the Plaintiff may declare against him by Bill and after that the proceedings upon the Latitat cease Note By the Custom of London Hob. 86. 2 Cro. 667. the Debtor may be Arrested before the Money is due to make him find Sureties It was also moved That the Defendant might have Costs being put to the charge of motions to be discharged but the Court would grant none it being but for taking out of the Process of the Court. Stones Case THe Case being moved again The Court absente Moreton dubitante Rainsford granted a Writ of Priviledge altho ' he were obliged by his Tenure to be the Lords Reeve for the Priviledge is presumed more Antient than the Creation of the Tenure or at least shall be preferred in as much as it concerns the Administration of Iustice And Keeling said An Attorney could not be amerced for not doing Suit to his Lords Court at such time as his attendance is required at Westminster Ante. Sir Robert Cotton versus Daintry IN Trover and Conversion for Goods and Money assigned by Commissioners of Bankrupt upon Not guilty pleaded the Quemon of Fact before the Jury was Whether Sir A. B. whose the Goods were was a Bankrupt The Plaintiff proved That he had Silk and other Merchandise in his Warehouse to a very great value and that upon the Credit of them he took up divers Sums of Money and afterwards sold them but could not prove that they were brought in after the Debts contracted or that he had Exported any thing at any time after or a good while before To this the Court delivered their Opinions That the selling of such Merchandise if they were but the Effects of his former Trading for he had béen a Turkey Merchant which he could not put off immediately upon his ceasing to Trade could not make him a Trader for the Statute only extends to those that Live by Buying and Selling. It was also proved That he had a 16th part in a Coalship which at present Traded to Newcastle but brought no present profit to the Owners she being much in Debt for Repairs It was said to be resolved in one Crashaws Case That the having a part in a Ship did not make a man a Trader but that was a Merchant Ship which the Owners let out to Fraight but the Owners Fraighted this Ship themselves and were to have an account of profit and loss and that if an Owner refused to Fraight he was Compellable But in regard it could not be proved that Sir A. B. had Fraighted or that he had received any account of profit Keeling and Twisden were of Opinion that it did not make him a Trader Rainsford and Moreton doubted Wherefore it was offered the Plaintiffs Councel to have found it Specially but they declined it and the Jury found a general Verdict for the Plaintiff The day after motion was made for a new Tryal Affidavit being made that the Foreman of the Jury was Brother in Law to one of the Creditors of Sir A. B. The Court was also informed that the Plaintiff after the Verdict had paid the Jury 4 l a man whereas the Rule of Court is that they coming but out of Hartfordshire should have but 20 s a man Moreton and Rainsford held neither of these Reasons sufficient For the first it was their own Laches that they did not challenge upon it For the other they thought the breach of the Rules of Court ought to be punished but did not think fit to set aside the Verdict for it Twisden for the last treason held a new Tryal was to be granted and that it was fit to be made an Example to other Juries For if the Parties may give what they will it is to be presumed the ability of one or other will much incline the Jury to find for him from whom they may expect the greatest reward Keeling held both reasons sufficient for a new Tryal which could not be in regard the Court was divided whereupon Iudgment was entred for the Plaintiff and Execution taken out and a Writ of Error was brought which was sealed about an hour before Execution executed Whereupon it was moved That the Sheriff might bring the Money into the Court for that the Writ of Error was a Supersedeas for though the Sheriff shall not be in Contempt if he makes Execution after the Writ if no Supersedeas be Sued out for that he had no notice yet the Writ of Error immediately upon the sealing forecloses the Court so that the Execution made after is to be undone of which Opinion was the Court and Ordered the Money to be brought in and not delivered to the Plaintiff Mr. Justice Moreton's Case HE brought Debt as Executor upon the 2d of Edw. 6. for not setting forth of Tythes due to the Testator Vpon non debet pleaded and a Verdict for him it was moved in Arrest of Judgment That this being a forfeiture given by the Statute for a Tort done to the Testator it could not be brought by the Executor To which it was answered That this Action was maintainable within the equity of the Statute of the 4th of Edw. 3. that gives the Executor Trespass de bonis asportatis in vita testatoris So an Ejectione firmae lies upon an Ejectment done to the Testator and Trover and Conversion where the Conversion was in the time of the Testator 1 Cro. adjudged that an Executor may bring an Action upon the Case against the Sheriff for an Escape upon Mesne Process suffered in his Testators life time And the Court were clear of Opinion for the Plaintiff and said it had béen formerly resolved so in the Exchequer Chamber The Lady Wortley versus Holt. A Writ of Error was brought to Reverse a Judgment given in Dower in the Common-Pleas which being affirmed in this Court a Writ of Error was brought returnable in Parliament which was discontinued by the Prorogation of the Parliament Another Writ of Error was brought Teste the last day of the Session of Parliament viz. 1 March Returnable 19 November the day to which it was Prorogued The Court resolved That though the first Writ of Error was not discontinued by any Act of the Party yet this second should be no Superseas First It was doubted whether this Writ of Error bearing Teste the last day of the Session was not determined by the Prorogation And it was held clearly That A Writ of Error returnable ad proximum Parliamentum could not be good But here the Parliament was Prorogued to a day certain But however all the Court held That in regard of the length of time in the Return it should be no Supersedeas And Twisden cited a Case between Limmerie and Limmerie where a Writ of Error was brought Teste 28 Nov. Returnable 28 Nov. proxime sequent ' in Parliament ' and resolved to be no Supersedeas 2 Cro. 341. by reason of the length of the Return Anonymus AN Information was exhibited against A.
had a Scire facias against Noell and Iudgment thereupon Noell brings a Writ of Error and assigned it in this that the Plaintiff confessing the Plea of fully Administred ought to have béen barred And it was argued by Wynnington for the Plaintiff and Sympson for the Defendant Wynnington Where an Executor pleads falsely or deceitfully Iudgment is to be given against him as upon â—he unques Administer come Executor Iudgment shall be de bonis propriis But where he Pleads truly it is the Reason the Plaintiff should be barred and the Plaintiff confessing his Plea It is as strong as if found by a Jury or rather more for Verdicts may be false and therefore Attaints are provided and such express confession as here is is much stronger than an implied Confession sur Demurrer Indeed if upon plene Administravit Assetts are found for part of the Debt Iudgment shall be for the whole 8 Rep. 134. Shipley's Case Because the Plea was false But if an Executor should be liable to be Sued and have Iudgment given against him when he had fully administred it would put a great inconvenience upon him as to be put to charge to defend the Suit and to be in Misericordia And whereas it was objected That if the Plaintiff should be barred in such Case he would yet have no advantage by Commencing his Suit of having his Debt paid before other Debts in pari gradu he answered this inconvenience is not to be matched with that that the Executor should be liable to besides the Law will ever favour the Executor for if an Executor be Sued and the Plaintiff Nonsuit he shall have Costs but an Executor Plaintiff shall pay no Costs upon a Nonsuit 3 Cro. 503. vid. Hob. 83. Lawneys Case Also a Man may be presumed to know whether an Executor hath Assetts or no for he may consult the Inventory And for the Cases that might be objected as that of the Warrantia Chartoe against an Heir who Pleads Riens per descent or that the Plaintiff is not impleaded the Plaintiff may pray Iudgment presently F. N. B. 134. He Answered 't is true the Writ may be brought quia timet for he may be after impleaded in an Action wherein he cannot Vouch yet if he be after impleaded in a Praecipe he must Vouch and this is a line real and the Heir merely in loco patris whereas when an Executor hath fully Administred the Executorship is as it were determined And for the Case where Debt is brought against the Heir who Pleads riens per descent the Plaintiff may pray Iudgment presently to have Execution of Assetts as shall afterwards descend he said he knew no particular Authority where it was so done but if it be so as it is said in Shipleys Case yet not to be resembled to this Case for the Heir is charged as for his own Debt and the Action is in the Debet Detinet Com. 443. and if the Heir Pleads riens per discent and found against him the Iudgment is general not so so of an Executor so where the Iudgment is sur nihil dicit Moor 522. Dier 81. 344. 2 Rolls 67. Tit. Heir so where he confesses the Action but if an Executor after pleading Plene Administravit confess the Action the Iudgment shall be de bonis Testatoris Hob. 178. And for the Opinion in Shipleys Case 8 Rep. which is according to the Iudgment here he said it was obiter but he relied upon Cro. Dorchester and Webbs Case where that Opinion is denied and said there that all the Presidents are that the Plaintiff is in such case to be barred Rastals Entries 323 324. Sympson contra The nature of the Plea is to be considered it both not deny the Cause of Action but goes only to take away the present effect of it remoto impedimento resurgit Actio vel Executio 34 H. 6. 23. Prisot saith If an Executor Pleads ne unques Executor and found against him Iudgment is to be de bonis propriis But otherwise If he Pleads Plene Administravit for then be doth not put the Party from his Action for ever He said the Case of the Action of Debt against the Heir was the same for he is bound only by reason of the Land descended 1 Rolls 929. If an Executor Pleads Plene Administravit and the Plaintiff takes Issue and found against him he is to be barred for he as the Book saith hath waived his advantage he cited also the Book of the Office of Executors 3 Cro. 887. supposed to be written by Doderidge lib. 7. cap. 15. and relied pricipally upon Shipleys Case 8 Co. 134. which is cited and allowed in Hob. 199. And upon a President in this Court Trin. 13 Jac. Rot. 1104. between Perryman and Westwood where Iudgment was just as in this Case and Mich. after Rot. 206. Vpon Suggestion of Assets a Scire facias was taken out and Issue taken and tried at Guild-hall before my Lord Coke where Assetts were found for part and Iudgment to Recover so much and the residue if Assetts should come after which as to the latter Iudgment was somewhat further than the principal Case Keeling Rainsford and Moreton Held clearly that Iudgment ought to be affirmed chiefly for the great inconvenience it would be to one that had Commenced an Action and yet his Debt should have no preference before others of the same sort and many times the Testator leaves a great Estate in Bonds and Specialties which yet are no Assetts until the Money is paid Whereas the Case of the Heir is much stronger in regard of the improbability of his having Assetts in futoro In 16 H. 7. 10. it is said if an Executor Pleads Plene Administravit it is but a Temporal bar A Rent is granted in Fee provided that it shall cease during the minority of the Heir the Wife brings Dower the Heir being under Age she shall have Iudgment sed cesset Executio Vid. Hutton 128. the case reported without any such Opinion Twisden stuck much to the Authority of Dorchester and Webbs Case but at length consented that Iudgment should be affirmed Note The Iudgment was in Misericordia and the Court doubted at first whether it were not Erroneous for that Cause but it appeared that the Executor did not come in primo die wherefore notwithstanding they affirmed the Iudgment Ante. Termino Sancti Michaelis Anno 22 Car. II. In Banco Regis Prydyerd versus Thomas A Writ of Error was brought upon two Judgments given in an inferiour Court and they returned two Records betwéen the same Parties but it seems not those which the Plaintiff intended and this was complained of to the Court and it appeared that those which the Plaintiff brought his Writ of Error upon were not determined for Writs of Enquiry of Damages were returned but no Judgments entred Curia If there be divers Records betwéen the same Parties the inferiour Court may remove which they please they being
Pro praedicto anno which refers to the Year mentioned before which was next following the Lease and it might be said finito anno 18 for so it was ended then or at any time after And the Court said It would be clearly good after a Verdict But being upon a Demurrer they would Advise Anonymus AN Indictment for not performing an Order of the Justices of the Peace concerning a Bastard Child It was moved to quash it because it did not conclude contra pacem But it was held that ought not to be it being but for a Non feasans An Indictment of Forcible Entry was quashed because it alledged the party to be seized and possessed and so uncertain which Monnington versus William IN a Replevin the Defendant avowed for a Rent charge and set forth That the Plaintiff granted a Rent to J. S. in Fee who granted bargained and sold it una cum arreragiis to him and shewed the Indenture to be Inrolled within six Months virtute cujus and the Statute of Uses he was seized and for a years Rent since the Assignment avowed The Plaintiff replies and Traverses the Grant of J. S. prout and found for the Avowant and moved in Arrest of Judgment by Jones First That here is an impossible Issue which comprehends as well the Grant of the Arrears which cannot be as the Rent Secondly He Intities himself by Bargain and Sale and the Statute of Uses and doth not shew that it was in Consideration of Money and otherwise the Rent cannot pass without Atturnment 3 Cro. 166. But the Court gave Iudgment for the Avowant As to the first The pleading the Arrears to be granted is altogether void and does no harm in regard the Avowry is expresly for Rent Arrear after the Grant And for the second The Court held the pleading good after a Verdict and it shall be intended that Evidence was given of Money paid As a Grant of a Reversion pleaded without Attornment or a grant of a Rent and not expressed to be by Deed yet a Verdict will help those defects Huttons Rep. 54. Note Twisden said where a man in pleading sets forth his Title by a Conveyance in which are the words Give Grant Release Confirm Bargain Sell c. he must express to which of them he will use it Addams versus Guy ERror to Reverse a Judgment given in the Court at Bristol in Debt against the Defendant as Executor to J.S. who declared upon a Mutuasset of him so much because Debt lies not against an Executor upon a simple Contract Sed non allocatur He agreeing to the Action and suffering Iudgment to pass against him Secondly That he set forth that the Testator Mutuasset which properly signifies to lend and not to borrow and it ought to have been Mutuatus esset But the Court affirmed the Iudgment and held that either might be expounded to borrow Anonymus AN Administrator brought Trover and Conversion and declared That the Intestate at the time of his Death was possessed of divers Goods and that after his Death and before Administration committed they came to the Defendants hands who converted them Vpon Not guilty it was found for the Defendant and prayed that he might have Costs and the Court held that he ought to have them the Conversion being since the Death of the Intestate Sir Thomas Pettus Case IT was moved to quash an Indictment of Manslaughter against him for that it is said to be taken coram Coronatoribus Comitatus Civitatis Norwici at Bucthorp in the County of the City per Juramentum hominum de Civitate Norwici Whereas the Jury ought to have come from the County and City of Norwich for they shall not be intended to be coexistent especially in an Indictment As if the Caption of an Indictment be at Dale and the Jury come de Parochia de Dale it is good cause to quash it yet in an Action they should be intended the same So it is sufficient to put the County in the Margin of the Declaration in an Action but not so in an Indictment 1 Cro. Again By the Statute de Coronatoribus the Jury ought to come from the four next Vills Of the first Exception the Court doubted But to the second Twisden said it need not be returned upon the Indictment that the Jury came from the four next Vills But they would not quash the Indictment upon Motion for they said it was not their course to do so in Case of Manslaughter but ruled the Party to Plead to it tho' it was shewn he had been Tryed at the Assizes upon an Indictment of Murder for the same Killing and found Guilty of Manslaughter The King versus Clapham A Mandamus was prayed to the Lord President and Council of the Marches to admit Clapham to the Exercise of the Office of Deputy Secretary And it was returned quod tempore receptionis brevis non fuit constitutus Deputatus It was said That one which claimed to be Deputy his Authority being revocable could not pray a Mandamus But to that it was answered That the Mandamus was at the Suit of Mr. Win and it set forth how he had the Office of Secretary exercend ' per se vel sufficientem Deputatum suum and that they had refused this Clapham whom he had appointed his Deputy And it was resolved That the Mandamus was well awarded for he had no other remedy to have his Deputy admitted And whereas it was said being an Officer belonging to the Court they are to judge of his sufficiency and so have power to refuse him It was answered to and so resolved That then they ought to have returned that he was insufficient And it was also resolved by all the Court That the Return being that non fuit tempore receptionis brevis Deputatus constitutus was naught for if he were made his Deputy before the Return was true unless he made him his Deputy at the very instant of the Receipt of the Writ and Returns must be certain because there is nothing can be pleaded to them Anonymus AN Indictment for not performing an Order of the Justices for payment of a Poors Rate It was moved to quash it because it did not conclude Contra pacem Sed non allocatur because it was not for a Male Fesans but a Non Fesans Horsam versus Turget MIch 22 Car. 2. Rot. 687. Debt upon a Bond. The Defendant demands Oyer of the Condition which was to perform an Award and sets forth that there were divers Accounts c. betwéen J. S. Testator of the Plaintiff and the Defendant and they submitted all Controversies to the Award of such an one and that he awarded that the Plaintiff should deliver certain Goods of which the Testator died possessed to the Defendant and that the Defendant should pay unto the Plaintiff 320 l And then sets forth the custom of Foreign Attachments in London that if a Suit were commenced against the Executor of any person
poena c. of if so then it is no Offence by the Act. To which it was Answered that if the Body of the Act were That all persons which should resort to such place which were not Summoned or Subpoena'd thither should forfeit c. then 't is true it must be averred But that matter comes in a Proviso of the Act viz. That it shall not extend of such Cases and therefore if there were any such thing the Defendant is to plead it Wherefore the Court ordered Judgment to be Entred for the Plaintiff Ante. Anonymus IN an Action of Trover and Conversion After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Action was commenced in Hillary Term and the Conversion alledged to be the 3d of February in the same Term and the Bill filed relates to the first day of the Term so before the Cause of Action But it was Resolved by the Court that if the Bail were Entred after the 3d Day of February it is well enough for it is that which gives this Court Iurisdiction So an Ejectment may be brought upon a Lease made in the same Term So the Statute of Limitations may be pleaded to an Action if the time be elapsed before the Day wherein the Bail is filed though not before the 1st Day of the Term wherein the Action is brought For the Action shall not be said to be depending until the Bail is filed And upon Search it was found that the Bail was filed the last Day of the Term. Putt versus Nosworthy IN Debt the Plaintiff declared upon certain Articles whereby the Plaintiff Covenanted to convey certain Lands to the Defendant and in Consideration thereof the Defendant Covenanted to pay a certain Sum to the Plaintiff After a General Imparlance the Defendant prayed Oyer of the Deed whereby it appeared that the Defendant and one Vincent Covenanted that he or Vincent should pay the said Sum. And he avers that Vincent sealed and delivered the Deed and demands Judgment of the Bill si actionem poterit habere versus eum solummodo To this the Plaintiff Demurred which was Entred thus Et dicit quod ab actione praedicta praecludi non debet quia materia insufficiens c. And the Defendant joyns Quod materia praeallegat ' sufficiens c. praedict ' le Plaintiff ab actione praedict ' praecludere Jones moved for the Plaintiff that the Defendant's Plea being in Abatement could not be admitted after an Imparlance and that a peremptory Judgment ought to be here given because he had concluded in Bar as well as Abatement For he doth not only demand Judgment of the Bill but saith actionem habere non debet and the Demurrer is joyned as upon a Plea in Bar. And it was agreed that if a man concludes a Plea in Abatement as in Bar if it be against him that pleads it Judgment peremptory is to be given But here the Conclusion is not actionem habere non debet but 't is added versus eum cum solummodo So if a man begins a Plea in Abatement actio non c. Judgment peremptory ought to be thereupon given But then it was said That although it were too late to urge this Matter in Abatement yet it appeared upon the Deed shewn that the Plaintiffs Declaration was insufficient For it being If the Defendant or one Vincent should pay and the Plaintiff alledging that the Defendant had not paid is not enough to intitle him to his Action albeit that Vincent were no Covenantee or had ever Sealed and Delivered To which it was Answered and so Resolved by the Court that it appeared by the frame of the Deed that Vincent was as well party as the Defendant and it is too late now to averr that he did Seal and Deliver so it shall be taken that he did not and then it remains the sole Covenant of the Defendant And though the words are That the Defendant or Vincent shall pay that is no more than the Law would have implied if Vincent had Sealed And the Chief Justice cited one Cartwright's Case in Debt for Rent where the Indenture of Lease was a Demise from Cartwright and another Ioyntenant with him reserving a certain Rent to them both but the other never Sealed Cartwright brought Debt and declared of a Demise of the Moiety and Reservation of the Moiety of the Rent And upon Nil deber the Matter aforesaid was Specially found And it was moved First That the Lease being by Indenture whether the whole Rent were not well reserved to Cartwright as by Estoppel or whether it were not good to him as to a Stranger for one Moiety or whether it should not be good to him as an intire thing which was reserved to him as well as the other But the Court Resolved that it was good only for a Moiety as he had declared For there being an Expectation of the others Sealing which never was done the Deed as to one Moiety of the Land and the Rent reserved had no effect And where one Declares against one upon a Deed whereby it appears that another was bound with him it shall not be intended that the other Sealed unless averred on the Defendants Side Otherwise where the Declaration is upon Matter of Record And it was held by the Court That if the Declaration were defective in this yet it was but in Matter of Form For he saith that the Defendant did not pay sed adhuc injuste detinet which is an Averment tho' unformal that the Money is not yet paid neither by the one nor other And so it hath been held where in Debt against an Executor it is averred that the Executor did not pay it adhuc injuste detinet and not averred that the Testator had not in his life time that after a Verdict this is aided And they held that a Judgment ought to be given quod respondeat ouster for the joyning Demurrer as upon a Plea in Bar is not material besides the Fault begun on the Plaintiffs part Tailour versus Fitzgerald ERror upon a Judgment given in the King's Bench in Ireland in Ejectment where the Plaintiff declared that J. S. demised to him per quoddam Scriptum Obligatorium c. habend ' Ã die datus Indenturae praedict ' And upon Not guilty pleaded it was found for the Plaintiff and he had his Iudgment It was assigned for Error that there was no time when this Lease should commence for it was Habend ' after the Date of the aforesaid Indenture and there was none before it being Scriptum Obligatorium and not Indenturam But the Court Resolved that the Writing shall be intended an Indenture and tho' called Scriptum Obligatorium which is improper yet it may be said every Deed obligeth or if it shall not be intended Indented then the Lease shall commence presently as if it had been Habend ' from the 40th of September Crossing versus Scudamore IN Trespass Quare clausum fregit the
of Wood he hath the effect of his Grant But Trees differ in value exceedingly from each other Bolton versus Cannon IN Debt against an Executor for Rent Arrere in his own time in the debet detinet The Defendant pleads that the Rent is more worth than the Land and that he tendred a Surrender before the time for which the Rent is demanded and that the Plaintiff refused to accept the Surrender and that he had fully administred and so demands Iudgment of the Action The Plaintiff replies that there was Rent Arrear to him and that therefore he was not bound to accept of the Surrender and to this the Defendant Demurrs The Court said First That an Executor that does intermeddle cannot wave a Lease or any other part of the Testators Estate for he cannot assume the Executorship for part and refuse for part Secondly That in case the Land be not more worth than the Rent it is a good Plea to an Action of Debt in the debet and detinet for he is to be charged in the detinet only tho' where the Rent is of less value he may be charged in the debet detinet for that which is accrued in his own time according to Hargraves Case 5 Co. Thirdly The doubt here is that the Defendant having waved the material part of his Plea viz. That the Rent exceeded the value of the Land and relied upon his tender of a Surrender which is nothing to the purpose whether Judgment can be here for him and that otherwise his Plea is double but because the Plaintiff hath not demurred to that but answered only to one part of it the Defendant might well Demurr upon the Replication because it does not answer all contained in the Plea for unless the party Demurrs for doubleness he is bound to answer all the matters alledged Et Adjornatur But being this Term moved again Iudgment was given for the Plaintiff because the Defendant relinquished the material part of his Bar and offered matter meerly frivolous Cartwright versus Pinkney TEnant for years Surrenders to the Lessor reserving a Rent the question was Whether it was a good Reservation And held that it was upon the Contract and that Debt lay after the first day was incurred wherein it was reserved to be paid for it was in the nature of a Rent and not of a Sum in Gross Ante Wilson and Pinckney Anonymus IN Trespass for Fishing in his several Fishery pisces cepit After a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff ought to have alledged what kind of Fishes and the number of them as in Playters Case 5 Co. is But for that it was said on the other side that at that time they were more strict in the certainty of pleading than since for now and indebitat ' Assumpsit for Work done or Goods sold is allowed without further certainty And that however the Oxford Act 15 Car. 2. here helped it for tho' this be none of the defects there enumerated yet the words of the Act being That Judgment shall not be arrested for any other exception that doth not alter the nature of the Action or Tryal of the Issue shall extend to this Case But the Court were of Opinion that none of the Acts had aided this Case in regard that there was not so much as the number of the Fishes expressed as if a Man should bring Trespass for taking of his Beasts and not say what But Hale said Trover for a Ship cum velis had been allowed because all made but one aggregate Body both the Ship and Sails But Trover pro velis would not be good Vid. 2 Cro. 435. Trespass quare clausum fregit Spinas cepit and 3 Cro. 553. Child and Greenhills Case Dr. Webb versus Batchelour al' IN Trespass for taking so many Cowes upon Not guilty a Special Verdict was found That an Act of this King for repairing of the High-ways appoints that such persons as keep Carts and Horses c. should send them at certain times to assist in the repairing of the Ways not having a reasonable excuse and that warning was given to the Parishioners of the Parish whereof the Plaintiff was Parson to send in their Carts and that the Plaintiff omitting to do it a Justice of Peace made a Warrant to the Defendant to distrain him according to the Authority given by the Act c. It was alledged for the Plaintiff First That Clergymen were not obliged by this Act for Ecclesiastical Persons have always had immunities from such charges as Pontage Murage c. and shall not be comprehended in the general words Parishioners Secondly That in regard the Act allows an excuse the Justice of the Peace ought to have caused the Plaintiff to have appeared before him to have seen whether he had an excuse before he could have made his Warrant and tho' the Officer that executes the Process of a Court of Record be indemnified where the proceeding is Erroneous yet 't is not so where the proceeding is not of Record as the 10 Co. in the case of the Marshalsey 3 Cro. 394. Nicholls versus Walker and Carter Where a Warrant was made by a Justice of the Peace to distrain for a Poors Rate Trespass was maintained against the Officer that executed the VVarrant because the Plaintiff was not chargeable as an Inhabitant of the Parish for whose Poor the Rate was made Curia contra 1. The Clergy are liable to all publick charges imposed by Act of Parliament and that hath been resolved as Hale said upon debate before all the Judges 2. The Officer that executes the VVarrant though unduely made for the cause alledged is not answerable for he is not to judge but to execute the matter it being within the Jurisdiction of the Justice of the Peace and 't is not like the Case in the 3 Cro. for there the Churchwardens And Overseers of one Parish distrained in another Parish which was out of the limits of their Authority but in 14 H. 8. 16. where a Justice of the Peace made a VVarrant to Arrest a Man for Felony which in those times was held beyond his power tho' otherwise since unless there had been some Indictment of Record yet 't is there held the Officer that executes such VVarrant is not punishable Wherefore Judgment was given here for the Defendants Termino Sanctae Michaelis Anno 27 Car. II. In Banco Regis Anonymus A Judgment was removed by Error into this Court and affirmed the Capias that is Awarded thereupon must mention it and not be general as upon a Judgment originally in this Court and if such a Writ issues out the Court will upon motion grant a Supersedeas and there needs no Writ of Error in Adjudicatione Executionis tho' it was taken out in a former Term. Anonymus LIbel was by the Churchwardens of c. in the Ecclesiastical Court for 1 l 6 s 8 d upon a Custom
Mandate is to intimate to him that the party is Instituted Secondly To oblige the Archdeacon to Induct under the penalty of an Ecclesiastical Censure But if it be granted that the Archdeacon's Authority in this matter is only derivative yet that being Executed by the Mandate quoad the Guardian of the Spiritualties what remains to be done remains only to the Archdeacon who shall finish what hath proceeded so far already If a Venire be awarded to the Coroners because of Kindred in the Sheriffs Family tho' a New Sheriff comes in before it be Returned yet the Coroner shall proceed in the Execution thereof The Sheriff seized Goods by a Scire facias and before they were sold a New Sheriff was made and then he sold them and it was Resolved that the Sale was good in the 2 Cro. 73. Ayre and Aden's Case Sed Nota The Court said that if the Did Sheriff had Returned That the Goods had remained in his hands pro defectu emptorum a Distringas should have gone to have them delivered to the New Sheriff and then a Venditioni exponas should have gone to the New Sheriff Vid. Yelv. 44. In the 2 Cro. 48. the Executors of the Bishop of Carlisle were admitted to proceed in a Suit commenced by the Testator in the Ecclesiastical Court because the Suit was well commenced and the Court were possessed of the Cause Where Commissioners of Oyer and Terminer have given Judgment and a New Commission granted which determines the Old yet the former Judgment may be Executed Bro. tit Commission 13. So by the Sitting of the Kings Bench the Commission at the Old Baily being in the same County is superseded and yet Execution is done in Term time But the Court said That was by the Statute of 2. E. 6. Again Induction is but a Formality and therefore shall not be so strictly Examined Where the Queen granted to two the Stewardship of a Mannor it was held that admission by one of them was sufficient Mo. 107. Noy's Reports Quaere that Case the Archdeacon having received a Mandate for Induction makes a Precept omnibus literatis infra Archidiaconatum to Induct and a Clerk who did not belong to the Archdeaconry made the Induction and this was held to be well enough Saunders contra The only Question is Whether the Archdeacon Inducts by his own Authority or derivative from the Bishop For if by the latter then the Induction cannot be good 'T is clear that the Archdeacon is but Minister Episcopi and in his Precept to those of the Clergy to Execute he does as a Sheriff doth who makes a Precept to his Bayliffs recites his Mandate If the Sheriff makes Execution after the Kings death if he hath no notice thereof he is excused in Trespass but the Execution shall be avoided It appears by the making of the Statute of 2. E. 6. of Executing Judgments given by Commissioners after such time as the Commission is expired is a great Doubt and yet there the thing was Executed in a great part But here 't is but one single Act whereof no part was done before the New Bishop was made In Sir Randolph Crew 's Case in the 3 Cro. 97. it appears that Commissioners to Examine Witnesses could not proceed after Notice of the Demise of the King But here 't is Objected That the Verdict finds that the Archdeacon had no Notice I Answer That the Consecration of a Bishop is a publick and notorious Act. And all the Court were of Opinion that the Induction was wholly void and gave Judgment for Woolly the Defendant and said It was a Ministerial Act in jure Episcopi and like a Letter of Attorney to deliver Seisin which cannot be Executed but in the Life of him that made it Ante. Quaere Whether this Judgment was not afterward Reverst in the Exchequer Chamber Ent versus Withers THe Case was Debt against an Executor upon a Bond of the Testator and it was brought in the Debet and Detinet suggesting a Devastavit in the Executor The Defendant Demurred For altho' such Action will lye if there has been a Judgment against the Executor yet no such Action has been upon a Bond and 't is hard upon such a Surmize to Charge the Executor in his own Right But on the other side it was said That this differs not in Reason from the Case of a Judgment and upon Nil debet the whole Matter shall be brought in question as Whether the Bond was Sealed c. And in a Case between Merchant and Driver tryed at Guild-Hall before my Lord Hale where it was brought as this because the Plaintiff could prove no actual Wasting as is necessary in this Case he was Nonsuited But Hale took no Exception to the Action But the Court said That they would extend these Actions no further than they had been already Resolved and they would not agree that an Executor should be held to Bail upon a surmize of a Devastavit and so Judgment was given for the Defendant Ante. Pierce versus Win. ERror out of the Grand Sessions of Wales The Case upon a Special Verdict was thus A Devise to one and to the Heirs Males of his Body with a Proviso That if he does attempt to Alien then immediately his Estate shall cease and another shall Enter The Devisee in Tail made a Feoffment and he in Remainder Entred and Judgment was given in the Grand Sessions for the Feoffee against him in the Remainder And the Errors were assigned in the Matter in Law And to maintain the Errors it was said That it must be agreed of all hands that a Tenant in Tail could not be restrained from Aliening by Fine or Recovery and also that in this Case a bare Attempt would be no breach according to Corbett's and Sir A. Mildmay's Case c. and also that a Tenant in Tail might be restrained to Alien by Feoffment or other Act which was torcious and would make a Discontinuance and here this Proviso imports as much and therefore the Feoffment will be a breach for that is an Attempt and more For First In Conveyances the Intention of the words of a Condition and the Substance is regarded and the Form of the words not so precisely followed As a Feoffment upon Condition That the Feoffee shall give the Land in Frank marriage with the Daughter of the Feoffor This cannot be strictly pursued yet the Feoffee must make a Gift as near as may be Co. 1 Inst 217. So upon Condition to give the Land to a Layman in Frankalmoign But this Rule holds especially in Wills where the Intent is chiefly looked at A Devise of all his Rents will pass Reversions upon Leases and tho' the words be here Proviso if he does attempt to alien 't is as much as to say Proviso if he doth alien c. Secondly Whether the Feoffment shall determine the Estate quasi by Limitation so that the Remainder man shall take immediately by Executory Devise and that
in an Inferiour Court for want of infra Jurisdictionem Curiae 2 For variance between the Count and Plaint 6 But it lies not for some Omissions 5 A Writ of Error is a Supersedeas to an Execution 30. Yet the Judgment remains a Record 34 Exception 353 355 A Writ of Error returnable ad proximum Parliamentum not good Secus if to the day of Prorogation 31 266 No Writ of Error lies upon a Conviction before a Justice of Peace 33 In a Writ of Error if the Defendant dies the Writ is not abated Secus if the Plaintiff dies 34 Lies not to reverse a Judgment in a Qui tam nor upon the Statute de Scandalis Magnatis 49 What Records to be returned upon a Writ of Error 96 97 Where it lies upon a Judgment in a Scire facias and where not 168 Error in fact not assignable in the Exchequer Chamber 207 A Writ of Error that bears Teste before the Judgment good to remove the Record if Judgment be given before the Return 255 Escape See Baron and Feme VVhere a Prisoner Escapes by permission of the Sheriff he may be taken again by the Party Plaintiff 4 Debt against the Sheriff for a Voluntary Escape the Sheriff pleads that he took him again upon fresh Suit Good 211 217 Against the VVarden of the Fleet 269 The Lessor of the Custody of a Prison answerable for an Escape where his Lessee is insufficient 314 Escrow See Pleading Evidence See Statutes The party suffering admitted to give Evidence for the King to detect a Fraud 49 Exception See Feoffment Excommunication In Excommunication ipso facto no necessity of any Sentence of Excommunication 146 Excommunication pleaded to an Action per Literas testamentarias Good 222 How discharged where the Capias is not inroled according to the Statute 338 Execution Upon an Elegit the Sheriff ought to deliver Possession by Metes and Bounds or otherwise it may be quasht 259 Executor See Abatement Costs Return Of Infant Executors where to Sue by Guardian 40 54. VVhere by Attorney 40 102 103 If a Man names himself in an Action Executor or Administrator and it appears the Cause of Action was in his own right it shall be well enough and the calling himself Executor is but surplusage 119 VVhere the Executors promise in relation to the Testators Debt shall make the Debt his own 120 268 VVhere Interest is due for a Debt partly in the Testators life time and partly since and one Action brought and Judgment given for the whole this is manifestly Erroneous 199 VVhere chargeable in the Debet detinet and where in the detinet only 271 321 355 Cannot assume the Executorship for part and refuse for part 271 Debt doth not lie against the Executor of an Executor upon a Surmise of a Devastavit of the first Executor 292 Of the Executors renouncing 303 cannot refuse after Oath 335 Of Executor de son tort 349 VVhat Acts an Executor may do before Probat 370 Exposition of Words Obstrupabat 4 Or 62 148 Pair of Curtains and Vallence 71 106 Ad sequendum 74 Vt 73 74 Aliter vel alio modo 92 Mutuasset and mutuatus esset 109 Aromatarij 142 Centena 211 Issue 229 Land 260 Crates 304 Gubernatio Regimen 324 Exilium 326 Vestura terrae 393 Extinguishment Where two Closes are in the same Possession the Duty of Fencing is Extinguished and shall not Revive thô the Closes come after into several hands 97 F. False Latine DE sex bovibus instead of bobus no sufficient Cause to Arrest Judgment 17 Feoffment A Man makes a Feoffment of a Mannor excepting two Closes for the Life of the Feoffor only The two Closes descend to the Heir 106 Fine The Delivery of a Declaration in Ejectment upon the Lands is no Entry or Claim to avoid a Fine 42. So where an Action is brought and discontinued 45 A Fine cannot bar any Interest which was divested at the time of the Fine 56 Whether a Fine and Non-Claim bars the Interest of a Lessee in Trust 80 No Bar to a Mortgage 82 A Parish may contain many Vills and if a Fine may be levied of Lands in the Parish it carries whatsoever is in any of those Vills 170 Lessee for years makes a Feoffment and levies a Fine the Lessor shall have five years to Claim after the Term expired 241 Forcible Entry In an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with force because upon the finding a Restitution is to be awarded 23 Foreign Attachment See London Of Foreign Attachments by Custom how to be pleaded 236 G. Gaming See Statutes Guardian See Baron and Feme Executor Grant See Hundred GRant without Consideration hinders not the arising of a Contingent use 189 In Prescriptions or Usage time beyond Memory the Law presumes a Grant at first and the Grant lost 387. And therefore nothing can be prescribed for that cannot at this day be raised by Grant ibid. Of the Kings Grant 408 409 A Grant to a Town to be a County and no Grant of having a Sheriff void 407 H. Habeas Corpus See Statutes THo' the Return be Filed yet the Court may remand the Prisoner to the same Prison and not to the Marshalsey 330 346 Whether it lies to remove a Prisoner in Ireland 357 Half Blood The Sister of the Half Blood shall come in for distribution upon the Stat. 22 23 Car. 2. chap. 10. 316 317 323 Half Blood no Impediment to Administration 424 Harriot Where a Lease is made to commence on the Determination of another if the new Lessee dyes before his Term Commences whether a Harriot shall be due 91 Heir An implied Estate of Land shall not pass in a Will for an Heir shall not be defeated but upon a necessary Implication 323 376 A Man cannot by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser 372 379 Yet Heirs of the Body of his second Wife having a Son by the first is a good name of Purchase 381 Hospital Mastership of a Hospital not grantable in Reversion 151 Hundred A Hundred what it is and the Bayliff of a Hundred 403 The Grant of a Hundred good notwithstanding the Statutes 2 E. 3. 12. 14 E. 3. 9. 410 412. I. Imprisonment Where an Offence is Fineable if the Fine be tenderd there ought to be no Imprisonment 116 Indictment Where a Statute makes an Offence at Common Law more penal yet the Conclusion of the Indictment is not contra formam Statuti 13 A Man cannot be Indicted for saying of a Justice of Peace he understands not the Statutes of Excise but may be bound to Good Behoviour 10 16 Indictment of Forgery upon the Stat. 5 El. 4. where good and where not 23 24 Strictness of words not required in in an Order of Sessions thô it ought in an Indictment 37 For Manslaughter not quasht upon Motion 110.
