the Intestate owing by him at the time of his death The Plaintiff taking by protestation that nothing alledg'd by the Defendant was true Demurrs upon the Plea The Causes offer'd to maintain the Demurrer are these 1. That one of the Iudgments pleaded in Barr obtain'd by William Allington in the Court of London before the Mayor c. against the Defendant for 2670 l. 17 s. 7 d. due to the said Allington by the Intestate Everard was not duly obtained and is insufficient to Barr the Plaintiff 2. That the Defendants special Plea in Barr appearing in any part of it to be false and insufficient the Plaintiff ought to have Iudgment for his whole debt 1. For the first Cause it was urg'd as an Exception to the Defendants Plea That by the Plea it appears that time out of mind a Court hath been held in the City of London before the Mayor and Aldermen of all personal Actions arising and growing within the said City And that the Intestate was at the time of his death indebted to the said Allington at London within the Parish and Ward of St. Mary Bow and Cheapside But it is not alledg'd That the said debt did arise and grow due in London within the said Parish and Ward for wheresoever the debt did arise and grow due yet the debtor is indebted to the creditor in any place where he is as long as the debt is unpaid And therefore to say The Intestate was indebted to Allington in the said Sum apud London c. affirms not that the debt did arise and grow due at London and if not the Court had no Iurisdiction of the Cause The effect of the Defendants Barr is only to shew That such a Judgment was obtain'd in such a Court against him and not to set forth the whole Record of obtaining it for it were vast Expence of time and mony so to do as often as occasion is to mention a Record and referrs to the Record prout per Recordum plenius liquet where the Plaintiff may take advantage of any defect therein But if that were necessary it is well set forth for his Plea is Et praedictus Willielmus Allington tunc ibidem in eadem Curia secundum consuetudinem Civitatis praedictae affirmabat contra praedictum Rolandum Dee ut Administratorem c. quandam billam originalem de placito debiti c. And the Custome being to hold Plea of personal Actions arising within the City if he affirmed a Bill of Debt according to the Custome It must be of a debt arising and growing due within the City 2. A second Exception was That it is not set forth for what the debt was whereby the Court may judge whether it were payable or not by the Administrator To this it was answer'd That the course in London is for the Plaintiff to declare that the Debtor being indebted to him at such a time and place Concessit solvere such a Sum to him at such a time for they enter not there at large as at Westminster all the pleading and the City Customes have been often confirmed by Parliament and if Exception be taken to the Jurisdiction it must come from the Defendant However that will not avoid the Iudgment and is but Error 3. A third Exception was It is not set forth that the Intestate was indebted to Allington in his own right But it must be intended if he were indebted to him by Law that it was in his own right 4. A fourth Exception was That the Defendant pleads Iudgment was given for the Plaintiff quod recuperaret debitum praedictum where the Iudgment should be quod recuperet It is not the Defendants concern to recite the words of the Iudgment as it was given by the Court but the effect of it relating to the Defendant and so it is more proper to say Iudgment was given quod recuperaret The Court say ideo consideratum est per Curiam but he who relates what they did saith ideo consideratum fuit per Curiam But my Book is quod recuperet 5. A fifth Exception was That the Plea sets forth the Action was brought against the Defendant Dee in London as Administrator of the Intestate omitting durante minori aetate Caroli Everard filii That will not avoid the Iudgment Rolls Good Pincents Case Tit. Executors f. 910. 14 Car. 1. B.R. Piggots Case 5 Rep. though the Minor were of Age sufficient to administer himself nor is it of prejudice to any as was resolved in the Case of one Pincent But if an Administrator durante minori aetate brings an Action he must averr the Administrator or Executor to be under the Age of Seventeen years 6. Sixthly it was urg'd as resolv'd in Turners Case Turners Case 8. Rep. f. 132. That the Recital of Allingtons Declaration in London not mentioning the Debt to be per scriptum obligatorium it shall not be intended to be so And it was urg'd as resolv'd in that Case of Turner also That it being a Debt but by simple Contract the Administrator was not chargeable with it That is a Resolution in Turners Case supernumerary and not necessary to support the Iudgment given and consequently no Iudicial Resolution for the Iudgment given in Turners Case was well given because the Iudgments given before the Mayor of Cicester pleaded in barr of the Plaintiffs Action were resolv'd to be coram non Judice because it appear'd not that the Mayor of Cicester had any Iurisdiction to hold Plea by Patent or Prescription But admitting that an Executor or Administrator according to that Resolution is not chargeable if by chargeable be meant compellable at the Common Law in an Action of Debt brought upon a simple Contract of the Testator or Intestate to pay such Debt what would it avail the Plaintiff in that Case or can in this Case unless the Resolution had been That though the Iurisdiction of the Court of Cicester had been well set forth yet a Iudgment there obtain'd against the Executor upon a simple Contract of the Testators had been no Barr in an Action of Debt brought upon an Obligation of the Testators But there is no such Resolution there for a Iudgment obtain'd upon such a simple Contract is as much a Iudgment when had as any other upon Obligations and the Books and use are clear That Judgments must be satisfied before Debts due by Obligation It is true it is a Waste of the Goods of the Dead in the Executor to pay voluntarily a Debt by simple Contract before a Debt by Obligation whereof he had notice and not otherwise in that Case But no man ever thought it a Devastavit in the Executor to satisfie a Iudgment obtain'd upon a simple Contract before a Debt due by Obligation Yet I shall agree the Executor by the Common Law might have prevented this Iudgment by abating the Plaintiffs Writ at first which he had power lawfully to do but he had equal
power lawfully not to abate it and us'd that last lawful power and not the first and wrong'd none in using it To this may be added That the Iudgment upon a simple Contract is the Act of the Court and compulsory to the Executor and he hath then no Election but must obey the Iudgment In conclusion though it were agreed That in the Action of Debt brought by Allington upon a simple Contract Iudgment ought not to have been given against the Defendant being Administrator but the Writ should have abated because the Administrator was not chargeable And though the Iudgment given were erroneous and for that cause reversible yet standing in force unrevers'd It is a good Barr to the Plaintiffs Action But lest this should countenance Iudges abating the Writ ex officio in such Actions brought or Plaintiffs to bring Error upon Iudgments given in such Actions I conceive the Law is clear That Iudges ought not ex officio to abate such Writ nor otherwise than when the Executor or Administrator Defendant in such Action demurrs and demands Judgment of the Writ and that Iudgment given against such Defendants not demurring to the Writ is not Erroneous unless for other cause If it be urg'd further That though a Iudgment obtain'd upon a simple Contract be a barr to an Action of Debt brought after upon an Obligation or to an Action of the Case upon an Assumpsit to pay mony as the present Case is Yet it should not barr if the Action upon which it was obtain'd were commenc'd pending a former Action upon an Obligation or upon an Assumpsit for mony in which the Intestate could not have waged his Law The answer is as before such Iudgment barrs until revers'd if admitted to be reversible as it is not But the Law is setled That wheresoever an Action of Debt upon Bond or Contract is brought against a man he may lawfully confess the Action and give way to a Judgment if there be no fraud in the Case although he have perfect notice of such former Suit depending nor is there any restraint or limit of time for confessing an Action brought upon a simple Contract more than upon a Bond. And to satisfie any Debt upon Obligation 5 H. 7. f. 27. b. Moore Scarleâ— Case f. 678. Crook 38 El. f. 462. Green Wilcocks Case before a Iudgment so obtain'd is a Devastavit in the Executor or Administrator and so it is to satisfie any latter Judgment if there be not assets to satisfie the first also So are the express Books to those points of 5 H. 7. per Curiam and Scarles his Case in Moore and Green and Wilcock's Case in Crook Eliz. Yet in 25 Eliz. when an Action of Debt for 100 l. was brought against an Executor in C. B. and pending that Debt was brought against him in B. R. for 100 l. which latter he confess'd and the Iudgment there had pleaded in Barr to the first Action And upon Question if the Plea were good Fenner and Walmesley held it good but Anderson Mead Wyndham and Periam argued to the contrary and that he ought to have pleaded the first Action pending to the second Action brought The Arguments of both sides you may see in Moore f. 173. Moore 25 El. f. 173. where it is left a Quere the Iudges doubting the Case but since the Law is taken That the Iudgment is a good barr to the first Action It will be still objected That if the Law be that Executors or Administrators may pay debts upon simple Contracts of the deceas'd to which they are not bound and thereby prevent the payment of a debt to which they are bound It is repugnant to Reason and consequently cannot be Law for that is in effect at the same time to be bound and not bound to pay For he who may not pay being bound is not bound at all For clearing this we must know Though Executors or Administrators are not compell'd by the Common Law to answer Actions of Debt for simple Contracts yet the Law of the Land obligeth