow if the general words agree with those which are particular the Deed shall be construed according to the special words But where there are such words at first and the conclusion is with general words as 't is in this Case both shall stand for the Rule is Generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa 8 Co. 154. b. These words do also Release not only such Actions which he had in his own Right but also as Executor to Mr. Lawford If a Man hath a Lease in right of his Wife as Executrix to her former Husband and he grants all his Right and Title therein by this Grant the Right which he had by his Wife doth pass for the word His doth imply a propriety in possession But per totam Curiam Curia Iudgment was given for the Plaintiff If an Executor hath Goods of the Testators and also other Goods in his own Right and then grants omnia bona sua in strictness the Goods which he hath as Executor do not pass because they are not bona sua but so called because of the Possession which he hath and therefore it must be a great strein to make general words which are properly applicable to things which a Man hath in his own Right to extend to things which he hath as Executor It was never the intent of the Party to release more than what he had in his own Right and that appears by the Recital of the Legacy of 5 l. and therefore the words which follow must have a construction according to the intent of Donning at the time of the making the Release and shall be tied up to the foregoing words and then nothing will be discharged but the Legacy As if a Lease for years be made Dyer 255. and the Lessor enters into a Bond that he will suffer the Lessee quietly to enjoy during the Term without trouble of the Lessor or any other person if an Entry should be made upon the Lessee without the procurement or knowledge of the Lessor the Condition is not broken for the last words are tied up to the word suffer If the Legacy had not been released by particular words it would not have been discharged by a Release of all Actions and Demands whatsoever and therefore there would be a great inconvenience if these general words should be construed to Release any thing besides this Legacy for suppose there are two Executors and one refuseth to Administer but meeting with a Debtor of the Testator gives him a Release of all Actions will this amount to an acceptance of the Administration Certainly it will not The words in this Case are not of that extent as to Release Actions as an Execuror for 't is a Release which goeth to the right 'T is like the Case where one of the Avowants released the Plaintiff after the taking of the Cattel 1 Roll. Rep. 246. which was adjudged void upon a Demurrer because he had not then any Suit or Demand against the Plaintiff but had distreined the Beasts as Bayliff and in right of another Iustice Dolben cited a Case adjudged in B. R. in the year 1669. it was between Stokes and Stokes The Plaintiff released all which he had in his own Right there was a Bond in which his Name was used in Trust for another and afterwards he brought an Action of Debt upon that Bond to which the Release was pleaded The Plaintiff replied that the Release was only of all such Actions which he had in his own right and not such which he had in the right of another upon this they were at Issue and the Plaintiff had a Verdict and Mr. Sympson moved in Arrest of Iudgment that this Bond must be in his own Right But the Court affirmed the Iudgment Anonymus AN Action on the Case was brought for these words Words where actionable without a Colloquium viz. He stole the Colonel's Cupboard-Cloth It was made a Question whether these words were actionable there being no precedent discourse laid in the Declaration either of the Colonel or his Cupboard-Cloath But the Court held the words actionable for 't is a charge of Felony and if such words as now laid in this Declaration are not actionable any person may be scandalized for 't is and must be actionable to say of a Man that he stole my Lord's Horses or the Parson's Sheep tho' it doth not appear to what Lord or Parson they did belong Rex versus Silcot THE Defendant was convicted before a Iustice of the Peace Conviction for keeping a Gun not having a 100 l. per Annum and doth not say when 33 H. 8. c. 6. upon the Statute of H. 8. for keeping of a Gun and upon proof it did appear that he had not 100 l. per Annum The Record of the Conviction was removed into B. R. and this Exception was taken to it viz. non habuisset 100 l. per Annum but doth not say when for it may be that he had one hundred pound per Annum at the time when he kept a Gun but not when he was Convicted It was answered that the words non habuisset shall relate to all times past and is as much as to say nunquam habuit and the conclusion being contra formam Statuti must explain such words which seem to be doubtful This was compared to the Case where Debt was brought upon the Statute of R. 1 R. 3. c. 3. 3. for taking away of Goods before the Plaintiff was convicted of the Felony laid to his charge contra formam Statuti he being only committed upon suspicion now though he did not alledge that the Goods were taken Cro. Eliz. 749. for this cause it shall be intended they were so taken when no other cause is shewed Curia This is a conviction before a Iustice of the Peace and therefore the time when the Offence was committed should be certainly alledged viz. that the Defendant praedict Anno die had not 100 l. per Annum for which reason it was quashed Bisse versus Harcourt Hill 1 Gulielmi Rot. 217. THE Plaintiff brought an Action for 400l Replication not well concluded for so much Mony had and received of him by the Defendant The Defendant pleaded an Attainder of High Treason in Abatement and therefore ought not to answer the Declaration The Plaintiff replied that after he was Attainted and before this Action brought he was pardoned and concludes thus Unde petit Judicium dampna sua The Defendant demurs and for cause shewed Rast Ent. 663. b. 681. Co. Ent. 160. that the Replication is not well concluded for dampna sua
ought to be left out and of that Opinion was the Court and therefore a Rule was made that he might discontinue this Action without Costs Mordant versus Thorold Hill 1 2 Gulielmi Rotulo 340. THE Plaintiff brought a Scire Fac. upon a Iudgment The Case was thus Viz. Ann Thorold recovered in Dower against Sir John Thorold in which Action Damages are given by the Statute of Merton 20 H. 3. c. 1. Sir John Thorold brought a Writ of Error in B. R. and the Iudgment was affirmed Then the Plaintiff in Dower brought a Writ of Enquiry for the Damages and married Mr. Mordant and died before that Writ was executed Mr. Mordant takes out Letters of Administration to his Wife and brought a Sci. Fa. upon the Iudgment and the question was whether it would lie This depended upon the construction of the Statute of King Charles the II. which enacts That in all personal Actions 17 Car. 2. c. 8. and real and mixt the death of either party between the Verdict and the Iudgment shall not hereafter be alledged for Error so as such Iudgment be entred within two Terms after such Verdict Serjeant Pemberton insisted that this was a judicial Writ and that the Administrator had a right to it though the Wife died before the Profits were ascertained by the Writ of Enquiry 't is no more than a plain Sci. Fa. upon a Iudgment which an Executor may have and which was never yet denied though this seems to be a Case of the first Impression The Council on the other side argued that 't is true an Executor may have a Scire Facias upon a Iudgment recovered in the life of the Testator by reason only of such Recovery but this Scire Facias is brought for what never was recovered because the Wife died before any thing was vested in her for the Iudgment will stand so as to effect the Lands but not for the Damages Curia When a Statute which gives a remedy for mean Profits is expounded it ought to be according to the Common Law Now where entire Damages are to be recovered and the Demandant dies before a Writ of Enquiry executed the Executor cannot have any remedy by a Scire Facias upon that Iudgment because Damages are no duty till they are assessed Sed adjornatur DE Term. Sanctae Trin. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Shotter versus Friend Vxor ' Hill 2 Willielmi Rot. 39. THE Plaintiff and his Wife declared upon a Prohibition setting forth Proof by one Witness good in the Spiritual Court that John Friend on the 13th of October 22 Car. 2. made his Will by which he bequeathed to Mary Friend 10 l. to be paid to her within two years after his decease and that he made Jane the Wife of the Plaintiff Shotter Executrix and dyed that the said Executrix whilst sole and unmarried paid the said Legacy to Mary Friend who is since dead that Thomas Friend the Husband of the said Mary did after her death demand this Legacy in the Consistory Court of the Bishop of Winton that the Plaintiff pleaded payment and offered to prove it by one single Witness which Proof that Court refused though the Witness was a person without Exception and thereupon Sentence was given there against the Plaintiff which Sentence was now pleaded and upon Demurrer to the Plea The Question was whether upon the whole matter the Defendant should have a Consultation or whether a Prohibition should be granted because the proof by one Witness was denied by that Court. It was argued that the Defendant should not have a Consultation because Matters Testamentary ought to have no more favour than things relating to Tythes in which Cases the Proof by one Witness hath been always held good So 't is in a Release to discharge a Debt which is well proved by a single Testimony and it would be very inconvenient if it should be otherwise for Feoffments and Leases may come in question which must not be rejected because proved by one Witness A Modus decimandi comes up to this Case upon the Suggestion whereof Prohibitions are never denied and the chief reason is because the Spiritual Court will not allow a Modus to be any discharge of Tythes of Kind The Courts of Equity in Westminster-Hall give Relief upon a Proof by one Witness so likewise do the Courts of the Common Law if the Witness is a good and credible person 'T is true a Prohibition shall not go upon a Suggestion that the Ecclesiastical Court will not receive the Testimony of a single Witness If the Question is upon Proof of a Legacy devised or Marriage or not or any other thing which originally doth lie in the Cognizance of that Court but payment or not payment is a matter of Fact triable at the Law and not determinable there if therefore they deny to take the Evidence of a single Witness a Prohibition ought to go 2 Inst 608. 2. The Sentence is no obstacle in this Case because the Plaintiff had no Right to a Prohibition until the Testimony of his Witness was denied and Sentence thereupon given and this is agreeable to what hath been often done in cases of like nature As for instance Cro. Eliz. 88. Moor 907. Prohibitions have been granted where the Proof of a Release of a Legacy by one Witness was denyed So where the Proof of payment of Cythes for Pidgeons was denied upon the like Testimony Cro. Eliz. 666. Moor 413. 2 Rol. Rep. 439. 2 Rol Abr. 300. pl. 9. 299 pl. 14 17. Yelv. 92. Latch 117. 3 Bulst 242. Hutt 22. So where a Suit was for Subtraction of Cythes and the Defendant pleaded that he set them out and offered to prove it by by one Witness but was denied a Prohibition was granted And generally the Books are that if the Spiritual Court refuse such Proof which is allowed at the Common Law they shall be prohibited There is one Case against this Opinion which is that of Roberts in 12 Co. 12 Co. 65. Rep. but it was only a bare Surmise and of little Authority Those who argued on the other side held that a Consultation shall go E contra and that for two Reasons 1. Because a Prohibition is prayed after Sentence 2. Because the Ecclesiastical Court have an original Iurisdiction over all Testamentary things As to the first Point 'T is plain that if that Court proceed contrary to those Rules which are used and practised at the Common Law yet no Prohibition ought to go after Sentence but the proper remedy is an Appeal 2. It cannot be denied but that that Court had Cognizance of the principal matter in this Case which was a Legacy and Payment or not is a thing collateral Now wherever they have a proper Iurisdiction of a Cause both that and all its dependences shall be tried according to their Law which rejects the Proof by a single Witness
which she had discontinued by joining in the Fine with her second Husband but yet it was adjudged no Forfeiture because it was not within the intent of the Statute to restrain Women to dispose of their own Estates but only such as came from the Husband So here Vses are in the nature of private Laws and must be governed by the like intention of the Parties now 't is not to be supposed that the Father did intend to disinherit his only Daughter and Heir without notice of this Settlement therefore though he had not appointed any person in particular to give her notice yet it must of necessity be presumed that his intention was that she should have the Estate unless she had refused upon notice to comply with those Conditions imposed upon her Now the Daughter being Heir at Law and so having a good Title by descent if there be any Conveiance made by her Ancestor to defeat that Title and to which she is a Stranger she ought by the Rules of Law and Reason to have notice of it and so is the express Resolution in Frances's Case where the Devise and the Feoffment were both made to the Heir at Law And the reason why in Fry and Porter's Case notice was not held necessary was because the Devise was to a Grandaughter who was not Heir at Law for the Earl of Newport had three Sons then living and therefore the Parties whom it concerned had the same means to inform themselves upon what Conditions they were to have the Estate 3. The notice here given was not sufficient for as the Ordinary himself in Green's Case ought to have given the Patron notice of the Deprivation before a Lapse should incurr so the Trustees here ought to give the Daughter notice of this Proviso before she shall lose her Estate for Non-performance of the Conditions on which she should take it especially since the notice she had of this Proviso was not certain for 't is said she had notice not to marry without the consent of the Trustees but 't is not shewed who they are or how she should apply her self to them Besides there is something in this Proviso which the finding in the Verdict will not supply for it may be literally true that the Daughter married without the consent of the Trustees and yet no breach of the Condition because the Proviso is to restrain her from marrying without the consent of them or their Heirs now it was not found that the Feoffees were then living and if they were dead their Consent cannot be required and she might have the consent of their Heirs Mr. Franklyn who was the Husband of Laetitia the Aunt in Remainder hath likewise forfeited that Estate which he hath or may have in right of his Wife if she had any right by not taking upon him the name of Fitzgerald for if the Father would have disinherited his Daughter for Non-performance of this Proviso a fortiori he shall be intended to disinherit his Sister for making frustrate his desire in the settlement of his Estate In Easter-Term following Iudgment was given That the Estate Tail was not determined for want of notice according to the resolution in Frances's Case Hinton versus Roffey AN Action of Debt was brought against the Defendant In pleading the Statute of Usury the Agreement and the Sum taken must be set out 12 Car. 2. c. 13. who pleaded the Statute of Usury but did not shew any particular Agreement only in general that he was indebted to the Plaintiff in a Sum not exceeding 180 l. neither did he seth forth when the Interest of the Mony did commence and on what day it became due And upon a Demurrer it was objected that this Plea was too general because the Defendant ought to shew in particular what the Sum was in which he was indebted and how much the Plaintiff took above 6 l. per Cent. for if the certainty thereof did not appear there could be no Fact applied to it But on the other side it was alledged that it was not material to shew the certain Sum which the Plaintiff took above 6 l. E contra per Cent. and therefore not necessary to set forth the particular Agreement between them for having pleaded and made a substantial Averment to bring his Case within it 't is well enough without shewing how much he took above six in the hundred And this Case was compared to Debt against an Administrator Moon versus Andrews Hob. 133. who pleaded in Bar a Iudgment c. and that he had fully administred and had not Assets praeterquam bona c. non attingen to 5 l. and upon Demurrer this was held a good Plea for though in strictness of Pleading the Defendant ought to have shewed the certain value of the Goods and not to have said non attingen to 5 l. yet the substance sufficiently appears that he had not more than 5 l. to satisfie a Debt of an 100 l. for which that Action was brought Jefferies Chief Iustice and the Court gave Iudgment for the Plaintiff because the Defendant ought to have set forth the Agreement and to apply it to the Sum in the Declaration Smith versus Goodier IN Ejectment for the Mannor of Heythorpe Attornment must be proved where an Ejectment is brought for a Mannor parcel in Rent and Services c. Vpon Not-guilty pleaded there was a Trial at Bar by an Oxfordshire Iury. The Title of the Lessor of the Plaintiff was That Edmund Goodier Esquire was seized in Fee of the said Mannor part in Demesnes some part in Leases for years with Rent reserved and some part in Services and being so seized made a Feoffment in Fee to Sir John Robinson and Sir William Rider and their Heirs in Trust for Sir Robert Masham This Deed was dated in 1647. and the consideration was 5000 l. paid to Goodier there was a Letter of Attorny of the same date with the Deed and Livery and Seisin endorsed Serjeant Maynard who was of Council for the Defendant put the Plaintiff to prove an Attornment of the Tenants for having declared for a Mannor Lit. Sect. 553. 1 Roll. Abr. 293. parcel in Rents and Services those would not pass without an Attornment and of this Opinion was the whole Court but the Plaintiff would not prove an Attornment The Defendant made a Title under the Marriage Settlement of the said Goodier who in 17 Jacobi married Elizabeth Mees and then he setled the said Mannor upon himself for life and upon his Issue in Tail Male and that the Defendant was the Heir in Tail But on the other side it was insisted that this Settlement was fraudulent against the Purchasor Evidence of a Fraudulent Settlement and that it could not be thought otherwise because both the Original and Counterpart were found in Mr. Goodiers Study after his death and because he had made Oath before a Master in Chancery that there was no incumberance