the committing of Treason is the Forfeiture There is a difference between an Heir taking advantage of a Forfeiture in the time of the Ancestor and an Alienee in the time of the former Lord Vid. Owen 63. But then Iustice Charleton declared his Opinion that the Copyhold was given to the King by the of Statute of 12 Car. For the generality of the words other things of that Nature whatsoever and that enforced by the Proviso where mesn Conveyances Surrenders by Copy were mentioned But the other Iustices seemed to be of another Opinion for that Copyholds were never included in a Statute where any prejudice would thereby accrue to the Lord unless expresly named and for the Proviso it might be satisfied by the Copyholds which the Traitors might hold of the Kings Mannors or where they had a Mannor held of the King and had made voluntary Grants of Copyholds and Surrenders made subsequent And so 't was said to be the Opinion of my Lord Hales 16 Car. 2. when he was Chief Baron of the Exchequer But however they were ordered to attend the Kings Attorney General to know whether he desired to be heard to that point Et adjornatur Anonymus UPon a Trial at Bar upon a Quare Impedit the Case was Parceners had made partition to present by turn and an Vsurpation is in the turn of one of them whether this put all the rest out of possession or the Sister which had the next turn should present when the Church became void The Court inclined to an Opinion that it should put all out of possession and would not permit a Special Verdict upon the motion of Serjeant Maynard but a case was made of it for the consideration of the Iudges Vid. Kielway and F. N. B. 35. Anonymus IN na Ejectment Vpon a Special Verdict an Vsurpation had been made to a Church and a Quare impedit brought to remove the Incumbent and pending the Quare impedit the perpetual Advowson was sold by the Plaintiff and it was found ea intentione that J. S. Clerk should be presented after the Vsurper Incumbent removed and accordingly after such removal J. S. was Presented Admitted Instituted and Inducted And after Argument the Court gave Iudgment for the Plaintiff whose Lessor supposing the Presentation c. void by the Statute against Simony had procured a Presentation from the King and Admission Institution and Induction thereupon and the Court held it to be plain Simony Termino Sancti Michaelis Anno 2 Jac. II. In Communi Banco Bathursts Case AN Action was brought against him as Executor of an Executor of an Executor against whom the Plaintiff had recovered a Iudgment in Debt and it was suggested that he had wasted the Estate of the first Testator and so by the Statute 30 Car. 2. his Executor was liable in such Manner as his Testator would have been if he had been living Vpon Plene Administravit pleaded the matter was found specially and that the Executor which wasted was indebted to the Defendant whom he made Executor upon a simple Contract And the Question was whether the Defendant might retain for his Debt against the Debt grounded upon the Devastavit And the Court held that he might for it shall not be adjudged a Debt superior to a simple Contract Termino Paschae Anno 22 Car. II. In Communi Banco Grove and Dr. Elliot Chancellor of Sarum A Motion had been made for a Prohibition upon a Suggestion that per legem terrae no man ought to be Iudge in his own Cause c. nor ought any man to be compelled to answer Articles prosecuted against him ex mero Officio c. And that contrary hereto the Defendant had articled against the Plaintiff that he did out of his own private Will and Spirit and contrary to the Laws keep Conventicles and did allow and permit one South and others pretended Ministers and not allowed by the Church to Expound and Preach to himself and many others c. and this was ex promotione A. B. Notarij Publici c. It was not alledged in this Libel or Articles that there was any Presentment of this Matter but the Register of the Court swore that there was a Presentment made by the Curate of the Parish where c. and that a certain Copy which he delivered here into Court was a true Copy thereof Ellis Serjeant for the Plaintiff First Conventicles are properly punishable at the Common Law and not by the Ecclesiastical Law they are inquirable upon every Commission of Oyer and Terminer 4 Inst 162. and the late Act against Conventicles was in force at this time Secondly No man ought to be proceeded against in the Spiritual Court without a due presentment 25 H. 8. c. 14. declares that 't is not reasonable that any Ordinary by any suspition conceived of his own fancy without due accusation or presentment should put any Subject of this Realm into the infamy or slander of Heresie And the reason of this extends to other things as well as Heresie Indeed this Statute is repealed but as my Lord Coke 12 Rep. 26. observes it was herein declaratory of the Common Law and 't is great reason that there should be a presentment and accusation by some proper Person for otherwise an innocent Person in case of false accusation would not known where to have his remedy Object Here is a Presentment by the Curate and by the 113 of the Canons made 3 Jacobi a Curate in the absence of the Rector may present Answ First These Canons were never confirmed by Act of Parliament and without that there cannot be any Canons made to alter the Law 12 Co. 72 73. at least they can bind none but the Clergy Vid. Mo. 755. and one reason thereof is because the Laity have no Representatives in the Convocation Secondly This Canon says only that a Curate may present in the absence of the Rector it doth not appear here that the Rector was absent Thirdly All such Presentments ought to be upon Oath and this is not proved so to be The Courts in this Hall cannot proceed upon any such thing without Oath Fourthly It is not alledged in the Libel or Articles that there was any Presentment at all only the Register comes in and saith he finds such a Presentment among the Acts of the Court so that Issue cannot be taken whether any or no So it must be taken his proceeding was ex Officio mero without Presentment and 't is as great a mischief as was by reason of common Informers before the 18 Eliz. c. 5. appointed their names to be endorsed upon all Process sued out by them Thirdly In this Case they will examine upon Oath Now no Layman ought to answer upon Oath except in Cases matrimonial and Testamentary 12 Co. 26 27. 3 Cro. 262. Baldwyn contra First That Conventicles are punishable at the Common Law or were by the late Statute does not disprove or take away the Iurisdiction of the Spiritual
the Mayor and Burgesses which never had been Mayors and if in regard it was indefinite it should be intended that all the Burgesses were there and it may be the Amotion was by the Vote of such Burgesses as have not been Mayors they being the greater number and the others might dissent as if the Mayor and Court of Aldermen in London were impowered to do a thing and this is done per Cives Londini it cannot be good Sed non allocatur For First it shall be intended That all the Burgesses were there and that they all agreed in the amoving of Braithwaite And if the truth were that the Burgesses which were qualified dissented which must not be presumed they might bring an Action upon the Case for the false Return And further to enforce the intendment as before it is said to be per Majorem Burgenses secundum Chartam If it had been returned that he was amoved secundum Chartam generally that had not been good for there must be the manner returned That the Court may adjudge whether the Authority be pursued Nota hoc It was further declared by Keeling Rainsford and Moreton That the King and Council might Disfranchise any Member of a Corporation And it was said by Rainsford that the Walls of Northampton were ordered to be pulled down by the King and Council à fortiori an Alderman might be displaced upon just Cause and here was no Exception to the Causes returned But to this Twisden said nothing Anonymus Vid. 5 Co. 32. UPon a Fieri facias to Levy a Debt recovered against an Executor the Sheriff returned nulla bona whereupon after a Testatum c. a Writ was awarded to the Sheriff to enquire c. who returned that Goods to the value of the Debt came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit And Issue was taken by the Party who came in upon a Scire facias quod non elongavit c. and the Iury found for the Plaintiff And it was moved by Saunders in Arrest of Judgment That there was no proper Issue neither did it appear that there was any Devastavit for the Executor may eloigne and sell the Goods therefore the Return and Issue ought to have been quod Devastavit Sed non allocatur for this tantamounts and the Presidents are so as 't is a good Warrant for a Capias in Withernam when the Sheriff returns that the Defendant in Replevin hath eloigned the Beasts so the Executor ought to be charged de bonis propriis upon his Return Wharton and Brooke IN an Action for Words the Plaintiff declared That she was and had been a long time a Midwife and got divers Gains and that the Defendant to scandalize her in her Profession said of her She is an Ignorant Woman and of small Practice and very unfortunate in her way There are few that she goes to but lye desperately Ill or die under her hands The Court held the Action maintainable But Twisden said this hath been Adjudged Where one brought an Action declaring she was a Schoolmistress and taught Children to Write and Read by which she got her Livelyhood and that the Defendant said of her She was a Whore and that J. S. kept her as his Whore That to slander one in such a Profession was not maintainable without special Damage Sir Thomas Player Chamberlain of London and Jones REsolved by the Judges That the By-Law in London whereby the Number of Carts were restrained was a good By-Law Walter and Chauner IN Trespass the Defendant Iustifies for Damage feasant The Plaintiff in his Replication prescribes for Common in the place where c. in this manner Until the Field was sown with Corn and after it was sown post blada illa messa until it was sown again To which the Defendant Demurs And it was said That this Prescription was unreasonable viz. To have Common in Land sown To which it was Answered and Resolved by the Court That as the Prescription was laid the Common was not claimed until after the Corn was reaped Nota Vpon a Fieri facias the Sheriff Returned That he had taken Goods and that they were rescued from him by certain Persons And it was held to be no Return and that he was to be Amerced Anonymus ONe recovers Debt and then brings a new Action of Debt upon the Judgment The Defendant pleads Tender of the Money before the Action brought uncore prist and the Plaintiff could have no Costs If the Defendant plead in Abatement of the Writ and the Plaintiff Demurs and 't is Adjudged against the Defendant it shall be only quod respondeat ulterius But if he alledge any thing in Abatement whereupon Issue is joyned and tryed and found against the Defendant there the Plaintiff shall have his Judgment to recover his Debt Skier and Atkinson IN an Action upon the Statute of 8 H. 6. of Forcible Entry the Secondary craved the direction of the Court before he could tax Costs and they were doubtful in it and rather inclined that the Plaintiff was to have no Costs But upon the view of Pilford's Case in 10 Co. and the Books there cited they resolved that he should have Treble Costs Crosse and Winter IN an Action for these Words Thou art of Thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Defendant Iustified for that he did steal the Colledge Plate The Plaintiff Replied De injuria sua propria The Words were alledged to be spoken in London and thither the Venire facias was awarded and there was a Verdict for the Plaintiff It was moved in Arrest of Judgment That there was a Mis-Trial for the Iury ought to have come out of Oxford for the Issue is joyned upon the Matter in the Justification and the Words are confessed Hob. 76. And with this agrees Ford and Brooke's Case in 3 Cro. 361. expresly But it was Resolved by the Court That this was aided by the late Statute made at Oxford being tried by a Jury of the proper County where the Action is laid tho' the Issue upon pleading may arise out of another place and County Note An Act of Parliament was made to continue for Three years and from thence until the end of the next Session of Parliament Vid. Hob. 78. and no longer And it was Resolved that this must be intended a Session which commences after the Three years expired For if a Session should be within the Three years and continue for many years after the Act would continue Note It cannot be called a Session of Parliament unless the King passes an Act. The King and Serjeant UPon a Certiorari to remove a Conviction of Forcible Detainer by the View of two Iustices upon the Statute of 15 R. 2. The Record Returned was Questa est nobis Jana Wood Vid ' quod quidem pacis Domini Regis perturbatores in domum mansional '
c. and in Replevin the Avowant is Actor and in Suffering of a Recovery the Tenant is the main Agent being to his use in no other be declared And it was an Error assigned in the Lord Newport and Mildmay's Case as appeareth by the Record yet it seems it was taken to be so plain as not fit to be insisted on Wherefore there is nothing of it in the Report of the Case 1 Cro. 224. yet there was all endeavour imaginable used to Reverse that Recovery and divers other Presidents there are of the same manner of Entry And if it can appear to the Court that there was a Guardian admitted the Form of the Entry shall not be so severely Examined as in the 4 Rep. 53. where there was no Entry of any Admission of the Guardian by the Court at all yet it appearing quod venit per Guardianum the Court would not Reverse the Judgment for Error And for the Book of the 2 Cro. 641. there were other Reasons which Reversed the Judgment and the Admission ad prosequendum was not mentioned until the Court upon the other Matters had Resolved the Reversal And the Books there cited do not at all prove it to be Error And ad sequend ' ur Guardianum is not at all amiss for Ut many times notes an Identity Seisitus ut de feodo makes Conusans ut Ballivus c. And for the Entry of the Appearance it may be taken that the Guardian came in proper Person and so it ought to be But if propria persona refers to the Infant he must have Reversed the Recovery during his Nonage And so Twisden saith it hath been resolved in this Court lately Vid. Roll's 1st Part 171 and 2d Part. 573. Anonymus SCroggs the King's Serjeant moved to have at Trial at Bar in an Indictment of Perjury and for some further Time urging that it was the King's Case The Chief Justice said The King was no otherwise concerned in it than in maintenance of the Common Justice of the Realm It was usually the Subjects Interest and His Prosecution and therefore must not deviate from the Course in Civil Causes and not to be resembled with Causes wherein the King is concerned in point of Interest Anonymus A Prohibition was prayed to stay a Suit for Tythes of Wood. The Plaintiff suggested That he had a House in the Parish and that the Wood was cut for Fuel burnt in his House But the Court said that this would not serve unless it were expressed that the House was for maintenance of Husbandry by reason of which the Parson had Uberiores Decimas Barrett versus Milward al. A Scire facias was awarded against the Defendants upon a Recognizance which they entred into as Bail for a Plaintiff in a Writ of Error that he should prosecute it with effect or pay the Money if the Judgment were affirmed They plead That he did prosecute it with effect and that the Judgment was not yet affirmed The Plaintiff Replied Protestando that they did not Prosecute with effect Pro placito that the Judgment was affirmed by the Justices of the Common Bench and Barons of the Coif Et hoc paratus est verificare per Recordum To which the Defendants Demurred generally Because it was not alledged That there were Six Justices and Barons present when the Judgment was affirmed For 27 Eliz. c. 8. which gives them Authority requires that there should be Six at the least Sed non allocatur For the Defendant should then have pleaded Nul tiel Record ' for if there were not Six their Proceedings were coram non Judice Nota If a Certiorari be not Returned so that an Alias be awarded the Return must be as upon the first Writ and the other must be Returned quod ante adventum istius brevis the Matter was certified Gybbons versus North. IN an Assumpsit the Plaintiff Declared That whereas at the Defendants Request he was bound with him in a Bond of 200 l he in Consideratione inde promised to save him harmless and obliged himself his Heirs and Executors in 200 l to the performance of it and the Money not being paid the Defendant did not save him harmless But per debitum legis processum he was forced to pay the Money The Defendant Demurred because he did not alledge That he did not pay him 200 l For obliging of himself in the penalty of 200 l to save him harmless He hath election either to save him harmless or pay 200 l But the Court gave Judgment for the Plaintiff for there is no Election in this case being no more than an ordinary Promise to Save harmless And this Action is brought upon the Plaintiffs Dampnification which is a Breach and he doth not demand the 200 l Also a Verbal Contract cannot create a Penalty to oblige the Heir Jordan versus Forett ERror to Reverse a Judgment given against an Executor in Debt in the Common Pleas where the Executor pleaded divers Judgments formerly obtained against him and the last he pleads thus That one Eliz. H. in eadem Curia implacitasset c. and Recovered in Trinity Term but expresses not in what Year and there upon a general Demurrer Iudgment was given for the Plaintiff and it was assigned for Error That this Incertainty in respect of Time was good at least upon a general Demurrer But the Court affirmed the Judgment For if such Pleading should be allowed it would be very inconvenient to the Plaintiff and very difficult to find out the Record and then how should he plead that it was kept on foot by Fraud or such like But if it had been ascertained when the Plea commenced tho' no time alledged when the Judgment was obtained yet that would have been good for the Continuances would have directed to the finding of it Twisden said That the Course in this Court was a in Scire facias upon a Judgment to say quod cum recuperasset without alledging any Time But in the Common Pleas they set forth the Term. Putt versus Vincent IN Debt for 3900 l the Plaintiff declared upon Articles of Agreement wherein Putt Covenanted to Convey certain Lands to one Nosworthy and there are also certain Covenants from Nosworthy to the Plaintiff and from the Defendant Vincent who after Imparlance pleads that Nosworthy sealed the Deed and is still alive To which the Plaintiff Demurred And it was alledged by Jones That this being after Imparlance could not be pleaded it being only in Abatement and that he Commences his Plea Actio non as if it were a Plea in Bar. And the Court inclined that it was insufficient for both Causes But then it was said It appears by the Deed to which Nosworthy was a party that the Plaintiff could not sue the Defendant alone and so of his own shewing he could not have Iudgment But it was answered That it did not appear that Nosworthy ever Sealed the Deed. Et Adjournatur Postra Gifford versus
Perkins IN Debt upon a Bond entred into Eliz. Perkins who was the Plaintiffs Wife and he as her Administrator brings this Action The Defendant pleads That he delivered the Bond to one Eliz. Perkins his Sister quae obiit sola innupta absque hoe that he delivered it to Elizabeth Perkins the Plaintiffs Wife And to that the Plaintiff Demurres Specially For if it be taken that there are two of the name the Defendant should have pleaded non est factum for it amounts to no more Or at least he ought to have induced his Plea that there were two Elizabeth Perkins But this Traverse is designed to bring the Marriage in question which is not to be tried now Wherefore the Court gave Iudgment for the Plaintiff Twisden said If the Issue be Whether the Wife of such a Man or no This is to be tried per Pais For if she be a Wife de facto it serves upon the Issue But Loyalty of Matrimony is to be tried by the Certificate of the Bishop only 2 Cro. 102. Dightons Case A Mandamus was prayed to the Corporation of Stratford super Avon to restore Dighton the Town Clerk They returned their Letters Patents of Incorporation whereby they had Authority to Grant the Office of Town Clerk Durante bene placito and that he was amoved from his Office by the Mayor and Burgesses It was said that here appeared no Cause of amoval upon the Return which was manifestly needless having Authority to turn them out at their Pleasure But Twisden said It hath béen held that where any such like Power is to chuse one into a Iudicial Office as an Alderman whose place concerns Judicature that they cannot amove him without Cause But this was in a Misterial Office It was further moved That it did not appear that they had discharged him by any matter in Writing under Seal and it could not be by Parol Sed non allocatur for it is returned to be done by the Mayor and Burgesses and a Corporation cannot do any thing by Parol Post An Executor obtained Judgment in Debt in this Court and was afterwards upon an Information here convicted of Forging the Will It was also made void by Sentence in the Ecclesiastical Court Whereupon the Court was moved to vacate the Judgment which they ordered accordingly and the Cause of Vacuteing thereof to be entred upon the Record Vide Ante in Paris's Case King versus Atkins IN Debt upon a Bond the Condition recited That whereas the Plaintiff was bound with the Defendant being an Excise-Man that he should render a true Account in the Exchequer that the Defendant should save him harmless at all times c. The Defendant pleaded non fuit damnificatus The Plaintiff replied That a Scire facias issued out against him c. To which the Defendant demurred because he did not alledge that he gave notice This being spoken to divers times the Court thought notice not requisite in this Case no more than upon a Promise to pay so much at the others Marriage or return into England vid. Hob. 112 113. 1 Bulst 12 and 13. Where it is held upon a Promise notice is not necessary otherwise upon a Bond because of the penalty Ante Chester versus Wilson TRin. 21 Car. 2. Rot. 498. The Case was two Ioyn-tenants the one Grants Bargains and Sells all his Estate and Interest to the other It was held clearly by all the Court That this amounted to a Release but it must be pleaded quod relaxavit for one Ioyn-tenant cannot grant to another Wilson versus Armorer IN Debt against the Heir upon the Bond of his Ancestor who pleaded riens per discent the Jury find a Special Verdict to this effect That the Father was seised of a Mannor in Fee and made a Feoffment of it excepting two Closes for the life of the Feoffor only and refered it to the Iudgment of the Court whether these Closes descended to the Defendant or not So that the Question was Whether the Closes were well excepted or passed by the Feoffment And it was argued by Levins for the Plaintiff That by these words the two Closes were Totally excepted and that the Law should reject the latter words because they cannot take effect according to the Parties intention to reserve to the Feoffor a particular Estate If one surrendred a Copyhold to the use of J. S. and his Heirs which Estate to begin after his death adjudged in 2 Rolls 261. a present Fee simple passed 3 Cro. 344. A Man said to his Son being upon his Land Stand forth Eustace my Son reserving and Estate for mine and my Wifes Life I do give you this Land to you and your Heirs Resolved there that this is a good Feofment Moor 950. Popham 49. A Man possessed of a Term in an House in the right of his Wife granted it excepting the Cellar pro usu suo proprio and held that by these words it was altogether excepted out of the grant 1 Anderson 129. Serjeant Turner è contra For that it is but one Sentence and cited 38 H. 6. 38. An Addowson was granted saving the Presentation to the Grantor during his life and held void and Pl. Com. 156. where it is said if a Termour granted his Term after his Death it is void But if in two Sentences as to grant his Term Habendum after his Death there the Habendum is only void Er Adjurnatur Postea Love versus Wyndham AN Action upon the Case upon an Issue directed out of Chancery upon a Special Verdict the Case was George Searl being seised of the Mannor of N. Demised the same to Nich. Love for 99 years if 3 Lives should so long live N. Love devised it to Dulcibell his Wife the remainder to Nich. his Son for life and if he the said N. the Son should dye without Issue then to Barnaby Love the Plaintiff The Executor assented and whether the Devise to Barnaby were good was the Question Jones for the Plaintiff this is a good possibility I shall make two points First If a Termor Devise first to one and then to another whether he may Devise it over Secondly Whether the Limitation here after the Death without Issue be a good Limitation over First He may make a third Limitation which is a Possibility upon a Possibility at least he may make 2 or 3 such Limitations over I can't certainly say where it will end It can't be denied but that a Termour may Devise first to one for life and after to another 8 Co. 95. But I say he may go further and that will appear by Reason and Authority First By Reason The Reason given why the Executory Devise in the first case is good is because 't is in Construction of Law as much as if he had Devised it to the last first if the first Man should dye within the Term and then had Devised that the first should hold during life and without such a transposition it cannot
principium inde One of the Lessees died before the Lease for Life determined whereupon the Lessor brings Covenant for the 3 l and sets forth this Matter in the Declaration To which the Defendant Demurred supposing that the 3 l was not to be paid unless the Death had hapned after the Term had commenced And the Court having heard it spoken to divers times by Counsel on both sides by the Opinion of Twisden Rainsford and Moreton Iudgment was given for the Defendant For all the other Reservations but this were expresly post principium termini and Clauses in Companies are to expound one another as it is said in the Earl of Clanrickard's Case in Hobart It is in the nature of a Rent and Reservation which it is not necessary that it should be Annual And in Randall and Scories Case 1 Cro. such a Duty was distrained for and it shall attend the Reversion Rolls 457. And he that hath but an interesse termini is not to pay the Rent reserved for there is no Term nor no Reversion until it commences If A. lets to B. for 10 years and B. redemises to A. for 6 years to commence in futuro in the mean time this works no suspension of either Rent or Condition The Intention of the Parties is to be taken That it should not be paid until then However Reservations are to be taken most strongly against the Reserver As Palmer and Prowses Case cited in Suffeild's Case 10 Co. is The Reversion of a Lease for years was granted for Life reserving certain Rent cum reversio acciderit a Distress was made for the Rent arrear ever since the Grant Resolved that it was good for no more than was incurred since it fell into possession Keeling Chief Justice held strongly to the contrary For he said the words were so express in this Case that they have left no place for Construction which other Clauses or the Intention of the Parties may direct when the Expression is doubtful He took it for a Sum in gross for Distrained for it could not be being reserved upon the Death of the Lessees or either of them which was also the limitation of their Lease And that Interpretations were not to be made against the plain sense of words He relied upon Edriches Case 5 Co. where the Judges said They would not make any Construction against the express Letter of the Statute yet there was much Equity in that Case to incline them to it And he said As well as a Fine is paid upon the taking of such Lease before it begins why may not something be paid also when their Interest determines And in some Countries they call such Payments A fair Leave Miller versus Ward TRespass for breaking of his Close on the 1st of August and putting in his Cattel The Defendant Iustifies for Common which he prescribes for in this manner viz. That two years together he used to have Common there after the Corn reaped and carried away until it was sown again and the Third year to have Common for the whole year and that that Year the Plaintiff declares for the Trespass was one of the years the Field was own quod post grana messa c. he put in his Cattle absque hoc that he put them in aliter vel alio modo The Plaintiff Demurs which it was Ruled he might for the Defendant doth not answer to the Time wherein the Trespass was alledged and the Traverse will not help it for aliter vel alio modo doth not refer to the time Anonymus AN Administrator brings Debt upon an Obligation The Defendant pleads payment to himself Vpon which it was found for the Defendant Coleman prayed that he might have Costs As where an Executor brings an Action sur Trover and Conversion in his own time and found against him it was Ruled in Atkyes Case 1 Cro. that he should pay Costs and hereof his own knowledge he had no cause of Action the Money being paid to himself But the Court Resolved That there ought to be no Costs in this Case for the Action of Trover in his own time might have been brought in his own Name so it was needless to name himself Executor or Administrator but the Action here is meerly in right of the Intestate Harvey versus James AFter Verdict at the Assizes the Clerk delivered the Postea to the Attorney by whose negligent keeping it came to be eaten with Rats But the Court Examining the Clerk of Assize it appeared that he had Entred the Jurors Names Verdict and Tales in his Book and according to that the Court suffered the Verdict to be entred on Record Anonymus IN an Action of Battery against Baron and Feme the Jury find the Feme only Guilty and not the Baron It was moved in Arrest of Judgment That this Verdict was against the Plaintiff for he ought in this Case to have joyned the Baron only for conformity and he declaring of a Battery by both the Baron being acquitted he hath failed of his Action and so is Yelverton 106. in Drury and Dennys Case But here the Court gave Iudgment for the Plaintiff and said that that in Yelvetron was a strange Opinion Anonymus A Certiorari was prayed to remove an Indictment of Manslaughter out of Wales which the Court at first doubted whether they might grant in regard it could not be tryed in an English Country But an Indictment might have béen found thereof in an English County and that might be tryed by 26 H. 8. cap. 6. vid. 1 Cro. Soutley and Prices Case and Chedleys Case But it was made appear to the Court That there was a great cause to suspect Partiality if the Tryal proceeded in Wales for the Party was Bailed already by the Justices of Peace there which Twisden said it was doubtful whether they had power to do for Manslaughter They awarded a Certiorari and took Order that the Prosecutor should be bound by Recognizance to prefer an Indictment in the next English Country Collect versus Padwell IN Debt upon a Bond to perform an Award which was That one should make a Lease to another before the 21 of October which was 2 or 3 Months after the Award and that the other upon the making of the Lease should pay him 50 l The Question was Whether notice in this Case ought to be given when he would make the Lease for otherwise it was said the other must have 50 l always about him or be in danger to break the Award And it was resolved by the Court That no notice was necessary Noell versus Nelson MIch 21. Car. 2. Rot. 745. Error to Reverse a Judgment given in the Common Pleas where the case was thus Nelson brings Debt against Noel as Executor of Sir Martyn Noel who pleads plene administravit The Plaintiff confesseth the Plea and prayeth Iudgment de bonis Testatoris quae in futoro ad manus Defendentis devenirint and upon a Suggestion of Assets afterwards he
distress upon a Copyholder for a reasonable Fine the value of the Land must be set forth and the certainty of the Fine that the Court may judge of it Austin and Gervases Case Hob. 69 77. In Consideration that he should give him Bond for 10 l the Defendant promised c. and pleads that he offered him Bond for the said sum c. and upon Issue Non Assumpsit it was found for the Plaintiff But he could not have Iudgment because the sum wherein he offered to become bound was not exprest so that it might appear to the Court to be sufficient Jones contra This differs from the Case in Hob. for there the sum being certain for which the Bond was to be given the Court may well judge what Penalty will secure it But it is not so in this Case for it doth not appear to what value the damnification may be so there is nothing as in the other Case whereunto to Proportion the Penalty of the Bond. The Court held that it would not have been good upon a Demurrer but being after a Verdict and the Statute of Jeofails made at Oxford which Twisden stiled an omnipotent Act they gave Iudgment for the Plaintiff Lord Birons Case THe Lord Biron was Plaintiff in an Action and upon a Non-Suit five pounds Costs were taxed against him and he brought another Action for the same matter which was said to be meerly for vexation and that he refused to pay the Costs neither could he be compelled being a Peer and in Parliament time Wherefore the Court gave day to shew Cause why this Action should not stay until he had paid the Costs in the former Anonymus IF a Writ of Error be brought in the Exchequer Chamber and that being discontinued another is brought in Parliament this second Writ is a Supersedeas But if a Writ of Error be brought in Parliament and that abates and the Plaintiff brings a second this is no Supersedeas because it is in the same Court Prior versus Shears IN a Writ of Error to Reverse a Judgment given in the Palace Court in an Assumpsit where the Plaintiff declared sur indebitatus pro Naulo and upon Non Assumpsit c. had Judgment It was assigned for Error That it was not ascertained how the Defendant was indebted and that Fraight was usually contracted for by Charter party and if so the general Indebitatus would not lie for a Debt by Specialty Notwithstanding the Judgment was affirmed for for ought appears there was not any Deed in the Case and it shall not be intended and it is no more than the Common Action pro mercimoniis habitis venditis Note It was further objected That this appears to be for Marriners Wages for Sailing to some Foreign parts which must needs be out of the Jurisdiction of the Marshalsea and though the Argréement were made within it yet the thing being to be done elsewhere they could not hold Plea As if a Carrier should agree within the Limits of the Court to carry Goods from thence to York no Action could be brought there upon it which was agréed But the Court said here It doth not appear they were to Sail to any place out of the Jurisdiction and they have laid all the Matter to be infra Jurisdictionem Curiae And therefore the Judgment was Affirmed Hayman versus Trewant TRin. 22 Car. 2. Rot. 710. In an Action upon the Case for that the Defendant bargained with him such a day and year for the Corn growing upon such Ground affirming it to be his own whereas he knew it to be the Corn of J. S. and postea adtunc ibid. fraudulenter vendidit Warrant ' c. The Defendant pleads That the Plaintiff had another such Action depending for the same Cause and demands Iudgment of the Writ The Plaintiff Replies that that Action was commenced for another Cause and not for the same absque hoc that it was for the same Cause To which the Defendant Demurs specially because the Plaintiff having denied what the Defendant affirmed ought not to have added a Traverse but to have concluded to the Country As the Case of Harris and Phillips 3 Cro. 755. was Adjudged Where in an Audita Querela to avoid the Execution of a Recognizance the Plaintiff sets forth that it was defeazanced upon payment of divers Sums of Money at certain days and that he was at the place appointed and tendred the Money and that the Defendant was not there to receive it The Defendant pleaded Protestando that the Plaintiff was not there to pay it and that he was there ready to receive it absque hoc that the Plaintiff was ready to pay it Which being specially Demurred to the Court held the Plea naught and that there being an express Affirmative and Negative there should have been no Traverse for so they may traverse one upon another in infinitum Notwithstanding the Traverse was here held good which was allowed for putting the Matter more singly in Issue And it appears that Phillips's Case was Adjudged upon another matter For that the Plea in Bar was not entred as the Defendant's Plea but was entred thus Pro placito Bush a Stranger dicit Yelv. 38. Then it was moved That as the Plaintiff hath declared here it appears that the Warranty was subsequent to the Bargain For it is said that he bargained for the Corn knowing it to be the Corn of J.S. postea adtunc ibidem vendidit which is repugnant Sed non allocatur for where it is said first That he bargained that shall intended a Communication only and the Consummation of it after when the Warranty was given which is also said to be adtunc ibidem So alledged well enough Foxwith versus Tremaine TRin. 21 Car. 2. Rot. 1512. Five Executors bring an Action sur Indebitat ' Assumps The Defendant pleads in Abatement That two of them are under the Age of 17. and that they appeared by Attorney And to this the Plaintiffs Demur They who Argued for the Defendant made two Questions 1. Whether they ought all to joyn in the Action And it was said they ought not for one under Age cannot prove the Will And in Smyth and Smyth's Case Yelv. 130. it is Resolved they must be all Named so that their Interest may be reserved unto them but are not to be made parties to the Action And for this the Case between Hatton and Mascue which was Adjudged in the Exchequer Chamber was cited Where in a Scire facias it was set forth That A. being the Executor of B. made his Will thus I Devise all my Personal Estate to my two Daughters and my Wife whom I make my Executrix And that they had Declared in the Ecclesiastical Court that this made them all three Executrixes and that the Will was proved and that the Wife brought this Scire facias to have Execution of a Judgment obtained by A. the Testator And the Defendant Demurred because not