payment of them For 1. Vpon committing Administration Oath is taken to administer the Estate of the dead duely which cannot be without paying his debts 2. Oath is taken to make true accompt of the Administration to the Ordinary and of what remains after all Debts Funeral Charges and just Expences of every sort deducted 3. This appears also by the Statute of 31 E. 3. c. 11. That Administrators are to administer and dispend for the Soul of the Dead and to answer to other to whom the dead persons were holden and bound which they cannot better do than by paying their debts And as this was the ancient Law and practise before in the Spiritual Court so by the new Act in 22 and 23 of the King for the better settling of Intestates Estates It is enacted accordingly that upon the Administrators accompt deductions be made of all sorts of debts This appears to be the ancient Law by the Great Charter c. 18. and long before by Glanvill in Henry the Second's time and Bracton in Henry the Third's time 4. And by Fitz-herbert in the Writ de rationabili parte bonorum the debts are to be deducted before division to the wife and children And upon the Executors accompt all the Testators debts are to be allow'd before payment of Legacies which were unjust if the payment of them were not due as appears by Doctor and Student Executors be bound to pay Debts before Legacies by the Law of Reason and by the Law of God for Reason wills that they should do first that is best for the Testator that is to pay debts which he was bound to pay before Legacies which he was not bound to give 2. It is better for the Testator his Debts should be paid Doct. Stud. l. 2. c. 11. for not payment of which his Soul shall suffer pain but none for not performing his Legacy The Ordinary upon the accompt L. 2. c. 10. f. 158 in all the Cases before rehears'd will regard much what is best for the Testator And I conceive the Ordinary may inforce the payment of Debts upon Contracts as well as Legacies or Marriage mony and no Prohibition lyes An Executor or Administrator may retain for his own satisfaction a Debt by single Contract due from the Testator or Intestate which he could not do unless the payment were lawful If at the Common Law the Executors payments of Debts upon simple Contracts were not just Why have the Iudges in all Ages given Judgment for the Plaintiffs unless the Defendant either Demurrs in the Commencement of the Plea or avoids the Debt by special matter pleaded and put in issue but he shall never in such case either Arrest the Iudgement or bring Error after Iudgment for that Cause And so it is agreed for Law in Read and Norwoods Case in Plowden where the Iudges had view of numerous Iudgments in that kind as there appears
And if such Debts were not justly to be so demanded and paid it had been against the Iudges Oath to pass such Iudgments for the Defendant is not bound to Demurr but leaves the Iustice of the Plaintiffs demand to the Court. In Decimo H. 6. Cotsmore 10 H. 6. f. 24. b. 25. a. who gave the Rule in the Case in question hath these words The Law will not charge Executors with a duty due by a simple Contract made by the Testator Then if such Action be brought against Executors upon a simple Contract made by the Testator and they will not take advantage at the beginning of the Pleas in abatement of the Writ but plead other matter which is found against them they never shall have advantage to shew that before Judgment that is in Arrest of Judgment and that I have known adjudg'd in this place once before this time Here is not only his own Opinion but a Iudgment by him cited in that Court formerly in the point I shall add another Case to this purpose A man brought a Writ of Debt against another 15 E. 4. f. 29. 2. and counted that he sold certain Goods to his Testator for the Sum in demand Littleton caus'd the Attorney of the Plaintiff as printed but should be Defendant to be demanded and so he was and Littleton demanded of him Si'l voyl avoyder son Suite not his own but his who counted against him que dit que voyl and after Littleton said to the Attorney of the Plaintiff The Court awards that you take nothing by the Writ for know that a man shall never have an Action against Executors where the Testator might have wag'd his Law in his life time quod nota It was not proper to ask the Plaintiffs Attorney Whether he would avoid his Clyents Suit and an unlikely answer of his to say Yes but a rational demand to the Defendants Attorney Whether he would avoid his Suit who counted against him and probably he should answer Yes and after Littleton said to the Attorney of the Plaintiff the Court awards you take nothing by your Writ If he had been the person to whom the question was first asked and who immediately before had answer'd Yes the Book had not been that after Littleton said to the Attorney of the Plaintiff but that Littleton said to him who was the same he discours'd with The Print thus rectified this Case agrees with the Law deliver'd by Cotsmore An Executor is sued and declared against in Court for so was the Course then upon a simple Contract of his Testators the Iudge asks his Attorney Whether he had a mind to avoid the Suit who answer'd Yes If the Iudge had thought fit he might have avoided the Suit without making any question but knowing it was not consonant to Law to avoid a Suit upon a simple Contract unless the Executor himself desired it He therefore asked him the Question and finding he did desire it the Iudge presently told the Plaintiffs Attorney He could take nothing by the Writ Else you see the Consequence of this Iudgment That the Iudges ex officio should prevent any Iudgment for the Plaintiff in Debt brought upon a simple Contract against an Executor whether the Executor would or not against former and subsequent usage Brook in Abridging this Case and not reflecting upon it rightly abridges it that Littleton demanded the Plaintiffs Attorney If he would avow his Suit whereas the word is clearly avoid not avow and to what purpose should he ask that Question for sure it was avow'd as much as could be when counted upon at the instant in Court Then Brook makes a Note Br. Executor pl. 80. Nota cest Judgment ex officio And this Note of Brooks mis-led the Lord Anderson once to the same mistake if the Report be right but the like hath not been before or since Rob. Hughson's Case Gouldsboroughs Rep. 30 Eliz. f. 106. 107. An Action was brought against an Administrator upon a Contract of the Intestates who pleaded fully administred and found against him Anderson said that ex officio the Court was to stay Iudgment and did so because the Administrator was not chargeable upon a simple Contract But since that Case of Hughson one Germayne brought an action of Debt against Rolls as Executor of Norwood for Fees as an Attorney in the Common Bench and for soliciting in the Queens Bench Germayne versus Rolls 37 38 El. Cro. 425. pl. 24. and for mony expended about a Fine for Alienation Rolls pleaded Ne unque Executor which was found against him and Judgment given Vpon which Rolls brought a Writ of Error and the Error assign'd was That the Action lay not against an Executor because the Testator could have waged his Law But it was resolv'd That for Attorney's Fees the Testator could not wage his Law but for the rest he might and that the Executor might have demurr'd at first but pleading a Plea found against him it was said he was Concluded some difference of Opinion was But agreed That the Executor confessing the Action or pleading nil debet in such Case and that found against him he hath no remedy And Popham remembred Hughson's Case in the Common Pleas and would see the Roll for he doubted that both in that Case and this of Germayne the Executor had not confessed the Debt in effect But after it was moved again and all the Judges Hill 38 Eliz. Cro. 459. pl. 4. but Gawdy were of Opinion that the Judgment was well given as to that Cause but it was revers'd for a Cause not formerly mov'd which was That an Action of Debt would not have layn against the Testator himself for part of the mony in demand and recovered that is for the mony for soliciting which was not a certain Debt but to be recovered by Action on the Case Some Cases in the Old Books may seem to colour this Opinion That the Judges ex officio in an Action of Debt brought against an Executor or Administrator for a simple Contract of the Testators or Intestate ought to abate the Writ 25 E. 3. f. 40. The first is 25 E. 3. f. 40. where an Action was brought against an Executor upon a Tally struck by the Testator The Iudges said Nil Capiat per breve if he have no better specialty 12 H. 4. f. 23. The like Case is 12 H. 4. f. 23. where a like Action was brought against the Executor or Administrator upon a Tally of the Testators and there it appears the Defendants Council would have demurr'd and the Cause is mentioned That the writing of the Tally might be washed out by water and a new put in the place and the Notches chang'd and the Iudgment was Nil capiat per breve This being the same Case with the former the reason of the Iudgment was the same of grounding an Action upon a Specialty not good in Law Besides it appears in the latter