upon the Estate which Affidavit was produced in Court but not suffered to be read but as a Note or Letter unless the Plaintiff would produce a Witness to swear that he was present when the Oath was taken before the Master And an Objection was made to the Settlement it self which recited That whereas a Marriage was intended to be had between the said Edmund Goodier and Elizabeth Mees now in consideration thereof and of a Portion he conveyed the said Mannor to the Feoffees to the use of himself for life and after his decease to the use of the said Elizabeth for life but doth not say from and after the Solemnization of the said Marriage so that if she had not married Mr. Goodier yet after his decease she would have enjoyed the Estate for life Vpon the whole matter the Iury found for the Defendant Dominus Rex versus Coney and Obrian THE Defendants were convicted for the Murder of Mr. Murder was pardoned by the name Felonica interfectio and held good 10 E. 3. c. 3. 13 R. 2. c. 1. Tyrrwhite and Mr. Forster in a Duel and now pleaded their Pardon in which there was a Clause Non obstante the Statute of Ed. 3. which appoints him that hath a Pardon of Felony to find Sureties for his Good Behaviour before it shall be allowed and another Non obstante to the Statute of R. 2. which enacts that if the Offence be not specified in the Pardon it shall not be allowed Now the Word Murdrum was not in this Pardon the Offence was expressed by these general Words Felonica interfectione and whether it did extend to pardon Murder was the Question Mr. Astry the Clerk of the Crown informed the Court that one Alexander Montgomery of Eglington pleaded the like Pardon for Murder but it was held insufficient and the Court gave him time to get his Pardon amended which was done likewise in this Case The Defendants came again on another day and Councel being allowed to plead for them insisted that the Pardon was good and that the Murder was sufficiently pardoned by these Words that it is in the power of the King to pardon by general Words and his intent did plainly appear to pardon the Defendants That the murther of a person is rightly expressed by felonious killing though not so properly as by the word Murdrum it self the omission of which word will not make the Pardon void And to prove this he cited the Sheriff of Norfolk's Case 2 R. 3. 7. a. who was indebted to the King during the time he was Sheriff and was pardoned by the Name of J. W. Esquire who was the same person de omnibus debitis computis c. Afterwards he was charged in the Exchequer for 100 l. where he pleaded this Pardon and it was held good though he was not named Sheriff and so not pardoned by the name of his Office yet the Kings intention appearing in his Charter and having pardoned him by his right Name that was sufficient and in that Case the King himself was concerned in point of interest The Books all agree More 752. Lucas's Case 8 Co. 18. 3 Inst 234. that before the Statute of R. 2. the King might pardon Murder by the word Felony now this Prerogative being incident to the Crown and inseparable from the person of the King was not designed to be wholly restrained by that Act for the Parliament only intended that by specifying the Offence in the Pardon the King should be rightly informed of the nature of it and when he understands it to be Murder he would not grant a Pardon But admitting his power to be restrained by that Statute Stamf. 101. yet a Non obstante is a dispensation of it and therefore this Pardon ought to be allowed The Pardon was held good by the whole Court And Jefferies the Chief Justice said that he had proposed this Case to all the Judges of England Sid. 366. and they were all of the same Opinion and that he remembred Dudley's Case where a Pardon in general words was allowed DE Term. Sancti Hill Anno 35 Car. II. in Banco Regis 1683 4. Brason versus Dean A Covenant upon a Charter Party for the Freight of a Ship A thing lawful to be done when the party did covenant to do it and afterwards prohibited the Covenant is binding The Defendant pleaded that the Ship was loaded with French Goods prohibited by Law to be imported and upon Demurrer Judgment was given for the Plaintiff for the Court were all of Opinion That if the thing to be done was lawful at the time when the Defendant did enter into the Covenant though it was afterwards prohibited by Act of Parliament yet the Covenant is binding Barnes versus Edgard TRespass for breaking his Close and impounding of his Cattle Where Damages are under 40 s. the Plaintiff must have ordinary Costs Vpon Not Guilty pleaded the Plaintiff had a Verdict but Damages under 40 s. Whereupon Mr. Livesay the Secondary refused to tar full Costs alledging it to be within the Statute of 22 23 Car. 2. by which 't is Enacted 22 23 Car. 2. cap. 9. That in all Actions of Trespass Assault and Battery and other personal Actions wherein the Judge shall not certifie upon the back of the Record that a Battery was proved or the Freehold or Title of the Land chiefly in question if the Jury find the Damages under 40 s. the Plaintiff shall recover no more Costs than Damages Mr. Pollexfen moved for Costs alledging that this Act doth not extend to all trespasses but only to such where the Freehold of the Land is in question If the Action had been for a Trespass in breaking his Close and Damages given under 40 s. there might not have been full Costs but here is another Count for impounding the Cattle of which the Defendant is found guilty and therefore must have his Costs The like Case was adjudged in this Court in Hillary Term last Smith versus Batterton Raym. 487. Jones 232. which was Trespass for breaking and flinging down Stalls in the Market place The Plaintiff had a Verdict and 2 d. damages and upon a debate whether he should have full Costs the Court were of Opinion that it was not within that Statute because the Title could not come in question upon the destruction of a Chattle In the principal Case the Plaintiff had ordinary Costs DE Termino Paschae Anno 36 Car. II. in Banco Regis 1684. Marsh versus Cutler THE Plaintiff obtained a Iudgment in an Hundred Court for 58 s. and 4 d. If Debt be brought upon a Specialty for part of the Sum the Plaintiff must shew how the other is discharged 2 Cro. 498 499 529 530. and brought an Action of Debt upon that Iudgment in this Court for 58 s. only and did not shew that the 4 d. was discharged and upon Nultiel Record pleaded and a Demurrer to that Plea the
Trust as in the Case of Wardship formerly which always went to the Executor of the Grantee and which was of greater consideration in the Law than the feeding or clothing of an Ideot and of that Opinion was the Court that the King had a good Title to dispose of both the Ward and the Ideot one till he was of Age and the other during his Ideocy Iudgment for the Defendant DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis 1684. Reeves versus Winnington THE Testator was a Citizen and a Freeman of London A Devise of all his Estate passed a Fee and being seised in Fee of a Mesuage c. and likewise possessed of a considerable personal Estate made his Will in which there was this Clause viz. I hear that John Reeves is enquiring after my Death but I am resolved to give him nothing but what his Father hath given him by Will I give all my Estate to my Wife c. The Question was Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage It was argued that she had only an Estate for life because the Words All my Estate cannot be construed to pass a Fee for it doth not appear what Estate was intended and Words in a Will which go to disinherit an Heir must be plain and apparent A Devise was in these Words viz. Sid. 191. Bowman versus Milbank I give all to my Mother all to my Mother and it was adjudged that a Fee did not pass which is as strong a Case as this for by the word All it must be intended All that was in his power to give which is as comprehensive as if he had said All my Estate 'T is true Kerman and Johnson Stiles 281. 1 Rol. Abr. 834. Cro. Car. 447. it hath been adjudged that where a Man devised his whole Estate to his Wife paying his Debts and Legacies that the word Estate there passed a Fee because it was for the benefit of the Creditors there being not personal Assets sufficient to pay all the Debts But that is not found in this Case therefore the Word Estate being doubtful and which will admit of a double construction shall not be intended to pass a Fee Mr. E contra Pollexfen contra The first part of this Sentence consists in negative words and those which are subsequent explain the intention of the Testator viz. That John Reeves should take nothing by the Will The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property like a Release of all Actions which is a good discharge as well of real as personal Actions In common understanding it carries an interest in the Land and then 't is the same as if he had devised all his Fee-simple Estate In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All because it was a Relative Word and had no Substantive joined with it and therefore it might have been intended All his Cattle All his Goods or All his personal Estate for which incertainty it was held void yet Iustice Twisden in that Case said that it was adjudged that if a Man promise to give half his Estate to his Daughter in Marriage that the Lands as well as the Goods are included The Testator devised all his Tenant-right Estate held of such a Manor 3 Keb. 245. Mod. Rep. 100. and this being found specially the Question was Whether any more passed than an Estate for Life because he did not mention what Estate he intended but it was held that the Devisee had a Fee-simple because the Words were as comprehensive as if he had devised all his Inheritance and by these Words a Fee-simple would pass Curia It plainly appears that the Testator intended nothing for John Reeves therefore he can take nothing by this Will and that the Devisee hath an Estate in Fee-simple for the Words All my Estate are sufficient to pass the same Rex versus Sir Thomas Armstrong Saturday June 14th THE Defendant was outlawed for High-Treason and being taken at Leyden in Holland was brought into England and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry and he tried by virtue of the Stature of Ed. 6. which Enacts 5 6 E. 6. cap. 11. That if the Party within one year after the Outlawry or Judgment thereupon shall yield himself to the Chief Justice of England and offer to traverse the Indictment upon which he was outlawed he shall be admitted to such Traverse and being acquitted shall be discharged of the Outlawry He alledged that it was not a year since he was outlawed and therefore desired the benefit of this Law But it was denied because he had not rendered himself according to the Statute but was apprehended and brought before the Chief Iustice Whereupon a Rule was made for his Execution at Tyburn which was done accordingly DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis 1684. Hebblethwaite versus Palmes Mich. 36 Car. II. in B. R. Rot. 448. AN Action on the Case was brought in the Common-Pleas Possession is a sufficient cause to maintain an Action against a wrong doer for diverting of a Watercourse The Declaration was That the Defendant Primo Augusti c. injuste malitiose did break down an ancient Damm upon the River Darwent by which he did divert magnam partem aquae ab antiquo solitu cursu erga molendinum ipsius quer c. ad dampnum c. The Defendant pleaded that before the said Breach made he was seised in Fee of an ancient Mill and of six Acres of Land adjoyning upon which the said Damm was erected time out of mind to turn the Water to his said Mill which Damm was always repaired and maintained by the Defendant and the Tenants of the said Land that his Mill was casually burnt and he not intending to Re-build it suffered the Damm to be broken down and converted the Timber to his own use being upon his own Soil prout ei bene licuit c. The Plaintiff replied that by the breaking of the Damm the Water was diverted from his Mill c. The Defendant rejoyned and justified his Plea and Traversed that the Mill of the Plaintiff was an ancient Mill. And upon a Demurrer to this Rejoynder Iudgment was given for the Plaintiff and a Writ of Error now brought to reverse that Iudgment and for the Defendant in the Action it was argued 1. That the Declaration is not good because the Plaintiff had not set forth that his Mill was an ancient Mill. 2. Because he had not entituled himself to the Watercourse 3. That the Plea was good in Bar to this Action because the Defendant had sufficiently justified having a Right to the Land upon which the Damm was erected and always repaired it As to the first Point it