the first Man for he is only to compound the business if he can Twisden The discharge being set forth in an Order we must intend it duly made 't is the common practice to go to the Sessions first It was moved at first that it did not appear that the Plaintiff had Notice but that Point was waided for being in a judicial proceeding it shall be intended Et Adjurnatur Lucy versus Levington PAsch ult Rot. 96. Covenant by the Plaintiff as Executor of J. S. for that the Defendant covenanted with J.S. his Heirs and Assigns to levy a Fine c. and that they should enjoy the Lands against all persons claiming under Sir Peter Vanlore and then he says that Sir Robert Crooke and Peter Vandebendy in the Testators life time did enter claiming under Sir P. Vanlore c. The Defendant pleads That he had a good and indefeasible Title in the Lands at the time of the Covenant by vertue of certain Fines from Sir Ed. Powel and his Wife but that in 13 Regis nunc there was an Act of Parliament by which these Fines were made and declared to be void and that Sir R. C. and P. Vandebendy had Title and entred by reason of the Act and not otherwise The Act which was pleaded in haec verba recites that certain Men came with armed force and thereby extorted and took the Fines c. And to this the Plaintiff demurred It was urged for the Defendant That this Title was by matter subsequent to the Covenant and not any thing which was in being then as 9 Co. 106. Sir T. Gresham conveys Land to certain uses with power of Revocation and then does revoke and Aliens and dies the Revocation was not warranted by his power but was after made good by Act of Parliament and then Process went out against his Widow for a Fine for the Alienation of Sir T. G. the Lands being of capite tenure but she was discharged because the Alienation had its effectt by an Act of Parliament which can do no wrong Twisden 'T is hard this should be a breach for the Defendant cannot be intended to Covenant against an Act of Parliament a thing out of his power Baron and Feme levied a Fine J. S. Covenants that the Conusee shall enjoy it against all lawfully claiming from B. and F. brings Dower after the Death of B. the Conusee does not plead the Fine but suffers Judgment and brings Covenant against J.S. and adjudged against him for the Covenant shall not extend to a Right which is barred and besides she did not claim lawfully There is an Old Book which says that if an Attainder be reversed by Parliament the person shall have Trespass against him which took the profits of his Land in the interim Hale My Lady Greshams Case is not like this for there the party was in by the Queens consent to the Alienation by the Act she passed but here the Covenant is broken as much as if a Man recover Land and then sell and Covenant thus and then it be evicted in a Writ of Right for this is in the nature of a Judgment Tho' it be by the Legislative power it may be the prospect of this Act was the reason of the Covenant nor has the Defendant reason to complain for the Act was made because of his own fraud and force Every Man is so farr party to a private Act of Parliament as not to gainsay it but not so as to give up his Interest 't is the great question in Barringtons Case 8 Co. the matter of the Act there directs it to be between the Forresters and the Proprietors of the Soil and therefore it shall not extend to the Commoners to take away their Common Suppose an Act says Whereas there is a Controversie concerning Land between A. and B. 'T is Enacted That A. shall enjoy it This does not bind others tho' there be no saving because it was only intended to end the difference between them two Whereupon Iudgment was given for the Plaintiff It was agreed by all the Justices that tho' the Covenant were made only to J. S. his Heirs and Assigns and it were an Estate of Inheritance yet the Breach being in the Testators Life time the Executor had well brought the Action for the Damages Peter versus Opie IN an Assumpsit the Plaintiff declares That there was an Agreement between him and the Defendant that be the Plaintiff should pull down two Walls and build an House c. for the Defendant and that the Defendant should pay him pro labore suo in circa divulsionem c. 8 l and that in consideration that the Plaintiff assumed to perform his part the Defendant assumed to perform his and the Plaintiff avers that he was paratus to perform all on his part but that Defendant had not paid him the Money And after a Verdict for the Plaintiff it was moved in Arrest of Judgment That he did not aver that he had done the work Hale Pro labore here makes a Condition precedent and therefore the performance of the work ought to have been averred for tho' in case of a Reciprocal Promise performance need not be averred yet if the Promise refers to an Agreement which contains a Condition precedent the performance of that must be averred as if I should promise one to go to York and in consideration of that he promise to pay me 10 l there needs no averment of my going to York otherwise if the Counter promise were to pay 10 l for my going to York So if the Counter promise were to do a thing after a time ascertained or to be ascertained it must be averred that the time is past Therefore that it is said by way of Reciprocal promise will not concern much for every Agreement is a Reciprocal promise but the matter is what the Agreement is Here tho' the Reciprocal promise be the foundation of the Consideration yet 't is to be considered that it refers to a Conditional promise or an Agreement and the Promise obliges not the Defendant to do it otherwise than according to the Agreement Now to shew this pro labore makes a Condition precedent Suppose the Agreement to be in writing thus Memorand that J.S. agrees and promises to build and J. N. promises to pay him so much for his pains it cannot be taken but that the building must be precedent to the payment 'T is the common way of Bargaining and in common dealing men do not use to pay before the work be done it would be inconvenient to give cross Actions in such cases especially since 't is likely that the Workman is a poor Man 'T is true if there be a time limited for the payment which time may fall out before the work or thing be done there the doing it is not a precedent Condition Vivian and Shipping 3 Cro. An Award that one should pay 10 l and in Consideration thereof the other should become bound
there be not an Entry immediately a Livery within the View is not good and in this case by the Marriage he becomes seised in the Right of his Wife and cannot by his own Act divest himself of that Estate or work a prejudice to his Wife by putting the Estate out of her Which makes it differ from the Case of the 38 E. 3. 11. b. Where a man made Livery of the within View to a Woman and before she Entred married her and claimed the Estate in Right of his Wife there held to be a good Feoffment For in that case there is no Alteration of the Estate consequent upon the Intermarriage Neither is it like the Case of 2. R. 2. quoted in Forse and Hemling's Case in the 4 Co. Where a Woman grants a Reversion to a Man and they Intermarry before Attornment For there the Grant is to be perfected by the Act of a Stranger which in reason should be more available to a man than his own Act. But it was Resolved by all the Court that this Livery was well Executed after the Marriage For an Interest passeth by the Livery in View which cannot be countermanded The effectual part of it viz. Go Enter and take possession was before the Marriage tho' the Estate is not in the Feme while Entry She hath done all on her part to be done and hath put it meerly in the Foffor's power and when he Enters it hath a strong retrospect to the Livery and shall be pleaded as a Feoffment when she was sole If two Women Exchange Lands and one marries before Entry this shall not defeat the Exchange The Cases of 2 R. 2. and 38 Ed. 3. are as strong Emerson versus Emerson TRin. ult Rot. 1389. Error of a Judgment in the Common Pleas in an Action of Trespass by the Plaintiff as Executor upon the Statute of 4 E. 3. De bonis asportatis in vita Testatoris The Plaintiff declared that the Defendant blada crescentia upon the Freehold of the Testator messuit defalcavit cepit asportavit Vpon Not Guilty pleaded a Verdict and Judgment was for the Plaintiff and assigned for Error That no Action lay for Cutting of the Corn for that is a Trespass done to the Freehold of the Testator for which the Statute gives the Executor no Action and while the Corn stands 't is to many purposes parcel of the Freehold So that if a man cuts Corn and carries it away presently tho' with a Felonious intent 't is no Felony Otherwise if he let it lye after 't is Cut and at another time comes and steals it So that it appears for parcel of the Trespass no Action lyes then entire Damages being given as well for the Cutting as Carrying away the Corn the Judgment is Erroneous But all the Court were of another Opinion 9 Co. 78. for 't is but one entire Trespass the Declaration only describes the manner of Taking it away Indeed if it had been quare clausum fregit blada asportavit it had been naught or if he had Cut the Corn and let it lye no Action would have lain for the Executor So if the Grass of the Testator be Cut and carryed away at the same time because the Grass is part of the Freehold but Corn growing is a Chattel The Statute of 4 Ed. 3. hath been always Expounded largely Mr. Amhurst's Case of Grays-Inn SErjeant Maynard moved for a Mandatory Writ to the Mayor and Court of Aldermen of London upon the Statute of 13 Car. 2. c. 11. to give Judgment according to the late Act of 22 nunc Regis The Case was That the Act appoints a Market to be on certain Ground set out in Newgate-Market and in all such cases for the satisfaction of the Owners of the Ground if the City cannot agree with them for it it Impowers the Mayor and Aldermen to Empannel a Jury who shall Assess and Adjudge what satisfaction and recompence shall be given to the Owners and says That the Verdict of such Jury on that behalf to be taken and the Judgment of the said Mayor and Court of Aldermen thereupon and the Payment of the Money so awarded or adjudged c. shall be binding and conclusive to and against the Owners c. Now there was Fifteen thousand Foot of Amhurst's Ground taken away for this purpose and a Jury had been Empannelled and had assessed and awarded him Two shillings a Foot but the Mayor and Court of Aldermen refused to give Sentence or Judgment thereupon This says he is a Ministerial thing and this Court will interpose when any Officers will not do Iustice or will out-go their Authority For there is the same Reason to command to do Justice as to prohibit Injustice A Bishop of Exon had Fallen-out with a Town in Cornwal and denyed them Chrisme and a Mandamus went hence to command him to give it them Mr. Noy brought in a Copy of it Sir William Jones This somewhat resembles a Procedendo ad Judicium this is stronger than the Case of commanding a Bishop to grant Administration there this Court commands them to observe a Statute tho' it be in a Matter this Court has no Cognizance of We can't have an Action on the Case Hale If they don't make you Satisfaction your Interest is not bound Maynard But that is taken away by the same Act Pag. 143. 4. We are Lessee to â—he Dean and Chapter of St. Pauls Hale 'T is not Enacted That they shall give Judgment but that is implyed I never knew a Writ commanding to grant Administration tho' the Opinion has been so Sir William Jones That was done in Sir G. Sandy's Case after great Debate Then a Rule was made to shew Cause why a Writ should not go Afterwards the Court granted a Writ but willed them to consider well of the Form and to whom to direct it Loyd versus Brooking TRin. ult 1046. The Case was Tenant for Life Remainder to his first Son in Tail Remainder to J. S. for Life Remainder to his first Son in Tail c. Tenant for Life after the Birth of his first Son accepts a Fine from J. S. to certain uses and then makes a Feoffment after which the Son of J. S. is Born and whether his Contingent Remainder were destroyed or should vest in him was the Question And it was Resolved by the whole Court upon the first Opening that the Contingent Remainder was not destroyed the acceptance of the Fine displaced nothing the Feoffment divested all the Estates but the Right left in the first Son in Remainder supported the Contingent Remainders My Lord Coke's Case 2 Rolls 796 797 is stronger He Covenanted to stand seised to the use of himself for Life Remainder to his Wife for life Remainder to his Daughter for Life when born Remainder to her first Son in Tail And minding to disturb the arising of the Contingent Estates attempted it by these two Means First He grants the Reversion and in the
appearing that B. had made this Discovery to him of which he was now about to give Evidencee before such time as he had Retained him the Court were of Opinion that he might be Sworn Otherwise if he had been retained his Solicitor before The same Law of an Attorney or Counsel Sir Samuel Jones versus the Countess of Manchester IN an Ejectment upon a Trial at the Bar the Evidences which as the Plaintiff pretended would have made out his Title and would have avoided the Settlement in Joynture which the Countess of Manchester claimed were locked up in a Box which was in the Custody of a Stranger who before the Trial delivered the Key to the Earl of Bedford Brother to the Countess of Manchester and Trustee for her who being present in Court and requested to deliver the Key that the Box might be opened which was brought into Court He said being a Trustee in the behalf of his Sister He conceived he was not obliged to shew forth any Writings that might impeach her Estate and if he should it would be a breach of the Trust reposed in him which he held sacred and inviolable The Court told him That they could not compel him to deliver the Key But Hales said It were more advisable for him to do it For he held tho' it is against the Duty of a Counsellor or Solicitor c. to discover the Evidence which he which retains him acquaints him with yet a Trustee may and ought to produce Writings c. But they could not Rule him to do it here and the Earl declaring his Resolution not to do it the Plaintiffs Counsel desired leave of the Court to break open the Box. The Court said that they would make no Order in it nor would determine how far the Title to the Writings drew in the property of the Box or whether the delivering the Key to the E. did not amount to a Pledge of the Box. Serjeant Maynard said It was the course of the Chancery when a Bill was Exhibited against a Joyntress to discover Writings not to compel her to do it till such time as the Plaintiff agrees to confirm her Joynture And he knew a Bill of Discovery brought against a Purchasor upon a valuable Consideration and the Court would not compel him to Answer tho' it was proved there was a Deed and a real Settlement Vpon opening the Evidence in the Case at Bar these Points were stirred and Resolved by the Court That where a man makes a Feoffment c. to Uses with power of Revocation when he hath executed that Power he cannot limit New Uses but if it had been with a Power to revoke and limit New then he might revoke and limit New with a power of Revocation annexed to those New which if he doth afterwards revoke he may again limit New Uses according to the first Power and so in infinitum But always the New Uses must correspond to those Circumstances c. which the first Power appoints for that is the Foundation 2 Rolls 262. Beckett's Case The Plaintiff being at a loss for his Writings was Nonsuit Seaman versus Dee AN Indebitat ' Assumpsit as Executor of S. was brought against the Defendant by the Plaintiff as an Attorney of this Court by Original The Defendant pleads four Judgments against him One in an Action of Debt upon which the Question was for Money borrowed by the Testator upon Interest which Debt with the Interest at the time of the Action brought amounted to such a Sum which was recovered against him And pleads three Judgments besides ultra quae he had not to satisfie The Plaintiff Demurs and after being divers times spoken to the Court Resolved for the Plaintiff First For that Hale said No Action of Debt lies for the Interest of Money tho' he which borrows it Promises to pay after the rate of 6 l per Cent. for it but it is to be recovered by Assumpsit in Damages So where by Deed the party Covenants or Binds himself to pay the Principal with Interest the Interest is not to be included with the Principal in an Action of Debt but shall be turned into Damages which the Jury is to measure to what the Interest amounts to which is allowed to be done tho' indeed the Statutes which permit the taking of Interest say That Usury is damned and forbidden by the Law of God And tho' it was Objected That the Judgment is but Erroneous and the Executor liable while Reversed and it cannot be said it was the Executor's fault to suffer it For an Executor may plead a Judgment against him in Debt upon a simple Contract tho' it could not have been recovered if he had pleaded to the Action or without his voluntary Consent To that Hale said That Debt upon a Simple Contract lies against an Executor if he please nay it hath been Adjudged that an Executor may retain for a Debt but to him from the Testator upon a Simple Contract But in this Case no Action lies by the Law nor any admission of the Executor can make it good Secondly It appears that part of the Interest accrued after the Testator's death which is the Executors proper Debt being his own default to suffer the Interest to run on Then the Action being brought both for that which is due in the Testator's time and for that which grew due since is manifestly Erroneous and there is nothing in the Defendants Plea to take away the Intendment that he had Assets to satisfie at the Testator's death To the Objection That the Plaintiff once had abated his Writ for that he declares by Priviledge as an Attorney of the Court. It was Answered That the alledging of his Profession and Priviledge in the Declaration was Surplusage and an impertinent Flourish and that being rejected the Declaration is sufficient upon the Writ and an Attorney is at election to Sue either by Original or by Priviledge Wherefore the Rule was that the Plaintiff should have his Judgment The Lady Anne Fry's Case IN an Ejectment by Williams Lessee of George Porter Esquire against the Lady Anne Fry The Case appeared to be this upon a Special Verdict That Mountjoy Earl of Newport was seised of an House called Newport-House in the County of Middlesex and had three Sons who are yet living and had two Daughters Isabel married to the Earl of Banbury by whom she had Issue Anne the Defendant and Anne married to Porter by whom she had Issue George Porter Lessor of the Plaintiff and made his Will in this manner I give and bequeath to my Dear Wife the Lady Anne Countess of Newport all that my House called Newport House and all other my Lands c. in the County of Middlesex for her Life and after her Death I give and bequeath the Premisses to my Grandchild Anne Knolles viz. the Defendant and the Heirs of her Body Provided always and upon Condition that she Marries with the Consent of my said Wife and
Discretion tion of the Court to grant Restitution even after a Traverse put in yet now since the Statute of Eliz. where such Plea is tendred the Court cannot grant a Restitution tho' they would in this Case if by Law they might for the party that made this Entry had lost the Land just before by Verdict in an Ejectment and by this means the effect of it should be disappointed Note The Indictment wanted Vi armis for it was pacifice intravit sine Judicio disseisivit à possessione expulit amovit But on the other side it was said First That the Entry being pacifice it was not the course to lay it Vi armis Secondly That 37 H. 8. cap. 8. supplied the defect of Vi armis in an Indictment But as to the latter the Court were of Opinion that the Statute supplied only the lack of the words gladiis baculis cultellis as are mentioned in the Statute Vid. the Stat. Anonymus A Suit for a Pension may be in Ecclesiastical Court tho' by Prescription but if it be denied to be time out of mind then a Prohibition is to go so that the Prescription may be tried at Law as in a Modus decimandi mutatis mutandis It was said by the Court that two might joyn in a Prohibition tho' the Gravamen was several but they must sever in their Declarations upon the Attachment Termino Sancti Hillarij Anno 26 27 Car. II. In Banco Regis Anonymus IN Error the Writ was Teste the 30th of November last and Retornable in Parliament the 13th of April next the Day to which the Parliament was Prorogued The Defendants Counsel desired the Rule of the Court for the taking out of Execution supposing this Writ of Error was no Supersedeas and alledged that the late Rule made in the House of Lords did not extend to their Case for that was That all Causes there depending should not be discontinued by the intervening of a Prorogation but this Case will not be there depending before the Return of the Writ In 3 H. 7. 19. the Court of Kings-Bench would not allow a Writ of Error into the Parliament until some Error was shewn to them in the Record lest it should be brought on purpose to delay Execution In Bulstrode's Reports a Writ of Error Returnable the second Return of the Term was held to be no Supersedeas because it seemed an affected delay that it was not made Returnable the first Return Hale It has been taken that a Prorogation determined a Cause depending in Parliament by a Writ of Error but the Lords have lately Declared otherwise But that comes not to this Case the Writ not being Returned A Writ of Error Returnable ad proximum Parliamentum is not good but otherwise if they are summoned or prorogued to a Day certain If the Day of the Session had been a Year hence it would be hard a Writ of Error should stay Execution and the same Reason where the whole Term intervenes A Writ of Error did bear Teste 10 Nov. and was Returnable 1 Nov. proximè futur ' and the Record was sent into the Exchequer Chambet and a Mittimus Endorsed upon the Roll here And it was Resolved that Execution might be taken out because of the long Return Secondly That tho' there were Mittimus upon the Roll yet the Record remained here until the Return of the Writ to all purposes And the Opinion of the Court was that the Writ of Error was no Supersedeas But they would make no Rule in it because they said it was not Iudicially before them but the party might take out Execution if he thought fit And then if the other Side moved for a Supersedeas they should then Resolve the Point Note Hale said in an Assumpsit for Money upon the Sale of Goods upon non Assumpsit the Defendant might give in Evidence an Eviction of the Goods to mitigate the Damage and in all Assumpsits tho' upon certain Contracts the Jury may give less Damages than the Debt amounts unto as he said was done in a Case where a man promised to give a Straw for every Nail in every Horses Shoe doubling every time and they gave in Damage but the Value of the Horse tho' as the Bargain was made it would have come to above 100 l Lomax versus Armorer A Writ of Error was brought to Reverse a Judgment in Dower given in the Court of Newcastle The Error assigned was because the Proceeding was by Plaint and no Special Custom certified to maintain it As in London and Oxford they have Assizes of Fresh Force by Plaint The Court held it to be Erroneous for this Cause but would not determine whether it might not be good upon a Special Custom 1 Rolls 793. Pl. 11. Anonymus A Mandamus was granted to the Archdeacon of Norwich to Swear a Churchwarden upon surmize of a Custom That the Parishioners are to choose the Churchwardens and that the Archdeacon refused him notwithstanding that he was Elected according to the Custom The Archdeacon Return'd that non sibi constat that there is any such Custom which Form is not allowable for it ought to be positive whereupon an Action might be grounded and that by the Canon the Parson is to choose one c. The Court said that Custom would prevail against the Canon and a Churchwarden is a Lay Officer and his Power enlarged by sundry Acts of Parliament and that it has been Resolved that he may Execute his Office before he is Sworn tho' it is convenient he should be Sworn and if the Plaintiff here were Sworn by a Mandate from this Court they advised him to take heed of disturbing him Noy Rep. 139. Anonymus AN Assumpsit was brought against an Executor for that the Testator being Indebted to the Plaintiff he did ad requisitionem of the Defendant come to Account with him upon which there appeared to be so much due to the Plaintiff which he promised to pay After Verdict the Judgment was de bonis propriis and it was moved that it ought to have been de bonis testatoris For the Accounting with him is little more than telling him what is due and this might make an Executor afraid of Reckoning with any of his Testators Creditors The Court said that the Accounting upon the Defendants Request which was more than the Plaintiff was bound to have done was a Consideration and after a Verdict they must intend an express Promise But Hale said If upon the Evidence it had appeared that there was no Intention to alter the Nature of the Debt as in case an Executor should say stay a while until the Testators Estate was come in and I will pay you he should direct the Jury to find against the Plaintiff that would in such case charge an Executor in his own Right Termino Paschae Anno 27 Car. II. In Banco Regis NOte In an Indebitat ' Assumpsit a man Promises in Consideration that
disposition of them in case of such necessity pendente lite And the Court granted the Prohibition quoad that Allegation only Tothil versus Ingram IN Replevin the Defendant avowed for an Herriot and Arrears of Rent upon a Lease In Bar of this Avowry as to to the Herriot the Plaintiff pleaded That in a former Replevin brought by him against J.S. the said J. S. made Conuzance as Bailiff to the Defendant for the same Herriot and was barred And to the rest he pleaded a Release of all demands made unto him by the Avowant before this Rent accrued and to this the Avowant demurred First For that he doth not shew that he which made Conisans was Bailiff to the now Avowant for he might make Conisans without his Privity and if so it could be no bar to him now As to the Release it was said that a Rent incident to a Reversion would not be barred by such Release And so it was adjudged in this Court in Hen and Hampsons Case in the year 1662 by Foster Chief Justice Windham and Maller against the Opinion of Twisden who now said that that Resolution was contrary to Littl ' Sect ' 510. who saith that a Release of all demands will extinguish a Rent-service And it was said that in Hancocks and Fields Case 2 Cro. 170. it is adjudged that such Release will extinguish a Rent reserved upon a Lease tho' not a Covenant before it be broken To which it was answered That in Witton and Byes Case 2 Cro. 486. It is resolved that if a Lessee Assigns over his Term reserving a Rent it will be extinguished by releasing of all demands But Houghton makes a difference between such a Rent and a Rent incident to a Reversion For the first Point the Court held that if the Bailiff had no Authority to make Conisans it ought to be shewn on the Avowants part for otherwise it shall be intended and this may be Traversed by the Avowant here tho' the Plaintiff in Replevin when Conizans is made cannot Traverse the being Bailiff But for the second Point Adjornatur Sir Walter Plomer versus Sir Jeremy Whitchcot THe Court were this Term to give their Opinions in the grand Point viz. Whether Sir Jeremy Whitchcot Warden of the Fleet were liable for Escapes suffered by Duckenfeild his Lessee Duckenfeild being insufficient But the whole Court observing an imperfection in the Verdict which found that Duckenfeild was insufficient when put in and at the time of his Escape but it was not found that he was so at the time of the Action brought Hereupon they declared that they were all agreed that Sir Jeremy Whitchcot was liable if the said matter had béen found but that they could not give Iudgment upon the Verdict as it was found whereupon the Parties were permitted to take a Venire de novo but they rather chose to have a Nil capiat c. entred and so bring a Writ of Error for their Counsel were very strong that that matter should be intended in a Special Verdict and their Declaration did alledge him to be insufficient at the time of the Action brought But Sir Jeremy Whitchot soon after died and so the Writ of Error did not proceed Ent versus Withers IN Debt against on Executor suggesting a Devastavit and to charge him in his own right The Defendant pleaded a frivolous Plea to which it was demurred but then exception was taken to the Declaration that it did not set forth any Judgment obtained before against the Executor de bonis testatoris without which this Action would not lie in this manner Vid. Wheatly and Lane Hill 20 21. Car. 2. in Sanders And of that Opinion were the Court but Serjeant Pemberton desiring to argue it saying there was no difference in reason between the Cases Adjornatur Anonymus THe Court said that in case of an Indictment and Issue joyned the Party could not carry it down to Try it by Proviso for it lay not against the King Astree versus Ballard THe case was The Plaintiff had recovered against two in Trover and now brought a Scire facias against the Bail who pleaded that he had taken one of the Principals in Execution before the Scire facias taken out 1 Ro. 897. If one hath Execution against the Principal he cannot afterwards proceed against the Bail nec ê contra but Paschae 28. of this King it was resolved in the Case of Orlibary and Norris where the Bail was taken first in Execution and afterwards the Principal that they should be both detained until satisfaction contrary to 1 Ro. 897. So that it appears that the Plaintiff shall not be concluded by his Election to proceed against the one first But here the difficulty is that the Bail by the Plaintiffs act is disabled to bring in both their Bodies according to the Condition of their Recognizance he having taken one of them himself Et Adjornatur Smith versus Tracy IN a Prohibition the case was Eliz. Smith died Intestate leaving two Brothers one of the whole Blood and the other of the half Blood And in the Ecclesiastail Court they would admit the half Blood to come in for distribution with the whole Blood upon the Act of 22 and 23 Car. 2. cap. 10. Vpon which a Prohibition was granted to which there was a Demurrer And the question came upon these words in the Act viz. That distribution is to be made to the next of Kin of the Intestate who are in equal degree and such as legally represent them For the Plaintiff it was said that Statutes were to be expounded by the reason of the Common Law which took no consideration of the half Blood insomuch that an Estate should rather escheat then descend to the half Blood Then the words of the Act are such as legally represent them which they both do the common Auncestor but not one another in this case Consideration is to be had of the intent of the Interstate which must be supposed to prefer the Brother of the whole Blood Dier 372. Isteds Case where the Executor dies Intestate the Residuary Legatee of the first Testator shall have Administration and not the next of Kin because that is suitable to the intent On the contrary it was argued that altho' the half Blood be rejected in descents yet it is regarded in other Cases 3 Co. in Ratcliffs Case the half Blood may be Guardian in Soccage Vid. 2 Ro. 303. and Stile 's Rep. 74 75. for granting of Administrations to the half Blood there cannot be two degrees made of the whole Blood and the half Blood neither does out Law make any distinction but when it wholly excludes them Curia The intent of this Act was to give the Ecclesiastical Court the Jurisdiction in this matter and to provide for the distribution of Intestates Estates which they had a long time attempted and contested but were still prohibited but now this Act permits them to proceed and it were fit we
Anonymus IN Trespass for Fishing in his several Piscary and for taking 20 Bushells of Oysters there such a day continuando piscationem praedictam from the said day to the time of the Action brought Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Fishing in the continuando was altogether incertain not expressing the quantity or quality of the Fishes as it ought according to Playters Case 5 Co. And of this Opinion were Wild and Jones But the Chief Justice inclined to think it well enough and said Playters Case had not been very well approved of of late years and that is that 't is necessary to express the kind of the Fishes which has béen held since needless and he knew not why it might not be as well as an indebitatus Assumpsit pro diversis mercinoniis But the other Judges said tho' it was reason it should be as the Chief Justice said yet they knew not how to depart from the Authorities in the Point and that Playters Case had remained mishaken Sed Adjornatur Anonymus IN Debt for Rent against an Assignee of a Lessee The Defendant pleaded That before the Action brought he assigned over to J. S. and thereof gave notice to the Plaintiff The Plaintiff replied That he still kept the Possession and had made the Assignment by fraud to disappoint him c. To which it was demurred for it was said that fraud was not averrable in this case neither by the Common Law nor any Statute But the Court inclined that it might for if such a practice should obtain the Lessor might be hindred perpetually of his Action of Debt by making Assignments to persons unknown An Executor confesses a Judgment which is lawful for him to do yet this may be avereed to be entred or kept on foot by fraud and that by the Comman Law which hates all frauds Sed Adjornatur Postea Anonymus A Prohibition was prayed to the Councel of the Marches for that they proceeded upon an English Bill there against the Defendant supposing that he had promised upon a Consideration to pay the Debt of a Stranger because 't is in the nature of an Action upon the Case and consists meerly in Damages And altho' many Presidents were shewn of their Proceeding in such of Actions and the Statute of 34 H. 8. cap. 26. that they should determin such Cases as were heretofore accustomed and used c. as should be assigned to them by the Kings Majesty and it was pretended that this was within their Instructions yet the Court granted the Prohibition For where Damages are uncertain they cannot be set in a Court of Equity but by a Jury In Debt because the demand is certain the Courts here have sometimes assessed Damages without a Writ of Enquiry but never in Trespass or Actions upon the Case which lie wholly in Damages Anonymus AN Habeas Corpus The Return was read and spoken to and the Prisoner ordered to be remanded Twisden said the Return should have been first Filed and the Prisoner committed to the Marshalsey for otherwise the Court have no power over him Vid. Mo. 839. and he cited 1 H. 7. Humphry Staffords Case who being brought to the Bar upon an Habeas Corpus by the Lieutenant of the Tower was committed to the Marshalsey and afterwards remanded to the Tower but the other Judges differed as to the Commitment and said it was not necessary to keep the Prisoner in the Marshalsey until the Matter was determined but he might be sent from time to time to the same Prison and brought up by Rule of Court until he is either Bailed Discharged or Remanded And so they said it was lately done in the Earl of Shaftsbury's Case Gilmore versus .... UPon a Special Verdict the Point was whether a Promise made upon such Consideration as by the Act of 29 Car. 2. to prevent Frauds and Perjury's is requisite to be in Writing signed by the Party to be charged therewith being made before the 24 of June last but the Action brought after be within the restraint of the Act which saith That from and after the 24 of June no Action shall be brought upon such Promise c. And it was resolved that the Case was not within the Act which did not extend to any Promise made before the 24 of June The King versus Sir Thomas Fanshaw SIr Thomas Fanshaw and others were indicted for not Repairing of a Bridge which it was alledged they were bound to Repair Ratione Tenurae of such Lands Sir Thomas Fanshaw pleaded That he was not bound to Repair Ratione Tenurae and found that he was In Arrest of Judgment it was said that the Verdict was not pursuant to the Indictment for therein 't is alledged that Sir Thomas Fanshaw and others were bound to Repair Ratione Tenurae and the Verdict is that Sir Thomas Fanshaw Ratione Tenurae c. Reparare debet Parietem praedict ' modo forma prout per Indictamentum praedict ' supponitur Sed non allocatur for each of them may be bound to Repair for their respective Lands and they must get Contribution by the Writ de onerand ' pro rata portione Secondly It was said that 't is Ratione Tenurae and not said Suae and this was said to be naught Noy's Rep. 93. Sed non allocatur for the Presidents are generally so Parkers Case A Mandamus to restore an Attorney to his liberty of practising in a Court within the County Palatine of Chester was Returned That the Court was holden before the Chamberlain Vice-Chamberlain Baron or the Deputy of the Baron and that at a Court before the Barons Deputy he spoke contemptuous words of him whereupon he suspended him from his Practice quod non aliter amotus fuit Vpon exceptions offered to the Return The Court held it a good cause of Suspension and ordered a Submission to him that received the affront in open Court before that he should be restored Anonymus THe Case upon the Averment of Fraud upon an Assignment by the Assignee of a Lessee was now moved again and by Twisden Wild and Jones against the Opinion of Scroggs Chief Justice Iudgment was given for the Plaintiff viz. That Fraud in such Case might be averred Ante. Anonymus IN Ejectment it was debated whether Confession of Lease Entry and Ouster would serve where there ought to have been an actual Entry upon the Title as the in case of a Condition broken or the like And the Opinion of the Court inclined that it would not tho' my Lord Hale was said to be of another Opinion Ante. Termino Sancti Michaelis Anno 30 Car. II. In Banco Regis Dutton versus Poole CUjus principium ante Michael ' 29 Car. 2. It was now moved again to stay the Iudgment by Sanders who argued that the Action could not be maintained by the Plaintiff for the Father whose the Wood was could only bring it for
illam modo forma praed ' fact ' necesse non habet nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defectu sufficien ' Narration ' ipsius Francisci in hac parte ijdem Edwardus Walterus pet ' Judicium qd ' praed ' Franciscus ab actione sua praedicta versus eos habend ' praecludatur c. Et praedictus Franciscus dic ' qd ' Joynder in Demurrer narratio praedicta materiaque in eadem content ' bon ' sufficien ' in lege existunt ad ipsum Franciscum actionem suam praedictam inde versus praed ' Edwardum Walterum habend ' manutenend ' Quam quidem materiam idem Franciscus parat ' est verficare Unde ex quo praedict ' Edwardus Walterus ad narrationem praed ' non responder ' nec materiam in ead ' content ' aliqualit ' dedixer ' idem Franciscus pet ' judicium dampna sua occasione fractionis conventionis praed ' sibi adjudicari c. Et quia Justic ' c. Morly versus Polhill IN an Action of Covenant the Plaintiff declared as Executor to George Morly late Bishop of Winchester and sets forth that Brian the Predecessor of the said Bishop had demised a Rectory and certain Lands to J. S. for 21 years who had assigned it to the Testator of the Defendant and that the Lessee covenanted with Brian and his Successors to repair the Chappel of the Church and the Barns c. and assigned a breach in the not xepairing by the Testator of the Defendant in the life of George Morly and that the Lease afterwarns expired To this the Defendant demurred for that it was pretended that the Executor of the Bishop could not bring this Action for the Covenant was with the Predecessor Bishop and his Successors and cited the Cases of Real Covenants 1 Inst 384 385. A Parcener after partition Covenants to acquit the other Parcener of a Suit and the Covenantee assigns the Assignee shall not bring Covenant But the whole Court gave Iudgment for the Plaintiff and that the Executor is here well entituled to the Action for the Breach in the Testators time Wright versus Wyvell IN an Ejectment the Plaintiff declared upon a Demise of Dorothy Hewly and upon a Special Verdict the Case appeared to be thus That Christopher Hewly was seised of the Premisses in Fee and made his Will in this manner I make my last Will in manner following As concerning my Personal Estate First I give and bequeath unto Ann Hewly my Wife the sum of Six Hundred Pounds to be paid unto William Weddall of Eastwick Esq and it 's for the full payment of the Lands lately purchased of the said Mr. Weddall by the said Christopher Hewly and is already estated in part of a Joynture to Ann my said Wife during her natural Life being of the value of Sixty Seven Pounds per annum That of Wiskow York and Malton the Lands and Tenements there amounting to the yearly value of Sixty Three Pounds in all One Hundred and Thirty Pounds which being also estated upon my said Wife it is in full of her Joynture And after this he gives several Legacies and the rest of his Personal Estate he gave to his Wife and made her Executrix Then they find that he had made no settlement of the Premisses or of any part of them upon his Wife and that the Lessor of the Plaintiff was Heir at Law to Christopher Hewly and that Ann the Wife is still living So that the sole Question was whether the Lands should pass to the Wife upon these words in the Will and divers Cases were put upon implicit Devises as that his Feoffees should stand seised to the use of J. S. has been held a good Devise to J. S. tho' there were no Feoffees 3 Leon. 167 162. Devise to his eldest Son after the death of his Wife there the Wife takes tho' nothing expresly devised to her After Arguments heard on both sides by the Opinion of Pollexfen Chief Justice Rokeby and Ventris Iudgment was given for the Plaintiff against the Opinion of Powell Here it appears indeed that the Testator took it that she had the Land but it appears he did not intend to devise any thing by the Will for he mentions that she was estated in it before and in the Cases of Implicit Devises there is no reference to any Act that should have conveyed the Land to the Devisee before but the Will there passes the Land by Construction and Implication Again This Devise is introduced with this Clause as to the disposing of my Personal Estate and throughout the Will he giveth only Personal Things Again This recital comes in as part of another Clause of an express Devise of the Six-Hundred Pounds But Powell relied upon the Case in Mo. 31. A man made a Will in this manner I have made a Lease to J. S. paying but 10 s Rent this was held a good Lease by the Will To which it was answered That the Case there was of little authority for it did not appear how that matter came in question or in what Court or in what Action and said only fuit tenus 3 Eliz. And Iudgment here was given for the Plaintiff Bowyer versus Milner IN a Formedon against several Tenants one appeared and was Essoigned and then another appeared and it was moved whether he could be Essoigned by reason of the Statute of W. 1. c. 43. which seems to be that Parceners or Ioyntenants should have but one Essoign and that they should not fourch Cut ' Contra. The Statute is to be understood of Essoigns after appearance and so is the Book of 28 Ed. 3. 18. it is said to have been the Law of the Times for Tenants to fourch before appearance and so is Co. 2. Inst 250. Hob. 8 46. The Case of Essoigns if the Tenant voucheth two one Essoign may be cast for each of them singly Vid. Stat. of Glouc. c. 6. Anonymus IN an Action of Trespass de Uxore abducta cum bonis viri to his damage of 10000 l Upon Not Guilty pleaded and a Trial at the Bar the Return of the Jury was Octab ' Trin. and the Appearance Day was die Mercurij at which day the Jury appeared but it being appointed for the keeping of a solemn Fast by the King's Proclamation the Jury was adjourned to the Day following and then the Jury and Parties being at the Bar a Plea was offered by the Defendants Counsel puis darrein continuance that the Plaintiff was Excommunicated and produced it under the Seal of the Court and begun their Plea thus Ad hunc diem viz. die Jovis prox ' post Octab ' Trin ' c. So that the Plea came too late for it should have been pleaded die Mercurij for tho' the Jury was adjourned to Thursday yet all Matters were entred as upon Wednesday So this Plea did appear upon the