the Kings license must be without any limitation to him that hath it to exercise his Trade as before it was prohibited otherwise it is no license 346 17. Where the King may dispense generally he is not bound to it but may limit his Dispensation 346 18. Where the King can dispense with particular persons he is not confined to number or place but may license as many and in such places as he thinks fit 347 19. A Corporation is capable of a Dispensation 347 348 20. A Dispensation to a person to keep an Office which person is not capable of such Office is void 355 21. Where a license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Distress 1. A privity is necessary by the common Law between the Distrainer and Distrained 39 2. Attornment and power to Distrain follows the possession and not the Use 43 3. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost 39 4. Where Rent is arrear and afterwards the Rent is granted over in Fee and an Attornment thereunto here the Grantor hath lost his arrears and cannot Distrain 40 5. If a Fine is levied of the Reversion of Land or of Rent to Uses the Cestuy que use may Distrain without attornment 50 51 Dominion 1. Dominions belonging to the Crown of England cannot be separated from it but by Act of Parliament made in England 300 2. What are Dominions belonging to the Realm of England though not in the Territorial Dominions of England ibid. 3. By what Title the Crown of England held Gascoign Guyen and Calais 401 Dower 1. The wife of a Conizee of a Fine shall not be thereof endowed because it is but a fictitious Seisin 41 2. The wife is dowable of a Rent in Fee 40 Droit d'Advowson 1. Where the Writ lies and for whom 11 16 2. In a Droit d'Advowson the King may alledge Seisin without alledging any time 56 Ecclesiastical Court See Archbishop Prohibition THe Secular Judges are most conuzant of Acts of Parliament 213 2. The Temporal Judges have conuzance of what marriages are within the Levitical Degrees and what not and what are incestuous 207 3. The Clergy of this Kingdom shall not enact or execute any Canon Constitution or Ordinance Provincial unless they have the Kings license 329 Elegit 1. It lies upon a Recognizance taken in any of the Courts at Westminster or before any Judge out of Term 102 Error See Presidents Iudgment 1. An erroneous Judgment is a good Judgment to all intents whatsoever until reversed 94 2. If an inferiour or superiour Court gives an erroneous Judgment it is reversible by Writ of Error 139 3. Where the matter concerns the Jurisdiction of the Court a Writ of Error lies no where but in Parliament 396 4. A Writ of Error lies to reverse a Judgment in any Dominion belonging to England 290 402 5. A Writ of Error lay to reverse a Judgment in Calais 402 6. It lies to reverse a Judgment in Ireland 290 291 298 402 Escheat 1. Where the Heir at Law dies without heir the Land escheats and the Lord's Title will precede any future Devise 270 Esplees 1. The profits of a Mine is no Esplees for the Land but only the Esplees for the Mine it self 255 2. So likewise for a Wood the profits of it is no Esplees but only for the Land only upon which the Wood grows ibid. Estates See Grant 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication as being a way of passing Estates not agreeable to the plainness required by Law in the transferring of Estates 261 262 c. 2. But in Devises they are admitted with due restrictions 261 262 263 c. 3. What Executory Devises and contingent Remainders are good and what not 272 273 4. When a new Estate is granted the privity to the old Estate is destroyed 43 5. The Estate may be changed and yet the possession not changed but remain as formerly 42 6. An Estate in a Rent-charge may may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 7. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 8. His wife shall not be endowed neither shall his heir inherit 41 Estoppel or Conclusion 1. A Demise by Indenture of a Term habendum from the expiration of another term therein recited when really there is no such term in esse is no Estoppel to the Lessor or Lessee but the Lessee may presently enter and the Lessor grant the Reversion 82 Evidence 1. No evidence can be given to a Jury of what is Law 143 2. A witness may be admitted to prove the Contents of a Deed or Will 77 3. The Jury may go upon evidence from their own personal knowledge 147 Execution See Elegit 1. Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment 398 2. What Execution shall be sued out upon a Recognizance acknowledged in any of the Courts at Westminster or before a Judge 103 3. What Execution shall be sued out upon a Statute 102 4. Upon a Recovery in England an Execution doth not lye into Wales 397 398 5. Perhaps by special Writs to the chief Officer of the King Execution may be made of Judgments given at Westminster in any of his Dominions 420 Executor See Title Statute 10 20. 1. How they are to administer the Testators estate 96 2. An Executor may refuse but cannot assign over his Executorship 182 3. It is no Devastavit in an Executor to satisfie a Judgment obtained upon a simple Covenant before a debt due by Obligation 94 95 97 4. Where an Action of Debt upon Bond or Judgment is brought against him he may confess the Action if there be no fraud in the Case although he hath notice of a former Suit 95 100 5. The Executor may plead an erroneous Judgment in Barr 94 97 6. A Recognizance in Chancery must be paid before Debts upon simple Contracts and Debts by Bond 103 7. It is a Devastavit in an Executor to pay voluntarily a Debt by simple Contract before a Debt by Bond whereof he had notice and not otherwise 94 95 8. It is a Devastavit to satisfie a later Judgment if there are not Assets left to satisfie a former Judgment 95 9. An Action will not lye against Executors upon a Tally because it is no good Specialty 100 10. The pleading of Plene administravit praeter plene administravit ultra and in what Cases it may be pleaded and how 104 Exposition of Words Quam diu 32 Dum ibid. Dummodo ibid. Usually letten 33 34 At any time 34 Or more 35 More or less ibid. Gurges
license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Nusance 1. Publique Nusances are not Mala in se but Mala politica introducta 358 2. The King may pardon a transient Nusance 333 3. An Action will not lye for a Nusance for which no man hath a particular damage 335 341 4. If a man have a particular damage by a foundrous way he is generally without remedy because it ought to be repaired by some Township or Vill against whom an Action will not lye but an Indictment only 340 Oath 1. Upon granting of Administration the Administrator is to take an Oath duly to administer the Estate of the deceased 96 Occupant and Occupancy 1. What Natural Occupancy is 188 2. What Civil Occupancy is 189 3. An Occupant shall enjoy whatsoever is belonging to that which he occupies 196 4. No Occupancy begins with the Freehold but begins by possessing the Land and the Law casts the Freehold upon him 195 5. A Claim without actual possession cannot make a man a Natural Occupant 188 6. There can be no Occupancy of any thing wherein another hath a Right 188 189 7. Two cannot have severally possession of the same thing at one time 189 192 8. Of what things there may be an Occupancy and of what not 190 194 198 9. A man cannot be an Occupant but of a void possession or of a possession which he himself hath 192 10. What it is that makes an Occupant 191 11. Tenant for years or at will may be an Occupant 192 12. An Occupant becomes an Assignee in Law to the first Lessee 204 13. The Occupant is lyable to pay the Rent 202 203 14. He hath power to pass over his interest 205 15. If a man die seised pur auter vie of a Rent Tythe c. or other thing whereof there can be no Occupancy either directly or by consequence as adjuncts of something else by the death of the Grantee In all these cases the Grant is determined as if there never had been any 201 202 16. But when those things are granted in the same Deed together with other things of which there may be an Occupancy then they shall be subject to the Occupancy 202 Office before Escheators See Inquisition 1. Principally an Office for the King is as necessary as an Entry for a common person 153 2. It neither determines any mans Right neither doth any party put any Tryal upon them 153 3. An Inquest of Office is not subject to an Attaint they are only to find naked matter of Fact 153 4. Where an Office is found if the Defendant hath no Title then the King hath one by his Office 62 5. No person shall Traverse the Office unless he makes to himself a good Title 64 Office and Officer See Title Statutes 24. 1. All Offices of Trust must be personally occupied unless granted to be occupied by a Deputy 181 2. Offices of personal Trust cannot be assigned for the Trust is not personal which any man may have 180 3. An Office of Trust and Confidence cannot be granted for years 181 4. All Actions brought against the Officers mentioned in 21 Jacobi must be laid in the proper County and if the Plaintiff is Non-suited or Discontinue or a Verdict against him they shall have their double costs 111 112 113 114 115 116 117 Ordinary See Administration Arch-bishop Lapse 1. The Ordinary may enforce the Executors to pay Debts upon Contracts as well as Legacies or Marriage mony 97 2. Where the Ordinary is to supply the Cure until the Patron present 132 3. Where the Ordinary disclaims in a Quare Impedit there is a Judgment with a Cessat Executio quousque c. 6 Pardon See Dispensation King 1. A Pardon frees a man from the punishment due for a thing unlawfully done 333 2. What Offences committed against Statutes the King may pardon and what he cannot 333 334 335 c. 3. The King may pardon a transient Nusance but a continued Nusance cannot be pardoned so as to acquit the Nusance-maker for committing them but the fine or punishment imposed for the doing thereof may be pardoned 333 4. Forestalling the Market Ingrossing or the like which continue not but are over as soon as done until done de novo again may be pardoned like other Offences so as the persons shall not be impleaded otherwise than by the persons who have received particular damage which the King cannot remit ibid. Parliament See Statute  Parson and Patron 1. A Parson is chosen Bishop his Benefices are all void and thereupon the King shall present 19 20 21 2. Where a Benefice becomes void by accepting another without a Dispensation the Patron is bound to present without Notice and where not 131 3. Where the Parson doth not read the Articles according to the Statute he stands deprived ipso facto ibid. 4. Where the Parson doth not subscribe the Articles there he is not Incumbent although he keeps in possession 133 5. A Church-man cannot make a Lease of the possessions of his Church without Deed 197 Perpetuity 1. Every Fee-simple is a perpetuity but in the accident of Alienation and alienation is an incident to a Fee determinable upon a Contingent 273 2. There is no Law simply against perpetuities but against an Entail of perpetuities ibid. Pleading See Traverse 1. If the Falshood in the Defendants plea is neither hurtful to the Plaintiff nor beneficial to the Defendant there it shall not hurt the Defendant 104 2. Where the Defendant pleads a false plea which falshood is detrimental to the Plaintiff and beneficial to the Defendant as by pleading several Judgments and concluding that he hath not Assets ultra there the Plaintiff may Reply That one of the Judgments are satisfied which Replication shall be fatal to the Defendant 103 3. But to plead That he hath not bona catalla praeterquam bona quae non sufficient to satisfie the Judgments is void for the Uncertainty for no Sum being mentioned no good Issue can be taken upon it 104 4. So likewise to say That he hath not Assets ultra what will satisfie c. is void for Uncertainty ibid. 5. But it is good pleading to say That he hath not Assets praeterquam bona catalla ad Valentiam separal denar per ipsum in satisfactione separal indic solut And also besides Assets to the value of Ten shillings which are liable to satisfie the Statutes ibid. 6. It is a good plea for an Executor to plead several Judgment c. and conclude quod non habet nec ad aliquod tempus habuit any Assets of the Testators praeterquam bona catalla sufficient to satisfie those Judgments c. 103 7. To this the Plaintiff must Reply Assets ultra or that any one of the Judgments are satisfied ibid. 8. The pleading of a special plene Administravit 91 9. In pleading of a Judgment it is not necessary to set forth the