general as this Case There are many instances where Breaches have been generally assigned and held ill that in Croke is so but the later Opinions are otherwise Affirmetur Judicium Pye versus Brereton A Lease was made of Tythes for three years rendring Rent at Michaelmas and Lady-day and an Action of Debt was brought for Rent arrear for two years Vpon Nil debet pleaded the Plaintiff had a Verdict and it was now moved in Arrest of Iudgment that the Declaration was too general for the Rent being reserved at two Feasts 2 Cro. 668. the Plaintiff ought to have shewed at which of those Feasts it was due But the Council for the Plaintiff said That it appears by the Declaration that two years of the three were expired so there is but one to come which makes it certain enough Curia This is helped by the Verdict but it had not been good upon a Demurrer DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. MEmorandum That in Trinity-Vacation last died Sir Francis North Baron of Guilford and Lord Keeper of the Great Seal of England at his House in Oxfordshire being a Man of great Learning and Temperance And Sir George Jefferies Baron of Wem and Chief Justice of the Kings-Bench had the Seal delivered to him at Windsor and was thereupon made Lord High Chancellor of England And Sir Edward Herbert one of the Kings Council succeeded him in the Place of Chief Justice There died also this Vacation Sir Thomas Walcott one of the Justices of the Kings-Bench and he was succeeded by Sir Robert Wright one of the Barons of the Exchequer Sir John Newton al' versus Stubbs IN an Action on the Case for Words Words laid to be spoke ad tenorem effectmu sequen ' not good The Plaintiffs declared that they were Iustices of the Peace for the County of Gloucester c. and that the Defendant spake these scandalous Words of them Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie Men out of their Estates postea eodem die c. they spoke these words Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie me and Mr. Creswick out of our Estates And afterwards these words were laid in Latin without an Anglice ad tenorem effectum sequen ' c. There was a Verdict for the Plaintiffs and entire damages and now Mr. Trindar moved in Arrest of Iudgment 1. That the words in the Declaration are laid in Latin Roll. Abr. 74. pl. 2. without an Anglice and without an Averment that the hearers did understand Latin 2. 'T is not expressly alledged that the Defendant spoke those very words for being laid ad tenorem effectum sequen ' something may be omitted which may alter the sense and meaning of them Cro. Eliz. 857. and for this very reason Iudgment was staied though the Court held the words to be actionable Rex versus Ayloff al' THey were Outlawed for High-Treason Treason and on Tuesday the 27th day of October they were brought to the Bar and a Rule of Court was made for their Execution on Fryday following The Chief Iustice said that there was no hardship in this proceeding to a Sentence upon an Outlawry because those Malefactors who wilfully flie from Iustice and a new Crime to their former Offence and therefore ought to have no benefit of the Law for tho' a Man is Guilty yet if he put himself upon his Tryal he may by his submissive Behaviour and shew of Repentance incline the King to mercy In Felonies which are of a lower nature than the Crimes for which these persons are attainted flight even for an Hour is a forfeiture of the Goods of the Criminal so likewise a Challenge to three Iuries is a defiance to Iustice and if that be so then certainly flying from it is both despising the mercy of the King and contemning the Iustice of the Nation They were both Executed on Frday the 30th of October following Dominus Rex versus Colson al' AN Information was exhibited against the Defendants Information for a Riot not good setting forth that they with others did riotously assemble themselves together to divert a Watercourse and that they set up a Bank in a certain place by which the Water was hindred from running to an antient Mill in so plentifull a manner as formerly c. Vpon Not Guilty pleaded it came to a Tryal and the Iury found that Quoad factionem Ripae the Defendants were Guilty and quoad Riotum not Guilty And now Mr. Williams moved in arrest of Iudgment because that by this Verdict the Defendants were acquitted of the charge in the Information which was the Riot and as for the erecting of the Bank an Action on the Case would lie and the Iudgment was accordingly arrested Mason versus Beldham Trin. 1 Jac. Rot. 408. THE Plaintiff brings his Action against the Defendant Quantum meruit will lie for Rent and sets forth That in consideration that he would suffer the Defendant to enjoy a House and three Water-Mills c. he promised to pay so much yearly as they were reasonably worth and avers that they were worth so much And upon a Demurrer the Question was whether this Action would lie for Rent It was argued for the Defendant that it would not lie Cro. Eliz. 242. 786 859. 2 Cro. 668. because it was a real Contract 'T is true there is a Case which seems to be otherwise 't is between Acton and Symonds Cro. Car. 414. which was in consideration that the Plaintiff would demise to the Defendant certain Lands for three years at the Rent of 25 l. by the year he promised to pay it this was held to be a personal Promise grounded upon a real Contract and by the Opinion of three Iudges the Action did lie because there was an express promise alledged which must also be proved But Iustice Croke was of a contrary Opinion Mr. Pollexfen contra If a Lease be made for years reserving a Sum in gross for Rent and which is made certain by the Lease in such case an Action of Debt will lie for the Rent in arrear But if where no Sum certain is reserved as in this Case a Quantum meruit will lie and no reason can be given why a Man may not have such an Action for the Rent of his Land as well as for his Horse or Chamber And Iudgment was given for the Plaintiff Anonymus THere was a Libel in the Spiritual Court for scandalous Words Prohibition for words where some are actionable and others not Viz. She is Bitch a Whore an old Bawd And a Prohibition was now prayed by Mr. Pollexfen because some of the words were actionable at Law and some punishable in the Spiritual Court and therefore prayed that it might go Quoad those words which were actionable at Law The Chief Iustice granted
fearing that this Daughter might be stoln from her applies her self to my Lady Gore and entreats her to take this Daughter into her House which she did accordingly My Lady had a Son then in France she sent for him and married him to this Ruth she being then under the Age of sixteen years without the Consent of her Mother who was her Guardian The Question was whether this was a Forfeiture of her Estate during Life It was proved at the Trial that the Mother had made a Bargain with the Lessor of the Plaintiff that in case he recovered she should have 1000 l. and the Chirds of the Estate and therefore she was not admitted to be a Witness The Plaintiff could not prove any thing to make a Forfeiture and therefore was nonsuited The Chief Iustice said that the Statute was made to prevent Children from being seduced from their Parents or Guardians by flattering or enticing Words Promises or Gifts and married in a secret way to their disparagement but that no such thing appeared in this Case for Dr. Hascard proved the Marriage to be at St. Clements Church in a Canonical Hour and that many People were present and that the Church Doors were open whilst he married them Anonymus BY the Statute of 21 Jacobi 't is Enacted 21 Jac. c. 23. That no Writ to remove a Suit out of an Inferior Court shall be obeyed unless it be delivered to the Steward of the same Court before Issue or Demurrer joined so as the Issue or Demurrer be not joined within six Weeks next after the Arrest or Appearance of the Defendant In this Case Issue was joined and the Steward refused to allow the Habeas Corpus and the Cause was tried but not before an Utter Barrister as is directed by the Statute Curia The Steward ought to return the Habeas Corpus and they having proceeded to try the Cause no Utter Barister being Steward let an Attachment go Claxton versus Swift Hill 1 Jac. 2. Rot. 1163. THE Plaintiff being a Merchant brought an Action upon a Bill of Exchange If the Plaintiff recover against the Drawer of a Bill he shall not afterwards recover against any of Endorsers setting forth the Custom of Merchants c. and that London and Worcester were ancient Cities and that there was a Custom amongst Merchants that if any person living in Worcester draw a Bill upon another in London and if this Bill be accepted and endorsed the first Endorser is liable to the payment That one Hughes drew a Bill of 100 l. upon Mr. Pardoe paiable to the Defendant or Order Mr. Swift endorsed this Bill to Allen or Order and Allen endorsed it to Claxton The Mony not being paid Claxton brings his Action against Hughes and recovers but did not take out Execution Afterwards he sued Mr. Swift who was the first Endorser and he pleads the first Recovery against Hughes in barr to this Action and avers that it was for the same Bill and that they were the same Parties To this Plea the Plaintiff demurred and the Defendant joyned in the Demurrer Mr. Pollexfen argued that it was a good Barr because the Plaintiff had his Election to bring his Action against either of the Endorsers or against the Drawer but not against all and that he had now determined his Election by suing the Drawer and shall not go back again though he never have Execution for this is not in the nature of a joint Action which may be brought against all 'T is true that it may he made joint or several by the Plaintiff but when he has made his choice by suing of one he shall never sue the rest because the Action sounds in Damages which are uncertain before the Iudgment but afterwards are made certain transeunt in rem judicatam and is as effectual in Law as a Release As in Trover the Defendant pleaded that at another time the Plaintiff had recovered against another person for the same Goods so much Damages 2 Cro. 73. Yelv. 65. Brown versus Wootton and had the Defendant in Execution and upon a Demurrer this was held a good Plea for though in that Case it was objected that a Iudgment and Execution was no satisfaction unless the Mony was paid yet it was adjudged that the cause of Action being against several for which Damages were to be recovered and because a Sum certain was recovered against one that is a good discharge against all the other but 't is otherwise in Debt because each is liable to the entire Sum. Chief Iustice If the Plaintiff had accepted of a Bond from the first Drawer in satisfaction of this Mony it had been a good Barr to any Action which might have been brought against the other Indorsers for the same and as this Case is the Drawer is still liable and if he fail in payment the first Endorser is chargeable because if he make Endorsement upon a bad Bill 't is Equity and good Conscience that the Endorsee may resort to him to make it good But the other Iustices being against the Opinion of the Chief Iustice Iudgment was given for the Defendant Pawley versus Ludlow DEBT upon a Bond. The Condition was That if John Fletcher shall appear such a day coram Justitiariis apud Westm c. that then c. The Defendant pleaded that after the 25th day of November and before the day of the appearance he did render himself to the Officer in discharge of this Bond and to this the Plaintiff demurred Darnel for the Defendant admitted that if a Scire Facias be brought against the Bail upon a Writ of Error 3 Bulstr 191. 2 Cro. 402. who plead that after the Recognizance and before the Iudgment against the Principal affirmed he rendred himself to the Marshal in discharge of his Bail that this is not a good Plea but that the Sureties are still liable 3 Jac. cap. 8. because by the Statute they are not only liable to render his Body but to pay the Debt recovered But if a Iudgment be had in this Court 1 Rol. Abr. 334. pl. 11. and a Writ of Error brought in the Exchequer-Chamber and pending that Writ of Error the Principal is rendred the Bail in the Action are thereby discharged It was argued on the other side E contra that this is not the like Case of Bail upon a Writ of Error for the Condition of a Recognizance and that of a Bond for Appearance are different in their nature the one is barely that the Party shall appear on such a day the other is that he shall not only appear and render his Body to Prison but the Bail likewise do undertake to pay the Debt if Iudgment should be against the Principal Now where the Condition is only for an Appearance at a day if the Party render himself either before or after the day 't is not good Chief Iustice If the Party render himself to the Officer before the
the Goods before Administration granted Neither can any Entry or Claim make the Defendant an Executor de son tort of a Term for years because a wrongful Entry can never gain any Estate but a Fee-simple for 't is not to be satisfied with any particular or certain Estate as for life or years It cannot be gained by Act of Law because that abhors all manner of wrong If it should be objected that though this Executor doth not gain any Estate for his own benefit yet he in the Reversion may take him for a Disseisor and it shall be in his election either to make him so or a Tenant for years To this it may be answered that the Defendant doth not claim by colour of any Grant if he did then he might be a Disseisor at the Election of him in the Reversion and this was the very difference taken in the Case of Blunden and Baugh Cro. Car. 302. 1 Roll. Abr. 661. Jones 115. Latch 53. So likewise if it be objected that the Defendant is an Occupant and therefore punishable for Waste but the reason is not the same because the Entry of an Occupant is lawful and he gains an Estate for life which is not this Case An Executor de son tort is not a person taken notice of in the Law in respect to him in the Reversion but in respect of the Creditors of the Intestate and therefore if what he doth may be advantageous to them the Law will make a Construction upon it for their benefit but if such a person should be within the intention or meaning of this Statute then the natural Consequences will be 1. That the place wasted would be recovered 2. That the Plaintiff would also have treble damages Both which would be a manifest means to defeat the Creditors of their Debts for which reasons he prayed Iudgment for the Plaintiff in the Errors It was argued by the Council on the other side E contra That it is plain that the Defendant was Executor de son tort for such must that person be who intermeddles with the Intestates Estate where there is no rightful Executor or Administrator Now a Man may be Executor of his own wrong of a Term for years as appears even in that case cited out of Moor on the other side and if so the Defendant must be liable to this Action The Statute may be expounded as well against a wrongful as a rightful Executor 't is plain here is a Dissesin and the Law is now settled that it shall be in the election of him in the Reversion to make it so This Defendant would justifie one wrong by another for he confesseth that he hath committed a Disseisin and therefore will not be answerable for committing of Waste As to the Objection that an Executor de son tort is liable only in respect of Creditors and that if he should be punished for Waste it would be an injury to them because of the treble damages recovered against him Resp Such damages must be answered out of his own Estate for even in the Case of a rightful Executor if he commit Waste 5 Co. Poulter's Case he will be chargeable in a Devastavit de bonis propriis This is not properly a penal but a remedial Law and as such may be construed according to Equity 'T is true Tenants by Elegit or by Statute are not within this Statute because Waste by them committed is no wrong for if they should fell the Timber it sinks the Debt and the Cognizor may have a Scire Facias ad computandum Curia It would be an infinite trouble for him in the Reversion to seek his remedy for Waste done if the Law did oblige him to stay till there was a rightful Administrator and 't is not to be doubted but that there may be an Executor de son tort of a Term for years This is a remedial and yet a penal Law and therefore shall have a favourable Construction The Iudgment was affirmed Bridgham versus Frontee DEBT upon a Bond for performance of Covenants in a Lease of a House for a certain Term of years rendring Rent c. And the Breach assigned was That there was 66 l. Rent in arrear The Defendant pleaded the Statute of H. 32 H. 8. c. 16. 8. That all Leases of Dwelling-Houses or Shops made to any Stranger or Alien Artificer shall be void and sets forth that the Defendant was a Vintner and an Alien Artificer And upon a Demurrer Mr. Thompson for the Defendant said that a Vintner was an Artificer within the meaning of the Act which was made to prevent a mischief by Foreigners encroaching upon the Trades of the King's Subjects by which they gained their Livelihood and therefore shall be expounded largely and beneficially for them A Mercer a Draper or Grocer are not properly Artificers yet they are within the meaning of this Act. Chief Iustice 1 R. 2. cap. 9. This Statute refers to another of R. 2. Which prohibits Alien Artificers to exercise any Handycraft in England unless as a Servant to a Subject skilful in the same Art upon pain to forfeit his Goods so that 't is plain that such who used any Art or manual Occupation were restrained from using it here to the prejudice of the King's Subjects Now the Mystery of a Vintner chiefly consists in mingling of Wines and that is not properly an Art but a Cheat so the Plaintiff had his Iudgment Rex versus Plowright and others A Distress was taken for Chimny-Mony and the Parties distrained apply themselves to the two next Iustices of the Peace before whom it did appear that Plowright let a Cottage to Hunt which was not of the yearly value of 10 s. The Collectors of this Duty distrained upon the Land-Lord which the said Iustices thought to be illegal and therefore they ordered a Restitution And a Certiorari being brought to remove the Order into this Court Mr. Attorny prayed that it might be â—â—â—d But it was opposed by Mr. Pollexfen for that the Statute of King Charles II. enacts 16 Car. 2. c. 3. That no person inhabiting an House which hath more than two Chimnies shall be exempted from the payment of the Duty c. and then these Words do follow viz. That if any question shall arise about the taking of any distress the same shall be heard and finally determined by one or more Justices of the Peace near adjoining c. Now here was Mony levyed by virtue of this Act and a Controversie did arise by reason of the Distress and an Order was made by the Iustices which according to the letter and meaning of the Act ought to be final the intention whereof was to prevent the charge and trouble of poor Men in Suits at Law about small Matters and therefore it gave the Iustices power to determine particular Offences and Oppressions Mr. Attorney contra If the Iustices of Peace have power to determine c.