libras duos solidos un ' denar ' un ' obul ' seu aliquem inde denar ' eidem Mariae nondum reddider ' nec eorum alt ' reddidit set ill ' ei reddere omnino contradixer ' ac praedicta Thomasina ill ' ei reddere adhuc contradic ' injuste detinet Unde dic ' quod deteriorat ' est dampnum habet ad valentiam quadraginta librarum Et-inde produc ' sectam c. The Defendant pleads in Abatement that the party died Intestate and that Administration was granted to her Died intestate Letters of Administration granted The Defendant ought to be sued as Administratrix and not as Executrix Et praedicta Thomasina per Thomam Clarke Attorn ' suum ven ' Et dic ' quod praedict ' Isaacus Woolland apud Civit ' Exon ' praedict ' obiit intestat ' post cujus mortem Edwardus Lake Clericus Sacrae Theologiae professor ' Archi Archidiac ' Exon ' legittime constitut ' apud Civit ' Exon ' praedict ' per Litteras suas Administratorias commisit eidem Thomasinae Administraconem omnium bonorum catallorum quae fuer ' praedict ' Isaaci tempore mortis suae qui quidem Edwardus adtune habuit plenam Authoritatem ad Administraconem illam in ea parte committend ' in quo casu praed ' Maria ipsam Thomasinam Administratricem bonorum catallorum quae fuer ' praedict ' Isaaci non Executricem Testamenti ipsius Isaaci in brevi suo praedict ' nominare debuit Et hoc parat ' est verificare Unde pet ' Judic ' de brevi illo Et quod breve illud cassetur Et praedicta Maria dic ' quod breve suum praedict ' The Plaintiff Replies That the Defendant administred as Executrix before the granting of the Administration to her ratione praeallegat ' cassari non debet Quia dic ' quod post mortem praefat ' Isaaci ante commissionem Administrationis praedict ' eidem Thomasinae in forma praedicta scilicet decimo octavo die Septembris anno regni domini Regis dominae Reginae nunc primo praefat ' Thomasina diversa bona catalla quae fuer ' praefat ' Isaaci tempore mortis suae ut Executrix testamenti ipsius Isaaci Administravit videlt apud paroch ' Sancti Edmundi praedict ' Et hoc parat ' est verificare Unde pet ' Judicium debitum suum praedict ' unacum dampnis suis occ̄one detentionis debiti illius sibi adjudicari c. Et praedicta Thomasina dic ' quod praedict ' placitum praedict ' Demurrer to the Replication to the Plea in Abatement Mariae superius replicando placitat ' materiaque in eodem content ' minus sufficien ' in lege existunt ad acconem ipsius Mariae praedict ' versus ipsam Thomasinam habend ' manutenend ' quodque ipsa ad placitum ill ' modo forma praedict ' placitat ' necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' placiti praedict ' Mariae in hac parte eadem Thomasina pet ' Judicium Et quod breve ipsius Mariae cassetur c. Et praedicta Maria dic ' quod placitum praedict ' per ipsam Mariam superius replicando placitat ' materiaque in eodem content ' Joynder in Demurrer bonum sufficien ' in lege existit ad actionem ipsius Mariae versus praefat ' Thomasinam habend ' manutenend ' quod quidem placitum materiaque in eodem content ' ipsa ' eadem Maria parat ' est verificare probare prout Cur ' c. Et quia eadem Maria ad placitum illud non respond ' nec ill ' hucusque aliqualit ' dedic ' ipsa eadem Maria ut prius pet ' Judicium debitum suum praedict ' unacum dampnis suis occasione detentionis debiti illius sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemiss priusquam Judicium inde reddant dies dat' est partibus praedict hicusque in Crastino Sanctae Trinitatis de audiendo inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Pyne versus Woolland IN an Action of Debt against the Defendant as Executrix of her Husband for Arrears of Rent due from the Testator The Defendant pleaded in abatement of the Writ That after the death of her Husband Administration of his Goods and Chattels was granted to her and that she ought to have been named Administratrix in the Writ and not Executrix unde pet ' Judicium de brevi quod breve istud cassetur The Plaintiff Replied That after the death of the Husband and before the Administration committed the Defendant administred divers Goods and Chattels of her Husbands at such a day and place c. To this the Defendant Demurred and Judgment was given for the Plaintiff For she sets not forth the Day when Administration was committed so it might be after the Writ brought And besides if she disposed of the Goods as Executrix of her own wrong the taking of Administration afterwards tho' before the Writ brought will not hinder the Plaintiff from charging her as Executrix of her own wrong And the difference is taken in the Case of Williamson and Norwich Styl Rep. 337. 1 Ro. 923. where an Action of Debt was brought upon a Contract against the Defendant as Executor of his own wrong The Defendant pleads the party was Indebted to him upon Bond and died Intestate and that he afterwards took out Letters of Administration to him which appeared to be after the Writ brought and pleads a Retainer for his own Debt And the Plaintiff Demurred and Judgment was given for the Defendant that such Administrator might Retain for his own Debt tho' he had been before Executor of his own wrong But such taking of Administration should not abate the Plaintiffs Writ Kelw. 127. a. Vid. 5 Co. Coulter's Case and Executor of his own wrong cannot Retain Anonymus TRespass Quare clausum fregit and declared of divers other Trespasses The Defendant pleaded Not guilty as to the clausum fregit and Iustified as to the other Trespasses which upon the Issue was found for the Defendant and as to the clausum fregit it was found for the Plaintiff The Court held it a clear Case within the late Statute that the Plaintiff should have no more Costs than Damages the Damages being under 40 s Alleson versus Marsh A Prohibition was prayed to the Court of Admiralty to stay a Suit commenced there by some of the Marriners in a Ship against two of the Part owners for their Wages upon a suggestion that the Contract was made with them upon Land It was said that tho' Suits had sometimes been permitted there for Marriners Wages yet that was when they all joyned in the Suit to avoid
a Scotishman Antenate being Naturalized by Act of Parliament in Ireland can Inherit Lands in England 2 Ne exeat Regnum Granted in Chancery to stop one from going beyond Sea to avoid a Sentence in the Ecclesiastical Court 345 Nonsuit The Plaintiff Nonsuited in Ejectment after Evidence where two Defendants and one appears to confess Lease Entry c. and the other not the Plaintiff shall pay Costs but quaere how to be divided 195 Notice See Chancery Conveyance Mortgage If a Man pleads a Valuable Consideration in Chancery to save his Estate from a Judgment he must also set forth That he had no Notice of the Judgment 361 O Obligation A Penalty may be recovered in an Action of Debt upon a Bill Obligatory tho' it be not drawn properly as a Penal Bill 106 Occupant Occupancy favoured in Chancery 364 Office Where the Archdeacon forfeits his Right to grant the Office of his Register by the Stat. 5 E. 6 c. 16. against the Sale of Offices whether the King or Bishop shall take advantage of the Forfeiture 188 213 267 A Dissenter that hath not received the Sacrament of 12 Months before may plead the Stat. 13 Car. 2. Stat. 2. cap. 1. to excuse him from serving Offices in Corporations 247 248 Original See Writs What Original Filing within time shall be sufficient to prevent the pleading the Statute of Limitations 193 259 Whether in the Common Pleas an Original in a Clausum fregit be sufficient to warrant a Declaration in an Assumpsit 259 Outlawry A Man in Prison ought not to be Outlawed by him who Imprisoned him 46 Action on the Case will not lye for the Party who hath an Outlawry agaist a Sheriff who neglects to extend the Goods of the Outlaw upon the delivery of a Writ of Capias Vtlagatum for that it is the King's loss 90 Whether Outlawry may be pleaded in Bar to an Assumpsit upon a Quantum meruit 282 Oxford See By-Law The Priviledge of the University not allow'd to a Townsman so as to excuse him from Office who keeps a Shop and follows a Trade tho' he be Matriculated and Servant to a Doctor 106 Priviledge not allow'd to a Member of this University in a Suit in Chancery 362 P Pardon SUits by Successor against Executor for Dilapidations not pardon'd by the General Pardon otherwise of Suits ex Officio against the Dilapidator 216 Parliament No Action lies against the Chief Officer of a Corporation for a Double-Return of a Burgess the Common Pleas having no Jurisdiction of this Matter 37 Peace The King cannot discharge a Recognizance taken for Surety of the Peace but after it is broken he may 131 A Gentleman said to be a Member of the House of Commons bound to the Peace for Challenging one of the King's Witnesses to Fight 317 Plantation Tho' a Plantation be an Inheritance yet being in a Foreign Country 't is look'd upon as a Chattel to pay Debts and a Testamentary thing 358 Pleading See Baron and Feme Covenant Intent Scire facias Copyhold What shal be held a Double Plea and what not 68 198 Trespass for carrying away diversa onera equina of Gravel naught for incertainty 73 Want of the Word alio or aliis in a Declaration where several mention is made of things of the same nature yet good enough 78 For the Defendant to traverse Matter not alledged good Cause for the Plaintiff to demur 79 If a Judgment and Execution be pleaded in an Inferiour Court not of Record the Proceedings ought to be set forth at large and not sufficient to say taliter processum fuit also it ought to be set forth That the Cause of Action did arise within the Jurisdiction 100 In a Prescription for Priviledge tempore quo non exstat memoria good enough tho' the Course be to say à tempore cujus contrarium memoria hominum non existit 130 Tho' by Course of the Court if a Defendant lye in Prison two whole Terms without any Declaration put in he may get a Rule to be discharged yet if a Declaration be afterwards delivered and Judgment thereupon 't is a good Judgment and the Bail formerly given will be liable 143 Where Freehold Lands were pleaded to pass by Surrender according to Custom the Special Custom must be set forth 144 Where the Writ contains more than is Declared for this is a Variance not aided by the Verdict and Judgment arrested 153 Debt upon Bond Condition'd That the Husband shall permit the Wife to dispose of her Personal Estate c. it is not sufficient for the Defendant to plead quod Conditio nunquam infracta fuit and put the Plaintiff to assign a Breach but the Defendant must shew forth That he hath perform'd the Condition 156 Where an Action of Trespass brought for the same Matter in another Court may be pleaded in Bar to an Action of Trover 169 170 In Trespass quod duas acras terrae fod subvert asportavit Judgment stayed because the Declaration doth not express the quantity of Earth carried away for the two Acres relate only to the Ground digged 174 The Plaintiff Declares for Assault Battery Wounding and Imprisonment the Defendant in his Plea takes no notice of the Battery naught 193 Plea in Abatement That the Plaintiff was dead before the Action brought where good 196 Where preadict is necessary and where not 197 Where a Traverse that might have been omitted is Cause of Demurrer 212 Doubleness in a Declaration cured by Answering 222 Day of the Week where material ought to be set forth in Pleading for the Court are not obliged to consult the Almanack 248 Tempore dimissionum where it should be temporibus dimissionum naught 253 254 271 Super Acclivitatem de Hampsted which is a description of a Scituation whether it be a Vill or Lieu conus sufficient for a Jury 254 272 Diversas petias Maheremij cepit c. naught for the Incertainty 262 Where the Defendant pleads an Insufficient Plea the Plaintiff shall make no Advantage of that upon Demurrer if his own Declaration be naught but Judgment will be against the Plaintiff 262. As where an Executor sues for Rent and does not sufficiently Intitle his Testator to the Estate demised ibid. Plenam potestatem Jus Titulum ad Praemissa dimittend ' and does not set forth what Estate he had whether in Fee or other Estate not good upon a Demurrer 271 Houses are set forth in Pleading to lye in Parochia praedicta and two Parishes are named before naught for the Incertainty 278 Traverse impertinent where the Matter is confest and avoided 283 No General Rule That a Matter cannot be pleaded specially which may be given in Evidence upon a General Issue and in what Cases it may 295 Vid. infra Statut. 1 W. M. cap. 4. Presumption Presumptions of Law stand as strong till the contrary appears as an express Declaration of the Party 208 Priviledge Whether the Warden of the Fleet shall have a Writ
Wingate and Stanton the Bail of William Stanton 38 Wise 's Case 69 Wood v. Coat 195 Woodward v. Aston 296 Wortley the Lady v. Holt 31 Wright v. Johnson 64 Z ZOuch v. Clay 185 ADVERTISEMENT Note That the Author of these Reports has referr'd to Croke's Elizabeth as the first Part and Croke's Charles as the third Part of those Reports except in the first thirty Sheets of the First Volume in which thirty Sheets he referr'd to Croke's Charles of the first Edition as the first Part and Croke's Elizabeth as the third Part of those Reports TERMINO Sancti Michaelis Anno 20 Car. II. in Banco Regis Sparks c. versus Martyn JONES moved for a Prohibition to the Court of the Admiralty for that they Libelled against one for Rescuing of a Ship and taking away the Sails of it from one that was executing the Process of the Court against the said Ship and for that in the presence of the Iudge and face of the Court he Assaulted and Beat one and spake many opprobious Words against him Now seeing that these Matters were determinable at Law the Ship being infra corpus Comitatus and they could not adjudge Damages to the party or Fine or Imprison He prayed a Prohibition But the Court denied it absentibus Windham Moreton 1 Cro. 216. For they may punish one that resists the Process of their Court and may Fine and Imprison for a Contempt to their Court acteâ— in the face of it tho' they are no Court of Record but if they should proceed to give the party Damages they would grant a Prohibition quoad that And of that Opinion was Wyndham the Case being afterwards put to him by the Chief Justice But the parties afterwards put into their Suggestion That the original Cause upon which the Process was grounded was a Matter whereof the Court of Admiralty had no cognisance Wherefore a Prohibition was granted For then the Rescous could be no Contempt Sir John How versus Woolley an Attorney of the Court. IT was Moved That Woolley should put in special Bail being an Attorney at large and having dicontinued his Practice But the Court said Attorneys at Large have the same priviledge with the Clerks of the Court and are to appear de die in diem And they were not satisfied that he had discontinued his Practice Suffil's Case IT was Moved to quash the Return of a Rescous against Suffil and divers others who rescued a person taken upon Mesne Process because the Rescuers being particularly named 'tis said rescusserunt and not added quilibet corum rescussit And for that Case was cited in the 2 Cro. where the Sheriff returns an Exigent against divers quod non comperuerunt upon the Quinto exacti and doth not add nec aliquis corum comperuit and for that cause it was Reversed in a Writ of Error notwithstanding Twisden being only in Court held it to be well enough it being in the Affirmative Anonymus A Prohibition was prayed to the Ecclesiastical Court for that a Parson Libelled against one there for talking of him Knave and 't was granted it not appearing to relate to any thing concerning his Function And a Case was cited to be Adjudged 24 of the Queen the Suit being in the Ecclesiastical Court for these words viz. Sir Priest you are a Knave and a Prohibition was granted Note If a man be taken in Execution he cannot be bailed tho' he brings a Writ of Error Anonymous IN Debt upon a Lease for years the Defendant may plead Entry into part upon which follows Suspension and it doth not amount to the General Issue Heely versus Ward ERror to Reverse a Iudgment given in the Court at Hull where the Plaintiff in an Assumpsit did declare That at such a place infra Jurisdictionem Curiae the Defendant in consideration that the Plaintiff had assumed to pay him so much a yard promised to deliver him so many yards of Kersey and it was assigned for Error That the delivery is not laid to be at a place infra Jurisdictionem Curiae and indeed there is no place at all And of that Opinion was Twisden he being only in Court and cited a Case where in an Assumpsit in the Marshalsey upon a Promise to make a Lease of a House in Middle Row and after Iudgment it was held Erroneous because Middle Row was not laid to be infra Jurisdictionem Curiae The Bishop of Lincoln versus Smith THe Bishop of Lincoln sued in the Court holden before his Chancellor for a Pension to which he intituled himself by Prescription and a Prohibition was prayed for Smith the Defendant there for that being by Prescription that Court had no cognisance of it And for that my Lord Coke's Opinion was cited 2 Inst 491. especially he could not sue for it in his own Court But it was resolved by Keeling and Twisden the other Iustices being absent that Pensions tho' they were by Prescription might be sued for in that Court for having cognisance of the Principal that shall draw in the Accessory As if one Libel for a Modus decimandi if they allow it they may try it and Coke's Opinion they said was not warranted by the Books and Fitzh N.B. 524. is against it 2 Cro. 483. and the Court being held before the Chancellor and not the Bishop himself he might sue there Vide Hob. 87. Conusans of Pleas granted to be holden before the Steward of the Grantee licet the Grantee fuerit pars Anonymus AN Attachment was prayed against one who being arrested upon a Latitat gave a Warrant of Attorney to Confess a Judgment and presently after snatched it out of his hand to whom it was delivered and tore off the Seal And the Court seemed to incline in regard it was to Confess a Judgment in this Court that it was a Contempt upon which an Attachment might be granted Anonymus A Prohibition was prayed to stay a Suit in the Court Christian for Tythes upon the suggestion of a Modus which was alledged in this manner That the Proprietors and Occupiers of such a Mannor or any parcel thereof should pay a Groat to the Parson for Herbage Tythes The Court held his this could not be for if a man had but two or three Foot of Ground in the Mannor he should pay a Groat but it ought to have been laid That the Proprietors and Occupiers of such a Mannor for themselves and their Farmers had paid Four pence Twisleton versus Hobbs ACtion for these Words You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds The Iury found the Defendant Not Guilty as to the first Words and resolved the last Words were not Actionable if not being laid that he knew of the Forgery Sir Thomas Griesley's Case INformation against him for stopping the High-way the word was Obstupabat It was proved in Evidence that he plowed it up and Resolved it did well maintain the Information Anonymus IN Debt If
the Defendant wage his Law the Oath of the Eleven which are Sworn de credulitate may be dispensed with by the Plaintiffs assent Vid. Mag. Charta c. 28. Note It was Adjudged in the King's Bench 19 Car. II. That if a Prisoner escape by the permission of the Sheriff yet he may be taken by the party at whose Suit he was condemned for it may be the Sheriff is Insufficient and it is no reason that his own Act should damnifie the Plaintiff Vide Hob. 202. Termino Sancti Hillarij Anno 20 21 Car. II. In Banco Regis Barnes versus Bruddel ACtion for these Words alledged to be spoken of the Plaintiff viz. She was with Child by J. S. whereof she Miscarried and concludes That by reason thereof she was so brought into her Fathers displeasure that he turned her out of Doors and that she was brought within the Penalty of the Statute of 18 Eliz. And in Maintenance of this Action a Case was cited out of Roll's 1st Part 35. inter Meadows Boyneham an Action was brought for calling of one Whore Per quod consortium amisit Vicin ' suorum and held it would lye And in Anne Davie's Case 4 Co. 17. it is held That since the Statute of the 18 Eliz. cap. 3. to say One had a Bastard would bear an Action But notwithstanding the Opinion of the Court was That such an Action would not lye unless a special Damage had been alledged as to say She had lost her Marriage as in Anne Davies's Case and the Reason upon the Statute alledged in the Case was said by Twisden to be of my Lord Coke's putting in for Iustice Jones affirmed to him there was nothing said thereof in the Case Anonymus IF a Tradesman contract Debts and after gives over Trading he may be afterwards a Bankrupt within the Statute in respect of the Debts contracted before And so it was said to be Ruled in Sir Job Harvies Case Anonymus A Warren may pay Tythes by Custom So of Doves in a Dove-house or Fish in a River Note It was said by Twisden That if a Libel be in the Ecclesiastical Court for a thing whereof they have cognisance altho' the party intitles himself to it by Custom no Prohibition lies Anonymus A Prohibition was prayed for that they Cited him to answer Articles in the Ecclesiastical Court and did not deliver a Copy of the Articles and it was granted quousque they should deliver the Copy But the Prohibition which was taken out was absolute which the Court being informed of they did not think fit to grant a Consultation but to discharge that Prohibition by a Supersedeas Whereupon they proceeded and Excommunicated the party for default of Answering Who again moved the Court for a Prohibition and one was granted with a Mandamus in it to absolve him if it were for not Answering before they gave him a Copy of the Articles Bains Biggersdale ERror to Reverse a Judgment in an Action of Debt upon a Bond in Rippon Court because it was entred upon the Record Assid ' damna ultra misas custagia ad 10 l and doth not say Occasione detentionis debiti or Occasione praedicta and the Iudgment was Quod recuperet damna praedicta and doth not say Per Juratores assessa Yet notwithstanding the Judgment was affirmed Billingham Vavasor ERror to Reverse a Judgment in Debt in the Court of York Assigned First In the Variance between the Count and Plaint for the Plaint was Entred Ad hanc Curiam venit queritur de Placito deb ' super demand ' 14 l and the Count was for 12 l but it was Answered That the certainty of the Sum needed not to be expressed in the Plaint and so Surplusage But otherwise it is of a Variance between the Original and the Count for the Writ must comprehend the certainty of the Debt and 2 Cro. 311. was cited where Debt was brought in the Common Bench for 40 s and after the Return of the Pluries Capias the Entry was Quod Querens obtulit se in plito deb ' 40 l and assigned for Error and disallowed But to that it was said That that was but a Misprision in the Entry of a Continuance which had a former Record to warrant it And here tho' the certainty of the Sum need not to have been expressed Vid. 3 Cro. 619. yet when it is the Plaint must not vary from it Et adjornatur Bourne versus Mason al' IN an Assumpsit the Plaintiff declares That whereas one Parrie was indebted to the Plaintiff and Defendants in two several Sums of Mony and that a Stranger was indebted in another Sum to Parrie that there being a Communication between them the Defendants in Consideration that Parrie would permit them to sue in his Name the Stranger for the Sum due to him they promised they would pay the Sum which Parrie owed to the Plaintiff and alledged that Parrie permitted them to Sue and that they Recovered After Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff could not bring this Action for he was a Stranger to the Consideration But in maintenance thereof a Judgment was cited in 1658. between Sprat and Agar Vid. 3 Cro. 619. in the Kings-Bench where one promised to the Father in Consideration that he would give his Daughter in Marriage with his Son he would settle so much Land After the Marriage the Son brought the Action and it was Adjudged maintainable And another Case was cited of a Promise to a Physician That if he did such a Cure he would give such a Sum of Mony to himself and another to his Daughter and it was Resolved the Daughter might bring an Assumpsit Which Cases the Court Agreed For in the one Case the parties that brought the Assumpsit did the Meritorious act tho' the Promise was made to another and in the other Case the nearness of the relation gives the Daughter the benefit of the consideration performed by her Father but here the Plaintiff did nothing of trouble to himself or benefit to the Defendant but is a mere Stranger to the Consideration wherefore it was adjudged quod nihil capiat per billam Herbert versus Merit A Prohibition was prayed to the Ecclesiastical Court for that the Defendant Libelled against the Plaintiff there for calling of her Impudent Whore which was said to be only a word of Passion and the later Opinions have been that unless some Act of Fornication were expressed that Prohibitions should be granted But the Court denied it in this case it being an offence of a Spiritual Cognizance and Eaton and Ailoffes Case 1 Cro. 78. and Pewes Case 329 were cited The Sheriff may Sell Goods he takes in Execution by a Fieri facias at any Rates if the Defendant denies to pay the Money Nota No Action of Debt lies against the Sheriff when the Party escapes who is taken upon a
Mesne Process but an Action upon the Case only Vaughan Loyd IN an Audita Querela the Party appeared upon the Sciri Facias and demurred for that the Sciri Facias bore Date the 23 day of October and the Audita Querela the 3 of November after To which it was said that this fault in the Mesne Process is aided by Appearance but if an Original should bear Date upon a Sunday or the like the Appearance of the Party would not help it But on the other side it was said That the Party had no day in Court by the Audita Querela and this was a default in the first Process against him and compared it to a Sciri Facias upon a Judgment in which such a fault will not be cured by Appearance To which the Court agreed For there the Sciri Facias is the Foundation and quasi an Original and the Judgment is given upon it 2 Cro. 424. but here the Sciri Facias is only to bring in the Party to answer and in the nature of a Mesne Process and the Judgment is given upon the Audita Querela wherefore they disallowed the Demurrer Barnes versus Hughes DEbt tam pro Domino Rege quam pro seipso upon the Stat. of 5 Eliz. cap. 4. for exercising of the Trade of a Grocer in Salisbury not being bound Apprentice thereunto The Defendant pleads Nil debet and being tried by Nisi prius and a Verdict for the Plaintiff it was moved in Arrest of Judgment that this Action could not be brought in this Court for by the Stat. 21 Jac. cap. 4. It is Enacted that all offences against any penal Statute for which an Informer may lawfully ground any popular Action Bill Plaint Suit or Information before Justices of Assize Nisi prius or Gaol-delivery Justices of Oyer and Terminer or of the Peace in their General Quarter-Sessions shall be Commenced Sued c. before the said Justices they having power to hear and determine the same and not elsewhere which Negative words as it was said take away the Iurisdiction of this Court And whereas 31 Eliz. restrained not the Kings Attorney because it only made mention of Common Informers the Kings Attorney is expressely named in this Statute and the Cases in 2 Cro. 85. between Beane and Druge and Moyl and Taylours Case 2 Cro. 178. were quoted And the Statute would be to little purpose if it did not extend to Actions of Debt as well as Informations and Indictments But it was said on the other side That it could not extend to Actions of Debt for they could not be brought before Iustices of Assize or the other Iustices named in the Act and it shall only extend to such Suits as an Informer might lawfully Commence before them And it hath been resolved that this Act did give no new Iurisdiction as 1 Cro. 112 Farrington and Keymer's Case in an Information upon the Statute of 23 H. 8. cap. 4. for selling of Beer at an unlawful price which gives the forfeiture to be Recovered in Courts where no Protection or Wager of Law shall be allowed in any Suit grounded upon it extends only to the Courts at Westminster as 6 Co. in Gregory's Case it was resolved That no Information for an offence against this Statute could be commenced before the Iustices of Assize or Peace at the Sessions notwithstanding the Act in 21 Jac. which ordains That Suits for offences against Penal Laws shall be before them and the rest there mentioned for the Act only extends to those offences for the which an Informer might lawfully ground any popular Action before them and it was never held that that Act gave any new Iurisdiction Now if this Action cannot be brought in this Court the Statute must Repeal a great part of the Remedies given by 5 Eliz. against this offence and only leave it to be punished by Indictments and Informations which certainly was never the intent of the Statute and would be very mischievous for if the Offender goes out of the Country after the offence committed he cannot be punished for the Iustices named in the Statute cannot award Process out of the County and therefore for that reason there should be remedy in a Court of General Jurisdiction and since 21 Jac. there have béen many Presidents of like Actions all which would be Reversed if that Act should take away Actions of Debt in this Court. And for these Reasons the Case being moved divers times the Court gave Iudgment for the Plaintiff Styl 340. Anonymus IN Debt upon an Obligation the Defendant pleads That he delivered it as an Escrow hoc paratus est verificare This Plea is vicious for he ought to shew to whom he delivered it and also he ought to conclude his Plea issint nient son fait Anonymus A Lease for Years is made to A. and then another Lease is made for Twenty years to commence after the Expiration of the former Lease if B. and C. shall so long live with a reservation of several things and reddend ' 3 l nom ' Hariotte after the death of B. or C. B. dies during the continuance of the first Lease The 3 l must be paid for it is not in the nature of a Rent but a Sum in gross Clipsham and Morris THe Plaintiff in an Assumpsit declared That J. S. being indebted unto him in 50 l gave him a Note directed to the Defendant requiring him to pay the Plaintiff the said Sum of 50 l then he saith That the Defendant upon view of the Note in Consideration that the Plaintiff would accept of his Promise for the Mony and stay a Fortnight for the same he did assume to pay him To which the Defendant demurs for the Insufficiency of the Consideration it being nothing of trouble or prejudice to the Plaintiff or benefit to the Defendant for he might Sue his Debtor in the mean time neither is it alledged that the Defendant was indebted to J. S. But if it had been in Consideration That the Plaintiff would accept of the Defendant for his Debtor that might have béen good for that is an implied Discharge of the other whom if he had sued the Defendant might have had an Action Roll's 1st Part 29. And for this Reason the Opinion of the Court was against the Plaintiff And this Point was said to be Adjudged between Newcomen and Lee in this Court Paschae 1650. Rot. 62. Styl 249. Anonymus A Man was Indicted for saying The Justices of the Peace had nothing to do with the Excise And it was quashed by the Opnion of the Court for such an Information could not make a man Criminal Nurstie versus Hall THe Grantee of a Reversion brings a Writ of Covenant against the Lessee for years for non-payment of Rent The Question was Whether it ought to be laid where the Lease is alledged to be made or where the Land lies It was said That the Statute of 32 H. 8. cap. 34. which
B. for causing to be framed printed and published a Scandalous Libel Entituled c. thereby scandilizing of one C. D. Vpon Not guilty pleaded It appeared upon the Evidence that after the discovery of the Libel there were Warrants from the Lord Arlington Principal Secretary of State to search the Lodgings of the Defendant who was suspected to be the contriver of it where were found two of these Libels printed The Opinion of the Court was That this was no Crime within the Information though he gave no account how they came there 5 Co. 125. B. and the having of a Libel and not delivering of it to a Magistrate was only punishable in the Sarchamber unless the Party maliciously published it Anonymus Hob. 192 300 301. IF the Jury upon an Issue joyned in a Prohibition upon a Modus Decimandi find a different Modus yet the Defendant shall not have a Consultation for it appears he ought not to Sue for Tythes in Specie there being a Modus found Termino Sanctae Trinitatis Anno 21 Car. II. In Banco Regis Jurado versus Gregory THe Case was this There was a Contract of Malaga concerning the Lading of a Ship and for breach of this which was laid to upon be the Sea viz. That he would not receive 40 Butts of Wine into the Ship according to the Agreement there was a Libel in a Foreign Admiralty and Sentence that the Wine should be received into the Ship which being refused another Libel was commenced in the Admiralty here in England Reciting the former Sentence and charging the Defendant with the breach of it and a Prohibition was prayed because it appears the Contract was made upon the Land Vid. Latch 234. Against which it was objected by Finch Solicitor that where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here because all the Courts of Admiralty in Europe are governed by the Civil Law and are to be assistant one to another though the matter were not Originally determinable in our Court of Admiralty and for this he cited a Judgment 5 Jac. Rolls Tit. Courts Sect admiralty And this the Court agreed But here was no compleat Sentence in the Foreign Admiralty but only an Award that the Wine should be received and now for breach thereof he Sues here which is in the nature of an Original Suit and to have Execution of the Sentence and this ought not to be though the breach were at Sea it being of a Contract made upon the Land wherefore they granted a Prohibition The King Grants bona catalla felonum the Grantée shall not have Felons Debts nor bona catalla Felonum de se Anonymus A Conviction was certified of one for carrying of a Gun not being qualified according to the Statute where the words in the Statute are Upon due Examination and proof before a Justice of the Peace The Court resolved That that was not intended by Jury but by Witnesses and no Writ of Error lies upon such Conviction And an Exception was taken because it was before such an one Iustice of the Peace without adding Nec non ad diversas Felonias Transgressiones c. audiend assign ' And the Court agreed so it ought to be in Returns upon Certiorari's to remove Indictments taken at Sessions But otherwise of Convictions of this nature for 't is known to the Court that the Statute gives them Authority in this Case The King versus Benson IN an Information against him for Extortion an Issue was joyned the day the Jury were returned and the King sent a Writing under his Sign manual to Sir Thomas Fanshaw Clerk of the Crown to enter a Cesser of Prosecution And Palmer Attorney General affirmed that the King might stay proceedings yet notwithstanding the Court proceeded to swear the Jury and said they were not to delay for the great or little Seal whereupon the Attorney entred a Noli prosequi Anonymus TRover against Baron and Feme and laid quod ad usum proprium converterunt and it was alledged proprium might be applied only to the Husband so also if it had been ad usum suum But the Court held neither had been good so it was prayed that Judgment might be entred quod Querens nihil capiat per billam For if it had been quod Defendens eat inde sine die the Plaintiff could not have brought an Action de novo Note A man is Outlawed in Middlesex A Capias utlagatum may be sued out against him into any other County without a Testatum Anonymus IN Trespass the Defendant justifies by reason of Common in the place where for Cattel Levant and Couchant upon his Land and doth not aver the Beasts were Levant and Couchant This is aided after a Verdict A Judgment in Debt is had in the Kings Bench and a Writ of Error is brought it still remains a Record of the Kings Bench and an Action of Debt may be brought upon the Judgment In a Writ of Error if the Defendant dyed the Writ is not abated Otherwise if the Plaintiff die And the Secondary informed the Court of a Case betwéen Sir H. Thyn and Corie where a Scire facias ad audiend Errores went against the Executors when the Defendant in the Writ of Error dyed Note The Exchequer Chamber doth not award a Scire facias ad audiend Errores but notice is given to the Parties concerned Skirr and Sikes IN Trespass upon the Stat. of 8 H. 6. the Plaintiff had Iudgment It was moved whether a Writ of Error would lie of this into the Exchequer Chamber For though Trespass be one of the seven Cases where the Statute gives it yet it might intend Common Trespasses only and not where the Action is founded upon a Statute as Actio de Scandalis Magnatum is not within the Statute And the Court would advise Cabell and Vaughan 5 Co. Whelphdales Case He cannot plead non est factum IN an Action of Debt upon a Bond against one and it appears another was joyntly bound with him wherefore the Defendant Demurrs But it was adjuged for the Plaintiff for the Defendant cannot Demurr in such case unless the other Obligor be averred to be living and also that he sealed and delivered the Bond 3 Cro. 494 544. Ascue and Hollingworth's Case 28 H. 6. 3. And if one be bound to two one Obligee cannot Sue unless he Averrs the other is dead In B.R. 1651 1068. Levit Staneforth Perries Case IN an Information of Forgery against him there was a Mis-trial And it was moved That this was aided by the Statute of 21 Jac. the general Purview whereof is extended to any Action Suit Bill or Plaint Then there is a Proviso which excepts Indictments and Informations upon Penal Statutes and this being an Information at Common Law was not within the Proviso and it may be taken within the word Suit for it is Secta Domini Regis But the Court held it not