the Issue was not found Hill 10 Car. 1. B. R. Wilkinson and Meriams Case Rolls 700. 701. Tit. Tryal If a Jury find that J.S. was seis'd in Fee of Land and posses'd of certain Leases for years of other Land made his Will in writing and thereby devis'd his Leases to J.D. and after devis'd to his Executors the residue of his Estate Mortgages Goods c. his Debts being paid and funeral Expences discharg'd It being referred by the Jury to the Court Whether by this devise the Executor hath an Estate in Fee or not This is no perfect special Verdict because the Jury find not the Debts paid and the Funeral Expences discharg'd which is a Condition precedent to the Executors having an Estate in Fee and without finding which the Court cannot resolve the matter to them referr'd by the Jury Therefore a Venire facias de novo was awarded Judgment was given for the Defendant Trin. 22. Car. II. C. B. Rot. 461. Richard Edgcomb Knight of the Bath Executor of Pierce Edgcomb Esquire his Father is Plaintiff Rowland d ee Administrator of Charles Everard Esquire during the Minority of Charles Everard Son of the Intestate Defendant In an Action of the Case upon an Assumpsit THE Plaintiff declares That the Intestate the Thirteenth of July 1664. at London in the Parish of St. Mary Bow in the Ward of Cheap in consideration that the said Pierce Edgcomb would at his request lend him 500 l. promis'd the said Pierce to repay it within Seven daies after demand with Interest after the rate of 4 l. per Centum That thereupon the said Pierce Edgcomb after at the time and place aforesaid did lend the said Intestate 500 l. That the said Pierce the Testator afterwards the Fourteenth of July 17 Car. 2. at the place aforesaid required the Intestate to pay the said 500 l. with Interest after the rate aforesaid both which amounted to the Sum of 520 l. He lays further That the said Intestate was indebted to Pierce the Testator the Fourteenth day of July 1664. in the Sum of 500 l. for mony before that time to him lent by the said Pierce And in Consideration thereof the said Fourteenth of July 1664. in the said Parish and Ward promis'd to pay when requir'd But that neither the Intestate in his life time nor the Defendant to whom the Administration of his Goods were committed during the Minority of Charles Everard Son of the said Intestate at London in the Parish and Ward aforesaid did pay the said Sums nor either of them amounting to 1020 l. to the said Pierce Edgcomb in his life time nor to the said Richard the Plaintiff after his death Though required by the Intestate afterwards in his life time that is upon the First of August 17 Car. 2. And the said Defendant after the death of the Intestate viz. the Tenth day of March 18 Car. 2. and often after at the said Parish and Ward by the Testator Pierce were requir'd And the said Defendant after the death of the Testator the First day of January 21 Car. 2. was required at the place aforesaid by the Plaintiff to pay the said mony which he did not and still refuses to his damage of 800 l. The Defendant pleads payment after the Plaintiffs Writ purchas'd of several great debts due by Bond and Bills obligatory from the Intestate to several persons at his death in number One and thirty That the Intestate the Two and twentieth of December 16 Car. 2. became bound in a Recognizance in the Chancery to Sir Harbottle Grimstone Baronet Master of the Rolls and to Sir Nathaniel Hobart one of the Masters of the Chancery in 2000 l. And that the said 2000 l. is still due and unpaid and the said Recognizance in its full force unsatisfied or discharg'd He pleads the City of London is an ancient City and that within it time out of mind hath been held a Court of Record of the Kings c. before the Mayor and Aldermen of the said City in Camera Guild-hall ejusdem Civitatis of all personal Actions arising and growing within the said City That the Intestate at the time of his death was indebted apud London praedict in the Parish and Ward praedict to one William Allington in 2670 l. 17 s. 7 d. And who after the purchase of the Plaintiffs Writ the Tenth of March the Eighteenth of the King came to the said Court before Sir Thomas Bludworth then Mayor and the Aldermen in the said Chamber according to the Custome of the said City held us'd and approv'd Et praedictus Willielmus Allington tunc ibidem in eadem Curia secundum consuetudinem praedictae Civitatis affirmabat contra praedictum Rolandum Dee ut Administratorem c. quandam Billam originalem de placito debiti super demand Mille sexcentarum septuaginta librarum decem septem solidorum septem denariorum legalis monetae c. And that it was so proceeded according to the Custome of the said City that the said William Allington had Judgment to recover against the Defendant the said Debt and 85 l. 16 s. for damages c. And that after the Defendant in full satisfaction of the said Judgment paid to the said William Allington the Sum of 2670 l. and 17 s. Then pleads about Four and twenty Recoveries and Judgments thereupon in the Kings Bench in Pleas of Debt without Specialties all satisfied but one of 7000 l. and more due to one Cornwallis Then pleads Plene administravit all the Goods of the Intestate at the time of his death to be administred and that he had not die Impetrationis brevis Originalis praedicti nec unquam postea aliqua bona seu cattalla predict Car. Everard tempore mortis suae in manibus suis administrand praeterquam bona cattalla ad valentiam separalium denariorum summarum per ipsum sic ut praefertur solutarum in exonerationem separalium Judiciorum scriptorum obligatori orum billarum obligatoriarum predict Ac praeter alia bona cattalla ad valentiam decem solidorum quae executioni Recognitionis praedict ac Judicii praedicti per praefatum Carolum Cornwallis versus ipsum ut praefertur recuperat onerabilia onerata existunt Et quod ipse Rolandus modo non habet aliqua bona seu cattalla quae fuerunt praedict Caroli tempore mortis suae administrand praeter praedicta bona catalla ad valentiam praedictorum decem solidorum quae executioni recognitionis praedict ac Judicii praedict per praefatum Carolum Cornwallis recuperat sic ut praefertur onerata onerabilia existunt Et hoc paratus est c. Et petit Judicium Then Averrs the debts so as aforesaid by him paid to be bonâ fide paid pro veris justis debitis owing and unpaid by the Intestate at the time of his death And that the several Iudgments aforesaid against him recover'd were for true and just debts of
more Books Obj. 3 That by the Statute of 9 E. 3. Pleas of Releases or Deeds dated in Franchises within the Realm shall be tryed where the Action is brought Answ Wales is no Franchise or if it were not within the Realm for the questions concerning a Deed pleaded bearing date there but of Original Process for Causes arising and Tryals of them in the next County adjoyning and not in the County where the Action of a Deed dated in a Franchise of the Realm which do toto coelo differ and concerning Executions and Judgments here to be made in another Dominion The same may be said concerning the Statute of 12 E. 2. when Witnesses to Deeds in Forreign Franchises are to be summoned with the Iury and the Tryal notwithstanding their absence to proceed when the Writ is brought Obj. 4 Presidents of Process issued to the Sheriffs of Wales without a Judicial decision upon Argument are of no moment Many things may be done several ways as Bonds though they have regularly one common form yet they may be in other forms as well Presidents are useful to decide questions but in such Cases as these which depend upon Fundamental Principles from which Demonstrations may be drawn millions of Presidents are to no purpose Besides it is known that Officers grant such Process to one Sheriff or County as they use to another nor is it in them to distinguish between the power of the Court over a Sheriff in Wales from a Sheriff in England especially when they find some Writs of Execution going which are warranted by Acts of Parliament which they know not though they do know Process of Execution in fact runs thither as Capias utlagatum Extents upon Statute which are by Acts of Parliament And that other Mandatory Writs issue thither as well at Common Law as by a particular Clause concerning the Chancellor in the Act of 34 H. 8. c. 26. By the Register upon a Judgment had in the Common Pleas against a Clerk Regist f. 43. B Brevium Judicialium who was after made Archbishop of Dublin in Ireland upon a Fieri Facias issued to execute the Judgment to the Sheriff of Middlesex and his Retorn that he had no Lands or Goods in his Bayliwick but was Archbishop in Ireland upon a Testatum of it in the Common Pleas that he had Lands and Goods in Ireland a Fieri Facias issued in the King's name Justiciario suo Hiberniae to make Execution but it appears not whether this Writ issued from the Common Pleas or especially by the King's Direction out of the Chancery which possibly may be as a special Mandatory Writ of the Kings