' ac qd ' Record ' ill ' in nullo vitiosum aut defectivum existit Ideo considerat ' est qd ' Judicium praed ' adjudication ' executionis superinde in omnibus affirmetur ac in omni suo robore stet effectu dict' causis materiis superius pro Error ' assign ' in aliquo non obstante Et ulterius per Cur. Judgment affirmed Domini Regis Dominae Reginae nunc hic cons est qd ' praedict ' Abel Ram recuperet versus praefatum Donatum Obrian octodecim libras eidem Abel per Curiam Domini Regis Dominae Reginae nunc hic secundum formam Statuti in hujusmodi casu edit ' provis adjudicat ' pro mis custag ' dampn ' suis quae sustin ' occasione dilationis executionis Judicij praedict ' praetextu prosecutionis praedict ' Brevis de Errore Et qd ' praedictus Abel habeat inde executionem c. Obrian versus Ram. ERror to reverse a Iudgment given in Ireland Whether a Sci. fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her dum sola upon a Scire Fac. brought against the Plaintiff in the Errors setting forth that Debt was brought upon a Bond against Elizabeth Grey and a Iudgment was thereupon obtained for 800 l. dum sola That the said Elizabeth afterwards intermarried with Mr. Obrian That a Scire Facias was brought upon that Iudgment against Husband and Wife to shew cause why the Plaintiff should not have execution That upon this Scire Facias there were two Nichils returned and thereupon Iudgment was had against Husband and Wife It rested for a year and a day and then the Wife died and the Plaintiff brought a new Scire Fac. against the Husband alone to shew cause why he should not have Execution upon the first Iudgmont The Defendant pleaded that there was another Scire Fac. brought against him and his Wife for the same Cause c. And upon a Demurrer to this Plea Iudgment was given in Ireland against him The Question now was whether this Scire Fa. will lye against the Husband alone after the death of his Wife This Case was argued by Mr. Finch and Mr. Pollexfen that the Husband was not chargable It was admitted on all sides that if a Feme sole is indebted and marries that an Action will lye against the Husband and Wife and he is lyable to the payment of her Debts It was agreed also that if a Iudgment be had against a Feme sole and she marries and afterwards dies that the Husband is not chargable because her Debts before Coverture shall not charge him unless recovered in her Life-time In like manner no Debts which are due to her dum sola shall go to the Husband by virtue of the inter-marriage if she dye before those are recovered but her Administrator will be entituled to them which may be the Husband but then he hath a Right only as Administrator 1 Roll Abr. 351. and the reason is because such Debts before they are recoverd are only choses in Action And from hence the Council did inferr that the Iudgment in this Case against the Wife dum sola did not charge the Husband Then the Question will be if the Husband is not chargeable by the Original Iudgment whether the Iudgment on the Scire Fac. had not made an alteration and charged him after the death of his Wife And as to that it was said that this Iudgment upon the Scire Fac. made no new charge for 't is only quod habeat executionem c. and carries the first Iudgment no farther than it was before for 't is introduced by the Sci. Fac. At the Common Law no Execution could be had upon a Iudgment after a year and a day and there was then no remedy but to bring an Action of Debt upon that Iudgment This Inconvenience was remedied by the Statute of Westm W. 2. cap. 45. the 2. which gives a Scire Fac. upon the Iudgment to shew cause why Execution should not be had which can be no more than a liberty to take Execution upon the Original Iudgment which cannot charge the Husband in this case because 't is only a consequence of that Iudgment and creates no new charge for a Release of all Actions will discharge this award of Execution But the Reasons why the original Iudgment shall not be carried farther by the Iudgment in the Scire Fac. are as follow 1. By considering the nature of a Scire Fac. which lay not at the Common Law but is given by the Statute in all persosonal Actions the words whereof are these Viz. 2 Inst 469. Sid. 351. Observandum est de caetero quod ea quae inveniuntur irrotulat c. Vpon which words it is evident that the execution of the first Iudgment on Record is all which is given by this Act after the year and day and it takes off that bar which was incurred by the lapse of time and gives a speedy Execution of the Iudgment recorded 2. The Proceedings upon a Scire Facias shew the same thing for the Writ recites the first Iudgment and then demands the Defendant to shew cause why the Plaintiff should not have Execution thereon juxta vim formam effectum recuperationis praed but prays no new thing 3. A Scire Facias is not an Original but a Iudicial Writ which depends purely upon the first Iudgment 1 Roll. Abr. 777. pl. 6. 8 Co. 143 Dr. Drurie's Case and a Writ of Error suspends the execution of both so likewise if the Original Iudgment be reversed even a Iudgment obtained upon a Scire Facias will be reversed in like manner 4. The Law doth not charge a Man without an Appearance but here is none and the Statute can never operate upon this Case because that extends only to such Iudgments upon which there has been a Recovery and here is nothing recovered upon this Scire Facias for 't is only to have Execution upon the first Iudgment If the Law should be otherwise this absurdity would follow Viz. There would be a Recovery without a Record for the purport of the Scire Facias is only to have Execution according to the form and effect of the Record and the very Record it self doth not charge the Husband Besides the first Iudgment did charge the Lands of the Wife which are still liable to satisfie the Debt why therefore must the Lands of the Husband be charged Cannot the Administrator of the Wife bring a Writ of Error to reverse this Iudgment and if it should be reversed shall the Husband pay the Debt and the Administrator of the Wife be restored The Objections made by the Council on the other side against this Opinion were viz. That if an Action of Debt will lie upon a Iudgment in a Scire Facias the Original Iudgment is by this means carried farther for without
a new Recovery Debt will not lie F.N.B. 122. E. and to prove this there is and Authority in Fitzherbert where a Prior had Iudgment for an Annuity and brought a Scire Fac. upon that Iudgment against the Successor of the parson who was to pay it and obtained a Iudgment upon that Scire Fac. to recover the arrearages and afterwards brought an Action of Debt upon the last Iudgment and the Book says fuit maintein There is another Case in 2 Leon. 2 Leon. 14. 4 Leon. 186. 15 H. 7.16 where 't is held that an Action of Debt will lye upon a Iudgment in a Scire Facias upon a Recognizance Which Objections may receive this Answer First As to the Case in Fitzherbert 't is admitted to be Law but 't is not an Authority to be objected to this purpose because the first Iudgment for the Annuity charges the Successor but the Original Iudgment in this Case doth not charge the Husband so the Cases are not parallel The like answer may be given to the Case in Leonard for a Recognizance is a Iudgment in it self and Debt will lie upon it without a Sci. Fa. upon that Iudgment But on the other side it was argued E contra that the award of execution is absolute against Husband and Wife for 't is a Recovery against both whereas before it was only the Debt of the Wife but now 't is joynt against the one as well as the other The Iudgment upon the Sci. Fa. is a distinct Action It cannot be denied but that if a Woman be indebted and marrieth the Husband is chargable during the Coverture Bro. Ab. tit Baron and Feme pl. 27. 49 E. 3.35 b. which shews that by the Marriage he is become the principal Creditor As to the Sci. Fa. t is true at the Common Law if a Man had recovered in Debt and did not sue forth Execution within a year and a day he must then bring a new Original 1 H. 5. 5. a 43 Ed. 3.2 b. and the Iudgment thereon had been a new Recovery but now a Sci. Fa. is given by the Statute instead of an Original and therefore a Iudgment thereon shall also be a new Iudgment for tho' t is a Iudicial Writ yet 't is in the nature of an Action because the Defendant may plead any matter in Bar of the Execution upon the first Iudgment 1 Inst 290. b. and 't is for this reason that a Release of all Actions is a good bar to it Besides Rast Ent. 193. 4 Leon. 186. Dyer 214. b. an Action of Debt will lie upon a Iudgment on a Sci. Fa. which shews that 't is an Action distinct from the Original and upon such a Iudgment the Defendant may be comitted to Prison several years afterwards without a new Sci. Fa. The Husband may have execution of a Iudgment recovered by him and his Wife after the death of his Wife without a Sci. Fa. 1 Mod. Rep. 179. for the Iudgment hath made it a proper Debt due to him and he alone may bring an Action of Debt upon that Iudgment and it seems to be very reasonable that he should have the benefit of such a Iudgment and yet not be charged after the death of his Wife when there hath been a Recovery against both in her life-time This is like the Case where a Devastavit is returned against Husband and Wife as Executrix Moor 299. 3 Cro. 216. Cro. Car. 603. Sid. 337. and a Iudgment thereon quod querens habeat executionem de bonis propriis the Wife dies yet the Husband shall be charged for the Debt is altered If it should be otherwise this inconvenience would follow that if the Wife should die F.N.B. 121. c. 1 Rol. Abr. 351. 10 H. 6.11 the Husband will possess himself of her Estate and defraud the Creditors so that he takes her but not cum onere But the Law is otherwise for if a Feme being Lessee for years doth marry and the Rent is behind and she dies the Husband shall be charged with the Rent arrear because he is entituled to the Profits of the Land by his marriage To which it was answered that if a Man should marry an Exerecutrix and then he and his Wife are sued and Iudgment obtained against them to recover de bonis testatoris and thereupon a Fi. Fa. is awarded to levie the Debt and Damages and the Sheriff returns a Devastavit and then the Wife dies the Husband is not chargeable because the Iudgment is not properly against him who is joyned only for conformity but if upon the return of the Devastavit there had been an award of execution De bonis propriis that would have been a new Iudgment and the old one De bonis testatoris had been discharged 1 Roll. Abr. 351. and then the Husband must be charged for the new wrong Adjornatur Afterwards in 1 Will. Mar. the Iudgment was affirmed Bowyer versus Lenthal INdebitatus Assumpsit quantum meruit ad insimul computasset Valerent for Valebant good after Verdict The Plaintiff had a Iudgment by default in the Court of Common-Pleas and a Writ of Enquiry was brought and entire Damages given and now the Defendant brought a Writ of Error and it was argued that if any of the Promises be ill Iudgment shall be reversed the Error now assigned was in the second Promise Viz. That in consideration that the Plaintiff would let the Defendant have Meat Drink and Lodging he promised to pay so much Quantum rationabiliter valerent it should have been valebant at the time of the Promise made Sed non allocatur So the Iudgment was affirmed DE Termino Paschae Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Powis Attorny General Wm. Williams Sollicitor General NOTA Wednesday May 2. being the first day of this Term Sir Bartholomew Shower Recorder of London was called within the Bar. Heyward versus Suppie IN an Action of Covenant which was to make such an Assignment to the Plaintiff Covenant to make an Assignment as Council should advise according to an Agreement made between him and the Defendant as Council should direct and advise and for non-performance thereof this Action was brought the Defendant pleaded non est factum and Iudgment was obtained against him Vpon which a Writ of Error was brought and the common Error assgned It was objected that the Plaintiffs Council should give the advice because he is the person interested This Objection was answered by Mr. Pollexfen who said that the Defendant had likewise an interest in this matter for 't is an advantage to him to make the Assignment that his Covenant might be saved 't is true it had been otherwise if the Covenant had been to make such a Conveyance as Council should advise for then the person to whom the Covenant is made may chuse whether he will have a Feoffment