Goods by Patent at least not before Conviction Neither were the words of the Patent very full to this purpose for they were only That they should forfeit such Ships and Goods and be imprisoned as by Law could be inflicted upon the Contemners of the Kings Authority 8 Co. 125. Noy 183. And the Court said the question was Whether the King could Prohibit the Importation of Foreign Goods for if he might the Importation of them would cause them to be forfeited And the Chief Justice said The Ship also in which they were shipped But no Forfeiture of English Goods could grow by Letters Patents And admitting all this for the Defendant yet it was said the Plea was naught First Because he justified by a Command from a Corporation and did not alledge it to be by Deed And it was agreed that a Corporation might employ one in ordinary Services without Deed as to be Butler 18 Ed. 4. 8. Br. Corp. 59. or the like But one could not appear in an Assize as a Bailiff to a Corporation without Deed Pl. Com. 797. 12 H. 7. 27. Neither can they Licence one to take their Trees without Deed nor send one to make a Claim to Lands 9 Ed. 4. 39. They cannot make themselves Disseisours by their assent without Deed or Command one to Enter for a Condition broken 7 H. 7. 9. Rolls Tit. Corp. 514. Again it was said The Plea was double for that the Patent Prohibits the Trading thither and also Importing from thence and 't is laid that he loaded Wines there and brought them hither so an offence respecting both Parts and one would have served But of these matters the Court would be advised Burwells Case UPon complaint to two Justices about a Bastard Child they by the 18 Eliz. order one Reynolds to keep the Child Vpon this Reynolds appeared at Sessions where they vacated the Order and referred it back again to the Justices who do nothing The next Sessions after Burwell is judged the reputed Father and ordered to pay so much a Week to the Parish until the Child was 12 year old This was removed into the Kings Bench by Certiorari And they resolved That the referring back again to the Justices by the Justices at the Sessions was not warranted and that the last Order was insufficient because it was that he should pay the Parish due time until the Child was 12 year old whereas the Father might take it away when he pleased but it ought to have béen that he should allow so long as it should be chargeable to the Parish wherefore they bound the Parties to appear at the next Sessions by Recognizance Anonymus A Man hath a Messuage and a Way to it through anothers Freehoold and 't is stopped then the House is aliened the Alienee can bring no Action for this Nusance before request If a Man lets a House reserving a Way thorough it to a Backhouse he cannot come thorough the House without request and that too at seasonable times Anonymus IF the Husband and Wife be Arrested in an Action that requires Special Bail and the Husband puts in Bail for himself he must put in Bail for his Wife also but if he lyes in Prison the Wife cannot be let out upon Common Bail But it is otherwise if the Husband absconds himself and cannot be Arrested Anonymus IF a Man brings Debt for Rent and upon his own shewing he demands more than is due and upon non debet pleaded the Jury find for him he may remit the overplus and have Judgment for the residue Note One was Committed for sending of a Note to a Juryman after a privy Verdict was given to know what Verdict they gave Parris's Case AN Information was brought against him for that he fraudulenter deceptivè procured one Ann Wigmore to give a Warrant of Attorney to confess a Judgment To this he pleaded Not guilty and upon the Tryal it was debated whether she might be admitted to give Evidence against the Defendant for if he were Convicted the Court said they should set aside the Judgment Nevertheless she was sworn by the Opinion of 3 Judges against Twisden This Suit being for the King Vpon his Tryal he was found Guilty and fined 100 Marks and ordered to come with a Paper on his Hat expressing the offence Note No Writ of Error to reverse a Judgment given in an Action qui tam c. lyes into the Exchequer-Chamber because the King is Party so also upon the Statute de Scandalis Magnactum 1 Cro. Lord Says Case Perill versus Shaw A Scire facias was brought against the Bail who pleade that before the Return a Capias was issued out against the Principal and that he was taken at D. and detained in Prison quousque postea he paid the Money The Plaintiff pleads non solvit Then the Defendant Demurrs And it was adjudged for the Plaintiff for the Defendants Plea was vitious because there is no place alledged where the Money was paid and it is not necessary to be intended to be paid where he was Imprisoned And though the Plaintiff did not Demurr but replied yet when there is a Demurrer the first fault is fatal Sir John Kerle versus Osgood AN Action was brought for these words spoken of him being Justice of the Peace He is a forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him it so to his Face After Verdict for the Plaintiff it was moved in Arrest of Judgment That these words were not actionable because forsworn doth not necessarily intend any judicial Perjury and there was no Communication of his Office One said of a Justice of Peace He is a Blood-sucker and seeks after Blood if one will give him a couple of Capons he will do any thing and held not actionable because there was nothing to make them relate to his Office Rolls 56 29. Nevertheless the Plaintiff had his Iudgment by the Opinion of all the Court for the calling of him forsworn Justice shews he intended Perjury relating to his Office to which an Oath is annexed Manwood brought an Action for calling of him A corrupt Judge 4 Co. Cases of Slander 1 Cro. for calling of an Attorney A cheating Attorney And Sir John Masham recovered for calling of him Half-eared Justice Vid. Rolls 53. pl. 4. and 4 Co. Stucleys Case And here the latter words viz. That he is not fit to sit upon a Bench Shews that he intended the Scandal in his Office and words shall not be taken in mitiori sensu so far as to draw them from the general Acceptation and sermo refert ad conditionem personae Twisden cited a Case where a Man brought an Action for saying He was a Debaucht Man and not fit to be a Justice of the Peace and not maintainable because spoken of the time past If it had been He is Debauched he said the Action would lie Hill versus Langley DEbt upon a Bond to perform an
Award After nullum fecere Arbitrium pleaded The Plaintiff replies and sets forth That they submitted to the Award of 4 so that they made it by the 16th of Nov. and signified it under the Hands and Seals of two of them and then alledges the Award under two of their Seals to which the Defendant demurred conceiving the Award to be void because the submission was to four But the Court gave Iudgment for the Plaintiff according to the Cases in 2 Cro. 276. and 400. Anonymus IN an Indictment for the using of a Trade contrary to the Statute of 5 Eliz. It was said That to keep a Shop within a Country Village was not within the Statute and it were very inconvenient that the Inhabitants must go to some great Town upon every occasion And it was also Juratores dicunt super Sacramentum suum and not adtunc ibidem jurati If a Statute appoints an Indictment to be taken at the Quarter Sessions the Caption must be Entred ad Quaterial ' Session ' c. for ad General ' Session ' pacis will not serve Jackson versus Gabree JAckson took out a Capias ad satisfaciend ' against Gabree and his Wife the Gaoler lets the Husband escape The Court was moved that the Wife might be discharged alledging that the Husband took no care of her but let her lie there in a very necessitous Condition They were doubtful what to do in it at the first motion but did afterwards resolve That unless the Plaintiff would get the Husband taken again as he might do they would discharge the Wife and they said the Escape of the Husband was the Escape of the Wife Anonymus AN Infant brought an Assumpsit by his Guardian and declared That whereas the Defendant entred into his Close and cut his Grass that in consideration that he would permit him to make it Hay and carry it away he promised to give him six pounds for it and he also declared for six pounds Debt more that he ought him Vpon this Declaration the Defendant demurred supposing it to be no Consideration for the Infant was not bound by his permission but might Sue him notwithstanding and then the promise to pay six pounds Debt was not good because not declared how indebted But the Court gave Iudgment for the Plaintiff Sir Henry Frederick Thynne versus Sir James Thynne PAsch 13 Car. 2. B.R. Rot. 448. Vpon a Special Issue directed out of Chancery the Case was thus One was seized in Tayl of the Mannor of B. and of two Closes which in reality were not part but reputed part thereof and suffered a Recovery only of the Mannor with the Appurtenances and whether the Recovery was a Bar as to the two Closes was the Question And in the 16 year of this King it was resolved by all the Court and Hide Chief Justice delivered the Opinion of the Court That the Lands reputed parcel of the Mannor should pass by reason of the Deed of Covenants to lead the uses which explained the intent Dier 223. 1 Cro. Sir George Symond's Case Hob. 177. Dier 376. Long 5 to E. 4. 303. 6 Co. Sir Moyle Fynch's Case Modern Rep. 250. Termino Sancti Hillarij Anno 21 22 Car. II. In Banco Regis Wilbraham versus Snow IN an Action of Trover the Plaintiff declares That he was Owner and possessed of certain Goods and sets them forth particularly and that they came to the Defendants Hands who converted them c. The Defendant pleaded Not guilty and the Jury find this Special Verdict That the Plaintiff was Sheriff and that he took the Goods into his Possession by force of a Fieri facias and that the Defendant who was also Defendant in the Execution took them away And then they demand the Iudgment of the Court if the Plaintiff could maintain this Action It was said that he might Because he was answerable over to the Plaintiff in the Execution at whose Suit he took them and could not return that they were taken away And if he returns that he hath taken Goods sufficient and after looses them he is bound to answer the value as returned A Bailée of Goods shall bring Trespass quare bona sua cepit And Rolls 5. a Carrier from whom Goods are taken may bring Trover But it was argued on the other side That the property is in the Defendant notwithstanding the seizure Dier 99. a. and Yelverton 44. And the Sheriff had but an Authority in Law to Sell as Commissioners of Bankrupt have of the Estate of the Bankrupt per 13 Eliz. 7. or Executors upon a Devise that they shall Sell Land c. but Trespass he might bring because of the Possession but Trover cannot be maintained without property But the Court held that the Action was maintainable And that the reason was the same as in the Case of the Carrier and also held that the Defendants Property ceased by the Seisure And also that if a Man becomes a Bankrupt after that the Commissioners have granted over his Goods he cannot meddle with them 1 Cro. 106. So by the Opinion of Keeling Rainsford and Moreton haesitante Twisden Iudgment was given for the Plaintiff Gavell and his Wife versus Burket AN Action was brought for these Words spoken of the Wife You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen and Declared of a Special Damage The Jury gave a Special Verdict and found the Words spoken but not the Damage as the Plaintiff had Declared Now whether the Words were Actionable of themselves was the Question And it was Agreed that no Action would lye for calling one Bawd or Pimp 1 Cro. 286 Dimock's Case Rolls 44. pl. 10. But to say one keeps a Bawdy-house it will lye 27 H. 8. 14. an Indictment lies for Keeping of a Bawdy-House because it is a Common Nusance but here the subsequent words expound in what sense the former words should be taken that is To bring Gentlewomen to Gentlemen for Bawdry which is as much as keeping a Bawdy-house and 1 Cro. was cited where Judgment was given for these words Thou keepest a House worse than a Bawdy-house and keepest a Whore in thy House And in 3 H. 7. it is said that Constables ought to apprehend Bawds But the Court inclined that the Action would not lye for a Bawd was not punishable in our Law unless for Keeping of a Bawdy-House it being a Crime of Ecclesiastical Conusans Sed Adjornatur Thomlinson versus Hunter TRespass Quare clausum fregit arbores succidit ad valentiam decem librarum 5 Co. Player's Case To which the Defendant Demurred generally The Plaintiff prayed Judgment for Breaking of his Close but as to the other the Declaration was Insufficient because not expressed what kind of Trees Anonymus A Writ of Error was brought upon a Judgment given in Ireland It was held that a Day ought to be given by Rule of Court to the Plaintiff to assign his Errors or else to
is where it is imposed for such things as are of common Right incident to its Jurisdiction as for Contempts or the like Yet where Custom only enables them to set a Fine it cannot be Distrained for without Custom also 11 Co. Godfrey's Case And to this Opinion did the Court incline Sed Adjornatur Anonymus TWo Actions of Account were removed into this Court by Habeas Corpus and Special Bail put in And it was moved that the Bail might be discharged and Common Bail filed because in an Account Special Bail is not to be put in But it was said the Plaintiff had declared in one in an Action upon the Case and so prayed that the Bail might stand quoad that But it was Ruled That the Bail should be discharged and if the Plaintiff would have Special Bail he must Arrest the Defendant again in an Action upon the Case Doctor Lee's Case DOctor Lee having Lands within the Level was made an Expenditor by the Commissioners of Sewers whereupon he prayed his Writ of Priviledge in this Court and it was granted For the Register is Vir militans Deo non implicetur saecularibus negotiis and the ancient Law is Quod Clerici non ponantur in Officia F.N.B. Clergy-men are not to serve in the Wars Jemey versus Norris ERror to Reverse a Judgment in an Assumpsit upon a Quantum meruit for divers things sold It was assigned for Error that the Declaration amongst the rest was for unum par Chirothecarum and did not express what sort of Gloves they were which are of much different prices according to the different Leather they are made of And Playter's Case 5 Co. was cited where Trespass for taking of his Fishes was held not good because not ascertainedb of what kind Sed non allocatur Another of the things declared for was una parcella fili which as it was said was utterly uncertain and that was held to be naught Tho' it was said an Action was brought for taking away unum cumulum Foeni Anglicè a Rick of Hay and not alledged how much it contained yet held good But in Webb and Washburn's Case an Action was brought for a pair of Hangings and it was Adjudged against the Plaintiff for the Incertainty Jones contra and cited a Case in this Court 24 Car. 1. Green and Green in Trover for six parcels of Lead and notwithstanding the Incertainty the Plaintiff had Judgment So in Trover for a Trunk de diversis Vestimentis and did not say what Garments and yet held good But admitting it should not be good in Trover yet it is well in this Action 'T is the Common course to declare sur Indebitatus pro mercimoniis and never express what they are And the Court were of Opinion that the Plaintiff was to have Judgment for it is an Action much of the same nature with an Indebitatus And Twisden said Where the Promise is to pay Quantum meruit he knew not why the Plaintiff might not declare upon an Indebitatus in a certain Sum and that he might prove the value upon the Evidence and if such a Case came to be tried before him he would have a Special Verdict found in it The Court said Such an uncertain Declaration would hardly be good in Trover or Replevin and held the Case of the six Parcels to be strange and for the Trunk that an Action lies for that the things contained in it were alledged but as matter of aggravation of Damages Vid. the Case of Taylour and Wells ante Trover de decem paribus velorum tegularum Anglicè Ten pair of Curtains and Vallance Wilson versus Armorer IN Debt against the Heir and Reins per discent pleaded the Case upon Special Verdict was thus The Ancestor made a Feoffment of a Mannor to divers uses excepting two Closes for the Life of the Feoffor only and whether those two Closes did discend was the Point referred to the Iudgment of the Court. And it was Adjudged That they did discend either for that the Exception was good tho' the latter part of the Sentence viz. for the Life of the Feoffor only was void and therefore to be rejected or if the whole Exception were void because one intire Sentence Yet they all agreed that there was no Vse limited of those two Closes which were intended to be excepted for the Vse was limited of the Mannor exceptis praeexceptis which excluded the two Acres For altho' there were not sufficient words to except them yet there was enough to declare the intention of the Feoffor to be so Anonymus AN Indictment for Erecting of a Cottage for Habitation contra Statut ' 31 Eliz. cap. 7. was quashed because it was not said that any had inhabited in it for 't is no Offence before per Rainsford Moreton caeteris absentibus Termino Sancti Hillarij Anno 22 23 Car. II. In Banco Regis Robson's Case A Prohibition was prayed to a Suit for Tythes by the Parson upon a Suggestion of a Modus paid to the Vicar and that the Vicaridge had time out of mind been Endowed Coleman moved for a Consultation because the Endowment of the Vicaridge was not proved by two Witnesses within six Months according to the Statute But it was denyed for that part of the Suggestion is not to be proved by Witnesses but only the payment of the Modus And it was said If the Suggestion consisted of two parts it was sufficient to produce one Witness to the one and another to the other Dacon's Case DAcon was presented in the Court Leet for refusing the Office of Constable and Fined It was moved to quash it because it expressed the Court to be held infra unum mensem Sancti Michael ' viz. 12 November and so the Day shewn above a Month after Michaelmas And it is necessary to set down the precise Day for it may else be upon a Sunday and yet within a Month after Michaelmas and for this cause the Court held that it must be quashed Error AN Outlawry was Reversed for that the Proclamations were Returned to be ad comitat ' meum tent ' apud such a place in Com' praedict ' and not said pro Comitatu For anciently one Sheriff had two or three Counties and might hold the Court in one County for another Calthorpe versus .... IN Debt for Rent the Plaintiff declared that he let the Defendant such Land anno 16 of the King quamdiu ambabus partibus placeret and that anno 16 the Defendant entred and occupied it pro uno anno tunc proximê sequent ' and because the Rent was behind pro praedict ' anno finit ' 18 he brought the Action Vpon which it was Demurred Because the Rent is demanded for the Year ending 18 and it is not shewn that the Defendant enjoyed the Land longer than anno 17. And in Debt for Rent upon a Lease at Will Occupation of the Tenant must be averred To which it was Answered That it is said
any Debt which was due to the Testator tempore mortis suae might be attached and then sets forth according to the common form how this 320 l was attached c. and Avers that there were no other Controversies Differences or Matters between the Plaintiff and Defendant but what concerned the Testator of the Plaintiff and him as his Executor only The Plaintiff replies That the Defendant had not paid the 320 l according to the Award c. upon which the Defendant Demurred And whether this Money were Attachable as a Debt due to the Testator tempore mortis suae was the Question It was argued by Winnington That it was For it appears by the Averment that it was awarded to be paid meerly upon the Testators account and it is but as it were a reducing the Testators Debt to a certainty for an Award being no Record or Specialty will not alter the nature of the Debt and that clearly it should be Assets in the Executors Hands and the Custom of London was to have a liberal Construction Pemberton contra It doth not appear That there was any Debt due to the Testator There might be Covenants or other Matter between them which shall be rather intended than Debt as strongest against the Plaintiff if there were the nature of the Debt is altered for an Award may be pleaded in Bar to an Action brought upon the Original Debt Also this must have béen sued for in the Debet and Detinet and not in the Detinet only so it is not a reducing the Debt to a certainty as where an account is made upon Debts by simple contracts or where an Executor gives time for payment of a Bond due to the Testator this is still Attachable 1 Rolls 551. He denied it to be Assets If it were the Administrator de bonis non might sue for it after the Executors death which clearly he could not do and the Executor was chargeable only in proportion to the Debt extinguished and not according to the Sum Awarded or at least it could not be Assets before recovered if it were Assets it did not follow it should be Attachable for if an Executor Recovers in Trespass for taking away the Testators Goods the Damages shall be Assets yet they are not Attachable So Damages recovered upon Covenant made to the Testator He said it would be very inconvenient that this Money should be attached for the Executor was liable to a Devastavit upon this matter and yet should have no remedy for the Sum Awarded Again It would be Attachable in two respects both as the Executors Debt for so clearly it is and as the Testators Debt and the Bond for performance would be Attachable for the Executors Debt and the Sum Awarded for the Testators He said all Customs ought to be taken strictly and this was clearly out of the words as being no Debt due to the Testator tempore mortis suae And here it is pleaded That it was Commanded by the Court to the Officer to Attach the Defendant by a Debt due to the Testator at the time of his Death so no Authority to Attach this Debt and if it were by Law Attachable the Command ought to have béen Special The Court were all of Opinion That this was not Attachable as the Testators Debt for then the Administrator de bonis non might Sue for it And they held it to be like the Cases where the Executor takes Bond for a Debt due to his Testator or where he sells the Goods the Money for which they are sold cannot be Attached and here the Award is made of this Sum in Consideration of conveying to the Defendant the Goods of the Testator and releasing of his Debts which séems to be all one with the other Cases And so they gave Iudgment for the Plaintiff Termino Paschae Anno 23 Car. II. In Banco Regis Error A Judgment out of an inferiour Court was reversed because being by default the enquiry of Damages was only by two Jurors and Custom alledged to Warrant it And it was resolved by the Court That there cannot be less then twelve though the Writ of Enquiry saith only per Sacramentum proborum legalium hominum and not duodecim as in a Venire Note There were divers Recognizances take before the Lord Chief Justice Keeling who died before his Hand was set to them It was moved by Coleman that they might be Filed But the Court said a Certiorari must go to his Executors to certifie them and doubted whether they were compleat Records If a Warrant of Attorney be given after the continuance day to enter up a Judgment as of the Term preceding this may be well enough if it be dated within the Term but it cannot be so if such a Warrant be given to confess a Judgment generally and dated after the Term. Anonymus A Prohibition was prayed by one who being a Churchwarden was tendred an Oath by the Court Christian to present according to the Bishops Articles which he refusing to take was Excommunicated Now for that some of the Articles were to present Filthy Talkers Revilers and Common Sowers of Sedition amongst Neighbours which were general Terms and might be understood to comprehend things out of their Iurisdiction the Court conceived a Prohibition ought to go as to them But he should have first pleaded there quod non tenetur respondere as to those matters and upon their refusal to have prayed a Prohibition Elpicke versus Action AN Action of Trover was brought de diversis vestimentis And held not to be good because not expressed what kind of Garments But 7 Jac. Emery's Case where Trover was brought for a Library of Books and held to be good without expressing what they were because to set down the particular Books would make the Record too prolix Vid. 3 Cro. 164. and Pl. Com. where a man pleaded that he was chosen Knight of the Shire per majorem numerum and held to be good Barnard versus Michel IN an Action of Debt the Plaintiff declared upon a Deed comprehending divers Covenants for the performance of which the Defendant obliged himself in the penalty of 40 l and sets forth that the Defendant had broke the Covenants The Defendant pleaded non est factum and it was found for the Plaintiff And it was moved in Arrest of Judgment That though the Issue was found for the Plaintiff yet he having assigned no Breach no Cause of Action appeared upon the Record so he could have no Judgment For if the Declaration be insufficient let the Defendant plead what he will yet Iudgment shall not be given against him Indeed if the Action had béen brought upon a Bond Conditioned for the performance of Covenants and non est factum had béen pleaded no Breach needed to have been assigned for then the Declaration is only upon the Bond without mentioning any thing of the Condition But here the Breach of the Covenant is as it were a Condition precedent to
the Iudgment of the Court yet now the Verdict hath aided these defects Pellow versus Kingsford IN an Action of Debt sur l'Estatute 2 E. 6. for not setting out of Tythes After Verdict for the Plaintiff it was moved in Arrest of Judgment Vid. 2 Cro. 68. Yelv. 63. That the Lands out of which the Tythes were demanded were shewn in the Declaration to lie in two Parishes so that the Plaintiff ought to have made several Titles and also have shewn how the Tythes should have béen set out upon the Land viz. how much in one Parish and how much in the other But it was held to be well enough for this Action is but in the nature of Trespass and to punish the Tort in not performing the Statute Anonymus IN an Information upon the Statute of Usury After Verdict at the Assizes for the King it was moved in Arrest of Judgment That the Venire was not well awarded for it was entred ideo ven ' inde jur ' whereas it should have béen praeceptum est Vicecomiti c. The Court commanded to search Presidents and were informed that they were generally so Anonymus A Prohibition was prayed on the behalf of a Churchwarden to the Ecclesiastical Court for that they tendred him an Oath upon these Articles following First Whether any Person within his Parish hath Encroached upon the Church-yard Secondly Whether any Person within his Parish were an Adulterer or Filthy Talker Sower of Sedition Faction or Discord amongst their Neighbours Thirdly Whether there were any which did not resort to their Parish Church receive the Sacraments c. It was said to the first of these That it concerned Matter of Freehold But this was Overruled for they may take notice of Encroachments upon the Church yard And to the second Sowing of Sedition amongst Neighbours is inquitable in the Leet and the Bishops Court hath nothing to do with it Besides This Oath would oblige him to charge himself Criminally for it is whether any person within the Parish c. so that himself is included And as to the Sowing of Discord The Court held it did not belong to them But they held That the general words would not extend to the Churchwarden himself but intended to relate only to the rest of the Parish But upon examination of the matter it appeared That the Oath tendred was only in general words Viz. To make Presentations according to the Kings Ecclesiastical Law And these Articles were offered only by way of direction quasi a charge Wherefore the Court denied the Prohibition Anonymus IN Replevin of Beasts taken at D. the Defendant pleads in Abatement that they were taken in another place absque hoc that they were taken at D. Et pro Return ' habend ' he Avows for Rent reserved upon a Lease The Plaintiff replies and Traverses the Lease which should not be for though the Defendant when he pleads such a Plea in Abatement must also Avow to have a Return yet the Plaintiff cannot answer to it 1 Cro. 896. but must take Issue upon the other Matter Sir William Smith versus Wheeler IN Error upon a Judgment in the Common Pleas in Ejectment for the Rectory of Hadnam in the County of Bucks where the Jury found as to a third part of the Rectory the Defendant Not guilty And to the other two parts a Special Verdict to this effect That Simon Maine was possessed of the two parts of the Rectory for 80 years and in the year 1643 made by Indenture an Assignment of them to Crook and Bleak upon these Trusts following viz. In trust for himself for Life and after his Decease for the payment of his Debts and for the raising of several Sums to be paid to divers of his Kindred Proviso That if he shall at the time of his Death leave a Child or his Wife Enseint then that it shall be to such Trust and Use as he shall limit and appoint by his Will and if he made no such appointment then to be in Trust for such his Issue Provided further That if Simon Maine should be minded or willing at any time to make void the Present Indenture or to Frustrate any Use or Trust therein or create any new or to dispose the Estate to any other person or any other way and such his purpose shall declare by Writing under his Hand and Seal before Witness c. that then and thenceforth the Trusts therein c. or so many of them c. should be void c. Then they find that in 1644 he had Issue a Son and that he took the profits thereof during his Life and made several Leases of the Premises That the Assignees had no notice of this Trust during his Life and that after his Death one of them assented and the other dissented to it They find that in 1648 he committed Treason and was thereof Attainted They find the Act of 12 Car. nunc cap. 30. Whereby it is Enacted That all Mannors Lands c. Leases for years c. which he or any to his use or in trust for him had 25. Mar. 1646. or a◠any time since shall stand and be forfeited c. and also all Rights and Conditions c. They find that the said Simon Maine died in 1661 and that the King made a Grant to Sir William Smith the Plaintiff It was adjudged for Wheele◠in the Common Pleas Pas 20 Car. 2. by Tinel and Archer who were then the only Judges in the Court and Sir William Smith brought a Writ of Error in this Court and after divers Arguments at the Bar the Iudgment was affirmed this Term by the Opinion of the whole Court Moreton I shall say nothing to the marks of Fraud found in the Verdict for tho' at first the Counsel of the Plaintiff insisted that the Court ought thereupon to adjudge the Settlement fraudulent yet it hath been since by them declined wherefore I shall wave that The matter is whether there be any thing forfeited longer than the Life of Maine It hath béen objected That in regard Simon Maine had a power of altering the Trusts and disposing of them otherwise that this should amount to an implied Trust in him of the whole Term but that cannot be for after his Decease the Trust is expresly limited to others 'T is true he had a power of disposing but that was to be executed at Election and by such Circumstances as were individually privy to himself For it was to be done by his Will according to the first Proviso And by the second to be done by Writing under his Hand and Seal so not like to Englefields Case in the 7 Co. 1.1 b. where the power of Revocation was to be executed by the tender of a Ring which any one might do as well as the party himself But indeed this is the same case with the D. of Norfolks cited in the same Report and the Statute of the 33 H. 8. of Forfeiture
King by general words of all Land c. Conditions c. 3 Co. 2. a. b. much less could it pass from the King if it could pass at all by general words but I rest upon this First That it is a Power or kind of Trust to revoke but no Condition Secondly At least not such a Condition as is given to the King Thirdly If it were it ought to have béen executed by the same means as it should have béen by S. M. In Englefields Case there was no pretence to have more than to execute the Condition it ought here to have béen executed in the Life of S. M. and so it appears to be done in Englefields Case and Harding and Warners Case for I caused the Cases to be searched This is like the Case of the Statutes of 15 R. 2. cap. 5. 1 R. 3. cap. 1. 19 H. 7. cap. 15. these Statutes give the same advantage to Lords c. where persons have Uses in Lands respectively as if they had the very Lands but the Lord's c. cannot thereby claim any greater Interest than the cestuy que Uses had respectively in the Uses Now in this Case The Body of the Act and the Proviso fetch back and save the Trusts for all but S.M. As to the Execution for the Kings Debts it differs for the Process for they ever did and do run de terris de quibus illi aut aliquis ad eorum usum c. 'T is true in Sir Charles Hattons Case it was resolved That the Kings Debr should be executed upon Land wherein he had a power of Revocation Vid. Chirtons Case 11 Co. 92. And so Iudgment was affirmed per toram Curiam Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Anonymus IN Debt upon a Bond. After Verdict for the Plaintiff the Judgment was entred quod recuperet the Sum pro misis custag ' instead of pro debito praed ' But this was ordered to be amended as the default of the Clerk tho' in another Term The Court having power over their own Entries and Judgments Anonymus IN an Account it was held by the Court that if a man delivers Money to his Bayliff or Factor to lay out for him in Commodities he cannot bring an Assumpsit but only his Action of Account For the Chief Justice said that he knew such an Action once brought and the Jury that were to try the Cause informed him That if they should Examine all the Accounts which were between the Plaintiff and Defendant it would take up three or four days time So that it hath been always holden that in such case he should be driven to his proper Remedy which is an Action of Account and it may be the Factor hath laid out more Mony that he received Eaton versus Barker IN an Action upon the Statute of 17 Car. nunc for residing in a place where he had formerly kept a Conventicle and demands the 40 l penalty After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Costs or Damages given For it was said that where a Statute gave a certain Penalty if this be not paid upon demand he that sues for it shall recover his Costs and Damages as North and Wingate's Case in the 3 Cro. 559. is But the Court held that they ought not to be given in Actions Popular whether the Forfeiture be certain or not but where a certain Penalty is given to the party grieved there he shall recover his Costs and Damages 10 Co. 116. Vide postea Polexphen versus Polexphen IN a Prohibition the Case was that Henry Polexphen died Intestate Andrew his Brother gets Letters of Administration in the Inferiour Diocess One who pretended to be the Wife of H. surmizing Bona notabilia procured Administration from the Prerogative Court Andrew appeals to the Delegates and dies Henry his Son and Heir comes in and gets the Administration committed in the Prerogative Court Repealed and hath Letters granted to himself Vpon this the Wife prayed a Prohibition supposing that the Delegates could not proceed after the death of Andrew but that their Commission was determined For their Authority is by that to proceed in a Case between such parties one of which is dead To which it was Answered That the Commission is to hear and determine the Cause And both in the Civil and Ecclesiastical Law the Suit shall continue after the death of either party for those which shall be concerned as appears by the Bishop of Carlisle's Case in 2 Cro. 483. and in the 1st Leonard 117 and 178. it is said That if one party dies ante litis conrestationem then it shall abate but if after it is otherwise And there are a number of Presidents of this nature both in the Arches and Admiralty Courts c. And in this very Case Henry Polexphen having obtained Administration de bonis non of his Vncle Andrew in the Country the now Plaintiff got it set aside by the Delegates because granted while an Appeal was depending and that upon full debate before them who would yet now suggest that the Appeal was determined by the death of Andrew The Court were of Opinion that no Prohibition was to be granted and that the Delegates Authority to proceed in that case continued notwithstanding the death of Andrew For the Commission is to proceed in causis Administration c. una cum suis incidentibus vel annexis qualitercunque c. Summariè juxta Juris exigentiam So that the Ecclesiastical Law is appointed to be their Rule by the course of which a Suit doth not abate by the death of the parties And Hale said The Appeal is to the King in Chancery and it is by reason of his Original Jurisdiction and thereupon he grants a Commission to hear it Now if he could hear it in Person none could object but that he might determine the Cause after the death of the parties and by the same Reason they may to whom he hath delegated his Authority But the Attorney General coming in and desiring to be heard in it for the Plaintiff the Court gave further time Eaton versus Barker THe Case was now moved again upon the Statute for coming to a place where he had formerly Preached in a Conventicle And Exception was taken to the Declaration For that it was not averred that the Defendant was in Holy Orders For the words of the Statute are That if any one that hath been Parson Vicar Lecturer c. or within Holy Orders and have taken upon them to Preach c. But to this it was Answered that there is another Clause in the Act That all such persons as shall take upon them to Preach c. which is general and extends to all men whether in Orders or no which have been Preachers And of that Opinion were the Court. It was also Objected That there was no Averment That the Defendant was not there upon Summons Sub
Car. nunc cap. 3. in pursuance of which he distrained the said Nails for the Duty due by those Acts out of a Smiths Forge c. The Plaintiff demurred So the sole question was whether a Smiths Forge were within the Acts it being once argued the last Term the Court now gave their Opinion Moreton I think a Smiths Forge ought to pay 't is a great part of the Kings Revenue almost in every Village there is one we should explain the Act liberally for the King Rainsford of the same Opinion 't is within the words scilicet an Hearth whereon Fire is used and within the meaning for there is an exception of things not so properly Fire hearths as this viz. Private Ovens Where the Act excepts Blowing Houses I take it is meant Glass houses and the Houses at Ironworks by Stamps I think is meant Presses Calenders for Cloaths by the very words Houses that are not Dwelling Houses are charged The objection that it is his Trade is answered by the instance of Cooks Chandlers Common Ovens Hearths of Tripewomen who boil Neats Feet Twisden of the same Opinion the words are general yet I would not extend it to every Hearth that has a Fire upon it as Stils and Alembicks for so we might extend it to a Chaffing dish of Coals but we must take it for a Rule to extend it to those things which are most general A Smiths Forge is of such use that 't is found almost in every Village therefore 't was reckoned a great piece of hardship and slavery upon the Children of Israel that they were not permitted a thing so useful amongst them The exceptions enumerate particulars therefore it excludes whatever is not expressed Hale I would fain know how the fact is Do Silver Smiths c. pay It were too narrow to extend it only to Common Chimneys and too great a latitude to extend it to every place where Fire is where a Man can but warm his Hands I suppose Boylers in Cooks Chimneys and the Fireplaces of Worstead Combers do not pay Common Ovens should have paid tho' there were no exception of Private Ovens for they never are or can be without a Chimney This is matter of fact I have not enquired into and I would be loath to deliver an Opinion without much inquiry but 't is very probable that they are Firehearths and not excepted but it appears plainly upon the Record that 't is a Firehearth and by the general Demurrer 't is admitted Note There was a Special Rule that no advantage should be taken of the Pleading by either side But Hale said he did not know how they were bound by that Rule Termino Paschae Anno 24 Car. II. In Banco Regis Monk versus Morris and Clayton THe Plaintiff after he had obtained Iudgment in Debt became Bankrupt and the Defendants brought a Writ of Error The Judgment was affirmed in the Exchequer Chamber and the Record sent back Then a Commission of Bankrupts is sued out and the Commissioners Assign this Judgment The Plaintiff Sues out Execution and the Money is levied by the Sheriff and brought into Court The Assignee moves that it may not be delivered to the Plaintiff surmising that the Judgment was assigned to him ut Ante. The Court said they might have brought a Special Sicre facias which they having delayed and that it would be hard to stay the Money in Court upon a bare surmise and for ought appeared it was the Plaintiff's due But however because it might be hazardous to deliver it to him they consented to detain it so that the Assignee forthwith took out a Scire facias against the Defendant in order to try the Bankrupcy or otherwise that it should be delivered to the Plaintiff Sir Ralph Bovyes Case IN an Ejectment upon a Tryal at Bar the Case appeared to be this Sir William Drake was seized in Fee of the Lands in question and 19 Car. 1. infeoffed Sir William Spring and five others to such uses as he should declare by his Will in Writing or by his Deed subscribed by three Witnesses In August 20 Car. 1. by his Deed ut supra he limits the use of the said Lands to his Brother Francis Drake for 90 years and declares That the Feoffees should be seized to their own use in Trust for the said Francis Drake and his Heirs with a power to Francis Drake to alter and limit the Trust as he should think fit In the same Month there is a Treaty of Marriage between F.D. and the Daughter of Sir William Spring and it was agreed by certain Articles between F.D. and Sir W. S. c. reciting that he should receive 2500 l with his intended Wife which Money was proved to be paid that F. D. should convey the Lands in question to himself and his Wife and the Heirs Males of their two Bodies c. for the Joynture of the Wife The Marriage afterwards in 20 Car. takes effect and soon after the same year F.D. by Indenture between him Sir W.S. and another reciting the Articles of Marriage Assigns his Term of 90 years to Sir W. S. and the other in Trust to himself for Life the remainder to his Wife for Life and after to the Heirs Males of their two Bodies and by the same Deed limits the Trust of the Inheritance of the Lands in the same manner Afterwards in 23 Car. 1. he in consideration of 6000 l proved to be paid Grants out of the said Lands a Rent of 400 l per annum to Sir Ralph Bovy and his Heirs with power to enter into the Land in case the Rent was not paid and to retain it until satisfaction Afterwards F. D. and his Wife dye the Rent was Arrear Sir R. Bovy enters Sir Will. Spring and the other Trustees Assign the term of 90 years to Sir Will. Drake Heir Male of F.D. and his Wife the Lessor of the Plaintiff In this case these Points were agreed by the Court. First That when Sir W. D. enfeoffed divers to such Uses as he should declare by his Will or Writing that if he had in pursuance of that Feoffment limited the Uses by his Will that the Will had been but Declaratory tho' if he had made a Feoffment to the Use of his Will it had been otherwise according to Sir Ed. Cleeres Case 6 Co. And Hale said my Lord Co. made a Feoffment provided that he might dispose by his Will to the use of the Feoffee and his Heirs and resolved in that case he might declare the Use by his Will which should arise out of the Feoffment Secondly That this Settlement being in pursuance of Articles made precedent to the Marriage had not the least colour of fraud whereby a Purchaser might avoid it and if there had been but a Verbal Agreement for such a Settlement it would have served the turn And the Court said if there had been no precedent Agreement so that it had been a voluntary Conveyance tho' every such