locum tenens there which varies in stile at the Kings pleasure anciently Justiciario suo Hiberniae at other times Locum tenenti nostro at other times Deputat or Capitaneo generali nostro which stiles are not regularly known to the Officers of the Courts at Westminster And perhaps by special Writs to the chief Officer and the King Execution may be made of Judgments given at Westminster in any of his Dominions which would be enquired of FINIS An Exact and Perfect TABLE TO THE REPORTS and ARGUMENTS OF Sir JOHN VAVGHAN Lord Chief Justice of the Court of Common Pleas. Abatement of Writs See Writs 1. WHere a Writ is brought against an Executor in Debt upon a simple Contract he may abate it 94 2. Judges ought not Ex officio to abate Writs but it must come before them by Demurrer 95 Act of the Party 1. Every act a man is naturally enabled to do is in it self equally good as any other act he is so enabled to do 333 Actions and Actions upon the Case 1. Actions upon the Case are more inferior and ignobler than Actions of Debt 101 2. Actions of the Case are all Actiones Injuriarum contra Pacem and it is not a Debt certain but damages for the breach of the promise that must be recovered in it 101 3. Wheresoever the Debt grew due yet the Debtor is indebted to the Creditor in any place where he is as long as the Debt is unpaid 92 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 5. If you will recover any thing against any man it is not enough for you to destroy his Title but you must prove your own better than his 60 6. In life liberty and estate every man who hath not forfeited them hath a property and a right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and punish the wrong-doer 337 7. There are several penal Laws by transgressing of which the Subject can have no particular damage and therefore no particular Action 341 8. All Actions brought against Officers within the Statute of the One and twentieth of K. James must be laid in the proper County 115 116 117 9. Case and not Debt lies for a Solicitor for Soliciting Fees 99 Ad quod dampnum 1. When the King can license without a Writ of Ad quod dampnum he may license if he will whatever the Return of the Writ be 341 345 2. Where the Writ of Ad quod dampnum informs the King better then a Non obstante 356 3. Though there be a Return upon an Ad quod dampnum that it is not ad dampnum yet there must be the Kings license afterwards 341 Administration and Administrator 1. How they are to administer the Intestates Estate 96 2 An Administrator hath a private office of trust he cannot assign nor leave it to his Executor 182 3. An Administrator must take an Oath to make a true accompt 96 4. An Action will not lye against them upon a Tally because it is no good Specialty 100 5. In an Action of Debt upon Bond or Contract brought against him he may confess Judgment if there is no fraud although he hath notice of a former Suit depending 95 100 6. If an Administrator durante minore Aetate brings an Action he must averr the Administrator or Executor to be under the Age of Seventeen years 93 7. The manner of pleading Plene administravit praeter ultra 154 Advowson See Quare Impedit 1. The rights of an Advowson 7 2. Where the Plaintiff and Defendant must alledge Seisin in an Advowson by a former Presentation 8 Agent and Patient 1. In a Quare Impedit both Plaintiff and Defendant are Actors and may have a Writ to the Bishop 6 7 58 Age See Infant Alien 1. The time of the birth is of the Essence of a Subject born for he cannot be a Subject unless at the time of his birth he was under the Kings Liegeance 286 287 2. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament 274 282 3. He that is priviledged by the Law of England to inherit must be a Subject of the Kings 268 in loco 278 286 4. He must be more
Case the Executor opposed the Action by offering to demurr and for any thing appearing he did so in the first 41 E. 3. f. 13. The other Case is 41 E. 3. f. 13. where an Action upon the Testators simple Contract was brought against an Executor and the Executor of a Co-executor to him the Writ was abated for that Reason and said withal There was no Specialty shewed but the first reason abating the Writ necessarily it no waies appears the Iudges would ex officio have abated the Action for the last Cause if the Executor desired it not So as when the Executor or Administrator hath once pleaded to an Action of Debt upon a single Contract he is equally bound up for the event as in any Action wherein the Testator or Intestate could not have waged Law It is therefore an ill Consequence for the Plaintiff to say I have brought an Action upon a simple Contract wherein the Intestate could not have waged his Law Therefore I must be paid before another Creditor by simple Contract bringing an Action wherein the Intestate might wage his Law for it is in the Administrators power by omitting to abate the Writ at first to make the Debt demanded by Action in which the Intestate might have waged his Law to be as necessarily and coercively paid as the other Debt demanded by Action wherein he could not wage his Law And if the Executor believes the Debt by simple Contract demanded by Action of Debt to be a just Debt it is against honesty conscience and the duty of his Office to demurr whereby to delay or prevent the payment of it Besides though since that illegal Resolution of Slade's Case grounded upon Reasons not fit for a Declamation much less for a Decision of Law The natural and genuine Action of Debt upon a simple Contract be turned into an Action of the Case wherein a man is deprived of waging his Law It is an absurd Opinion to think that therefore Debt demanded by it ought to have precedency for payment of a Debt due by simple Contract but quite the contrary For Actions of the Case are all Actiones injuriarum contra pacem and it is not a Debt certain in reason of Law that can be recovered by those Actions but damage for the injury ensuing upon the breach of promise which cannot be known until a Iury ascertain what the damage is Therefore a man did never wage his Law for a demand incertain for he could not make Oath of paying that which he knew not what it was as consisting in damage Now although the Iury give in damages regularly the money promised to be paid yet that changeth not the reason of the Law nor the form for still it is recovered by way of damage and not as a Debt is recovered Which shew the Action much inferiour and ignobler than the Action of Debt which by the Register is an Action of property and no reason a damage uncertain in its own nature should be paid before a certain Debt by simple Contract which were the first Debts and will probably be the last of the World for Contracts by writing were much later and there are many Nations yet where Letters are unknown and perhaps ever will be And that which is so commonly now received That every Contract executory implies a promise is a false Gloss thereby to turn Actions of Debt into Actions on the Case For Contracts of Debt are reciprocal Grants A man may sell his black Horse for present mony at a day to come and the Buyer may the Day being come seize the Horse for he hath property then in him which is the reason in the Register that Actions in the Debet and also in the Detinet are Actions of Property but no man hath property by a breach of promise but must be repair'd in damages The last Exception was That a Recognizance in the nature of a Statute Staple of 2000 l. in the Chancery is pleaded in Barr. And it is not said That it was per scriptum Obligatorium or seal'd as the Statute of 23 H. 8. requires nor that it was secundum formam Statuti Cr. 10 Car. 1. f. 362. Goldsmiths Case versus Sydnor And Goldsmith and Sydnors Case was urg'd to be adjudg'd in the point which Case is so adjudg'd by the Major part of the Court. But in that Case it is pleaded that Sydnor before the Chief Justice of the Common Pleas concessit se teneri Ed. Hobert in 400 l. to be paid at Pentecost next ensuing si defecerit c. voluit concessit per idem scriptum quod incurreret super se haeredes Executores poena in Statuto Stapulae So as it appears The Recognizance was taken before the Chief Justice of the Common Pleas and that the Conuzor was to incurr the penalty of the Statute Staple and therefore a Recognizance in the nature of a Statute Staple was there intended to be pleaded but it was not pleaded that it was taken secundum formam Statuti in general nor specially per scriptum Obligatorium under Seal as it ought to be But here it is not pleaded That the Conuzor was to incurr the penalty of the Statute Staple nor that it was taken before any person authorized to take a Recognizance in the nature of a Statute Staple by the Statute of 23 H. 8. c. 6. for the Chancellor is not so authorized But that it was a bare Recognizance entred into in the Court of Chancery which all Courts of Westminster have power to take and that it remains there inroll'd And that the said Sum of Two thousand pounds should for default of payment be levied of the Conuzors Lands Goods and Chattels and Execution of such Recognizances are to be made by Elegit of the Lands as well as Goods And it appears by the Statute of Acton Burnell 13 E. 1. which is the Law for the Statute Merchant That such Recognizances for Debt were before the Statute Merchants taken by the Chancellor the Chief Justices and Judges Itinerant but the Execution of them not the same as of the Statute Merchant nor are they hindered by that Statute from being as before expresly And in 4 Mariae upon a great search of Presidents Br. Recognizance p. 20. Hill 4 Mar. It was resolv'd That every Iudge may take a Recognizance in any part of England both in Term and out of Term. The like Resolution was in the Lord Hobart's time Hob. f. 195. Hall Wingfields Case So as the Recognizance here pleaded is not a Recognizance in the nature of a Statute Staple nor so pleaded but a Recognizance entred into in the Court of Chancery as Recognizances are entred into in the Court of Common Pleas or Kings Bench and as they were entred before Recognizances by Statute Merchant or Staple But Such Recognizances are to be satisfied before Debts by simple Contracts and before Debts by Obligations also Rolls Executors f. 925.