the benefit of the Obligor and shall be taken most beneficially for him who had election either to perform the one or the other to save the penalty of the Bond. But the Council for the Plaintiff said that the whole intent of the Condition in that Case was to provide a Security for G. who died before her Husband so that no body could be hurt for the non-performance of that Condition there being no manner of necessity that any thing should be done in order to it after her decease 'T is quite otherwise in the Case at Bar for Hannah Goddard paid Mony for the House and certainly it was never intended that Chappel the Father to whom the Mony was paid should have both House and Mony If she had lived the House ought to have been conveyed to her now she is dead the Mony ought to be paid for 't is not lost by her death In Laughter's Case the person who was to do the thing was the Obligor himself but here the Father undertakes for his Son that he should convey when he came of Age or to repay the Mony so that 't is not properly a Condition in the disjunctive for 't is no more than if it had been penn'd after this manner Viz. The Father undertakes for his Son that he shall convey at the Age of 21 years if he refuse then the Father is to repay what mony he received Besides Cro. Eliz. 399. Laughter's Case is Reported by Iustice Croke and therein he cites two other Cases of Chew and Baker That of Chew was viz. A. promised B. that if C. did not appear at Westminster such a day he would pay him 20 l. The Defendant pleaded that C. died before the day and ruled to be no Plea for he ought to pay the Mony which Case is parallel to this for 't is the same in Reason and Sense That of Baker was viz. A Man was bound that A. should appear the first day in the next Term at the Star-Chamber or he would pay 20 l. A. died before the day so as by the act of God he could not appear yet it was adjudged that the Mony must be paid The like Case was adjudged between Huntley and Allen in the Common-Pleas in my Lord Hale 's time 't is entred Pasch 1658. Rot. 1277. The Rule in Laughter's Case cannot be denied viz. where the Condition is in the disjunctive consisting of two parts and one becomes impossible by the act of God the Obligor is not bound to perform the other but then it must be governed by the subsequent matter As in Greningham's Case Cro. Eliz. 396. Moor 395. viz. Debt upon Bond conditioned that if the Defendant delivered three Bonds to the Plaintiff wherein he was bound to the Defendant or a Release of them as should be advised by the Plaintiff's Council before such a day then c. The Defendant pleaded that neither the Plaintiff or his Council did advise a Release before the day c. and upon Demurrer it was adjudged that the Plea was good for the Defendant had an election to deliver or release as the Plaintiff should devise which if he will not do the Defendant is discharged by the neglect of the Plaintiff for the Defendant being at his choice to perform the one thing or the other 't is not reason that the Plaintiff should compel him to perform one thing only It was argued on the other side E contra that this is a disjunctive condition and not only an undertaking of the Father for the Son Where a Condition is to perform two things and if either be done no Action will lye such Condition is in the disjunctive as in this Case if the Son had conveyed or the Father repaid the Mony By the Condition of this Bond the Father did as much undertake for his Son as Laughter did for Rainsford viz. to convey the House or pay the Mony to Hannah Goddard now the last part of the Condition being discharged by the Act of God he is acquitted of the other Suppose the Condition had been single to convey to Hannah Goddard if she die the Bond is void There is an Authority to this purpose Cro. Eliz. 380. Reported by Iustice Croke which was an Action of Debt was brought by the Plaintiff as Executor c. The Condition of the Bond was for the yearly payment of a Sum of Mony twice in a year viz. at Michaelmas and Lady day during the Life of a Lady or within 30 days after either of the said Feasts the Lady died after one of the Feasts but within the 30 days it was adjudged that by her death that payment which was due at the Feast preceding was discharged In the Case at Bar the Condition is that if the Son should not convey when of Age or otherwise if the Defendant re-pay c. Now certainly these words or otherwise make the Condition disjunctive 'T is like the common Case of Bail entred into in this Court whereby the Parties undertake that the Defendant shall render himself to Prison if condemned in the Action or they shall pay the condemnation mony this is a disjunctive condition and if the Defendant dye before the return of the second Sci. Fa. the Bail are discharged Iustice Allibon said Roll. Abr. tit condition 450. pl. 4. that if a condition be to make an Assurance of Land to the Obligee and his Heirs and the Obligee dies before the Assurance made yet it shall be made to the Heir for this copulative is a disjunctive Sed Adjornatur Franshaw versus Bradshaw Mich. 1 Jac. Rot. 45. DEbt upon a Iudgment obtained in this Court 34 Car. 2. Matter of Form not amendable upon Demurrer setting forth the said Iudgment c. Sicut per Recordum processum inde remanen ' in eadem Curia nuper Domini Regis coram ipso Rege apud Westmonast plenius liquet apparet And upon a Demurrer to the Declaration this Objection was made viz. It doth not appear that the Iudgment was in force or where the Reeord was at the time of this Action brought he should have declared Coram ipso nuper Rege apud Westm sed jam coram Domino Rege nunc residen ' c. plenius liquet c. The Court held it was but matter of form but being upon a Demurrer it was not amendable Letchmere versus Thorowgood al' Vic. London TRespass by the Assignees of Commissioners of Bankrupcy for taking of their Goods When a Judgment is once executed the Goods are in Custodia Legis and shall not be taken away by an Exchequer Process or Assignment of Commissioners of Bankrupts upon not Guilty pleaded the Iury find a special Verdict the substance of which was viz. one Toplady a Vintner on the 28th of April became a Bankrupt against whom a Iudgment was formerly obtained the Iudgment Creditor sued out a Fi. Fa. and the Sheriffs of London by virtue thereof did
so his Son is justly and rightly sued as Son and Heir In some Cases the persons are to be named not by way of a Title but as a Pedigree as if there be Tenant for Life the Reversion in Fee to an Ideot and an Vncle who is right Heir to the Ideot levied a Fine and died living the Ideot leaving Issue a Son named John who had Issue William who entred the Question was whether the Issue of the Vncle shall be barred by this Fine It was the Opinion of two Iudges that they were not barred because the Vncle died in the life-time of the Ideot and nothing attached in him March 94. Cro. Car. 524. and because the Issue claim in a collateral Line and do not name the Father by way of Title but by way of Pedigree But Iustice Jones who hath truly Reported the Case Jones 456. was of Opinion that the Issue of the Vncle were barred because the Son must make his Conveyance from the Father by way of Title The Iury have found that the Reversion did descend to the Defendant as Heir to the last John 't is true it descends as a Reversion but that shall not charge him as Heir to the Father Jenk's Case 1 Cro. for the other was seised of the Estate Tail which is now spent and the last who was seised of the Fee was the Father and so the Defendant must be charged as his Heir 'T is likewise true that where there is an actual Seisin you must charge all but in this Case there was nothing but a Reversion Tremaine Serjeant for the Defendant In this Case the Plaintiff should have made a special Declaration for the Estate-Tail and the Reversion in Fee are distinct and seperate Estates John the Nephew might have sold the Reversion and kept the Estate Tail if he had acknowledged a Statute or Iudgment it might have been extended and if so then he had such a Seisin that he ought to have been named A Man becomes bound in a Bond and died Debt is brought against the Heir it is not common to say that he had nothing by descent but only a Reversion expectant upon an Estate Tayl. In the Case of Chappel and Lee Covenant was brought in the Common-Pleas against Judith Daughter and Heir of Robert Rudge She pleaded Riens per descent Issue was joyned before Sir Francis North then Chief Iustice and it appearing upon Evidence that Robert had a Son named Robert who died without Issue a Case was made of it and Iudgment was given for the Defendant the Plaintiff took out a new Original and then the Land was sold so the Plaintiff lost his Debt Adjornatur Afterwards in Hillary Term a Gulielmi Mariae Iudgment was given for the Plaintiff by the Opinion of three Iustices against Iustice Eyre who argued that the Defendant cannot be charged as immediate Heir to his Father 't is true the Lands are Assets in his Hands and he may be charged by a special Declaration Dyer 368. pl. 460. In this Case the intermediate Heirs had a Reversion in Fee which they might have charged either by Statute Iudgment or Recognizance they were so seised that if a Writ of Right had been brought against them they might have joyned the Mise upon the Mere right which proves they had a Fee and though it was expectant on an Estate Tail 3 Co. 42. Ratcliff's Case yet the Defendant claiming the Reversion as Heir ought to make himself so to him who made the Gift The person who brings a Formeden in Descender must name every one to whom any Right did descend 8 Co. 88. F.N.B. 220. c. Rast Ent. 375. otherwise the Writ will abate A Man who is sued as Heir or who entitles himself as such must shew how Heir The Case of Duke and Spring is much stronger than this 2 Rol. Abr. 709. 2 Cro. 161. for there Debt was brought against the Daughter as Heir of B. She pleaded Riens per descent and the Iury found that B. died seised in Fee leaving Issue the Defendant and his Wife then with Child who was afterwards delivered of a Son who died within an hour and it was adjudged against the Plaintiff because he declared against the Defendant as Daughter and Heir of the Father when she was Sister and Heir of the Brother who was last seised But the other three Iudges were of a contrary Opinion The Question is not whether the Defendant is lyable to this Debt but whether he is properly charged as Heir to his Father or whether he should have been charged as Heir to his Nephew who was last seised It must be admitted that if the Lands had descended to the Brother and Nephew of the Defendant in Fee that then they ought to have been named but they had only a Reversion in Fee expectant upon an Estate Tail which was incertain and therefore of little value now though John the Father and Son had this Reversion in them yet the Estate Tail was known only to those who were Parties to the Settlement 'T is not the Reversion in Fee Bro. Fit Descent pl. 30.37 Ass pl. 4. but the Possession which makes the party inheritable and therefore if Lands are given to Husband and Wife in Tail the Remainder to the right Heirs of the Husband then they have a Son and the Wife dies and the Husband hath a Son by a second Venter and dies the eldest Son enters and dies without Issue and his Vncle claimed the Land against the second Son but was barred because he had not the Remainder in Fee in possession and yet he might have sold or forfeited it But here the Reversion in Fee is now come into possession and the Defendant hath the Land as Heir to his Father t is Assets only in him and was not so either in his Brother or Nephew who were neither of them chargeable because a Reversion expectant upon an Estate Tail is not Assets Iudgment was given for the Plaintiff DE Term. Sancti Mich. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Young versus Inhabitants de Totnam AN Action was brought against the Hundred for a Robbery in which the Plaintiff declared that he was Robbed apud quendam locum prope Faire Mile Gate in such a Parish He had a Verdict And now Serjeant Tremaine moved in arrest of Iudgment and the Exceptions taken were these viz. 1. That it doth not appear that the Parish mentioned in the Declaration was in the Hundred 2. Neither doth it appear that the Robbery was committed in the High-way 3. The Plaintiff hath not alledged that it was done in the day time for if it was not the Hundred is not lyable by Law But these Exceptions were all disallowed because it being after a Verdict the Court will suppose that there was Evidence given of these Matters at the Trial so the Plaintiff had his Iudgment Eggleston al' versus Speke alias Petit.