c. be indicted for not repairing of a Way within their Precinct they cannot plead Not guilty and give in Evidence that another by Prescription or Tenure ought to repair it for they are chargeable de communi Jure and if they would discharge themselves by laying it elsewhere it must be pleaded Error ERror to Reverse a Judgment in Debt upon a Bond given in Norwich Court where by the Custom the plea of the Defendant was quod non dedicit factum sed petit quod inquiratur de debito First It was moved to be Error for that the Venire was XII Men c. in figures Sed non allocatur for being in these letters XII and not in the figures 12. it was well enough Secondly It was ad triandum exi tum whereas there was no Issue joyned wherefore it ought to have been ad inquirend ' de debito c. Sed non allocatur for the Presidents are as the Case is here Thirdly The Condition of the Bond was to pay at Alborough and that ought to have been shewn to be within the Jurisdiction of the Court Sed non allocatur for the Plea here is not payment secund ' formam Conditionis but the Jury is to inquire by the custom of all manner of payments and discharges Fourthly In the Record it was continued over to several Courts and in the Court where the Judgment is given 't is said in Curia praedicta and so incertain which but notwithstanding these matters the Iudgment was affirmed Anonymus THe Case upon Evidence at a Tryal in Ejectment was this a Dean and Chapter having a right to certain Land but being out of Possession Sealed a Lease with a Letter of Attorney to deliver it upon the Land which was done accordingly and held to be a good Lease for tho' the putting the Seal of a Corporation aggregate to a Deed carries with it a delivery yet the Letter of Attorney to deliver it upon the Land shall suspend the operation of it while then Tenant for Life being in Debt to defraud his Creditors commits a Forfeiture to the end that he in Reversion may enter who is made privy to the contrivance The Opinion of Hale was that the Creditors should avoid this as well as any fraudulent Conveyance Anonymus IN an Ejectment upon a Tryal at Bar for Lands in antient Demesne there was shewn a Recovery in the Court of antient Demesne to cut off an Entail which had been suffered a long time since and the Possession had gone accordingly But there was now objected against it First That no sufficient Evidence of it appeared because the Recovery it self nor a Copy of it was shewn for in truth it was lost But the Court did admit other proof of it to be sufficient and said if a Record be lost it may be proved to a Jury by Testimony as the Decree in H. 8. time for Tythe in London is lost yet it hath been often allowed that there was one Secondly It appeared that a part of the Land was leased for Life and the Recovery with a single Voucher was suffered by him in Reversion and so no Tenant to the Praecipe for those Lands But in regard the Possession had followed it for so long time the Court said they would presume a Surrender as in an Appropriation of great Antiquity there has been presumed a Licence tho' none appeared Thirdly It was objected That the Tenant in Tail which suffered the Recovery having first accepted of a Fine sur Conusans de droit come ceo his Estate Tail was changed for he was estopped during his Life to say that he had any other Estate than Fee then he being made Tenant to the Praecipe the Recovery was not of the Estate Tail and so should not bind But the Court held clearly that the acceptance of this Fine made no alteration of his Estate If Tenant for Life accepts such a Fine 't is a Forfeiture because he admits the Reversion to be in a Stranger but it does not change his Estate so where two Joynt-tenants in Fee accept a Fine which is to the Heirs of one of them yet they continue Joynt-tenants in Fee as they were before Fourthly The Writ of Right Close did express the Land to lie in such a Mannor and a Praecipe that demands Land ought to mention the Vill in which they lie for a Praecipe of Land in Parochia or in Manerio is not good But this exception was disallowed by the Court for Hale said the Writ of Right Close is directed Ballivis Manerij c. quod plenum rectum teneant of the Land within the Precinct of the Mannor and it is not to be resembled to another Praecipe But if a Praecipe be faulty in that Point unless exception be taken to it in Abatement it cannot be assigned for Error but if it were Erroneous the Recovery would bind until reversed Note After Judgment quod computet tho' it be not the final Judgment yet no motion is to be admitted in Arrest of Judgment and after such Judgment a Scire facias lies against the Executor of the Defendant Note In an Action of Debt against the Lessee he may plead nil debet and give the expulsion in Evidence Anonymus IN an Assumpsit the consideration appeared to be that the Defendant promised to pay a Sum of Money which he owed this is no good consideration tho' after a Verdict unless it appeared that the Debt was become remediless by the Statute of Limitations but payment of a Debt without Suit is a good consideration Anonymus A Justice of the Peace brought an Action of Slander for that the Defendant said He was not worth a Groat and that he was gone to the Dogs and upon motion in Arrest of Judgment notwithstanding that it was urged to maintain it that the Statute of H. 6. requires that a Justice of Peace should have 40 l a year And therefore in regard an Estate was necessary to his Office that the Action would lie yet the Judgment was stayed for such words will not bear an Action unless the person of whom they are spoken lives by buying and selling Anonymus IT was returned upon Elegit that the Sheriff had delivered medietatem Terrar ' Tenementorum in extent and after the Filing and Entry of it upon the Record the Plaintiff moved to quash it because it was insufficient for the Sheriff ought upon such Execution to deliver the Possession by Metes and Bounds Wild held that it being entred upon the Record there was no avoiding of it but by Writ of Error But Hale held that in regard it appeared by the Record to be void it might be quashed as if upon an Ejectment to recover Possession upon such a return it appears upon the Evidence that there was more than the half the Land delivered this shall be avoided So if a Fieri facias be not warranted by the Judgment upon which it is awarded tho' the Sheriff shall be
excused yet 't is merely void as to the Party Et Ad jornatur Norton versus Harvey THe Case was an Executor being possessed of a Term let part of it reserving a Rent and died And the Question was whether his Executor should have the Rent or the Administrator de bonis non It was argued for the Executor that this Rent is meerly due by the Contract and not incident to the Reversion and the Administrator is in Paramount it being now as if the Testator had died Intestate and therefore before the Statute of this King such Administrators could not have had a Scire facias upon a Judgment obtained by the Executor tho' in the Case of Cleve and Vere 3 Cro. 450 457. 't is held that he may have a Liberate where the Executor had proceeded in the Execution of a Statute so far as an Extent for there the thing is executed and not meerly Executory as a Judgment If a Man that hath a Term in the right of his Wife le ts part of it reserving a Rent the Wife surviving shall not not have the Rent On the other side it was said that this case differed from that because the Reservation here is by him that had the whole Right executed in him Another objection against the Action was that here in the Declaration being in Covenant for Non payment of Rent there is not any demand alledged But that was answered because the Covenant was to pay such a Sum for the Rent expresly but if the Condition of a Bond be for performance of Covenants expressed in such a Lease one of which is for payment of Rent in that case the Bond will not be forfeit without a demand and of that Opinion were the Court and that the Executor should have the Rent but when recovered Hale said it should be Assets in his Hands And accordingly Iudgment was given for the Plaintiff Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Silly versus Silly DOwer of 300 Acres of Land 200 Acres of Pasture 100 Acres Meadow The Tenant pleaded Non Tenure The Jury found him Tenant as to 320 Acres of Land and as to the rest that he was not Tenant And the Iudgment was that the Demandant should recover the 320 Acres Error was assigned in this Court that the Verdict and Judgment were for more Acres of Land than were demanded But on the other side it was said Land was a general word and might include Meadow and Pasture Curia In a Grant Land will extend to Meadow Pasture c. but in Pleading it signifies Arable only and here in regard they are distinguished in the Count the Verdict and Judgment must be reversed for the whole Tho' Hale said antiently such Iudgment would have been reversed but for the surplusage Vid Post Batmore Vxor versus Graves TRover for a 100 Loads of Wood upon a Special Verdict the Case was this Copyhold Land was surrendred to the use of J. S. for years Remainder to the Brother of the Plaintiff's Wife who died before the Term expired and so was not admitted any otherwise than by the admission of the Tenant for years And it was resolved First That the admittance of him that had the Estate for years was an admittance for him in the Remainder 4 Co. 23. a. 3 Cro. 504. Fine sur Grant and render to A. for Life Remainder to B. Execution sued by A. serves for B. So an Attornment to Tenant for Life serves for him in Remainder and this brings no prejuduce to the Lord for a Fine is not due until after admittance and the Lord may Assess one Fine for the particular Estate and another Fine for the Remainder But Wild said he need not pay it until his Estate comes in Possession after a Surrender the Estate remains in the Surrender before admittance of the Cestuy que use yet where Borough English Land was Surrendred to the use of J. S. and his Heirs and he died before admittance It was held that the younger Son should have it Secondly It was resolved that the Possession of the Tenant for years was so the Possession of him in Remainder as to make a Possessio Fratris But then it was moved that the Conversion was laid after the Marriage and so the Feme ought not to have joyned with her Husband in the Action But the Court held that in regard the Trover was laid to be before the Marriage which was the inception of the cause of Action the Wife might be joyned as if one has the Custody of a Womans Goods and afterward Marries her she may joyn in Detinue with her Husband for in case of Bailment the Proprietor is to some purposes in Possession and to some out of Possession Hale said in this case the Husband might bring the Action alone or joyntly with his Wife And so Iudgment was given for the Plaintiff Anonymus IN Debt upon a Bond the Condition was to save the Obligee harmless from another Bond. The Defendant pleaded Non damnificatus The Plaintiff replies that the Money was not paid at the day and he devenit onerabilis and could not attend his business for fear of an Arrest The Defendant rejoyns that he tendred the Money at the day absque hoc that the Plaintiff devenit onerabilis to which it was Demurred and the Iudgment was given for the Plaintiff for the Money not being paid at the day the Counter Bond is forfeited Vid. 1 Cro. 672. 5 Co. and the Traverse in this case is naught The Mayor and Commonalty of London versus Dupester IN Debt for a Duty accruing to the City for Timber imported called Scavage The Declaration was that they were and had been a Corporation time out of mind and their Customs were confirmed by Act of Parliament Temps R. 2. c. The Defendant tendred his Law and Co. Entries 118. was cited where in Debt for an Amerciament in a Court Baron tho' the imposing of it was grounded upon a Prescription yet Wager of Law was admitted But notwithstanding in this case the Court overruled the Wager of Law for here the Duty it self is by Prescription and that confirmed by Act of Parlimant Debt for a Duty growing by a By-Law if the By-Law be Authorised by Letters Patents no Wager of Law lies So in Debt for Toll granted by Letters Patents 20 H. 7. Termino Sancti Michaelis Anno 26 Car. II. In Banco Regis Silly versus Silly THe Case was moved again And the Court said that the Demandant might have taken Judgment for the 300 Acres only habito nullo respectu to the rest and released all the Damages But this was not proper for an Amendment the Mistake being in the Verdict but if it could have been amended in the Common Bench the Court might here have made such Amendment Ante. Burfoot versus Peal A Scire facias was brought against the Bail who pleaded that the Principal paid the Debt ante diem impetrationis Brevis
one to whom the Promise was made would marry his Kinswoman he would give her 100 l It was adjudged that an Indebitatus will not lye for t is not a Debt but a Collateral Promise Best versus Yates IN an Action upon the Case the Plaintiff declared That the Defendant being a Taylor he retained him to make him a Coat well and artificially and that the Defendant maliciously intending to abuse and damnifie the Plaintiff made it tam inepte negligenter inartificialiter that it became of no value or use to him to his damage 20 l To this Declaration the Defendant Demurred First For that he saies he retained him and does not shew that he delivered him any Materials so that the Action might lie for spoiling of them but this amounts to no more than that he bespoke a Garment which when it was made he did not like and so might have refused it therefore there does not appear to be any damage Vid. The president in Astons Entries fol. 12. Secondly He does not shew wherein he had spoiled the Coat or what defect there was in it and this ought to have béen certainly set forth And of this Opinion were the Court and Iudgment was given quod querens nil capiat per billam James versus Peirce IN an Action of Debt for an Escape upon Nil debet a Special Verdict was found to this effect viz. That the Plaintiff recovered 700 l Debt against J. S. who was thereupon committed in Execution to the Fleet and afterwards the Warden permitted him to make a voluntary Escape after which he returned again to the Fleet and the Defendant was made Warden in the place of the other and J.S. being then in the Fleet was turned over with the other Prisoners and afterwards suffered to Escape So that the question was Whether he were so in Execution upon his return as the escape in the now Wardens time should Intitle the Plaintiff to the Action It was principally insisted on against the Action that there being once an Escape that the party could not be in Execution again without new Process Hale said formerly it was held even in the case of a Permissive Escape that if the party were taken again he might discharge himself by Audita Querela and that he might not be retaken unless in case of a voluntary Escape but there the remedy was only against the Gaoler But afterwards it was held that Debt would lie against the party who escaped because the Duty they did not suppose was discharged by the Escape But they held it was a good Plea to a Scire facias But afterwards 9 Car. between the Lord Roberts and Trevilian The Opinion of the whole Court was that a Scire facias quare Executionem habere non debet would lie against one that had made a voluntary Escape and there is no reason but that he may as well be taken by the party again without a Scire facias for the Party has an interest in the Body of the pledge until his Debt is satisfied Tho' if the Prisoner should bring Trespass against a Gaoler that detained him after a voluntary Escape he could not defend it the mischief would be exceeding if the Sheriff c. might at his pleasure put the Plaintiff to an Action only against himself For this last Vacation the Warden of the Fleet turned as many Prisoners at large as their Debts came to 80000 l and ran away himself And so by the Opinion of the whole Court absente Twisden Iudgment was given for the Plaintiff Vid. Hob. The Sheriff of Essex's Case which was denied to the Law Sir Thomas Littleton Case DEbt was brought against him by one that Entituled himself by Assignment of Commissioners of Bankrupts Vpon the Evidence it appeared That he with two others had covenanted with the King to provide Victuals for the Seaman that served in the late Dutch War at 8 d per Man and after this they made a bargain with the Pursers of the Ships to provide for such as served in their Ships at other Rates agreed upon between them The Victuallers afterwards falling into the Kings displeasure and being thereupon removed from their Employment and having a great Sum of Money due from the King to them upon thhe Contract aforesaid refused to pay the Pursers supposing notwithstanding their Contract that they were not Debtors being upon the Kings Account until such time as their Accounts with the King were allowed and so was said was the usage of the Navy Board whereupon a Comission of Bankrupt issued forth But the Court viz. Hale Rainsford and Wild were clear of Opinion That this Employment in buying up Stores for Victualling the Fleet did not make the Victuallers Traders nor was it buying and selling within the Statute of Bankrupts And Hale said that every Purveyour might as well be made a Trader or Schoolmaster that keeps Boarders in his House and tho' it were shewn to enforce the matter that where there was a Redundancy of Provisions they used to Victual Merchantmen but in regard it was originally designed for the use of the Navy in pursuance of their Contract with the King they might well dispose of the Surplus to any other use And then it was shewn that they Victualled the French Fleet also and that was more than was contained in their first Agreement with the King but that being proved to be done by the Kings express order tho' that Order was not produced The Court held that it was not sufficient evidence to prove them Traders But Hale said they having made a Contract with the King to provide for the Fleet at so much a Head the King was not chargeable to those with whom they contracted and therefore that Contract with the Pursers of the Ships would make them Debtors to them But upon the other matter they directed the Jury to find for the Defendant Termino Sanctae Trinitatis Anno 27 Car. II. In Banco Regis Motteram versus Jolly IN Debt upon a Bond Conditioned to perform Covenants in an Indenture one of which was that the Defendant Covenanted with the Plaintiff that the Plaintiff should elect 20 of the best Trees out of his Wood to be taken within 11 years and the breach was assigned that the Defendant had cut Trees within the time upon which it was Demurred and relied upon Sir Thomas Palmers Cases 5 Co. where Sir T.P. sold 2000 Cords of Wood to be taken at the Election of the Vendee And there it is said if the Vendor cuts the Wood before the Vendee hath elected the Vendee cannot meddle with that which is cut but must supply his bargain out of the residue But here the Court were of Opinion for the Plaintiff for by the Covenant he hath 11 years time to elect and by cutting any Trees in the mean time the Latitude of his Election is abridged And Hale said for the case in 5 Co. there if the Grantee can have the number of his Cords
have admitted Wager of Law and therefore lies not against the Executor It was difficultly brought in that Debt should lye against the Executor upon a Surmize of a Devastavit by himself But that Point is now setled but no Reason to extend it further And he cited a Case where Debt was brought against A. Executor of B. Executor of C. who pleaded that he had not of the Goods of C. in his hands To which the Plaintiff Replied That B. had Wasted the Goods of C. to the value of the Debt demanded Vpon which Issue was joyned and found for the Plaintiff and he had Judgment to recover de bonis B. in the hands of A. But that Judgment was Reversed Anonymus IF A. Engages that B. shall pay for certain Goods that B. buys of C. this is good to charge him upon a Collateral Promise but not upon an Indebitat ' Assumpsit for it doth not create a Debt Anonymus IN an Information for a Riot it was doubted by the Court whether it were Local being a Criminal Cause And it was observed that divers Statutes in Queen Elizabeth and King James's time provided that Prosecutions upon Penal Laws should be in their proper Counties Which was an Argument that at the Common Law they might have been elsewhere Taylor 's Case AN Information Exhibited against him in the Crown Office for uttering of divers Blasphemous Expressions horrible to hear viz. That Jesus Christ was a Bastard a Whoremaster Religion was a Cheat and that he neither feared God the Devil or Man Being upon this Trial he acknowledged the speaking of the Words except the word Bastard and for the rest he pretended to mean them in another Sense than they ordinarily hear viz. Whoremaster i. e. That Christ was Master of the Whore of Babylon and such kind of Evasions for the rest But all the Words being proved by several Witnesses he was found Guilty And Hale said That such kind of wicked Blasphemous words were not only an Offence to God and Religion but a Crime against the Laws State and Government and therefore punishable able in this Court. For to say Religion is a Cheat is to dissolve all those Obligations whereby Civil Societies are preserved and that Christianity is parcel of the Laws of England and therefore to reproach the Christian Religion is to speak in Subversion of the Law Wherefore they gave Judgment upon him viz. To stand in the Pillory in Three several places and to pay One thousand Marks Fine and to find Sureties for his Good Behaviour during Life Walker versus Wakeman THe Case was An Estate which consisted of Land a Rectory c. was conveyed to the use of one for Life c. with a Power to Lett the Premisses or any part of them so as 50 l Rent was reserved for every Acre of Land The Tenant for Life Demised the Rectory reserving a Rent which Rectory consisted of Tythes only and whether this was within the Power was the Question Serjeant Pemberton Argued That this Lease is not warranted by the Power for a Construction is to be made upon the whole Clause and the latter Words that appoint the Reservation of the Rent shall explain the former and restrain the general Word Premisses to Land only for if it shall be extended further the Settlement which was in Consideration of a Marriage Portion is of no effect for the Rectory As in case it should de Demised reserving no Rent which it might be if not restrained to the latter words and they applied only to the Land But it was Resolved by the Court that the Lease of the Rectory was good for the last Clause being Affirmative shall not restrain the Generality of the former And this Resolution was chiefly grounded upon Cumberford's Case in the 2 Rolls 263. where a Conveyance was made to Vses of divers Mannors and Lands with a Power to the Cestuy que use for Life to make Leases of the Premisses or any part of them so that such Rent or more were reserved upon every Lease which was reserved before within the space of Two years and a Lease was made of part of the Lands which had not been Demised within Two years before And Resolved it was a good Lease and that thereupon any Rent might be reserved because the Power was General To Lease all and the restrictive Clause should only be applied to such Lands as had been demised within Two years before Termino Sanctae Trinitatis Anno 28 Car. II. In Banco Regis MEmorandum The last Term Sir Richard Rainsford was made Chief Justice Hale Chief Justice quitting it for infirmity of Body and Sir Thomas Jones was made one of the Justices of the Court of Kings Bench. Anonymus IN an Action upon the Case brought against the Defendant for that he did Ride an Horse into a place called Lincolns in Fields a place much frequented by the Kings Subjects and unapt for such purposes for the breaking and taming of him and that the Horse was so unruly that he broke from the Defendant and ran over the Plaintiff and grievously hurt him to his damage c. Vpon Not guilty pleaded and a Verdict for the Plaintiff It was moved by Sympson in Arrest of Judgment that here is no cause of Action for it appears by the Declaration that the mischief which happened was against the Defendants Will and so Damnum absque injuria and then not shewn what right the Kings Subjects had to walk there and if a man diggs a Pit in a Common into which one that has no right to come there falls in no Action lies in such Case Curia contra It was the Defendants fault to bring a Wild Horse into such a place where mischief might probably be done by reason of the Concourse of People Lately in this Court an Action was brought against a Butcher who had made an Ox run from his Stall and gored the Plaintiff and this was alledged in the Declaration to be in default of penning of him Wild said if a Man hath an unruly Horse in his Stable and leaves open the Stable Door whereby the Horse goes forth and does mischief an Action lies against the Master Twisden If one hath kept a tame Fox which getts loose and grows wild he that kept him before shall not answer for the damage the Fox doth after he hath lost him and he hath resumed his wild nature Vid. Hobarts Reports 134. The Case of Weaver and Ward Anonymus IN Trespass in an inferiour Court if the Defendant plead son frank Tenement to oust the Court of Jurisdiction It was said by Wild that they may enforce the Defendant to swear his Plea as in case of Foreign Plea negat Twisden and as in this Court where a Local justification in Trespass c. is pleaded the Defendant must swear it But the Court held no Indictment will lie for Perjury in such Oath no more than upon a Wager of Law Anonymus IN Trover the Hab. corpora
Tail was executed by the first Conveyance And in the Case at Bar until the Release of B. the Fee was not executed in B. for the preservation of the Joynture and so the Plight and Condition of the Estate altered by matter subsequent and by consequence the Contingent Remainder destroyed The Court doubted whether there were such alteration of the Estate as to destroy the Remainder for they said to some purposes the Fee was executed before the Release Vid. 1 Inst 184. a. for if the Joynt-tenants had joyned in a Lease for years an Action of Wast would he against the Lessee Et Adjornatur Anonymus A Person who was committed to the Tower for Conspiring the death of the King was brought up by Habeas Corpus and prayed to have Bail taken unless an Indictment were found against her this Term according to the new Act of 31 Car. 2. for Habeas Corpus's The Court said that they which would have the benefit of that Act must pray it before the first week of the Term expires but in regard it appeared that she had prayed it before by her Counsel and her Habeas Corpus was taken out in time the Court said the benefit of the Act should be saved to her for the prayer is not necessary to be made in person But Mr. C. G. was refused the advantage he having omitted to make the prayer during the first week either in Person or by Counsel Sir Robert Peytons's Case HE was brought up by Habeas Corpus from the Tower his Counsel pressed much to have the Return Filed supposing that he would be then a Prisoner to the Court and committed to the Marshalsey but the Court ordered the Return to be Filed and notwithstanding remanded him to the Tower as they said they might do The King versus Plume ANte Hill 29 30 Car. 2. The Case was spoken to again upon the Demurrer to the Indictment for using of the Trade of a Fruiterer contra 5 Eliz. not having been bound an Apprentice Scroggs Chief Justice and Dolben inclined to the Opinion that it was a Mystery within the Statute there being great Art in chusing the times to gather and preserve their Fruit. And that the Cause deserved the more Consideration for that the Fruiterers were an ancient Corporation in London viz. From the time of E. 4. also a Barber Upholster and lately a Coachmaker Ruled to be within the Act. Jones and Pemberton seemed to be of another Opinion for it would be very inconvenient to make every one that sells Fruit by the penny within the Act and majus minus would make no odds surely since the 5 of Eliz. there would have been some Prosecution by the Company of Fruiterers in this case if it would have lain Brewers and Bakers require Skill and yet not within the Act. But the Court took time to deliver their positive Opinions Et Adjornatur Reve versus Cropley AN Indebitat ' Assumpsit was brought for 20 l as Executor to William Burroughs for so much of the said Williams Money had and received by the Defendant in his Life time whereupon the Plaintiff had Iudgment by Nihil Dicit and upon a Writ of Inquiry the Plaintiff not being provided to prove the Debt supposing it to be confessed by the Judgment the Jury found but two pence Damages Ventris moved to set aside this Writ of Enquiry for that the Plaintiff was not obliged in this Action to prove the Debt at the executing of the Writ of Enquiry no more than if he had brought an Action of Debt 2 Cro. 220. In Trespass for taking of Goods the Property is not to be proved upon the Writ of Enquiry after Iudgment Sur Nihil Dicit for said the Court if he should fail thereof it would be in destruction of the first Judgment Vid. Yelv. 152 Curia This being in an Action upon the Case which lies in Damages the Debt ought to have been proved and so let it stand Note If a Verdict be for 30 l and the Iudgment is quod recuperet damna praedicta ad 32 l This surplus will do no hurt because 't is damna praedicta Jones 171. Cooke versus Fountain IN an Ejectment upon a Trial at the Bar the Title of the Lessor of the Plaintiff was upon the Grant of a Rent with power to enter for Non payment The Executor of the Grantor was produced as a Witness for the Defendant And it was objected against him that in the Grant of the Rent the Grantor covenanted for himself and his Heirs to pay it and that the Executor being obliged was no competent Witness Against which it was much insisted upon on the other side that this Covenant annexed to a real Estate would not bind the Executor but only the Heir But the whole Court were against it The Counsel for the Defendant mentioned a Bill of Exceptions and the Court doubted whether it would lie in the Kings Bench so they waved it and shewed that the Executor had fully Administred the Inventory But they gave a further charge on the Plaintiffs side and so that Witness was set aside Termino Sanctae Trinitatis Anno 32 Car. II. In Banco Regis Anonymus IN an Action upon the Case The Plaintiff declared that he kept a Stage-Coach and got his Livelyhood by carrying of Passengers And that the Defendant spoke such Scandalous words of his Wife that so reflected upon him and rendred him so ridiculous that no body would Ride in his Coach and he thereby lost his Customers After Verdict for the Plaintiff it was moved to stay Iudgment that here was no cause of Action But on the other side a Case was cited of one Bodingly 14 Car. 2. C. B. where the Plaintiff declared That he was an Innkeeper and that the Defendant had presented his Wife at a Leet for a Scold and that such and such Guests in particular had absented from his House upon it and after Verdict he had Judgment But the Court here said that the Cases differed for that quality of the Wives might make the House troublesome to the Guests but a Stage Coachman could receive no probable prejudice in his Trade by defaming of his Wife or at the least the Plaintiff should have declared what Customers he had lost in particular and therefore they ordered quod querens Nils capiat per Biliam Anger versus Brewer IN an Attachment upon a Prohibition the Plaintiff declared That he proceeded in the Court Christian after the Prohibition delivered After Judgment by Nihil dicit and 100 l Damages given to the Plaintiff it was moved to stay Judgment that there was no place laid in the Declaration where the Defendant prosecuted since the Prohibition delivered and so if Issue had been taken upon Non prosecut ' fuit post deliberat ' brevis whence should the Venue have come But it being made appear to the Court that in all the Presidents of these kind of Declarations there is no place found mentioned
could not be digged up there might be an Indictment Exhibited to the Grand Jury who might Enquire thereupon Termino Sancti Hillarij Anno 32 33 Car. II. In Banco Regis Anonymus A Motion was made against a Judge of an Inferiour Court of Record for increasing upon a View the Damages in an Action of Trespass and Battery to so much more than was given by the Jury Curia The proper way is to Reform it by a Writ of Error for none but the Courts at Westminster can increase Damages upon View Anonymus IF a Writ of Error in Ejectment c. abates by the Act of God a second Writ will be a Supersedeas Otherwise where it abates by the Act of the Party Anonymus IN a Writ of Error to Reverse a Fine the Proclamations were pleaded in the same Fine and Five â—ears quiet possession and this in barr of a Writ of Error The Court Inclined that the Error being in the Fine Five years possession could not be pleaded Sed Adjornatur Mo. Rep. 8. Termino Paschae Anno 33 Car. II. In Banco Regis NOte This Term Sir Francis Pemberton was made Lord Chief Justice of the Kings-Bench in the room of Sir William Scroggs who was displaced Page versus Denton HIll 32 33. Car. 2. Rot. 45. In Debt upon a Bond against an Executor who pleads that the Testator was Indebted to him by an Obligation the Condition whereof was to pay Rent and that at the time of his Decease there was 300 l due for Rent and that he had not more than 60 l Assets to pay it c. The Plaintiff Replied That there was but 30 l due for Rent at the time of the Testator's death Which the Court held to be a good Replication altho' the Penalty of the Bond was forfeited at the time of the Testator's death For if a Bond due to a Stranger be forfeited and this be pleaded by an Executor and that he hath not Assets ultra 't is a good Replication to say That the Obligee would have taken part of his Money in full and it shall be a Bar for no more and here the Defendant ought to take but his due Debt And the Court said that if men would plead their Case Specially it would save many a Suit in Chancery Fitzharris's Case EDward Fitzharris was Indicted of High Treason upon which being Arâ—aigned and demanded to plead he delivered in a Paper containing a Plea to the Jurisdiction of the Court which could not be received as the Court said not being under Counsel's Hand Whereupon he prayed to have Counsel assigned and Named divers whereof the Court assigned Four And he was taken from the Bar three of four days being given him to advise with his Counsel to prepare his Plea as they would stand by him The Counsel prayed that they might have a Copy of the Indictment But the Court denied it and said that it was not permitted in Treason or any other Capital Crimes But Justice Dolben said that sometimes it had been allowed to take Notes out of the Indictment Vid. Mirror 304. Abusion est que Justices ne monstre l'Indictment à les Indictes s'ils demandront Sect. 115. Termino Sanctae Trinitatis Anno 33 Car. II. In Banco Regis Anonymus IN an Action of Debt against an Executor in the Debet and Detinet upon a Surmize of a Devastavit the Defendant was held to Special Bail And so Ruled upon Motion Anonymus IT was said by the Court That if a Corporation that hath been by Prescription accept a New Charter wherein some alteration is of their Name and likewise of the Method in the Governing part yet their Power to remove and other Franchises which they had de temps d'ont c. do continue And if the Power to Remove be at their Will and Pleasure this Will must be expressed under their Common Seal but in Return to a Mandamus debito modo amotus may suffice Note No Writ of Error lies upon an Indictment of Recusancy and Conviction by Proclamation Note In an Ejectment where there are divers Defendants which are to Confess Lease Entry and Ouster if one does not appear at the Trial the Plaintiff cannot proceed against the rest but must be Nonsuit Termino Sancti Michaelis Anno 33 Car. II. In Banco Regis Anonymus IN Covenant the Plaintiff Declared upon several Breaches one whereof was for not paying of 7 l according to the Covenant It was moved for the Defendant that he might be admitted to bring 7 l into Court to pay to the Plaintiff together with his Costs hitherto c. as is usual in Cases of Debt or Assumpsit for Money and that the Plaintiff might proceed for the rest if he thought fit But the Motion was denied because the Plaintiff had Declared of other Breaches and the Matter lay in Damages Anonymus ERror upon a Judgment in the Common Pleas where the Plaintiff Declared in an Action upon the Case that he had Common in the Defendants Lands habere debuit c. The Defendant Demurred because not set out how the Plaintiff was Intituled to the Common whether by Prescription or otherwise Notwithstanding which Judgment in the Common Bench was for the Plaintiff and now the same Matter insisted on for Error here and the Court doubted To make the Declaration good there was quoted the Case of Sands and Trefuses in the 3 Cro. in an Action for Stopping of a Watercourse to his Mill which was held good without saying an Ancient Mill or that he was Intituled to the Watercourse by Prescription or otherwise 2 Cro. 43.122 Dent and Oliver an Action for disturbing of him to take Toll and no Title set forth Sed Adjornatur Vid. Co. Entr. 9. 11. Day versus Copleston IN an Assumpsit for Money the Defendant pleaded the Statute for the Discharge of poor Prisoners and that he had been Discharged by that Act which provides that there shall be no after Prosecution by a Creditor in such case so as to subject the Body to Execution and says that he can say nothing further in Bar of the Action Vpon which the Plaintiff Demurred and the Defendant joyned in the Demurrer and Judgment was Entred up for the Plaintiff but with a Cesset executio quoad Corpus c. And the Court approved of this way of pleading the Statute for otherwise they said if the Matter had not been disclosed in pleading they doubted whether the could have given the Defendant the benefit of the Act but he would be driven to his Audita Querela Anonymus ERror of a Judgment in the King's Bench in Ireland it was suggested that the Plaintiff was in Execution upon the Judgment in Ireland And the Court seemed to be of Opinion that a Habeas Corpus might be sent thither to remove him as Writs Mandatory had been awarded to Calais and now to Jersey Guernsey c. Anonymus THe Case was A. Tenant in Tail Remainder to B. in Tail c. A.