14 Jac. B.R. Robson and Francis Case which avoids the Exception Now as to the Second Question Admitting the Iudgment in London as pleaded be no sufficient barr of the Plaintiffs Action or if it be that the Recognizance as pleaded is no sufficient barr For if those will barr there is no further Question If then Iudgment ought to be for the Plaintiff upon the Defendants Plea to the whole matter And I conceive it ought not I shall agree That if the Defendant plead several Judgments against the Intestate or himself as Administrator and Statutes entred into by the Intestate and concludes his Plea That he hath not nor at any time had assets in his hand of the Intestates Estate praeterquam bona cattalla sufficient to satisfie those Judgments and Statutes and averrs they are unsatisfied and which assets are chargeable with the said Judgments and Statutes that this is a good Plea in barr of the Plaintiffs Action and so it is admitted to be in Meriel Treshams Case Meriel Treshams Case 9. Rep. and the Plaintiff must reply That he hath assets ultra what will satisfie those Judgments and Statutes as is there agreed But if the Plaintiff reply That any one of those Judgments was satisfied by the Intestate in his life time saying nothing to any of the rest And the Defendant demurr upon this Replication the Plaintiff must have Iudgment for the Plea was false and the falshood detrimental to the Plaintiff and beneficial to the Defendant for having pleaded he had no more assets than would satisfie those Iudgments one of them being satisfied before he hath confessed there is more assets than will satisfie the other Iudgments by as much as the Iudgment already satisfied amounts unto which would turn to his gain and the Plaintiffs loss if his demurrer were good Turners Case 8. Rep. But to plead That he hath not bona cattalla praeterquam bona quae non attingunt to satisfie the said Judgments and Statutes is not good for the incertainty for if the Judgments and Statutes amount to 500 l. 20 l. are bona quae non attingunt to satisfie them so is 40 l. so is 100 l. so is 200 l. and every Sum less than will satisfie so as by such Plea there is no certain Issue for the Iury to enquire nor no certain Sum confess'd towards the payment of any Debt as is well resolv'd in Turners Case So if a man pleads he hath not assets ultra what will satisfie those Iudgments the Plea is bad for the same reason for 20 l. is not assets ultra that will satisfie them nor 40. nor 100. nor 200. nor doth that manner of pleading confess he hath assets enough to satisfie As to say I have not in my pocket above 40 l. is not to say I have in my pocket 40 l. But in this Case the Defendant hath pleaded payment of several Bonds Bills and Judgments and pleads one Recognizance of 2000 l. and one Judgment of 7000 l. wholly unsatisfied and concludes his Plea with plene administravit And that he had not die impetrationis brevis nec unquam postea aliqua bona seu cattalla of the Intestates in manibus suis administranda praeterquam bona catalla ad valentiam separalium denariorum summarum per ipsum sic ut praesertur solutarum in discharge of the said several Judgments Bonds and Bills Et praeterquam alia bona catalla ad valentiam decem solidorum quae executioni recognitionis praedict judicii praedict per praefat Car. Cornwallis recuperat onerabilia existunt Now upon this Plea if Allington's Iudgment of 2670 l. or the Statute of 2000 l. or both be avoided yet the Plaintiff hath no right to be paid until the Iudgment of 7000 l. be so satisfied and that some assets remain after the satisfaction of it in the Administrators hands for before the Plaintiff hath no wrong nor the Administrator doth none nor hath any benefit by not satisfying the Plaintiff That spungy Reason that the Defendants Plea is all intire and therefore if any part be false as either in that of Allington's Iudgment or the Recognizance the Plea is bad is not sense for if the falshood be neither hurtful to the Plaintiff nor beneficial to the Defendant why should the Plaintiff have what he ought not or the Defendant pay what he ought not Suppose the Defendant pleaded a Iudgment obtain'd against the Intestate or himself and that the Intestate or himself were married at the time of the Iudgment obtain'd which in truth was false for that the one or the other was unmarried at that time his Plea being otherwise good Should this falsness cause the Plaintiff to recover surely no for the falsness is not material nor any way hurtful to the Plaintiff Besides the usual pleading as appears both by Turners and Treshams Case is that the Plaintiff must avoid all payments pleaded in barr until some assets appear in the Administrators hands remaining and then he is to have Iudgment Much noise hath been about this Case and without Reason as I suppose though there were no precedent Iudgment in the point but there is a Judgment per Curiam An Action of Debt was brought against Executors 9 E. 4. f. 12. b. who pleaded a former Recovery against them of 200 l. and Execution issued and pleaded likewise another Recovery against them of 100 l. and travers'd that they had no assets but to satisfie that Execution of 200 l. the Plea was adjudged good by the Court and that the Plaintiff must reply They had assets in their hands ultra the said 200 l. and ultra the said 100 l. for before the 100 l. were also satisfied the Plaintiff was not intitled to his Debt as the Book is Hill 18 19 Car. II. C. B. Thomas Price is Plaintiff against Richard Braham Elizabeth White Elianor Wakeman and Richard Hill Defendants In an Action of Trespass and Ejectment THE Plaintiff declares That one Henry Alderidge the First of November 18 Car. 2. at the Parish of St. Margarets Westminster demis'd to the Plaintiff and his Assigns an Acre of Land with the Appurtenances in the Parish of St. Margarets aforesaid Habendum from the Thirtieth of October then last past for the term of Five years next ensuing by virtue whereof he entred and was possessed untill the Defendants afterwards the same day entred upon him and did Eject him to his damage of 20 l. To this the Defendants pleaded That they are not Culpable Special Verdict is found By which it is found That the Defendants are not Culpable of Entry and Ejectment in the said Acre excepting a piece thereof containing One hundred and Eighty Foot thereof in length and Eight and twenty Foot in breadth And as to that piece they find that the same time out of mind was a Pool until within Twenty years last past during which Twenty years it became fill'd with Mudd They find That before
meaning can be given to his Covenant Accordingly the new Authorities run grounded upon that sound and ancient Reason of Law That the Lessor shall not be charg'd with an Action upon his express Covenant for enjoyment of the term against all men where the Lessee hath his proper Remedy against the wrong doer Against this Truth there is one Book that hath or may be pretended which I will cite in the first place because the Answer to it may be more perspicuous from the Authority I shall after deliver to redargue that Case Dyer 15 16 Eliz. 328. a. pl. 8. It is the Case of Mountford and Catesby in the Lord Dyer Catesby in consideration of a Sum of mony and a Horse made a Lease to Mountford for term of years Et super se assumpsit quod the Plaintiff Mountford pacifice quiete haberet gauderet the Land demis'd durante termino sine evictione interruptione alicujus personae after Catesby's Father entred upon him and so interrupted him whereupon Mountford brought his Action upon this Assumpsit and Catesby pleaded he did not assume and found against him It was moved in Arrest of Judgment for the Defendant That the entry might be wrongful for which the Plaintiff had his Remedy but disallowed and Iudgment affirmed for the Plaintiff because saith the Book it is an express presumption and assumption that the Plaintiff should not be interrupted And this Case is not expresly denied to be Law in Essex and Tisdales Case in the Lord Hobart as being an express Assumption Though the Lord Dyers Case be an Action of the Case upon an Assumpsit and out Case an Action of Covenant yet in the nature of the Obligation there seems no difference but in the form of the Action For to assume that a man shall enjoy his term quietly without interruption and to covenant he shall so enjoy it seems the same undertaking But if the reason of Law differ in an Assumpsit from what it is in a Covenant as seems implyed in Tisdales Case then this Case of the Lord Dyer makes nothing against the Case in question which is upon a Covenant not an Assumpsit Hob. f. 34 35. 