the Neglect in this Case was in the Servant the Action may be brought against all the Owners for it is grounded quasi ex contractu though there was no actual Agreement between the Plaintiff and them And as to this purpose 2 Sand. 345. Hob. 206. Hutt 121. 1 Mod. 198. 't is like the Case where a Sheriff levies Goods upon an Execution which are rescued out of the hands of his Bailiffs this appearing upon the Retorn an Action of Debt will lie against him though there was no actual Contract between the Plaintiff and him for he having taken the Goods in Execution there is quasi a Contract in Law to answer them to the Plaintiff 2. As to the second Point it was ruled that Not-Guilty was a good Plea to any Mis-feazance whatsoever and that a Plea in Abatement viz. that the rest of the Owners super se susceperunt simul cum Defendente absque hoc quod Defendens super se suscepit tantum had been no more than the general Issue 3 Cro. 554. Vering versus More but he hath not pleaded thus Iustice Dolben agreed that the Action ought to be brought against all the Proprietors it being upon a Promise created by Law but he was Opinion that this Matter might have been pleaded in Abatement Gold versus Strode AN Action was brought in Somersetshire and the Plaintiff recovered and had Iudgment and died Intestate Gold the now Plaintiff took out Letters of Administration to the said Intestate in the Court of the Bishop of Bath and Wells and afterwards brought a Scire Facias upon that Iudgment against the Defendant to shew Cause quare Executionem habere non debeat He had Iudgment upon this Scire Facias and the Defendant was taken in Execution and escaped An Action of Debt was brought by the said Gold against this Defendant Strode who was then Sheriff for the Escape and the Plaintiff had a Verdict It was moved in arrest of Iudgment and for Cause shewen that if the Administration was void then all the dependencies upon it are void also and so the Plaintiff can have no Title to this Action Now the Administration is void because the entring upon Record of the first Iudgment recovered by the Intestate in the County of Middlesex where the Records are kept made him have bona notabilia in several Counties and then by the Law Administration ought not to be committed to the Plaintiff in an inferior Diocess but in the Prerogative Court Curia The Sheriff shall not take advantage of this since the Iudgment was given upon the Scire Fac. and the Capias ad satisfaciendum issuing out against the then Defendant directed to the Sheriff made him an Officer of this Court and the Iudgment shall not be questioned by him for admitting it to be a Recovery without a Title yet he shall take no advantage of it till the Iudgment is reversed 'T is not a void but an erronious Iudgment and when a person is in execution upon such a Iudgment and Escapes and then an Action is brought against the Goaler or Sheriff 8 Co. 141. and Iudgment and Execution thereon though the first Iudgment upon which the party was in execution should be afterwards reversed yet the Iudgment against the Goaler being upon a collateral thing executed shall still remain in force The Ca. Sa. 21 E. 4. 23. b. Cro. El. 164. Moor 274. 2 Cro. 3. 1 Rol. Abr. 809 God b. 403. 2 Leon. 84. was a sufficient authority to the Sheriff to take the Body though grounded upon an erronious Iudgment and that Execution shall be good till avoided by Error and no false Imprisonment will lie against the Goaler or Sheriff upon such an Arrest Coghil versus Freelove In the Common-Pleas DEBT for Rent was brought against the Defendant as Administratrix of Thomas Freelove her late Husband deceased Debt for Rent incurred after an assignment by an Administrator for the privity of Contract is not determined by the death of the intestate 2 Vent 209. in which Action the Plaintiff declared That on the 1st of May 21 Car. 2. he did by Indenture demise to the said Thomas Freelove one Messuage and certain Lands in Bushey in Hertfordshire Habendum from Lady day then last past for and during the term of 21 years under a yearly Rent that by virtue thereof he entred and was possessed That on the 7th of March 1685. the said Thomas Freelove died Intestate and that the next day Administration of his Goods and Chattels was granted to the Defendant and that 78 l. was in arrear for Rent due at such a time for which this Action was now brought in the Detinet The Defendant confessed the Lease prout c. and the death of the Intestate and that the Administration was granted to her but saith that before the Rent was due she by Articles made between her of the one part and Samuel Freelove of the other part did assign the said Indenture and all her right title and interest thereunto and which she had in the Premisses unto the said Samuel Freelove who entred and was possessed that the Plaintiff had notice of this Assignment before he brought this Action but nothing was said of his acceptance To this Plea the Plaintiff demurred and the Defendant joined in Demurrer And Iudgment was given by the Opinion of the whole Court for the Plaintiff against the Authorities following Viz. Cro. Eliz. 555. 'T is true in Overton and Sydal 's Case it was resolved that if an Executor of Lessee for years assign his Interest Debt for Rent will not lye against him after such Assignment the reason there given was because the personal privity of the Contract is determined by the death of the Lessee as to the Debt it self and for the same reason the Executor shall not be lyable to the Rent after the death of the Lessee if such Lessee doth make an assignment of his Term in his life-time My Lord Coke mentioning this Case 3 Co. 24. a. in his third Report affirms that it was resolved by Popham Chief Iustice and the whole Court that if an Executor of a Lessee for years assign his Interest Debt will not lye against him for Rent due after such an Assignment Pop. 120. but my Lord Popham himself in Reporting that very Case tells us he was of another Opinion which was that so long as the Covenant in the Lease hath the nature and essence of a Contract it shall bind the Executor of the Lessee who as well to that as to many other purposes represents the person of the Testator and is privy to his Contracts T is true my Lord Popham held in that Case that the Action did not lye but because it was brought by the Successor of a Prebendary upon a Lease made by him in his life-time who being a single Corporation the personal Contract was determined by his death But the same Case reported by others Moor 251.
Demise and the Word Assignes is in the Deed yet they are not bound if they have no Estate so that 't is not the naming of them but by reason of the Estate in the Land they are made chargeable No Iudgment is entred upon the Roll. FINIS ERRATA FOlio 88. Line 13. for Defendant read Plaintiff f. 106. l. 26. for no r. an f. 119. l. 7. after must be r. Error f. 147. l. 13 18 38. for coram r. quorum f. 189. l. 23. for reasonable r. unreasonable f. 196. l. 28. for devises r. demises f. 199. l. 1. for 23. r. 13. f. 201. l. 14. before merged r. not f. 218. l. 17. for 1672. r. 1679. f. 203. l. 31. after Berkley r. and Mr. Killigrew f. 222. l. 31. leave out and marrieth f. 226. l. 21. leave out she marrieth f. 237. l. 29. for devise r. demise f. 255. l. 31. for Father r. Nephew f. 256. l. 12. for joyned r. tryed f. 287. l. 6. after delivered r. tied f. 303. l. 16. for Grantee r. Guarantee f. 307. l. 36. for voidable r. void A TABLE to the Third Part of Modern Reports A. Abatement See Ioint Action 8. 1. DEBT was brought by four Plaintiffs one of them died before Judgment the Action is abated as to the rest 249 2. Waste is brought against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for the Damages ibid. 3. Two Jointenants are Defendants the death of one shall not abate the Writ for the Action is joint and several ibid. 4. Where two or more are to recover in a personal thing the death of one shall abate the Action as to the rest ibid. 5. But in Audita Querela the death of one shall not abate the Writ because it is in discharge ibid. Abeiance See Acceptance 1. Resignation of a Benefice passes nothing to the Ordinary but putteth the Freehold in Abeiance till his acceptance 297 See Acceptance Resignation Surrender Acts of Parliament See Iustice of Peace 2 Pardon 2 Ought to be construed according to the intention of the Law-makers and ought to be expounded according to the Rules of the Common Law 63 2. Where a particular punishment is directed by a Statute Law it must be pursued and no other can be inflicted upon the Offender 78 118 3. When an Act is penal it ought to be construed according to Equity 90 157 312 4. Preamble is the best Expositor of the Law 129 169 Action upon the Ease Assumpsit A Feoffment was made upon Trust that the Feoffee should convey the Estate to another the Cestuy que Trust may have an Action if the Feoffee refuseth to convey 149 2. In consideration that the Plaintiff would let the Defendant have Meat Drink c. he promised to pay as much as it was reasonably worth the word valerent was in the Declaration it should have been quantum valebant at the time of the Promise but held good after Verdict 190 3. Where a personal promise is grounded upon a real Contract the Action will lie 73 4. It will not lie for Rent reserved upon a Demise but where a Promise is made to pay Rent in consideration of occupying a House it will lie 240 Action on the Case See Bankrupts 2 Indictment 2 Slander where it lieth 1. He is a Papist spoken of a Deputy Lieutenant 26 2. Where the words injure a person in his Profession or bring him in danger of punishment 27 3. He stole the Colonel's Cupboard Cloth there being no precedent Discourse either of the Colonel or his Cloth 280 4. He is broken and run away and never will return again spoken of a Carpenter 155 5. He is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his door but he spoken of a Merchant who made a Bonefire at the Coronation of King James 103 6. He owes more Mony than he is worth he is run away and is broak spoken of an Husbandman 112 7. The Wife was called Whore and that she was the Defendant's Whore the Husband and she brought the Action and concluded ad dampnum ipsorum it lies without allegding special Damages 120 8. Sir J. K. is a buffle headed Fellow and doth not understand Law he is not fit to talk Law with me I have baffled him and he hath not done my Client Justice spoken of a Justice of Peace 139 9. J. P. is a Knave and a busie Knave for searching after me and other honest men of my sort and I will make him give satisfaction for plundering me spoken of a Justice of Peace no Colloquium was laid the Court was divided 163 Where it doth not lie Words were laid to be spoken ad tenorem effectum sequen ' which is not an express allegation that they were spoken 71 72 Action on the Case against a Common Carrier Where it was brought against him upon an Assumpsit in Law and likewise upon a Tort the Declaration is not good 322 Action on the Case for a wrong See Pleading For diverting of a Water-course the Antiquity of the Mill must be set forth 49 2. It lies against a wrong doer upon the bare possession only and the Plaintiff need not set forth whether he hath a Title by Grant or Prescription for that goes to the right 51 52 132 3. If the Declaratien is for the diverting of the Water ab antiquo solito cursu this amounts to a Prescription which must be proved at the Trial or the Plaintiff will be non-suited 52 4. Whether it lieth for the making of a scandalous Affidavit in Chancery 108 5. For selling of Oxen affirming them to be his own ubi revera they were not but doth not say sciens the same to be the Goods of another or that he sold them fraudulenter or deceptive 't is naught upon a Demurrer but good after Verdict 261 6. Where several are guilty of a wrong the Action may be brought against either 321 7. Debt upon the Statute of Ed. 6. for not setting out Tithes brought against two Tenants in Common one of them did set out the Tithes and the other carried them away it ought to be brought only against the wrong doer 322 8. For disturbing of a Man in a Common Passage or Common High-way no Action on the Case lieth without a particular damage done to himself for the proper remedy is a Presentment in the Leet 294 Administrator Vide Infant 18 Ordinary Interest 2 Pleading 2 Administrator durante minore aetate hath no power over the Estate 24 2. Administration could not be granted by the Spiritual Court before the Statute of Ed. 3. 24 3. Where 't is once granted whether it ought to be repealed 25 4. Administrator had the whole Estate in him before the Statute of Distributions 60 5. He then gave Bond to distribute as the Ordinary should direct ibid. 6. The Father died