are few that she goes to but lye desperately ill or dye under her hands Action good 21 Thou art a thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Words spoke in London where to be tryed 22 263 He is a Forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him so to his Face Action good 50 You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen 53 Of an Attorney That he could not Read a Declaration 98 He hath broke 2 or 3 of his Fathers Ribs of which he shortly after dyed and I will complain to a Justice of him he may be hangd for the Murder tho it were done 20 years since Action good 117 Of a Woollen Draper You are a Cheating Fellow and keep a false Book Action lies 117 He hath Forged his Vncle Row's Will 149 He had pickt his Pocket against his will and was a Pick pocket Not Actionable 213 Of a Justice of Peace He is not worth a groat and is gone to the Dogs Not Actionable 258 He is a false cheating Knave and keeps a false Debt Book with which he cheats the Country Actionable 263 For charging the Plaintiff with Felony generally Good 264 Of an under Carrier of Post Letters He hath broken up Letters and taken out Bills of Exchange Not lies 275 The Defendant said to the Plaintiff I know my self and I know you I never buggerd a Mare The words Actionable 276 He would have given D. Money to have Robbed G's House and he did Rob it 323 Administration By the Civil Law Administration ought to be committed to the Residuary Legatee whether Assets or not Assets 218 To which the Court of K. B. strongly inclined 219 316 Admiralty May punish one that resists the Process of their Court and may Fine and Imprison for a Contempt in the face of their Court but not give the Party Damages 1 Where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here thô the matter were not originally determinable in our Admiralty yet if the Contract were made on Land beyond Seas Prohibition lies 32 Its Jurisdiction in seizing Ships 173 It hath Jurisdiction of Ships taken by Pirates but not if taken by Enemies 308 Hath Jurisdiction for Mariners Wages 343 Age. Bond Conditioned that the Son and the Daughter of J. S. shall at their full Age give Releases this must be taken at their respective Ages 58 Alien Of his Capacity and Incapacity 417 Amendment The Court having Power over their own Entries and Judgments can amend defaults of Clerks after Judgment thô in an other Term 132 Mistake of the name in a Judgment in Ireland amendable here 217 No Amendment of a Return after the Filing 336 Apprentice See Statutes Whether the Quarter Sessions can discharge an Indenture of Apprenticeship 174 Appurtenant See Reputation A thing Appurtenant may be by Grant but a thing Appendant must be by Prescription 407 Connisance of Pleas may be created by the King 's Grant as he pleases either in Gross or as Appurtenant ibid. Arbitrament Award What Pleas good in Arbitrament and what not 50 71 87 184 Arrest Where the Bayliff may break a House upon an Arrest 306 Assault and Battery In an Action for both the Defendant may be found Guilty of the Assault but not of the Battery and here no more Costs than Damages 256 Assets Bonds and Specialties no Assets till the Mony be paid 96 Assignment Assignment where the Assignor keeps Possession Fraudulent and such Fraud may be avered 329 331 The word Assignees includes Assignees in Law as well as Fact 340 Assumpsit See Pleading Whether a Stranger to the Consideration may bring the Action 6 7 318 332 Good cause of Demurrer in Assumpsit where the Consideration carries nothing of trouble or prejudice to the Plaintiff or benefit to the Defendant 9 A mistake in the time relating to a Promise good after a Verdict 14 see also 119 Whether multum gratissimum servitium and multa Beneficia be sufficient Considerations in an Assumpsit 27. So for opere labore Servitio 44 Infant may make a Consideration whereon to ground an Assumpsit 51 The Breach must be laid as the Promise is 64 Forbearance of Suit where a good Consideration whereon to ground an Assumpsit 120 152 154 159 Claim without proof where good to ground a Consideration in an Assumpsit 211 Of Reciprocal Promises 177 214 Assumpsits in Consideration of Marriage 262 268 One Excommunicated for not paying in a Church Rate a Promise to pay in Consideration of Absolution Good 297 In Consideration of delivering Goods to a third person Good 311 Attorney See Mandamus Attorneys at large have the same priviledge with Clerks of the Court 1 Whether an Attorney in the Courts at Westminster may practise in Inferiour Courts 11 Attorneys shall be discharged of the Service of the Common Wealth à fortiori of any private Service as Constable Collector of Rents c. 16 29 Committed for Suing out a Bill of Middlesex against a Countess 295 An Attorney or Clerk of Court shall not have Priviledge if Sued joyntly with others 299 Averment See Pleading Assignment Obligation Where necessary and where not 41 43 44 117 149 177 178 B. Bail THe Action shall not be said to be depending until the Bail is Filed and not from the first day of the Term 135 Condition of the Bail Bond ought to agree with the Writ or else be void 233 234 Whether the Principal and Bail may be both taken in Execution 315 Bankrupt A Tradesman given over Trading may be a Bankrupt in respect of Debts contracted before 5 What makes a Man a Trader so as to make him a Bankrupt 29 166 A Man has Judgment in Debt and then becomes Bankrupt who shall have Execution 193 Victuallers for the Fleet not Traders within the Statute of Bankrupts tho' they Victual Merchantmen with the Surplus 170 The Commissioners Authority as to Commitments 323 Where a Debt paid by a Bankrupt to his Creditors shall be refunded 370 371 Baron and Feme See Statutes In Trover that they ad usum proprium converterunt c. Not good 12 24 33 Indebitatus Assump lies against the Husband for Apparel sold to the Wife 42 How to be Bailed when Arrested 49 Baron and Feme taken in Execution the Husband Escapes the Escape of the Husband is the Escape of the Wife and she shall be discharged 51 Battery brought against both and found only against the Feme Good 93 In a Suit the Baron makes an Attorney for both except the Feme be under Age 185. For then she is to be admitted by Guardian ibid. Where the Husband cannot release without the Wife 209 Battery brought by B. and F. for beating them both how far good 328 Bishop See Pleadings Of Common Right the Dean and Chapter are Guardians of the Spiritualties during the Vacancy of a Bishoprick but the
1 W. M. After which Judgment for the Defendants 166 That the said Defendants shall go sine die and have their Costs 167 Averment that the said Judgment remains in full force That the Goods in the said Action of Trespass and this of Trover are the same That the Conversion in this Action and the Taking in the other is the same That the Cause of Action was the same in both And that the Plaintiffs and Defendants are the same Et hoc parati sunt verificare unde petunt Judicium si praedicti the Plaintiffs Actionem suam versus eos habere debeant c. Not guilty to the residue of the Goods The Plaintiffs demur The Defendants joyn 168 Vsury Pleaded Vid. Debt 7. Way Action for stopping it Vid. Action on the Case 5. WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Public approve of and allow the Printing and Publishing of this Book Intituled The Reports of Sir Peyton Ventris Kt. Late One of the Justices of the Court of Common-Pleas J. Som̄ers C.S. J. Holt Geo Treby Ed Nevill Joh. Powell W. Gregory N. Lechmere Tho. Rokeby G Eyre Jo Turton John Powell Sam. Eyre April the 20 th 1965. The Second Volume TERMINO SANCTI HILLARII Anno Vicesimo primo secundo Caroli Secundi IN COMMUNI BANCO Craw versus Ramsey IN an Ejectment of Lands and the Rectory of Kingston upon Thames in Surrey Vpon Not Guilty pleaded the Jury found a Special Verdict to this effect viz. That Robert Ramsey Born in Scotland before the Accession thereof to the Crown of England had Issue four Sons Robert Nicholas John and George Antenati Robert died they do not find when leaving Issue three Daughters Margaret Isabel and Jane who were also Aliens and alive 1 Octob. 14 Car. 1. Nicholas had Issue Patrick born in England 1 May 1618. They also find that at the Parliament holden 10 Car. 1. in Ireland it was Enacted That all Persons of the Scottish Nation should be reputed the Kings Natural Subjects to all intents constructions and purposes of that his Realm of Ireland as if Born there And they find the Act of Parliament at large Nicholas Ramsey was alive at the making of that Act. John the third Son afterwards Earl of Holderness was Naturalized by Act of Parliament in England 1 Jacobi and purchased the Lands and Rectory in question and being seised 22 Jac by Indenture Tripartite between him of the First part Sir William Cocke and Martha his Daughter of the Second part and Charles Lord Effingham of the Third part In Consideration of a Marriage to be had between him and Martha did Covenant to levy a Fine to the use of himself for Life and afterwards to Martha for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs And 29 Septemb. 22 Jac. the Marriage was had and the Michaelmas Term after a Fine was Levied accordingly The 24 of Jan. 1 Car. 1. the Earl died without Issue Martha Entred and was seised for her Life and died 17 Car. Et eodem anno it was found by Office that the Earl of Holderness died seised of the Rectory as before and without an Heir and that King Charles anno decimo granted this Rectory to one Murray George the fourth Son of Robert was Naturalized by the Parliament here 7 Jac. He had Issue John the Defendant Nicholas died Patrick his Heir in 1651. bargained and sold to the Earl of Elgin and one Sydenham virtute cujus vigore Statuti c. they were seised prout Lex postulat and in 1662. bargained and sold for years to Amabel Countess of Kent and Jane Hart and afterwards Released to them and their Heirs in 1665. They being seised bargained and sold by Lease and Release also to Pullen and Neale who Entred and bargained and sold to Sir Lionel Talmash and West the Lessors of the Plaintiff upon whom John the Defendant Entred Vpon which the Action is brought and the great Question in the Case was Whether Patrick the Son of Nicholas might claim these Lands as Heir to the Earl of Holderness by virtue of the Act of Parliament in Ireland 10 Car. or that they should descend to the Defendant the Son of George Naturalized the 7 of Jac. in England Wyld and Archer who Argued first were of Opinion That however the Point was adjudged the Plaintiff could not have Judgment upon this Verdict for they do not find that Patrick entred or was seised but that he in 1651. did bargain and sell c. Virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold in 1662 and do not so much as find their Bargainees seised prout Lex postulat But they find the Defendant Entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it not being found that Patrick Entred Again If the Naturalization in Ireland will serve in England the Title appears for the Daughters the Heirs of Robert the eldest Son for 't is found that he died but not when so it might be after the Act of 10 Car. But Tyrrell and Vaughan Chief Justice differed in these two Points As to the First They said it would be intended Patrick entred for a Verdict that leaves all the Matter at large to the Iudgment of the Court will be taken sometimes by Intendment as well as where the Jury Conclude upon a Special Point 2 Cro. 64. find an Incumbent Resigned the Resignation shall be intended accepted So in 4 Co. Fullwood's Case it was found that one came before the Recorder of London and Mayor of the Staple recognovit se debere c. and did not say per scriptum suum Obligatorium nec per formam Statuti yet intended so Vid. Hob. 262. And where they find the Bargainees seised prout lex postulat that doth not leave it doubtful whether seised or no but whether by right or wrong for Seisin must be taken as found expresly Neither do they find any other in possession nor that the Defendant made any Claim in Twelve years after which enforces the Intendment as before And it is found expresly that Pullen and Neale Entred in 1665. so that the Defendant had not the primer Possession however or if he had he should not have Judgment if no other Title were found for him as is Resolved in 1 Cro. 42. Hern and Allen's Case As to the Second It shall be intended Robert died before 10 Car. For he is found an Alien and shall be presumed to have continued so during his Life unless found to the contrary then the Discent to the Daughters is obstructed by the Incapacity of their Father And tho' when the Title is found for the King the Court shall adjudge for him because the Kings Courts are intrusted with his Rights 't is not so of any other person but they shall take no
out of Repair Secondly The whole is Sequestred whereas it ought to have been but in proportion to the Charge of Repairing and should be certainly expressed what it required Thirdly The Sequestration is to remain by the Sentence until the Judge should take further Order Whereas it ought to have been but until the Repairs had been done These Exceptions the Court held fatal and therefore gave no Opinion as to the Matter in Law but did incline that there could be no Sequestration for being made Lay Fee the Impropriation was out of their Jurisdiction and it was now only against the Person as against a Layman for not Repairing the Church And they said in case of Dilapidations the whole ought not to be Sequestred but to leave a proportion to the Parson for his Livelyhood Anonymus IN an Ejectment upon a Special Verdict the sole Point was Whether a Lease for a year upon no other Consideration than reserving a Pepper Corn if it be demanded shall work as a Bargain and Sale and so to make the Lessee capable of a Release And it was Resolved that it should and that the Reservation made a sufficient Consideration to raise an Use as by Bargain and Sale Vid. 10 Co. in Sutton's Hospitals Case Rozer versus Rozer AN Indebitatus Assumpsit pro parcell ' Corii ad specialem instantiam requisitionem of the Defendant sold and delivered to J.S. Et sic inde Indebitat ' existens the Defendant promised to pay Vpon Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that there is no Promise laid and no Reason to presume a Promise when 't is the very ground of the Action tho' after a Verdict And admitting there were a Promise yet it being Collateral it did not make a Debt but should have been brought as an Action upon the Case Mo. 702. and Dyer 230. And hereupon Judgment was stayed Tho' as I hear in the King Bench about two years since between Danbey and Kent they held such a Case well enough after a Verdict Quaere Termino Sanctae Trinitatis Anno 33 Car. II. In Communi Banco Page versus Kirke IN an Action of Trespass upon Not Guilty at the Assizes in Suffolk a Verdict was found for the Plaintiff and 10 s Damages and 40 s Costs and Judgment entred accordingly And an Action of Debt was brought upon the Judgment and the Defendant pleaded Specially the Statute 22 23 of Car. II. ca. 9. against Recovering more Costs than Damages where the Damages are under 40 s in Trespass unless certified by the Judge that the Title was chiefly in question the Words of the Statute being If any more Costs in such Action shall be awarded the Judgment shall be void To which the Plaintiff Demurred and the Plea was held Insufficient because the Verdict was for 40 s Costs and not Costs increased by an Award of the Court. 2. If the Judgment were Erroneous yet it was hard to make it avoidable by Plea notwithstanding that the Words of the Statute are Shall be void Termino Sanctae Michaelis Anno 33 Car. II. In Communi Banco Onslowes Case HE brought an Action against a Bayliff being the chief Magistrate of a Corporation for that although he were chosen one of the Burgesses to serve in Parliament for the Corporation by the greater Number c. yet the Bayliff to disappoint him of sitting and to bring trouble c. upon him did return another Person in the Indentures together with him to his Damage c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Action would not lie And of that Opinion were the whole Court viz. North Chief Iustice Wyndham Charlton and Levins for they said they had no Iurisdiction of this Matter the principal part thereof being a Retorn in Parliament No Action before the Statute H. 6. c. did lie against a Sheriff or chief Officer of a Corporation for a False-retorn and the Courts at Westminster must not enlarge their Iurisdiction in these matters further than those Acts give them That there were no Presidents of any Actions at the Common Law save Nevils Case in the late times and Sir Samuel Bernardistons Case both which miscarried In the Long Parliament there were a great many double Retorns but no Actions had been brought which is a great Argument that no such Action lies as Littleton argues upon the Statute of Merton of disparaging an Heir Termino Paschae Anno 35 Car. II. In Communi Banco The Lord Conwallis's Case THE Case was Isaac Pennington a Copyholder of the Mannor whereof my Lord Conwallis is now feised committed Treason in the matter of the Murder of King Charles the First and then about Anno 1655. surrendred into the hands of the Lord of the Mannor his Copyhold Lands to the use of some of his Children who were admitted In 1659. the Mannor was aliened to the Lord Conwallis then came the Act of Attainder 12 Car. 2. whereby Tychburn with other Regicides were attainted and thereby it was Enacted That all their Mannors Messuages Lands Tenements Rents Reversions Remainders Possessions Rights Conditions Interests Offices Annuities and all other Hereditaments Leases for Years Chattels Real and other things of that nature whatsoever they be shall stand forfeited to the King c. Provided that no Conveyance Assurance Grant Bargain Sale Charge Lease Assignment of Lease Grants and Surrenders by Copy of Court Roll c. made to any Person or Persons other than the Wife or Wives Child or Children Heir or Heirs of such Person or Persons c. After which Attainder c. the Lord of the Mannor caused the Lands to be seised and brought an Ejectment The First Point Was whether in Case of Treason or Felony the Lord can seise before Conviction or Attainder And the Court seemed to be of Opinion that no Seisure could be till Attainder without Special Custom but they agreed the presentment of the Homage was not necessary to precede a Seisure or to entitle the Lord to take the advantage of a Forfeiture but in case of a Capital Crime it would be unreasonable and inconvenient to permit the same to be tried or controverted in a Civil Action before the Conviction appeared upon Record Secondly Whether this were such a Forfeiture as the Lord was bound to take notice thereof for if no notice then the acceptance of the Surrender c. would not preclude him from taking advantage of the Forfeiture And the Court inclined that the Lord should be presumed to take notice in this Case as he shall in the Case of Failer of Suit of Court Non-paiment of Rent c. Vide 2 Cro. Matthews and Whetton 233. Thirdly Whether the Mannor being conveyed away before the Attainder shall purge the Forfeiture Iustice Levins said That although no advantage of this Forfeiture can be taken till Attainder yet after Attainder it has relation and
Fowle late Sheriffs of Middlesex and which was recovered by the said late King in the Court of Exchequer against the said Davis c. by virtue of which Writ they seized all the Goods of the said Davis in their Bailywick which were apprized at 27 l which they Returned into the Exchequer as the Writ required and the said Davis had no other Goods or Chattels Lands or Tenements within their Bailywick at the time of the Outlawry or ever after c. To this the Plaintiff Demurred and the Court held the Plea insufficient for they set forth that the Predecessor Sheriffs had seised and taken the Debt into the Kings hands so that Execution seemeth to be had before the Defendants were Sheriffs But Judgment was given against the Plaintiff for the Court held that the Action would not lye for the party who has an Outlawry that because the Sheriff upon the Cap ' utlagatum neglects to extend or seize the Goods and Lands of the Outlawed person for that is the Kings loss And tho' it was pretended that the Sheriff extending an seizing would be a means to enforce the Defendant to appear to the Plaintiffs Action the Court said that it was so remote as not to be considered as a ground to support an Action but if it had been shewn that the Sheriffs might have taken his Body and had neglected to do it there might have been more reason to support this Action So Judgment was given quod Querens nil capiat per breve Sir Thomas Gower's Case HE had upon a Commission made an Attorney in order to suffer a Recovery this Term which was done the last Assizes at York And the Court was now moved in behalf of the Heir in Tail to stop the passing of the Common Recovery and several Affidavits were produced to satisfie the Court that Sir Thomas Gower since the said Assizes died in Ireland and the Court being satisfied of the truth thereof did stay the passing of the Recovery and they said if it should pass it would be Erroneous Bealy versus Sampson Lincoln ' ss Trespass for Impounding of his Cattel quousque finem fecit of 10 l JOHANNES Sampson ' nuper de Mawvis Enderby in Com' praedict ' Yeoman attach ' fuit ad respondend ' Willielmo Bealy de placito quare ipse simulcum Georgio Francis nuper de Stamton ' in Com' praedict ' Labourer Vi armis averia ipsius Willielmi pretii quadraginta librarum apud Halton cum Beckeringe nuper invent ' cepit imparcavit ea ibidem sic imparcat ' quousque idem Willielmus finem undecim librarum pro deliberatione eorundem inde habend ' cum praedict ' Johanne Georgio fecisset detinuit alia Enormia ei intulit ad grave dampnum ipsius Willielmi Et contra pacem domini Regis nunc c. Et unde idem Willielmus per Johannem Fancourt Attorn ' suum queritur quod praedict ' Johannes simulcum c. primo die Februar ' anno regni domini Regis nunc c. tertio vi armis c. averia viz. quatuor boves quatuor vaccas ipsius Willielmi pretii c. apud Halton cum Beckeringe praedict ' nuper invent ' cepit imparcavit ea ibidem sic imparcat ' quousque idem Willielmus finem undecim librar ' pro deliberatione eorundem inde habend ' cum praed ' Johanne Georgio fecisset detinuit Et alia Enormia c. ad grave dampnum c. Et contra pacem c. Unde dic ' quod deteriorat ' est dampnum habet ad valenc ' quadraginta librar ' inde produc ' sectam c. Et praedict ' Johannes Sampson per Stephan ' Malton Attorn ' suum ven ' defend ' vim injur ' quando The Defendant pleads a seizure by the Sheriff by virtue of a Fieri facias Non culp ' to part c. Et quoad Venire vi armis seu quicquid quod est contra pacem dicti dn̄i Regis nunc dic ' quod ipse non est inde culpabilis prout praedict ' Willielmus superius versus eum queritur Et de hoc pon ' se super patriam Et praedict ' Williel ' similit ' Et quoad resid ' Transgr ' praedict ' superius fieri supposit ' idem Johannes dic ' quod praedict ' Willielmus actionem suam praedict ' inde versus eum habere non debet quia dic ' quod ante praedict ' tempus quo Transgr ' praed ' Fieri facias issued out of the Court of Common Pleas. superius fieri supponitur scilicet quintodecimo die Junii anno regni dicti domini Regis nunc tertio emanavit extra Cur ' dicti domini Regis de Banco hic scilicet apud Westm ' quoddam breve dicti domini Regis nunc de Fieri fac ' versus praedict ' Willielm ' ad sectam ipsius Johannis tunc Vic' Com' Lincoln ' direct ' per quod quidem breve dictus dom ' Rex nunc praefat ' tunc Vic' Com' Lincoln ' praecepit quod de terris catallis praedict ' Willielmi in balliva ejusdem Vic' Fieri fac ' tam quoddam debitum decem librar ' quod praedict ' Johannes Sampson in Cur ' dicti domini Regis coram Justic ' ejusdem domini Regis apud Westm ' recuperasset versus eum quam quadragint ' solid ' qui eidem Johanni Sampson in eadem Cur ' dicti domini Regis adjudicat ' fuer ' pro dampnis suis quae habuisset occasione detent ' debiti illius qd ' denar ' ill ' haberet coram Justic ' dicti domini Regis apud Westm ' a die Sancti Martini in quindecim dies ad reddend ' praefat ' Johanni de debito dampnis praedict ' unde convict ' fuit quod quidem breve postea ante rētorn ' ejusdem brevis necnon ante praedict ' tempus quo Delivered to the Sheriff c. scilicet secundo die Augusti anno tertio supradicto apud Halton in Com' praedict ' cuidam Antonio Eyre Ar ' tunc Vic' Com' Lincoln ' existen ' deliberat ' fuit in forma juris exequend ' Virtute cujus quidem brevis praedict ' Vic' praedict ' Com' Lincoln ' postea ante retorn ' ejusdem brevis necnon ante praedict ' tempus quo The Sheriff made his Warrant c. scilicet eodem secundo die Augusti Anno tertio supradicto apud Halton praedict ' pro executione brevis praedict ' habend ' fecit quoddam Warrant ' suum in scriptis sigillo Officii sui Vic' sigillat ' ballivo Wapentag ' de Wraggoe necnon praedict ' Georgio Francis Balliv ' ejusdem Vic' ea vice tantum direct ' per quod quidem Warrant ' praedict ' Vic' praedict ' Com' Lincoln ' eis cuilibet eorum conjunctim divisim mandavit quod de terris catallis praedicti Willielmi
at the end of the said term and so the said Defendants broke the Covenants ad damnum of the Plaintiff 300 l The Defendant pleaded that the said Richard Cale in his life-time did demolish the three Houses demised and upon the ground whereon they stood did erect three new Houses according to the agreement which during the term were kept well repaired and at the end of the term left in good repair and so yielded up according to the Covenant aforesaid de hoc ponit c. And as to the not repairing the Pavements traverseth that also and the like as to repairing of Tiles and Walls The Plaintiff as to the not repairing of one House in the Declaration mentioned and delivering it up well repaired demurs to the Defendants Plea which Demurrer came to be argued this Term and the sole question was upon this Covenant whether the Defendant being obliged only to build three Houses and having built one more whether the Covenant did not bind him to repair and deliver up that House well repaired as well as those which were agreed to be built And the Court were of Opinion that the Covenant did extend to the other House as well as to the three which were agreed to be built For in the last Covenant which is to deliver up well repaired 't is dicta premissa ac Domos Edificia superinde fore erect which is general and 't is the rather so to be taken because in the first Covenant for keeping in repair during the term 't is the Houses agreed to be built which words agreed to be built are left out in the last Covenant which the Court took to be a distinct Covenant Rokeby doubted it seeming to him to be all as one Covenant and so all the subsequent matter concerning leaving the Houses well repaired should be restrained and understood of those agreed to be built But Iudgment was given for the Plaintiff upon the reasons aforesaid It was also objected on the part of the Defendant that Dowse the Plaintiff was not an Assignee in this Case to bring Covenant for that the term in the reversion was devised to him for Life only and if he died within the Term then to his first Son c. To this it was answered that the Devise of the term to him passed the whole Estate and the remainder to the Son was but a possibility and an executory Devise Welbie versus Phillips IN Debt for Rent the Plaintiff declared upon a Demise made the 25th of March Anno nuper Regis Jac. 4. of one Messuage to hold from thenceforth quamdiu ambabus partibus placeret yielding 10 l Rent quarterly and avers that the Defendant entered by virtue of the said Demise and continued possessed of the Premisses till Christmas then next following and for 50 s a quarters Rent ending at the said Christmas Day he brings his Action and so lays two several other Demises of two other Houses to begin at the same time under the same Rent and demands a quarters Rent upon each at Christmas aforesaid in all 7 l 10 s which the Defendant did not pay which he lays ad damnum 5 l The Defendant demurred to this Declaration for that he sues for a quarters Rent upon each Demise ending at Christmas whereas there were two quarters incurred before which he doth not shew were paid and so sues for less than upon his own shewing appeareth to be due and the Case of Baily and Offord 3 Cro. was cited where upon a Demise rendring 31 s per annum at our Lady Day and Michaelmas the Plaintiff declared for 15 s and 6 d due for a years rent ending at our Lady Day and held naught because he demands but 15 s and 6 d and doth not shew that the rest of the years Rent was satisfied and the Case of Clothworthy in 3 Cro. where in a Writ of annuity the Plaintiff demanded the Arrears incurred at Michaelmas 3 Car. 1. and brought his Writ the 16th of April 4 Car. 1. and said in that Case by Maynard that a man cannot bring an Action for part of a Debt without he shews the rest satisfied Vide 2 Cro. 499. But the Court gave Iudgement for the Plaintiff and said this was not like the Cases cited for in the first Case of Baily the whole years Rent is said to be due and yet demands but half a year And for the Case of Clothworthy there the Iudgment as appears by 3 Cro. and Ro. Abr. 1 part 229. was that he should recover the Arrears before the Writ and pending the Writ whereas he demanded the Arrears but to Michaelmas before the Writ brought and so the Iudgment was for more than was demanded but in this Case every quarters Rent is a several Debt and distinct Actions may be brought for each quarters Rent and so not like Debt brought for part of the Mony upon a Bond or Contract Vide for this 7 H. 6. 26. a. Allen 57. Noy's Rep. 45. Chase versus Sir James Etheridge THe Plaintiff in an Action for Words had taken out an Original and delivered a Declaration which the Defendant upon searching for the Instructions given by the Plaintiff to the Cursitor found differed in divers material things from the Original and thereupon the Defendant pleaded the Statute of Limitations that the words were not spoken within two years The Plaintiff suspecting some miscarriage had been upon which the Defendant as he conceived did rely for the Plaintiff knew the Fact would not serve the Defendant to plead the Statute he found that he had mistaken his Original and upon that petitions the Master of the Rolls for another Original that should warrant the Declaration delivered and had it granted and filed in Court whereupon the Defendant moved the Commissioners of the Great Seal and shewed the whole matter upon which they set aside the Order of the Master of the Rolls and ordered an Original to be taken out according to the first Instructions given to the Cursitor And now the Court was moved here that the last Original might be filed and so it was ordered by the Court for that taken out by the Order of the Master of the Rolls was unduly taken out Whitaker versus Thoroughgood BEnjaminus Thoroughgood Mil. attach fuit per breve Domini Regis Dominae Reginae de privilegio è Cur. hic emanen ad respond Edwardo Whitaker Gen. un Attorn Cur. Domini Dominae Regis Reginae de Banco juxta libertat privileg ejusdem Cur. pro hujusmodi Attorn aliis Ministris de eodem Banco a tempore quo non extat memoria usitat approbat in eadem Cur. de placito transgressionis super casum c. and so declares in propria persona in an Action for that the Defendant being a Justice of Peace in the time of the late King James made a Warrant directed to the Constable charging the Plaintiff with being outlawed of High-Treason ubi re vera c.