1. Elias Tisdale brought an Action of Covenant against Sir William Essex and declared That Sir William convenit promisit agreavit ad cum praedict Elia quod ipse idem Elias haberet occuparet gauderet certain Lands for Seven years into which he entred and that one Elsing had Ejected him and kept him out ever since Resolv'd because no Title is laid in Elsing he shall be taken to enter wrongfully and the Lessee hath his Remedy against him Therefore adjudg'd for the Defendant Essex Here is a Covenant for enjoying during the term the same with enjoying without interruption for if the enjoyment be interrupted he doth not enjoy during the term the same with enjoying without any interruption the same with enjoying without interruption of any person which is the Lord Dyers Case but here adjudg'd the interruption must be legal or an Action of Covenant will not lye because there is remedy against the Interrupter So is there in the Lord Dyer's Case And a Rule of that Book is That the Law shall never judge that a man Covenants against the wrongful acts of strangers unless the words of the Covenant be full and express to that purpose which they are not in our present Case because the Law defends against wrong Brocking brought an Action upon an Assumpsit against one Cham and declared Brocking versus Cham Cr. 15 Jac. f. 4. 5. p. 10. That the Defendant assumed the Plaintiff should enjoy certain Lands according to his Lease without the lett interruption or incumbrance of any person and shews in Fact That this Land was extended for Debt due to the King by process out of the Exchequer and so incumbred After Verdict for the Plaintiff it was moved in Arrest of Iudgment That no good breach was assigned because he did not shew that the Incumbrance was a lawful Incumbrance for else he might have his Remedy elsewhere and Iudgment was given for the Defendant This Case was upon an Assumpsit as the Lord Dyers was and by as ample words for the Land was to be enjoyed without any lett which is equivalent to the words of quiete pacifice in the Lord Dyers Case which is a Case in terminis adjudged contrary to that in the Lord Dyer and upon the same reason of Law in an Assumpsit as if it had been a Covenant viz. because the Plaintiff had his Remedy against the wrong doer Chauntfloure brought an Action of Covenant against one Pristly and Doctor Waterhouse as Executors of John Mountfitchett Cr. 45 El. f. 914. pl. 4. and declared That the Testator had sold him Nine and twenty Tuns of Copras and agreed That if the Testator faild of payment of a certain Sum of mony upon a day certain That the Plaintiff might quietly have and enjoy the said Copras that the money was not paid at the day and that he could not have and enjoy the said Nine and twenty Tuns of Copras Iudgment was given by Nihil dicit against the Defendants and upon a Writ of Enquiry of Damages 260 l. Damages given Vpon motion in Arrest of Iudgment It was resolved by the whole Court That the breach of Covenant was not well assign'd because no lawful disturbance was alledg'd and if he were illegally hindred or disturbed of having the Copras which he had bought he had sufficient remedy against the wrong doers Dod was bound in an Obligation to Hammond conditioned that Hammond and his Heirs might enjoy certain Copyhold Lands surrendred to him The Defendant pleaded the Surrender and that the Plaintiff entred and might have enjoyed the Lands To which the Plaintiff replyed That after his Entry one Gay entred upon him and outed him It was adjudg'd the Replication was naught because he did not shew that he was evicted out of the Land by lawful Title for else he had his Remedy against the wrong doer This was in an Action of Debt upon a Bond condition'd for quiet enjoyment So as neither upon Covenant upon Assumpsit or Bond condition'd for quiet enjoying unless the breach be assign'd for a lawful Entry or Eviction and upon the same reason of Law because the lessee may have his Remedy against the wrong doers an Action of Covenant cannot be maintain'd Cok. 4 Rep. Nokes's Case To these may be added a Resolution in Nokes his Case in the fourth Report where a man was bound by Covenant in Law That his Lessee should enjoy his term and gave Bond for performance of Covenants in an Action of Debt brought upon the Bond the breach was assign'd in that a stranger had recover'd the Land leas'd in an Ejectione firmae and had Execution though this Eviction were by course of law yet for that an elder and sufficient Title was not alledg'd upon which the Recovery was had
the matter proceeded upon in such Courts might as well be prosecuted in the Common Bench But if a priviledg'd person in Banco were sued in the Ecclesiastical Courts or before the High Commission or Constable and Marshal for things whereof the Common Pleas had no Conuzance they could not Supersede that proceeding by Priviledge And this was the ancient reason and course of Priviledge 1. Another way of Priviledge by reason of Suit depending in A Superiour Court is when a person impleading or impleaded as in the Common Bench is after arrested in a Civil Action or Plaint in London or elsewhere and by Habeas Corpus is brought to the Common Pleas and the Arrest and Cause retorn'd if it appear to the Court That the Arrest in London was after the party ought to have had the Priviledge of the Common Pleas he shall have his Priviledg allow'd and be discharg'd of his Arrest and the party left to prosecute his cause of Action in London in the Common Pleas if he will 2. If the cause of the Imprisonment retorn'd be a lawful cause but which cannot be prosecuted in the Common Pleas as Felony Treason or some cause wherein the High Commission Admiralty or other Court had power to imprison lawfully then the party imprison'd which did implead or was impleaded in the Common Bench before such imprisonment shall not be allow'd Priviledge but ought to be remanded 3. The third way is when a man is brought by Habeas Corpus to the Court and upon retorn of it it appears to the Court That he was against Law imprison'd and detain'd though there be no cause of Priviledge for him in this Court he shall never be by the Act of the Court remanded to his unlawful imprisonment for then the Court should do an act of Injustice in imprisoning him de novo against Law whereas the great Charter is Quod nullus liber homo imprisonetur nisi per legem terrae This is the present case and this was the case upon all the Presidents produc'd and many more that might be produc'd where upon Habeas Corpus many have been discharg'd and bail'd though there was no cause of Priviledge in the Case This appears plainly by many old Books if the Reason of them be rightly taken For insufficient causes are as no causes retorn'd and to send a man back to Prison for no cause retorn'd seems unworthy of a Court. 9 H. 6. 54. 58. Br. n. 5. 14 H. 7. f. 6. n. 19. 9 E. 4. 47. n. 24. 12 H. 4. f. 21. n. 11. Br. If a man be impleaded by Writ in the Common Pleas and is after arrested in London upon a Plaint there upon a Habeas Corpus he shall have Priviledge in the Common Pleas if the Writ upon which he is impleaded bear date before the Arrest in London and be retorn'd although the Plaintiff in the Common Pleas be Nonsuit essoin'd or will not appear and consequently the Case of Priviledge at an end before the Corpus cum causa retorn'd but if the first Writ be not retorn'd there is no Record in Court that there is such a Defendant The like where a man brought Debt in Banco and after for the same Debt arrested the Defendant in London and became Nonsuit in Banco yet the Defendant upon a Habeas Corpus had his Priviledge because he had cause of Priviledge at the time of the Arrest 14 H. 7. 