intestate leaving one Son an Infant Administration was granted durante minore aetate he died before 17. whether Administration de bonis non of the Father shall be granted to the next of Kin of him or his Son 61 62 7. Whether an Interest is vested in an Infant where Administration is granted durante minore aetate so that if he die before 17. it goes to his Executor 61 8. Before the Statute of Distribution if there was but one Child he had a right of Administration but it was only personal and if he died before it was granted to him by the Court it would not go to his Executor 62 9. Husband hath a right of Administration to the Goods of the Wife because the Marriage is quasi a Gift in Law 64 10. If Administration had been granted to a Stranger before the Statute of Distributions and no Appeal within fourteen days he who had right though beyond Sea was barred 64 11. Husband and Wife Administratrix to her first Husband recover in Debt the Wife died and the Husband brought a Scire Facias to have Execution it will not lie by him alone because it was a Demand by the Wife as Administratrix in auter droit ibid. 12. Judgment was had in Somersetshire the Plaintiff died intestate Administration is committed by an inferior Diocess 't is void because the Entry of the Judgment in Middlesex where the Records are kept made him have bona notabilia in several Diocesses and so Administration ought to be granted in the Prerogative 324 13. If the Intestate hath two Sons and no Wife each have a Moiety of the personal Estate if but one an interest is vested in him 59 14. At Common Law none had a Right to an Intestate's Estate but the Ordinary was to distribute it to Pious Uses ibid. Admiral and Admiralty There was a Sentence in the Admiralty for taking of a Ship and afterwards Trover was brought for taking of the same Ship whether it lies or not 194 2. Pawning of a Ship for Necessaries at Land and a Libel was exhibited in the Admiralty whether good or not 244 3. Where things arising upon Lands may be sued for in the Admiralty 245 Addition See Indictment Where it makes a thing certain as an Ejectment de Tenemento is incertain but with the addition vocat ' the Black Swan 't is made certain 238 Admittance See Baron and Feme 9. A Custom cannot warrant an incertain Fine upon an Admittance to a Copyhold 133 2. The Lord may refuse to admit without a tender of the Fine where 't is certain ibid. 3. Where 't is incertain the Lord is to admit first and then to set the Fine ibid. 4. Custom that upon every Admission the Tenant should pay a years value of the Land as it was worth tempore admissionis t is good 132 5. For a Fine upon an Admission an Action of Debt will lye for though it favours of the realty yet 't is a certain duty 230 6. Before Admittance the Estate is in the Surrenderor and he shall have an Action of Trespass against any person who enters before another is admitted 226 7. Before an Admittance the Surrendree cannot enter but by special Custom to warrant it 225 Affidavit See Action on the Case for a Wrong 4. See Baron and Feme 11. Infant 21. Agreement and Disagreement Whether assent is necessary to a Surrender it being a Conveyance at the Common Law 't is not necessary in Devises or in any Conveyances directed by particular Statutes or by Custom 298 2. Whether the Estate shall be in the Surrendree immediately upon the execution of the Deed if he doth not shew some disassent to it 300 3. Agreement is not so much necessary to perfect a Conveyance as a Disagreement is to make it void ibid. 4. A Feoffment to three and Livery is made to one the Estate is in all till disagreement 301 Alien Leases made to Alien Artificers are void by the Statute of 32 H. 8. This Statute was pleaded by an Alien who was a Vintner and held to be no Artificer 94 Amendment See Mistrial Costs 2. 1. Of the Distringas by the Roll after a Verdict the Day and Place of Assizes being left out 78 2. In matters of Form the Court have sent for a Coroner to amend his Inquisition 101 3. Of a Mis-entry of a Writ of Enquiry without paying of Costs 113 4. Return to an Homine Replegiando amended by Rule of Court 120 5. A Riot was laid to be committed after the Indictment it was amended being only a Misprision of the Clerk 167 6. Where matter of Form is cured by a Verdict but 't is not amendable upon a Demurrer 235 7. Scire Facias upon a Recognizance to have Execution for 1000 l. juxta formam Recuperationis it should have been recognitionis amended after a Demurrer 251 Amerciament See Court 3. 1. Differs from a Fine for that is the act of the Court but an Amerciament is the act of the Jury 138 2. It need not be to a Sum certain for that may be affered 138 3. A Bailiff of a Liberty cannot distrein for an Amerciament Virtute officii but he ought to set forth the taking Virtute Warranti ibid. Appeal Against three for a Murder the Count was that O. gave the wound of which the person died the Jury found that L. gave the wound and that O. and M. were assisting this varies from the Count and yet held good 121 2. The Wound was given in one County and the Death ensued in another and the Party was Tryed where the Wound was given and held good ibid. 3. At Common Law it was at the Election of the Appellant to bring the Appeal in either County and the Tryal to be by a Jury of both but now it may be brought in the County where the Party died 122 4. Whether Auter foitz Convict of Man-Slaughter is a good Plea to an Appeal of Murder 156 157 5. If a Woman be slain her next of Kin shall maintain an Appeal 157 6. How many things are required by the Statute of Gloucester to be alledged in an Appeal of Murder 158 7. The Appellee pleaded in Abatement but did not plead over to the Felony whether good or not 267 8. Where the Appellee must plead in propria persona and where per Attornatum 268 Apportionment Where a Contract under Hand and Seal for a Sum certain shall not be apportioned in an Action pro Rata as if it be for a Years Service the Plaintiff must serve a Year and aver it tho' the Contract is executory 153 2. But if a Promise is for a Years Board an Action may be brought for three Quarters of a Year for if there is a Variance between the Agreement and the Declaration 't is for the benefit of the Defendant 154 Apprentice Whether Justices of Peace have any power to compel men to take poor Children Apprentices since the Statute gives power to Church-wardens to raise
Mony for putting them out which must be to such who are willing to to take them for Mony 270 Arbitrament To pay 5 l. presently and give Bond to pay 10 l. more on a day following and now to sign general Releases it shall only discharge such matters which were then depending at the time of the submission and not the Bond 264 2. A person who was a Stranger to the Submission was awarded to be a Surety 't is void 272 3. Submission was so as the Award be made c. ready to be delivered to the Parties or to such of them who shall desire it the Defendant must desire the Award and plead the matter specially and the Plaintiff need not aver that it was ready to be delivered 330 Assent See Agreement Assets Reversion in Fee Expectant upon an Estate Tail is not Assets but when it comes into possession then and not before 't is Assets 257 Assignment See Privity of Contract 2. Executor of a Lessee for years shall be liable to an Action of Debt for Rent incurr'd after an assignment of the Term for the privity of Contract of the Testator is not determined by his Death but his Executor shall be charged with his Contracts so long as he hath Assets 326 Assizes The Method of arraigning an Assize the Title must be set forth in it 273 Attornment See Bargain and Sale Ejectment of a Manor parcel in Rents and parcel in Services the Attornment of the Tenants must be proved 36 Averment See Devise 4 The consideration of a Duty ought to be precisely alledged as in an Action on the Case for a Duty to be paid for weighing Goods it must be averred that the Goods were such which are usually sold by weight 162 2. The nature of an Averment is to reduce a thing to a certainty which was incertain before 216 3. Where it may be made against the express words of a Condition 217 4. Not allowed to be made against a Record 305 B. Bail IT was demised in a Scandalum Magnatum 4 2. Writ of Error pending in the Exchequer-Chamber the principal in the Action rendred himself the Bail are discharged 87 3. Scire Facias against Bail upon a Writ of Error who plead that the Principal rendred himself before Judgment 't is not good for the Bail are liable not only to render the Body but to pay the Debt ibid. 4. Proceedings were staied by Injunction above two Terms after the Bail was put in and before the Declaration delivered which was pleaded to a Scire Facias brought against them but held not good 274 Bankrupts An Inn-keeper is not within the Statutes of Bankrupcy 327 2. 'T is not actionable to call a Man Bankrupt unless it be laid that he was a Trader at the time of the words spoken 329 3. Inn-keeper buys and sells under a Restraint of Justices and Stewards of Leets which though for a Livelihood yet cannot be a Bankrupt 329 4. Whether a Farmer or Master of a Boarding-School be within the Statutes 330 Baretry Difference between Baretry and Maintenance 97 2. 'T is not Baretry to arrest a Man without a cause ibid. 4. If one design to oppress and to recover his own right 't is Baretry 98 5. Mony may be laid out to recover the just right of a poor man and no Baretry ibid. 6. But mony may not be expended to promote and stir up Suits ibid. Barbadoes It was gotten by Conquest and therefore to be governed by what Law the King willeth 161 Bargain and Sale What words by construction of Law shall amount to a Bargain and Sale to make the Reversion pass with the Rent without Attornment 237 Baron and Feme See Slander 7 Administrator 9 11 Sci. Fa. 7 1. Whether Sci. Fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her Dum sola 186 2. If a Judgment is recovered against her while sole then she marries and dies the Husband is not chargeable unless had likewise against him during the Coverture ibid. 3. A Debt is due to her whilst sole she marries and dies before 't is recovered it shall not go to the Husband by virtue of the marriage but he may have it as Administrator to his Wife ibid. 4. Judgment is obtained against her whilst sole she marries and a Sci. Fa. is brought against Husband and Wife and Judgment quod habeat executionem the Wife dies a Scire Fa. may be brought against the Husband alone 189 5. The Recovery upon a Sci. fa. is against both and is therefore joynt against both 188 6. Husband may have Execution of a Judgment recovered by him and his Wife after the Death of his Wife without a Sci. fa. 189 7. Devastavit against both the Wife being an Executrix and Judgment that the Plaintiff have Execution de bonis propriis the Wife dies the Goods of the Husband are liable ibid. 8. A Woman who had a Term for years married the Rent is arrear she died the Husband shall be liable because by the Marriage he is entituled to the Profits of the Land ibid. 9. Feme Covert Copy-holder her Husband made a Lease for years without Licence of the Lord 't is a Forfeiture during the Coverture 222 9. Feme Covert Heir to a Copyhold Estate her Husband after three Proclamations will not be admitted 't is a Forfeiture during Coverture 226 10. The Husband hath a Lease in Right of his Wife who was an Executrix and he grnats all his Right and title therein the Right which he had by his Wife passeth 278 12. A. Feme Sole had a Lease and Married then Husband and Wife Surrender in consideration of a new Lease to be granted to the Wife and to her Sons the Estate vests immediately in her without the assent of her Husband for the Law intends it her Estate till he dissassent 300 13. Feme Covert and another joint-Tenant for Life she and the Husband Lease their Moiety reserving a Rent during Life and the Life of her Partner the Wife died 't is a good Lease against the Surviving joint-Tenant till disagreement 300 14. The Husband made a Feoffment in Fee to the use of himself and Wife and to the Heirs of the Survivor he afterwards made another Feoffment of the same Lands and died the Wife entred but the Fee was not vested in her by the first Conveyance because the contingent right was destroyed by the last 310 Barr. Recovery in a personal Action is a Barr to an Action of the like nature where the same Evidence supporteth both Actions 2 Judgment in Trespass is no Barr to an Action of Detinue 2 Bill of Exchange The Drawer and Endorsers are all liable to payment but if Recovery be against one 't is a good Bar to an Action which may be brought against the rest 86 By-Law See Corporation 12. Trade 8. Where 't is too general and where not 193 C. Carrier See Pleading 11. Certainty See Custom Grants Certiorari
before a Coroner the person having drowned himself it was suffocat ' emergit fuit if it had stood singly upon the word emergit it had been insensible but the word suffocat ' expressing the sense it was held good 100 4. Where nothing is vested in the King before Office found ibid. 5. It must always be found that there is an Estate in the person offending and a cause of Forfeiture of that Estate to vest it in the King 336 Interest in a thing See Pardon 4. Where a Man may have an interest in a Chattel without a Property 61 2. Devise to a Wife and Children after Debts and Legacies paid an interest vests in the Devisees but 't is otherwise in case of Administration for there no Interest vests till actual distribution 65 3. A Man may have a Property tho' not in himself as in the Case of Joyntenancy 97 Intestate See Administration Innuendo The proper office of it is to make the subject matter certain 53 2. It will not help insensible words 54 Joyntenancy and Tenancy in Common See Abatement 3. Baron and Feme 12. Interest 3. If one Joyntenant bring an Action against the other unless he pleads the Jointenancy in abatement the Plaintiff will recover 97 2. If two Coparceners lease a House and the Rent is arrear and one brings an Action and recovers Judgment shall be arrested because both ought to joyn 109 3. Tenants in Common must join in the personalty but 't is otherwise in real Actions for though their Estates are several yet the Damages to be recovered survive to all 109 251 4. Where one Commoner may bring an Action against his Fellow 251 Joint Action See Action for a wrong 6. Ioyntenancy 2 3. Where an Action may be joint or several at the Election of the Plaintiff 86 2. Where 't is brought against three Defendants who plead jointly the Jury may sever the Damages and the Plaintiff may take Execution de melioribus damnis as well as where their Pleas are several and Tryals at several times 101 102 3. Judgment against two and one brought a Writ of Error and assigned the Infancy of the other for Error the Writ was abated because both did not joyn 134 4. The Defendants in the original Action must joyn in a Writ of Error but it seems otherwise where the Plaintiffs bring Error 135 5. Two covenant to sell Lands and the Purchasor agreed to pay the Mony to one of them he alone ought to bring the Action 263 6 Where there are several Proprietors of a Vessel for carriage of Goods which are damaged by carrying the Action must be brought against all or against the Master alone 321 322 7 Where two Tenants in Common were sued for not setting out of Tythes the Action ought to be brought not against him who set them out but against the other who carried them away 322 8. Two are bound joyntly one is sued he may plead in Abatement that he was bound with another but cannot plead Non est factum 323 9 In all Cases which are grounded upon Contracts the Parties who are Privies must be joyned in the Action ibid. 10 Action must be brought against all where a promise is created by Law 324 Issue Must be joyned upon an affirmative and a negative by concluding to the Country 80 Iudges The making altering and displacing of several Judges Serjeants at Law and King's Council 71 99 100 104 125 143 191 239 Iustices of Peace Offences against the Statute of 23 Eliz c. 1. for not coming to Church may be enquired of by them in their Sessions 79 2. Where a Statute appoints a thing finally to be done by them yet the Court of King's Bench may take Cognizance of it 95 3. Conviction for keeping of a Gun before a Justice of Peace the time when he had not 100 l. per Annum must be precisely alledged 280 Iustification See Pleading 4 5. Where 't is pleaded by way of Excuse to an Action of Trespass for the taking of any thing the Defendant must averr the Fact to be done and set forth the Warrant to him directed and the taking virtute Warranti and not generally that he took it by a Mandate c. 138 2. In Replevin where the Defendant made Conusance in right of the Lord he may Justifie the taking generally ibid. Iudgment 1. At the Common Law no Execution could be of a Judgment after a year and a day but the remedy was to bring an Action of Debt upon Judgment 187 189 2. Now a Scire Fac. is given upon a Judgment after the year by the Statue of W. 2. 189 3. When a Judgment is once execucuted the Goods are in custodia legis and shall not be taken away by an Exchequer Process or by the Commissioners of Bankrupts 236 L. Lapse See Notice Lease A Covenant in a Lease for years that the Lessee should pay the Rent without obliging his Executors or Administrators 't is determined by his Death 231 2. For 99 yeas if three persons or any of them so long live reserving a Rent and an Herriot upon the death of either the Beast of the Assignee shall not be taken for a Herriot for the Lessee is to pay his best Beast and that shall not be carried further than to the person named 231 Libel Where a Fine and Corporal punishment was imposed upon the Offender after Conviction 68 Limitation An Estate was setled upon Trustees to the use of A. and her Heirs provided she marry with the consent of Trustees remainder over to B. This is a Limitation and not a Condition 32 Limitation of Action See 21 Jac. 16. Where a Trespass is laid with a continuando for more than six years and the Statute pleaded and entire Damages it must be intended only for that which falls within the six years and that the Jury rejected the beginning of the Trespass 111 2. This Statute relates to a distinct and not to a continued Account 112 3. It provides a Remedy when the Plaintiff is beyond Sea at the time when his Right accrews and saves it till he returns whether it may be extended in a Case where the Defendant is beyond Sea longer than six years from the time the Plaintiff was entituled to the Action 311 312 Local Actions Whether Covenant will lie by an Assignee of a Reversion against an Assignee of a Lessee in any other place than where the Land lieth 337 2. Debitum contractus sunt nullius loci ibid. 3. Debt for Rent upon a Lease for years brought upon the Contract and Covenant between the same Parties are transitory ibid. 4. If Privity of Contract is gone by making an Assignment and only a privity in Law remains the Action must be brought in the County where the Land lieth ibid. M. Mayor See Corporation Marriage See Condition 3. Evidence 7. Limitation Notice A Maid above 12 and under 16 taken from Parents or Guardian and Married forfeits her Estate to the next in