and the Preferment of Her in Marriage and other good and valuable Considerations Give Grant Bargain and Sell Alien Enfeoff and Confirm unto the said Jane and her Heirs the said Lands And in the said Deed there was a Covenant that after due execution c. the said Jane should quietly enjoy and also a clause of warranty and the Iury found that there was no other Consideration than what was expressed in the Deed ut supra this Deed could not enure as a Bargain and Sale but it was adjudged that it should work as a Covenant to stand seised and Watts and Dix's Case was also cited Sty 188 204 where Rolls said if Lands are passed for Mony only the Deed ought to be enrolled but if for Mony and Natural Affection the Land will pass without Enrollment The Court here in the Principal Case inclined that this Grant would work as a Covenant to stand seised But Pollexfen Chief Justice was of Opinion that it ought to have been so pleaded and not to use the words concessit assign transposuit which is to plead it as a Grant at Common Law Powell and Ventris did conceive that it was pleaded sufficiently in regard it was said that by virtue of the Deed and Statute of Vses he became seised but leave was given by the Court to amend the Plea as the Defendant should see cause Bland versus Haselrig alios QUarto Jacobi Secundi the Case was an Assumpsit was brought against four who pleaded non Assumpsit infra sex annos and the Verdict was that one of the Defendants did assume infra sex annos and the other non assumpsit And it was moved that no Iudgment could be given against the Defendant upon whom the Verdict was found for this is an Indeb assump for Goods sold and 't is an intire contract and they must all be found to promise or else 't is against the Plaintiff Torts are in their nature several so one Defendant may be found guilty and the other not guilty but 't is not so in Actions grounded upon Contract Pollexfen Chief Justice Powel and Rokeby were of Opinion in this Case That the Plaintiff could not have Iudgment Ventris inclined to the contrary he admitted if an Indebitat ' assumpsit be brought against four and they plead non assumps and found that one of them assumed this is against the Plaintiff for he fails in his Action But in the case at Bar it may be taken that they did all promise at first and that one of them only renewed the promise within six years The plea of non assumpsit infra sex annos implies a promise at first and if one should renew his promise within six years 't is reason it should bind him and the Plaintiff must sue them all or else he will vary from the Original Contract But the Chief Justice seemed to be of an Opinion that if the promise were renewed within the six years yet if not upon a new Consideration it should not bind and if there were a new Consideration the Action will lie against him that promised alone Sed Quaere for the common Practice is upon a Plea of the Statute of Limitations to prove only a renewing the Promise without any further Consideration but a bare owning the Debt is not taken to be sufficient Quaere if the first Consideration upon repeating the Promise within six years be not enough to raise a new Cause of Action Iudgment was given for the Defendant Westby's Case WEstby brought an Action by Original and the Instructions to Cursitor for drawing of the Writ were Westby but the Writ was Westly and so all the Proceedings Afterwards the Court upon a motion ordered the Cursitor to attend who satisfied the Court that the Instructions were right and so they ordered the Original to be amended in Court and this without any application to the Chancery or Order from thence and they amended all the proceedings after Termino Paschae Anno 2 Willielmi Wariae In Communi Banco Ellis versus Yates IN an Action of Trespass the Writ was brought and so recited Quare clausum fregit herbam ibid ' crescent ' conculcavit consumpsit averia fugavit and the Declaration was Quare clausum herbam ibid ' crescent ' conculcavit consumpsit bidentes c. fugavit alia enormia c. Vpon Not guilty pleaded a Verdict was found for the Plaintiff It was moved in Arrest of Iudgment that fregit was omitted in the Declaration so one of the Trespasses contained in the Writ viz. the Clausum fregit was not mentioned in the Declaration and if the Writ contains more than is Declared for this is a Variance not aided by the Verdict 1 Cro. 329. Haselop and Chaplin where a Replevin was de averiis and declares only of an Horse and for that the Judgment was Reversed in a Writ of Error So where the Writ was Quare clausum fregit and the Declaration Quare clausum 1 Cro. 185. Edwards and Watkin Pollexfen Chief Justice and Rokeby were of that Opinion that Judgment should be arrested Ventris contra Powel being absent because the treading and consuming of the Grass necessarily implied a breach of the Close for there could not be an Entry without a Breach So the Declaration by necessary Intendment comprehended all that was in the Writ and to support the Verdict it was reasonable to intend no other breach of the Close than by a bare Entry But the other two said That there might be given in Evidence a breach of a Gate or Hedge and Damages might be given for that and then there was no ground for such Damage set forth in the Declaration And by the Opinion of the Chief Justice and Rokeby the Judgment was stayed Vid. Keilway 187. B. finding in a Verdict upon a Writ of Forcible Entry that the Defendant expulit disseisivit c. this implies it was Vi armis and yet that is the very point of the Action The Warden of the Fleet 's Case A Motion was made by the Warden of the Fleet for a Writ of Priviledge sitting the Parliament alledging that he was obliged to attend the House of Lords and therefore ought to be priviledged from Suits and divers Presidents were shewn where Writs of the like nature were granted to the Warden of the Fleet upon Motion one whereof was 2 Car. 1. and divers since that time some whereof appeared to be upon hearing of Counsel on both sides And the Court were at first inclined to grant him the like Writ but it being afterwards made appear to the Court that he was sued upon Escapes and the Court considering the great inconvenience that would ensue thereupon and being of Opinion that it was in their Discretion whether they would grant such Writ upon Motion or no. For they could not Iudicially take notice of this Priviledge of Parliament and therefore in case he had such Priviledge the Court said he might plead it
Assumpsit the Plaintiff sets forth That the 25th of March 1685. he had Demised to William Brady the former Husband of the now Defendants Wife divers Lands at the Rent of 320 l per Annum to hold at Will and that there was due from the said Brady 160 l for Half a years Rent and that he died possessed of the Premisses and that the Wife of the now Defendant while she was sole and soon after the death of the said Brady her late Husband in Consideration that the Plaintiff would permit her to hold and enjoy the Premisses till our Lady-day next ensuing the decease of her said Husband and permit her to remove divers Posts Rails and other things fixed and placed upon the Premisses by her said Husband did promise to the Plaintiff That she as well the aforesaid 160 l that then was in arrear as aforesaid in the life of her said late Husband as also 260 l more would well and truly pay and shews that she did enjoy the said Premisses by the permission of the Plaintiff till Lady-day aforesaid And that he suffered her also to take away the things before-mentioned yet she when she was sole nor the Defendant or she since her Marriage did not pay the said Sums of Money or any part of them c. Vpon Non Assumpsit pleaded a special Verdict was found The the Defendants Wife did make the Promise prout and that she enjoyed the Lands and took away the Posts c. as in the Declaration is set forth and that since she had paid the 160 l to the Plaintiff but had not paid the 260 l or any part thereof and they find that the said Promise nor any Memorandum or Note thereof was not put into Writing or signed by the Wife of the Defendant or any person authorized by her to do it and they find that she paid the 160 l before the Action brought and they find the Act of Parliament in 29 Car. 2. against Frauds and Perjuries whereby it is Enacted That no Action should be brought to charge an Executor or Administrator upon any special Promise to answer of his own Estate or upon any Promise to answer for the Debt Default or Miscarriage of any other person c. unless the Agreement or some Memorandum or Note thereof were by the person or some other empower'd by him put into Writing signed c. prout in Statuto and made the General Conclusion It was Argued for the Plaintiff that altho' as to the payment of the 160 l which was the Debt of her the Defendants late Husband the Promise might be void in regard it was not in Writing according to the said Statute yet as to the payment of the 260 l the Promise is not within the Statute for that is upon a good Consideration and her own proper Debt and Damages are only given for that the 160 l is found to have been paid But by the Opinion of all the Court Iudgment was given for the Defendant for the Promise as to one part being void it cannot stand good for the other For 't is an entire Agreement and the Action is brought for both the Sums and indeed could not be otherwise without variance from the Promise Note It did not appear by the Record that the Wife was Executrix or Administratrix to her former Husband Kemp versus Cory al' Cornub ' ss Replevin JOHANNES CORY nuper de West-Putford in Com' Devon ' gen ' Johannes Cocke nuper de ead ' Yeoman Willielmus Cocke nuper de Launceston in Com' Cornub ' praed ' Yeoman sumÌ„ fuer ' ad respondend ' Willielm ' Kempe Edwardo Laundry Edwardo Cheapman de placito quare ceperunt averia ipsorum Willielmi Kempe Edwardi Laundry Edwardi Cheapman ea injuste detinuer ' contra vad ' pleg ' c. Et unde iidem Willielmus Kempe Edwardus Laundry Edwardus Cheapman per Willielmum Crowne Attorn ' suum queruntur quod praedict ' Johannes Cory Johannes Cocke Willielmus Cocke decimo nono die Junij anno regni domini Regis dominae Reginae nunc primo apud Blisland in quodam loco ibidem vocat ' Fludder Park alias Bladder Park ceper ' Tres Juvencas unam Equulam averia videlicet tres Juvencos quatuor Juvencas unam Equulam ipsorum Willielmi Kempe Edwardi Laundry Edwardi Cheapman ea injuste detinuer ' contra vad ' pleg ' quousque c. Unde dic ' quod deteriorat ' sunt Et dampn ' habent ad ' valenciam decem librarum Et inde ê“duc ' sectam c. Avowry and Conuzance for Rent by the Heir of the Lessor upon a Lease of a Third part of a Farm for 99 years if A.B. C. or either of them shall so long live The Avowants Father seised in Fee of a Third part of a Messuage c. Et praed ' Johannes Cory Johannes Cocke Willielmus Cocke per Thomam Horwell Attorn ' suum ven ' defend ' vim injuriam quando c. Et idem Johannes Cory in jure suo ê“prio bene advocat praed ' Johannes Cocke Willielmus ut Ballivi praed ' Johannis Cory bene cogn ' capconem averiorum praedictorum in praed ' loco in quo c. Et juste c. quia dic ' quod idem locus in quo supponitur capconem averiorum illorum fieri continet praed ' tempore quo supponitur capconem averiorum illorum fieri continebat in se viginti acras terrae cum pertin ' in Blisland praedict ' quodque diu ante praed ' tempus quo c. Quidam Johannes Cory gen ' pater praed ' Johannis Cory modo Advocan ' fuit seisit ' in dominico suo ut de feodo de in tercia parte cujusdam mesuagij tenementi vocat ' Trewint in Blisland praed ' unde praed ' viginti acrae terrae in quibus c. sunt praed ' tempore quo c Necnon à tempore cujus contrarii memoria hominum non existit fuer ' parcell ' praedictoque Johanne Cory patre sic inde seisit ' existen ' ipse idem Johannes Cory pater ante praedict ' tempus quo c. scilicet tricesimo die Septembris anno regni domini Caroli secundi nuper Regis Angl ' decimo nono apud Blisland praed ' And demised for 99 years if A.B. c. or either of them should so long live dimisit ad firmam tradidit cuidam Jacobo Robyns Executoribus Administratoribus Assign ' suis praed ' terciam partem praed ' mesuagij tenementi vocat ' Trewint scituat ' jacen ' existen ' infra paroch ' de Blisland alias Bliston in Com' Cornub ' nuper in tenura occupacone Johannae Smith Vid ' assign ' vel assign ' ejus habend ' tenend ' praed ' Jacobo Robyns Executoribus Administratoribus Assign '
therefore after he had held the Office for three Months left off and did not attend at the Assizes for which he was Fined 500 l And after Argument in the Exchequer where it was insisted on that the Act of 25 Car. 2. made for preventing of Dangers that might arise from Popish Recusants did avoid the said Office upon his not having taken the Sacrament and he was disabled to do it by reason of his Excommunication yet he was Adjudged in the Court of Exechequer to pay the 500 l Fine But the Court held here that the Matter pleaded by the Defendant was a good Bar for in regard the Act of 13 Car. 2. had Enacted That none should be Chosen who had not Received the Sacrament within One year before such Choice and there could be no Refusal before the Election it was plain that the Defendant had not incurred the Penalty of the By-Law And it differed from the Case of Sir John Read for he was once actually in the Office and obliged thereupon to do all things necessary for his proceeding in it But here in this Case to make a Default in the Defendant there must have been an Election antecedent and the Election of such an one as the Defendant is is absolutely prohibited by the Statute There were also two Exceptions taken to the Declaration First The By-Law is said to have been That if any Inhabitant should be Chosen whereas they cannot make By-Laws to bind all the Inhabitants of the Town but only the Freemen or Members of the Corporation Secondly The Vsage is set forth That the Election should be die Lunae proxime post Festum Sancti Michael ' Archi ' and the Election of the Defendant is alledged to be upon the 30th of September but it was not shewn that it fest upon the Monday and that the Court can't take notice of it or consult the Almanack as this Case is where it ought to have been set forth in pleading And the Court held these Matters incurable and so Judgment was given for the Defendant Dawney versus Vesey THe Plaintiff as Executrix to William Dawney her late Husband brought an Action of Debt upon a Bond wherein the Defendant was bound to the said Testator with Condition to perform an Award The Defendant demanded Oyer of the Condition and pleaded That the Arbitrators made an Award that the Defendant should pay 30 l to the said William Dawney or his Assigns within two Months then next following in full satisfaction of all Trespasses Damages and Demands and that the said parties upon payment of the said Money should give mutual Releases and sheweth that the said William Dawney after the said Award and within two Months died and demanded Judgment of the Action To this the Plaintiff Demurred And Judgment was given for the Plaintiff for tho' the Money was awarded to be paid to William Dawney and no mention of his Executors yet the Money was to be paid to the Executors for an Award creates a Duty And it was Objected That if the Defendant should pay the Money they could not compel the Plaintiff who is Executrix to Release The Court held that she ought to release all Demands that the Testator had against the Defendant Vide 1 Cro. 10. Kingwell and Knapman 1 Ro. Rep. 197. 31 H. 6. tit Barre 59. 3 Leon. 12. 1 Roll. Abr. 420. Hartis versus Parker Midd'x ss SAMUEL PARKER nuper de Staples-Inn in Com' Midd ' gen ' Sum ' fuit ad Respondend ' Debt for Rent upon two several Demises by Lease Parol Johanni Harris de placito quod reddat ei Nonagint ' novem libr ' quas ei debet injuste detinet c. Et unde idem Johannes Harris per Johannem Wood Attorn ' suum dicit quod cum praed ' Johannes Harris primo die Maij anno regni domini Caroli secundi nuper Regis Angl ' c. Tricesimo quinto apud paroch ' Sancti Martini in Campis in Com' Midd ' praedict ' The first Demise dimisisset concessisset ad firmam tradidisset praefat ' Samueli un ' mesuag ' sive tenementum cum pertin ' continen ' duas Romeas in una Area Anglicè two Rooms on a Floor dua gardina un ' latrinam Anglicè a House of Office eidem mesuagio spectan ' un ' stabulum dictis duobus gardinis prox ' adjungen ' quae praemissa praedict ' sunt scituat ' jacen ' existen ' in super acclivitatem de Hamstead-Hill Anglicè the Rise of Hampstead cum omnibus singulis Aedificiis structur ' pomar ' gardinis areis Anglicè Courts curtilagiis viis aquis aquaecursibus boscis subboscis commun ' Commun ' Pastur ' turbar ' esiament ' commoditat ' ê“ficuis emolumentis advantagiis quibuscunque eisdem mesuag ' tenement ' gardin ' stabulis praemiss jacen ' spectan ' vel aliqualit ' pertinen ' vel cum eisdem tunc vel frequent ' habit dimiss occupat ' vel petit ' aut judicat ' accept ' reputat ' capt ' vel cogn ' fuisse ut pars parcel ' sive membrum inde aut eisdem aliqualit ' pertinen ' Exception except ' semper reservat ' praed ' Johanni Harris Executoribus Administratoribus Assign ' suis omnibus tal ' magnis arboribus vocat ' Timber Trees qual ' tunc steter ' crever ' fuer ' vel ad aliquod tempus postea starent crescerent vel forent in super praedict ' dimiss praemiss vel aliquam pattem inde habend ' Habendum tenend ' praemissa praed ' except ' praeexcept ' eidem Samueli Parker Assign ' suis à vicesimo quinto die Marcij tunc ult ' praeterit ' usque plenum finem terminum septem annorum extunc prox ' sequen ' Reddend ' inde eidem Johanni Harris annual ' Reddendum reddit ' sive summam octodecem librar ' legalis monet ' Angl ' solvend ' eidem Johanni Harris ad Festa sancti Johannis Baptistae sancti Michalis Archi ' Natalis Domini Dei Annunciacon ' Beatae Mariae Virginis in quolibet anno per aequas aequales porcones duran ' toto termino annorum praedict ' virtute cujus dimissionis praedict ' Samuel Parker in praemiss praed ' praedimiss cum pertin ' intravit ill ' Entry by virtue of the Demise à praedict primo die Maij anno tricesimo quinto supradict ' usque ad Festum sancti Michaelis Archi ' anno regni Jacobi secundi nuper Regis Angl ' c. quarto habuisset tenuisset occupasset quadraginta quinque libr ' de reddit ' praedict ' pro duobus annis dimid ' unius anni de praed ' Rent arrear termino septem annorum finit ' ad praedict ' Festum sancti Michaelis Archi ' anno quarto Jacobi secundi supradict ' eidem Johanni Harris arretro fuer
c. To this the Plaintiff Demurred First This is a Grant by Richard to Nicholas and so void without Attornment or Enrollment and being intended to Enure as a Grant shall not work as a Covenant to stand seised Secondly The Defendant hath pleaded it as a Grant and what he saith after in the Avowry to set forth how the Deed should work is vain and idle As to the first Point the Court held this Deed having no Execution to make it work as a Grant it shall operate as a Covenant to stand seised Mod. Rep. 178. Sanders and Savins Case A Grant of a Rent to his Kinsman for Life there being no atturnment it raised an use by way of Covenant but the pleading the Court held impertinent for instead of pleading of this Grant according to the effect of it in Law viz As a Covenant to stand seised He sets forth the matter in Law and haw it ought to be construed and because they would not countenance such vain and improper pleading the Case was adjourned Biddulph versus Dashwood IN an Action of Debt for 90 l The Plaintiff declared quod cum recuperasset coram Justiciariis de Banco apud Westm ' 90 l ê“ dam ' against the Defendant prout ê‘ Record process ' quae Dom ' Rex Regina coram eis causa Erroris in eisd ' corrigend ' Venire fac ' quae in Cur ' dicti Domini Regis Dom ' Reginae in pleno robore vigore remanent minime revocat ' plen ' apparet per quod actio accrevit c. To this the Defendant Demurred supposing that the Iudgment was suspended so far that an Action of Debt could not be brought upon it pending the Writ of Error But the Court held if the Defendant could insist upon this he ought not to have Demurred but to have pleaded Specially and demanded Iudgment if the Plaintiff should be answered pending the Writ of Error So Iudgment was given for the Plaintiff Termino Sancti Hillarij Anno 2 3 W. M. In Communi Banco Anonymus TRespass quare clausum fregit diversas petias Maheremij cepit c. Iudgment by default upon the Writ of Enquiry returned The Iudgment was stayed for the incertainty of the Declaration James Tregonwell Vid. Executrix of John Tregonwell against Sherwin IN an Action of Debt for Rent the Plaintiff declared in this manner That Frances Fen and John Tregonwell the 23 of Jan. 24. Car. 2. did Demise to the Defendant certain Lands for 21 years reserving 20 l per Annum to the said Frances during her Life and after her Decease to the said Tregonwell his Executors and Administrators and set forth Frances to be Dead and that the said Tregonwell being possessed of the Reversion of the Premisses pro Termino Annor ' adtunc adhuc ventur ' the 4 of May 30 Car. 2. made his Will and thereof made the Plaintiff his Executrix and died and that she took the Executrixship upon her and by vertue thereof became possessed of the said Reversion and for 30 l for a year and halfs Rent accruing after she brought the Action The Defendant pleaded an insufficient Plea and the Plaintiff Demurred And Iudgment was given against the Plaintiff upon the insufficiency of the Declaration for there is no good Title set forth to the Plaintiff for the Rent for t is not said that Tregonwell was at the time of the Lease possessed of the Lands pro Termino Annorum c. but that at the time of making his Will and that might be upon the creating of such Estate since and the Rent might not belong to the Reversion And tho' it was said his reserving the Rent to his Executors carried an intendment that he had a Term for years only yet that was held not to be sufficient and Iudgment was given for the Defendant Sir Lionel Walden versus Mitchell Hunt ' ss JOHANNES MITCHELL nuper de Huntington in Com' praed ' Maulster Attach ' fuit ad respondend ' Action for Words viz. Papist and Pensioner spoken of one who had been a Member of Parliament â—n the time of King Charles the Second Lionello Walden Mil ' de placito Transgr ' super Casum Et unde idem Lionellus per Robertum Clarke Attorn ' suum queritur quare cum praed ' Lionellus bonus verus pius fidelis honestus subditus ligeus domini Regis dominae Reginae nunc existit ac ut bonus verus pius fidelis honestus subditus ligeus eorundem domini Regis dominae Reginae nunc ê“genitorum suorum à tempore Nativitat ' suae hucusque se habuit gessit gubernavit bonorumque nominis famae conversaconis gesture tam in t ' quamplurimos venerabiles fideles subdit ' dictorum domini Regis dominae Reginae nunc ê“genitorum suorum quam omnes vicinos suos per tot ' tempus praed ' habit ' not ' reputat ' fuerat per tot ' tempus praed ' The Plaintiff a Protestant fuit adhuc existit verus professor Religionis Protestan ' Reformat ' per leges hujus regni Angliae stabilit ' ill ' sincere proficiend ' exercen ' Divina Servitia in Ecclesia in paroch ' sua seu aliqua Ecclesia capello aut alio usuali loco Communis precacon ' secundum usum Ecclesaie Anglicanae lect ' semper frequentans audiens Ecclesiae Romanae nunquam reconciliat ' And never a Professor of the Romish Religion fuit neque Religionem Romanam unquam profeffus fuit neque ad Missam unquam ivit Cumque praed ' Lionellus fuit extit un ' Burgens ' That he hath been a Member of Parliament sive Membr ' Parliamenti pro Villa de Huntingdon ' in Com' Hunt ' in Parliamento domini Caroli secundi nuper Regis Angi ' inchoat ' tent ' apud Westm ' in Com' Midd ' octavo die Maijanno regni sui decimo tertio ut hujusmodi Burgens ' sive Membr ' Parliamenti per tot ' idem Parliament ' usque dissolucon ' inde juste fidelit ' And did his Duty therein justly deservivit debitum fiduciae officij sui Burgens ' Membr ' ejusdem Parliamenti per tot ' idem tempus performavit Idemque Lionellus pro performacone fiduciae officij sui praedict ' Burgens ' sive Membr ' Parliamenti praedict ' alijs Causis diversa itenera ad Civitat ' London ' Westm ' à Villa Hunt ' praedict ' fecit performavit praed ' tamen Johan ' praemissorum non ignarus set machinans malitiose intendens eundem Lionellum non solum in bonis nomine fama credenc ' reputacone ' suis praedict ' multiplicit ' laedere detrahere penitus distruere verum etiam ipsum Lionellum infra poenas poenalitat ' contra Papistas subdit '
ipse paratus est verificare Quam quidem materiam praedicta Priscilla non dedic ' nec ad eam aliqualit ' respondit set verificacon ' illam admittere omnino recusavit ut prius per ' Judic ' quod praed ' Priscilla ab accone sua praed ' versus eum habend ' praecludatur c. Et quia Justic ' hic se advisare volunt de super pÌ„missis praed ' priusquam Judic ' inde reddant dies dat' est partibus praed ' hic usque à die Sancti Michaelis in tres Septimanas de audiendo inde Judicio suo eo quod idem Justic ' hic nondum inde c. Priscilla Web Widow versus Moore THe Plaintiff Declared in an Action upon the Case upon Five several Promises one whereof was upon a Quantum meruit for finding Meat and Drink for the Defendant at his Request The Defendant pleaded in Bar an Outlawry of the Plaintiff in this manner viz. Quod quidam S.C. al' scilicet Termino Sanctae Trinitat ' anno regni nuper Regis Jacobi secundi tertio implacitavit pÌ„d ' Priscillam in Cur ' dicti nuper Regis de Banco hic de placito trangres praedict ' quae Priscilla pro eo quod non venit in praedict ' Cur ' de B. praed ' praefat ' S. C. inde responsur ' secundum legem consuetud ' hujus regni Angl ' in Exigendo posita fuit ad utlagand ' in Com' Wiltes ' ea ratione postea scilicet quinto decimo die Maij anno regni dicti nuper Regis quarto in Com' Wiltes ' praed ' debito juris modo ad Sectam praed ' S. C. waviata fuit adhuc waviata existit prout per recordum processum inde eadem Cur ' dicti nuper de Banco praed retornat ' modo residens plen ' liquet Quae quidem Utlagaria adhuc in suis robore effectu remanet minime reversat ' seu annihilat ' hoc parat ' est verificare per Recordum illud unde pet ' Judicium si action ' c. And to this Plea the Plaintiff Demurred 1. For the Outlawry could not be pleaded in Bar to an Assumpsit upon a Quantum meruit for there is no certainty of Debt appearing till the thing comes to be valued and so cannot be forfeited It was doubted Whether Debt upon a Simple Contract was forfeited till 4 Co. Slade's Case But it was Resolved by the Court in this Case that the Outlawry was a good Plea in Bar for the Consideration created a Debt tho' that Debt was not reduced to a certain Sum. Markham and Pitt in 3 Leon. 205. Outlawry pleaded in Bar to Trover where it lies all in Damages But this Action arose upon a property of Goods which would have been forfeited 3 Leon. 197. where the King had granted all Forfeitures that accrued to him by the Outlawry of J. S. and the Grantee brought an Action But an Exception was taken to the pleading of the Outlawry for it ought to have been set forth that the Plaintiff did not appear upon the Exigent and upon that waviata fuit debito juris modo is too general Fitzherb Account 91. Traverse 31. Stamford 148. And of this the Court doubted and appointed to search Presidents of the Pleading Et Adjornatur Kempe versus Cory al' Quod vide ante ultimo Termino THe Case was now moved again and as to the Matter in Law it was held clear that where A. is seised of a Third part in Common and B. of the other two parts in Common with A. and A. let his Third part reserving Rent and B. puts in his Cattle or a Stranger by his License that such Cattle are not Distrainable for the Rent But the Doubt was because the Avowry was in loco in quo ut in super praedict ' tertiam partem c. Whether the Plaintiff should not have traversed the Taking in tertia parte tantum Vide the Case of Newman and Moor in Hob. 80. 103. And note there that the Traverse was held unnecessary And the Court held clearly that it would have been impertinent to make a Traverse in this Case for the Matter in the Avowry was confessed and avoided CASES Adjudged upon Writs of ERROR IN THE Exchequer Chamber Termino Sancti Michaelis Anno 1 W. M. BY Pollexfen Chief Justice Powell Justices Rokeby Justices Ventris Justices Atkyns Chief Baron Nevill Barons Lechmore Barons Turton Barons Willows versus Lydcot VPon a Writ of Error upon a Iudgment in Ejectment in B.R. which was brought for a Messuage in St. Martins in the Fields Vpon the General Issue pleaded and a Special Verdict found the Point was to this effect William Shelton was seised in Fee of the said Messuage and of dvers other Messuages situate in the said Parish of St. Martin and other Parishes and made his Will in Writing and thereby Devised his Houses in the other Parishes to divers Charitable Vses and then devised to one Edward Harris and Mary his Wife the Messuage in question for their Lives and then in the following Clause the better to enable his Wsfe to pay his Legacies he devised all his Messuages Lands Tenements and Hereditaments whatsoever within the Kingdom of England not above disposed of to have and to hold to her and her Assigns for ever and made her Executrix And the Verdict was found That Edward Harris and Mary his Wife were dead and that the Testator left sufficient to his Wife to pay his Legacies without the Reversion of the said Messuages devised to Harris and his Wife That the Lessor of the Plaintiff was Heir at Law to the Testator and that the Defendants claimed from Anne Wife of the Testator c. si super totam materiam c. And Judgment was given in the Kings Bench for the Plaintiff And upon a Writ of Error brought in the Exchequer-Chamber it was this Term Argued before the Justices and Barons and by the Opinion of them all the Judgment was Reversed For they held that there were words in the Devise to the Testators Wife that would carry the Reversion of this House as an Hereditament undisâ—oâ—d of Vide the Case of Whâ—eler and Walroon in Allen's Rep. 28. one having a Mannor and other Lands in Somerset-shire Devised the Mannor to A. for Six years and part of the other Lands to B. in Fee and then comes this Clause and the rest of my Lands in Somersetshire or elsewhere I give to my Brother and it was adjudged by the word Rest the Reversion of the Mannor passed as well as the Lands not Devised before A Case about 20 years ago was cited by the Counsel for the Defendant in the Writ of Error between Bowyer and Milbanke in a Borough where a Nuncupative Will would pass Lands by the Custom a man upon his Death-Bed being asked about his Will said I Give All to my Mother and repeated the
the Estate had fully declared his Intention There is a difference where a man has power to make Leases c. which shall charge and incumber a third persons Estate such Powers are to have a rigid Construction but where the Power is to dispose of a mans own Estate it is to have all the favour imaginable It was offered by the Counsel That where Tenant in Tail did bargain and sell his Estate that seeing he had power over it notwithstanding there were no Fine and Recovery a Court of Equity should Decree against the Heir But my Lord Chancellor said that he would not supersede Fines and Recoveries but where a man was only Tenant in Tail in Equity there this Court should Decree such disposition good for a Trust and Equitable Interest is a Creature of their own and therefore disposable by their Rule Otherwise where the Entail was of an Estate in the Land Nota In the Case supra that the Court would not Decree the Infants to be foreclosed till they come of Age tho' sometimes 't is so done because this Mortgage depended upon a disputable Title and so no Money could be expected upon Assignment of it over Termino Paschae Anno 33 Car. II. In Cancellaria Sir Thomas Littleton's Case IN this Case my Lord Chancellor Declared 1. That it was a constant Rule That the Money to be paid upon Mortgages in Fee whether forfeit or not before the death of the Mortgagee that it should go to the Executor 2. If a man had Lands in Fee and other Lands mortgaged to him in Fee by a Devise of all his Lands the Mortgage would pass 3. If a man had but the Trust of a Mortgage of Lands in D. and had other Lands in D. by a Devise of all his Lands in D. the Trust would pass But here a Will devised Lands to J. S. in D. S. and T. and all his Lands elsewhere when he had a Mortgage of Lands that did not lye in D. S. or T. which were of more value than the Lands in D. S. and T. The Decree was that the Mortgage should not pass for he could not be thought to mean to comprehend Lands of so much value under the word elsewhere which is like an c. that comes in currente calamo and besides that there were some other Circumstances in the Will that did seem as if he intended not to pass the Mortgage Lands Anonymus A Bill was Exhibited setting forth That the Defendant in a Replevin had avowed for a Rent-charge and Issue was taken thereupon upon the Seisin of the Grantor and it was found for the Defendant Which Verdict the Plaintiff complained of alledging that the Rent pretended to be granted had not been paid in 50 years and other Circumstances to render the Grant suspicious c. The Lord Chancellor Decreed That there should be a New Trial the Complainant paying the Costs of the former Note This could not have been tryed again at Law because the Verdict in Replevin is conclusive Cage versus Russel A Feme Covert having Power by her Will to Devise certain Lands devised them to her Executors to pay 500 l out of them to her Son when he should attain the Age of One and twenty years provided that if the Father of the Son did not give a sufficient Release to the Executors of the Goods and Chattels remaining in such an House then the Devise of the 500 l should be void and to go to the Executors After her Decease a Release was tendred to the Father who refused it and then the Son exhibits a Bill against the Father and the Executors for the 500 l and to compell the Father to Release The Executors in their Answer insisted upon the Refusal as a Forfeiture of the 500 l And the Father said That tho' he had for some Reasons before refused he was now ready to Release The Lord Chancellor Decreed the Payment of the 500 l and said that it was the standing Rule of the Court That a Forfeiture should not bind where a thing may be done afterwards or any Compensation made for it As where the Condition was to pay Money or the like But in the Case of Fry and Porter in the 22th of Car. 2 which see at large in the Modern Reports where a Devise was of an House upon Condition that the Devisee should Marry with the Consent of three persons and she married without Consent it was an immediate Forfeiture for Marriage without Consent was a thing of that nature that no after Satisfaction could be made for it But if where there is a Devise over to a third Person after a Forfeiture by the first a Forfeiture in such a Case would be generally binding but here 't is said that it shall go the Executors c. which was not to be considered because it is no more than what the Law implied Termino Sancti Michaelis Anno 33 Car. II. In Cancellaria Anonymus ONe Deviseth 250 l to his Son and makes his Wife Executrix who marries another Husband In a Bill brought against them for the Legacy by the Son the Defendants would have discounted Maintenance and Education Which was not permitted by the Court so as to a diminish the principal Sum for it was said that the Mother ought to maintain the Child But a Sum of Money paid for the binding of him out an Apprentice was allowed to be discounted Note It is the Course here that where a man dies in Debt and under several Incumbrances viz. Judgments Statutes Mortgages c. and the Heir at Law buys in any of them that are of the first Date if those which have the latter Securities prefer their Bill the Incumbrances brought in shall not stand in their way for more than the Heir really paid for them Goylmer versus Paddiston THe Case was thus Thomas Goylmer in 1653. being seised of certain Lands in Fee of the value of 14 l per annum and there being a Marriage in Treaty between the Plaintiff the Brother of Thomas and Anne Wells the said Thomas did make a Writing sealed and delivered by him which was to this purpose Viz. That if the Marriage takes effect between my Brother and Ann Wells she being worth Eightscore Pounds I do promise that if I dye without Issue to give my Lands in c. to my Brother and his Heirs or to leave him 80 l in Money And for the true performance of this I bind my self my Heirs Executors and Administrators After which the Brother the now Plaintiff and the said Anne Wells did intermarry and she was worth Eightsocore pounds But Thomas Goylmer did afterwards marry and having no Issue he did settle the Lands upon his Wife for Life the Remainder to his own right Heirs this way a Joynture setled before Marriage and did afterwards devise the Land to her in Fee and died without Issue His Wife afterwards devised it to the Defendant's Wife in Fee and now the Plaintiff exhibited
See Rent IF part of a Debt upon Bond be received and an Acquittance given before the Action it is a Bar only of so much as was received but if after the Action brought it seems it may be pleaded in bar to the Whole 135 Whether an Action of Debt may be brought upon a Judgment pending a Writ of Error and whether the Defendant in such Action ought to Demur or plead Specially 261 A Consideration creates a Debt tho' that Debt be not reduced to a certain Sum as in the case of a Quantum meruit 282 Debt secured is Payment in Law 358 Devise See Tail Vse Of implicit Devises and where Lands shall pass by Implication in a Will and where not 56 57 A Reversion shall pass in a Will by the Words All my Hereditaments 286 Whether Money in the Court of Orphans be devisable 340 If Money be devised to one to be paid at his Age of 21 years if the Party dies before it shall go to his Executors but if Money be bequeathed to one at his Age of 21 years and he dies before the Money is lost 242 366 Where a Sum of Money is devised to a Child at such an Age it shall have the Interest in the mean time rather than the Executor shall swallow it especially when no Maintenance is otherwise provided 346 Devise to J.S. at the Age of 21 and if J.S. dies before 21 then to A A. dies after J. S. dies under 21 the Administrator of A. shall have it 347 If Lands be devised for payment of Debts and Legacies the Personal Estate shall notwithstanding as far as it will go by apply'd to the payment of Debts c. and the Land only make up the Residue 349 Where an Administrator shall have an Estate devised to an Infant and where not 355 356 A Sum of Money devised to be raised out of the Profits of his Lands the Profits will not amount to the Sum the Land may be sold 357 Diversity where a Child's Portion is devised out of Personal Estate and where to be raised out of Land 366 367 Distress Whether a Drover's Cattel put into a Ground belonging to a Common-Inn upon the Road to London may be distrained for Rent due from the Innkeeper 50 Leave given to mend the Conisans upon a Distress after a Demurrer paying Costs 142 A Distress may not be sever'd as Horses out of a Cart and therefore in some Cases a Distress of great Value may be taken for a small matter because not severable 183 Where one holds a Third part of certain Land and another two Third parts of the same Land undivided he who hath the One part cannot distrain the Cartel which were put in by Licence of him who hath the two Parts 228 283 E Ecclesiastical Court See Marriage WHether the Ecclesiastical Court may proceed against Conventicles or whether they be punishable only at the Common Law 41. They may 44 The legal Method of Proceedings in the Ecclesiastical Courts 42 43 The Proceeding ex Officio 43 A Suit may be tryed in the Ecclesiastical Court upon a Prescription to Repair the Chancel so also for a Modus Decimandi 239 Ecclesiastical Persons A Curate incapable of taking an Estate devised in Succession for want of being Incorporate but the Heir of the Devisee shall hold the Estate in Trust for the Curate for the time being 349 Ejectment In Ejectment the Declaration of Michaelmass Term and the Demise laid 30 of October after the Term began 174 Elegit See Execution Enrolment A Deed where the Grant is exprest to be in Consideration of Natural Affection as well as Money need not be Enrolled but the Land will pass by way of Covenant to stand seised 150 Error See Debt Essoine Where several Tenants in a Real Action may be Essoigned severally 57 Regularly Proceedings in an Essoine in Dower 117 Estate What Words shall create a Tenancy in Common 265 266 Evidence See Action on the Case Chancery Exchange Bills of Exchange have the same Effect between others as between Merchants and a Gentleman shall not avoid the Effect by pleading He is no Merchant 295 310 The Custom of Bills of Exchange 307 310 Execution How the Sheriff ought to behave himself in Executing a Fieri facias 94 95 Whether Money paid for Goods taken upon a Fieri facias is properly paid to the use of the Sheriff or Plaintiff ibid. A Fieri facias was executed after the Party was dead upon the Goods in the hands of the Executor but Teste before tho' not delivered to the Sheriff till after This was a good Execution at the Common Law but quaere since the Statute of 29 Car. 2. cap. 3. 218 An Extent upon an Elegit being satisfied by perception of Profits he in Reversion may enter 336 Executor See Award Rent Waver And Executor may detain for a Debt due upon a simple Contract against a Debt grounded upon a Devastavit 40 Whether the Executor of a Bishop may bring an Action of Covenant for breach of a Real Covenant relating to Lands of the Bishoprick 56 Where a Woman disposes of Goods as Executrix in her own wrong if she takes Administration afterwards tho' before the Writ brought this will not hinder the Plaintiff from charging her as Executrix in her own wrong 180 An Executor in his own wrong cannot retain ibid. The Mother Executrix shall not discount for Maintenance and Education out of the Money left by the Father for the Mother ought to maintain the Child But Money paid for binding him Apprentice may be discounted 353 After an Executor assents to a Legacy he shall never bring it back again to pay Debts Secus where he is sued and pays by Decree in Chancery there the Legatee shall refund 358 Where an Executor pays a Debt upon a Simple Contract there shall be no refunding to a Creditor of a higher nature Vid. Legacy 360 Money decreed in Chancery to the Executor of an Administrator do bonis non and not the second Administrator de bonis non where no Debts appeared of the first Intestate 362 Minority as to Executorship determines at the Age of 17 and then a Personal Estate devised to such Executor vests in him 368 Exposition of Words Faldagium 139 The force of these Words in forma praedicta 215 F Fieri facias See Execution Fine WHere and how a Fine levied by a Feme-Covert shall be set aside and where the Commissioner who took it may be fined by the Court 30 A Fine acknowledged before the Revolution and Writ of Covenant sued out after allowed good 47 48 A Right to an Estate by Extent barr'd by a Fine and Non-claim 329. So also the Right to a Term for years ibid. Secus where a Statute is assigned in Trust to wait upon the Inheritance 330 Fine Customary What Customary Fine between Lord and Tenant shall be allow'd good upon Alienation 134 135 Forfeiture See Office Generally where a Statute gives a Forfeiture and not said to