6. Br. Priviledge n. 19. The like Case 9 E. 4. where a man appear'd in Banco by a Cepi Corpus and found Mainprise and had a day to appear in Court and before his day was arrested in London and brought a Corpus cum causa in Banco Regis at which day the Plaintiff became Nonsuit yet he was discharg'd from the Serjeant at London because his Arrest there was after his Arrest in Banco and consequently unlawful 9 E. 4. f. 47. Br. Priviledge 24. and a man cannot be imprison'd at the same time lawfully in two Courts Coke Mag. Chart. f. 53 55. The Court of Kings Bench cannot pretend to the only discharging of Prisoners upon Habeas Corpus unless in case of Priviledge for the Chancery may do it without question And the same Book is That the Common Pleas or Exchequer may do it if upon Retorn of the Habeas Corpus it appear the Imprisonment is against Law An Habeas Corpus may be had out of the Kings Bench or Chancery though there be no Priviledge Mic. C. 2. Coke f. 55. c. or in the Court of Common Pleas or Exchequer for any Officer or priviledg'd Person there upon which Writ the Gaoler must Retorn by whom he was committed and the cause of his Imprisonment and if it appeareth that his Imprisonment be just and lawful he shall be remanded to the former Gaoler but if it shall appear to the Court that he was imprisoned against the Law of the Land they ought by force of this Statute to deliver him if it be doubtful and under consideration he may be bayl'd The Kings Bench may bayl if they please in all cases but the Common Bench must remand if the cause of the Imprisonment retorn'd be just The Writ de homine replegiando is as well retornable in the Common Pleas as in the Kings Bench. All Prohibitions for incroaching Iurisdiction Issue as well out of the Common Pleas as Kings Bench. Quashing the Order of Commitment upon a Certiorari which the Kings Bench may do but not the Common Pleas is not material in this Case 1. The Prisoner is to be discharg'd or remanded barely upon the Retorn and nothing else whether in the Kings Bench or Common Pleas. 2. Should the Kings Bench have the Order of Commitment certified and quash'd before the Retorn of the Habeas Corpus or after what will it avail the Prisoners they cannot plead Nul tiel Record in the one case or the other 3. In all the Presidents shew'd in the Common Pleas or in any that can be shew'd in the King's Bench upon discharging the Prisoner by Habeas Corpus nothing can be shew'd of quashing the Orders or Decrees of that Court that made the wrong Commitment Glanvill's C. Moore f. 836. 4. It is manifest where the Kings Bench hath upon Habeas Corpus discharg'd a Prisoner committed by the Chancery the person hath been again re-committed for the same Cause by the Chancery and re-deliver'd by the Kings Bench but no quashing of the Chancery Order for Commitment ever heard of 5. In such Cases of re-commitment the party hath other and proper remedy besides a new Habeas Corpus of which I shall not speak now 6. It is known That if a man recover in Assise and after in a Re-disseisin if the first Iudgment be revers'd in the Assise the Iudgment in the Re-disseisin is also revers'd So if a man recover in Waste and Damages given for which Debt is brought especially if the first Iudgment be revers'd before Execution it destroys the Process
in time is 11 Jac. in Debt upon a Bond the Action was laid in the County of Hereford upon Nil debet pleaded the Plaintiff had Judgment and Execution and a Writ to the Sheriff of the County of Radnor to levy Execution who did not but made his Retorn That breve Domini Regis non currit there Qu. How an Action of Debt could be laid in Hereford which must be by Original unless the party were in Custodia Mariscal and declared upon a Bond in the County of Hereford Coke the Chief Justice said before the Statute of 27 H. 8. c. 26. which annexed Wales and England doubt might have been in that Case but since the Statute 27 H. 8. it was clear and grounded himself upon a Case in 13 E. 3. of which more anon In this Case the Court did agree That the Writ of Execution did well go into Wales and amerced the Sheriff 10 l. for his had Retorn In this Case Dodridge agreed with Coke and said If the Law should be otherwise all the Executions in England would be defeated This was a Resolution upon some Debate among the Judges of the Court but upon no Argument at Barr for any thing appearing Per Doderidge If Debt be brought against one in London 16 Jac. B.R. Croke 484. and after the Defendant removes and inhabits in Wales a Capias ad satisfaciendum may be awarded against him into Wales or into any County Palatine and this was his Opinion exactly in the former Case But as the course of the Common Pleas was alledged to be contrary to what Mann said was used in the King Bench in the Case of Hall Rotheram 10 Jac. before cited so It was in the same year 11 Jac. wherein the Kings Bench resolved That Execution did well issue to the Sheriff of the County of Radnor of a Recovery in Debt in the Kings Bench and fin'd the Sheriff for his Retorn that breve Domini Regis non currit in Wallia Resolved otherwise in the Common Pleas 11 Jac. Godbolt f. 214. and that by the whole Court That a Fieri facias Capias ad Satisfaciendum or other Judicial Process did not run into Wales but that a Capias utlagatum did go into Wales and as Brownloe Pronotary then said that an Extent hath gone into Wales And it is undoubtedly true as to the Capias utlagatum and Extent but as to all other Judicial Process into Wales upon Judgments obtained here between party and party hitherto there is nothing to turn the Scale The Judgment of the Court of Common Pleas being directly contrary to that of the Kings Bench in the same age and time Vpon occasion of a Procedendo moved for to the Council of the Marches who had made a Decree Bendloes Rep. 2 Car. 1. Term. Mich. f. 192. Beatons Case That some persons living in the English Counties where they at least exercised Jurisdiction should pay monies recovered against him at a great Sessions in Wales he having neither Lands or Goods nor inhabiting in Wales having obtained a Prohibition to the Council of the Marches the Court of the Kings Bench was against the Procedendo No time is mentioned when this Resolution cited by Jones was so as i◠probably preceded the Resolutions of the Judges in Crooke And Justice Jones cited a Case where Judgment was given in the great Sessions of Cardigan against a Citizen of London who then inhabited there and after removed his Goods and Person thence that upon great deliberation it was resolved A Certiorari should issue out of the Chancery to remove the Record out of Wales and that then it should be sent by Mittimus into the Kings Bench and so Execution should be awarded in England of the Judgment had in Wales If this were so for which there is no other Authority but that Justice Jones cited such a Case not mentioning the time I agree it would seem strange that a Judgment obtained in Wales should by Law be executed in England and that a Judgment obtained in England could not be executed in Wales Cr. 2 Car. 1. f. 346. But in the same year in Easter Term before at an Assembly of all the Iustices and Barons it was resolved where Judgment was given in Debt at the great Sessions in Wales against a Defendant inhabiting there and the Defendant dying intestate one who inhabited in London taking Administration This Case is in the point for a Scire facias to have Lands in Wales must be against the Heir inhabiting in England but having Lands in Wales that Execution could not be in Wales because the Administrator inhabited not there nor a Certiorari granted out of the Chancery to remove the Record that so by Mittimus it might be sent to the Kings Bench or Common Pleas to take forth a Scire facias upon it to have Lands out of Wales or Goods in the Administrators hands liable to it there This was the Resolution of all the Justices and Barons for these Reasons First by this way all Judgments given in London or other inferior Jurisdictions would be removed and executed at large which would be of great inconvenience to make Lands or Goods liable to Execution in other manner than they were at the time of the Judgment given which was but within the Jurisdiction Secondly It would extend the Execution of Judgments given in private and limited Jurisdictions as amply as of Iudgment given at the Kings Courts at Westminster By this Resolution a Judgment given in Wales shall not be executed in England out of their Jurisdiction of Wales and à pari a Judgment given in England ought not to be executed in Wales which is out of the Jurisdiction of the English Courts more than a Judgment given in the Kings Bench or Common Pleas ought to be executed in Ireland or the Islands which are out of their Jurisdiction equally and upon the same grounds for any thing deducible from these Cases which was never pretended that it could be done And by that Case of Coke Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment Nor is it material to say the Judgments then given are of no effect no more than to say Judgments given in the Kings Courts are of no effect against an Irish-man Dutch-man or Scotch-man that hath no Lands or Goods in England liable to Execution by that Judgment For the Plaintiff commencing his Suit ought to be conuzant what benefit he might have from it Nor are Presidents of Fact which pass sub silentio in the Court of Kings Bench or Common Pleas in such Cases to be regarded For Processes issue out of the Offices regularly to the Sheriffs of the County whereupon the Testator the Person Goods or Lands are said to be without distinction of places within or without the Jurisdiction