An Administrator pleaded a Judgment in Bar to an Action of Debt for 100 l. brought against him and that he had not Assets praeterquam bona non attingen to 5 l. but did not shew the certain value of the Goods and yet held good ibid. 3. A Judgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond 115 4. A Possession where 't is only an Inducement to a Plea and not Substance the Defendant may justifie upon such a possession against a Wrong-doer 132 5. Where a special Justification is to an Action of Assault and false Imprisonment the cause of Commitment must be set forth in the Plea 160 6. Where the defence consists in matter of Law the Defendant may plead specially but when 't is Fact he must plead the geneal Issue 166 7. Where special matter which might be given in Evidence at the Trial and which amounts to no more than the general Issue may be pleaded ibid. 8. When a Man is brought into Court by Capias he ought to plead instanter because he hath given delay to the Court 215 9. So where he appears upon Recognizance or in propria persona or is in Custody for any Misdemeanour he ought to plead instanter ibid. 10. In Covenant to pay so much Mony to the Plaintiff or his Assigns as should be drawn upon the Defendant by Bill of Exchange he pleaded that the Plaintiff secundum legem mercatoriam did assign the Mony to be paid c. it ought to have been secundum consuetudinem mercatoriam 226 227 11. If an Action is brought against an Inn-keeper or Common Carrier the Declaration must be secundum legem consuetudinem Angliae 227 12. In Trespass the Plaintiff prescribed as to the Freehold and alledged a Custom in the Copyholders to have solam separalem pasturam c. whether he could make a joynt Title in the same Declaration by virtue of a prescription and Custom 250 13. If the Plea is double the Plaintiff ought to demurr 251 14. The Condition of a Bond was to acquit discharge and save harmless Non damnificatus generally is not a good Plea without shewing how acquitted and discharged 252 15. Mutuatus for 400 l. the Defendant pleaded an Attainder of Treason in Abatement the Plaintiff replied that after the Attainder and before the Action he was pardoned c. and concludes unde petit Judicium dampna sua for this cause Replication was held ill 281 Pledges See Replevin Replevin in an inferior Court by Pleint removed in B. R. the Plaintiff was nonsuited and a Sci. Fac. brought against his Pledges and held good 58 2. There are no Pledges of Returno Habend ' at the Common Law the Sheriff was not obliged to take Pledges in a Replevin by Plaint 75 Poor A Man had 5 l. to remove out of one Parish into another who gave Bond to repay it if he returned within forty days he stayed there so long and it was held a good Settlement 67 2. A Note in writing must now be left pursuant to the Statute to make a Settlement 247 Possession 'T is sufficient to maintain an Action against a Wrong-doer 48 Prerogative Whether a Lease was made pursuant to a Power in a Proviso to make Leases for three Lives or 21 years or for any Term upon three Lives the Lease made was for 99 years determinable upon three Lives 268 269 Power In granting of Letters Patents of the sole printing exclusive of all others 76 129 2. Where no individual person can claim a Right or Property it must be vested in the King by Law 76 3. Whether the King hath a Prerogative to restrain Trade to a particular number of Men in particular places 127 4. He may command his Subjects to return out of a Foreign Nation ibid. 5. He may regulate Trade by Letters Patents Prescription See Common 2. Pleading 12. For a way he may set forth his Estate without shewing how he came by it 52 2. Where it cannot be by a Que Estate to have Retorna Brevium 200 3. Where it may be to hold Pleas Leets and Hundreds without matter of Record 201 4. For all the Tenants of a Mannor to fowl in a Free Warren this Prescription is not too large it might not be good upon a Demurrer but 't is otherwise after a Verdict 246 5. For a Profit apprender in alieno solo the Tenants of a Mannor may prescribe by a Que estate exclusive of the Lord ibid. 6. There must be a certain and permanent Interest abiding in some person to maintain a Prescription and therefore it will not lie ratione commorantiae 290 7. To have Common sans numbre is good but ad libitum suum which is almost the same thing is void ibid. 8. It may be joyned with a Custom in the same Declaration 251 9. Where 't is laid in a discharge as to be exempted from Toll or for an easment as for a Way to a Church not only a particular person but the Inhabitants of a whole Vill may prescribe but where it relates to the Profit or Interest in the Land it self 't is not so 292 Presentment In a Court Leet which concerns the person and not the Freehold whether traversable 137 138 Privity of Contract See Local Action 4. Action against an Administratrix of a Term for Rent incurred after the Assignment of the Lease the Privity of Contract of the Intestate was not determined by his death but Administratrix shall be charged with his Contracts as long as she hath Assets 326 'T is not gone either by an Assignment of the Term or death of the Lessor neither is it transferred to the Assignee by the Statute of H. 8. for that Statute only annexeth such Covenants which concern the Land with the Reversion 337 338 Proof See Prohibition Prohibition Not to be granted because a Temporal Loss may ensue 67 2. Where some words are actionable at Law and some punishable in the Spiritual Court a Prohibition shall be granted for otherwise it would be a double vexation 74 3. Libel causa jactationis maritagii the Suggestion for a Prohibition was that he was indicted at the Old Bayly for marrying two Wives that he was convicted in a Court of that Offence which had a proper Jurisdiction c. and a Prohibition was granted 164 4. A person lived in one Diocess and occupied Lands in another where he was taxed towards the finding of Bells for that Church for which a Suit was commenced in the Bishop's Court where the Lands were and he suggested the Statute of H. 8. that no Man shall be cited out of his Diocess except for some Spiritual Cause neglected to be done there and a Prohibition was granted for this was not a Spiritual Cause neglected to be done because Church Ornaments are a personal Charge upon the Inhabitants and not upon the Land Owners who dwell else where but the repairing of the Church is a real Charge upon
the Land 211 5. Not granted for Mariners Wages 244 6. Libel for a Tax upon the Parishioners for not repairing of their Church who suggest that they had a Chappel of Ease in the same Parish the Prohibition was denied for of common right they ought to repair the Mother Church 264 7. Proof of Matter of Fact by one Witness denied to be allowed in the Spiritual Court is a good cause for a Prohibition 284 8. Where the Release of a Legacy offered to be proved by one Witness was denied in the Spiritual Court ibid. 9. Proof of Payment or Subtraction of Tythes denied and a Prohibition granted ibid. 10. Whether a Prohibition ought to be allowed after Sentence an Appeal being then the more proper remedy 284 Property See Interest Q. Quorum MUst be one Justice of the Peace of the Quorum otherwise cannot be a Sessions 14 152 Quantum meruit Will lie for Rent reserved upon a real Contract where the Sum is not certain but if a Sum in gross is reserved then Debt must be brought 73 R. Record ERror shall not be assigned against the Essence of a Record 141 Recovery Common Reversed without a Scire Facias to the Tertenants but it seems not to be good 119 2. For there must be a Scire Facias against the Heir and Tertenants when a Writ of Error is brought to reverse it 274 Relation Where an Estate shall pass by Relation where not 299 300 Release Of a Legacy by one Executor and also of all Actions Suits and Demands whatsoever those general words which follow are tied up to the Legacy and release nothing else 277 2. Of a Demand will not discharge a growing Rent 278 3. A Receipt was given for 10 l. in which there was a Release of all Actions Debts Duties and Demands nothing is released but the 10 l. 277 4. Judgment against four Defendants who all joyned in a Writ of Error and the Plaintiff pleaded a Release of Errors by one it shall not discharge the rest of a personal thing but if there had been four Plaintiffs to recover the Release or death of one is a Barr to all 109 135 249 5. A Release of all Actions will discharge an Award of Execution upon a Scieri Facias 185 187 6. Of all Actions and Demands doth not discharge a Legacy it must be by particular words 279 7. One of the Defendants who made Conusance released the Plaintiff after the taking of the Cattle this was held void upon a Demurrer for he had no Demand or Suit against the Plaintiff having distrained in the right of another ibid. Remainder See Entry 3. Fines levied 4. Must take place eo instanti the particular Estate is determined or else it can never arise 309 2. By the Conveyance of the Reversion in Fee to him who had the Estate for Life before the Birth of a Son the particular Estate is merged and all contingent Remainders are thereby destroyed 311 Replevin Where 't is brought by Writ the Sheriff cannot make deliverance without the taking of Pledges de prosequendo retorn ' Habend ' 35 Replication Where the Plaintiff confesseth and avoideth he ought not to traverse for that would make his Replication double 318 Request When a thing is to be done upon Request the time when the person requires it to be done is the time of the performance 295 Reservation Of a Rent upon a Lease for three years payable at Michaelmas and Lady-Day Debt was brought for 2 years without shewing at which of the Feasts it was due 't is good after Verdict but ill upon a Demurrer 70 Resignation See Abeiance To the Ordinary and Patron presented 'ts void if the Ordinary did not accept the Resignation 297 Reversion See Bargain and Sale Surrender 2. Tenant in Tail who had likewise the Reversion in Fee if he acknowledge a Judgment the Reversion may be extended 256 2. But a Reversion in Fee expectant upon an Estate Tail is not Assets until it comes into possession 257 3. By what words a Reversion in Fee passeth in a Will 228 Revocation A Will shall not be revoked by doubtful words 206 2. It might be revoked by Word without Writing before the Statute of Frauds 207 3. Before that Statute a Will might be revoked by a subsequent Will which was void in it self yet good to revoke the former 207 218 4. A subsequent Will which doth not appear shall not be any Revocation of a written Will which doth appear 204 205 206 5. Whether a subsequent Will which is void in it self may revoke another since the Statute of Frauds 218 6. Such a Will must be good in all circumstances to revoke a former 260 261 Riot See Information Robbery The Hundred was sued and it did not appear that the Parish where the Fact was laid to be done was in the Hundred or that it was done upon the High way or in the day time this was helped after Verdict 258 2. A Servant delivered Mony to a Quaker to carry home for his Master they were both robbed viz. the Servant of 26 s. and the Quaker of 106 l. the Servant made Oath of the Robbery and the Quaker refused the Master brought the Action it doth not lie for him 287 288 S. Scire Facias See Bail 3 4. Baron and Feme 1 4 5. Iudgment 2. Pledges 1. Recovery MUst be to the Tertenants before the Common Recovery shall be reversed by Writ of Error 119 2. Scieri Facias quare Executionem non habet recites the first Judgment but prays no new thing only to have Execution upon that Judgment 187 3. 'T is not an original but a judicial Writ and depends upon the first Judgment 187 4. 'T is suspended by Writ of Error and if the original Judgment is reversed that is so also ibid. 5. Debt will lie upon a Judgment had on a Scire Facias 188 189 6. A Judgment upon a Scire Facias is a distinct Action from the original cause 189 7. Judgment in Dower and a Writ of Enquiry of Damages the Woman marries and dies before the Writ of Enquiry executed the Husband administred and brought a Scire Facias upon the Judgment whether it lieth or not 281 Serjeants at Law See Iudges Surplusage See Inquisition Steward See Court Supersedeas See Parliament Surrender See Assent 1 2. Where it may be pleaded without an acceptance 297 2. No man can take it but he who hath the immediate Reversion 299 3. If pleaded without an Acceptance 't is aided after Verdict which shews 'tis no Substance 301 4. By one Non compos mentis 't is void ab initio 303 T. Tail DEvise to D. for Life the Remainder to her first Son and the Heirs of the Body of such first Son endorsed thus viz. Memorandum that D. shall not alien from the Heirs Males of her Body she had a Son who had Issue a Daughter 't is not an Estate Tail Male for the Memorandum shall not alter the Limitation in the Will