ought to bring his Action Pemberton Serjeant for the Plaintiff Ex parte Quer. That this Covenant is not conditional for the words paying and performing signifie no more than that he shall enjoy c. under the Rents and Covenants and 't is a Clause usually inserted in the Covenant for quiet Enjoyment Indeed the word paying in some Cases may amount to a Condition but that is where without such construction the party could have no remedy But here are express Covenants in the Lease and a direct reservation of the Rent to which the party concerned may have recourse when he hath occasion A liberty to take Pot-water paying so many Turns c. 't is a Condition The Words paying and yielding make no Condition Cook and Herle Postea Vaugh. 32. nor was it ever known that for such Words the Lessor entred for Non-payment of Rent and there is no difference between these Words and the Words paying and performing Bennet's Case in B. R. ruled no Condition Duncomb's Case Owen Rep. 54. Barrel Serjeant for the Defendant said Ex parte Def. that the Covenant is to be taken as the parties have agreéd and the Lessor is not to be sued if the Lessée first commit the breach Modus Conventio qualifie the general Words concerning quiet Enjoyment The Court took time to consider and afterwards in this Term Iudgment was given for the Plaintiff Sid. 266 280. that the Covenant was not conditional Atkins Iustice doubted Simpson versus Ellis Debt by a Bailiff of a Liberty DEBT upon Bond by the Plaintiff who was chief Bailiff of the Liberty of Pontefract in Yorkshire but he did not declare as Capital Ballivus but yet by the whole Court it was held good for otherwise the Defendant might have craved Oyer and have it entred in haec verba and then have pleaded the Statute of 23 H. 6. that it was taken * Sand. 161. Sid. 383. Latch 143. colore Officii but now it shall be intended good upon the Demurrer to the Declaration And Ellis Iustice said that so it was lately resolved in this Court in the Case of one Conquest And Iudgment was given for the Plaintiff Mason versus Stratton Executor c. Judgment kept on foot per Fraudem 2 Cro. 35 102. Vaugh. 103 104. DEBT upon Bond. The Defendant pleads two Iudgments had against his Testator and sets them forth and that he had but 40 s Assets towards satisfaction The Plaintiff replies that the Defendant paid but so much upon the first Iudgment and so much upon the second and yet kept them both on foot per Fraudem Covinam And the Defendant demurred specially 1 Roll. Abr. 802. 2 Cro. 626 Because the Replication is so complicated that no distinct Issue can be taken upon it for the Plea sets forth the Iudgments severally but the Plaintiff puts them both together when he alledges them to be kept per Fraudem But on the other side it was said that all the Presidents are as in this Case Sid. 333. 8 Co. Turner's Case 132. 9 Co. Meriel Tresham's Case 108 And of that Opinion was all the Court that the Replication was good And Iudgment was given for the Plaintiff Suffeild versus Baskervil No Breach can be assigned upon a Promise DEBT upon Bond for performance of all Covenants Payments c. In an Indenture of Lease wherein the Defendant for and in consideration of 400 l. lent him by the Plaintiff granted the Land to him for 99 years if G. so long lived provided if he pay 60 l. per annum quarterly during the Life of G. or shall within two years after his death pay the said 400 l. to the Plaintiff then the Indenture to be void with a Clause of Reentry for Non-payment The Defendant pleads performance The Plaintiff assigns for breach that 30 l. for half a year was not paid at such a time during the Life of G. The Defendant demurrs For that the breach was not well assigned because there is no Covenant to pay the Mony only by a Clause Liberty is given to re-enter upon Non payment The Court inclined that this Action would not lie upon this Bond in which there was a Proviso and no express Covenant and therefore no Breach can be assigned Benson versus Idle AUdita Querela The Case upon Demurrer was Estoppel not well pleaded with a Traverse That before the Kings Restauration the now Defendant brought an Action of Trespass against the Plaintiff for taking his Cloath who then pleaded that he was a Souldier and compelled by his Fellow Souldiers who threatned to hang him as high as the Bells in the Belfry if he refused To this the Plaintiff then replied de injuriâ suâ propriâ c. And it was found for him and an Elegit was brought and the now Plaintiffs Lands extended Then comes the Act of * 12 Car. 2. cap. 11. Indempnity which pardons all Acts of Hostility done in the Times of Rebellion and from thenceforth discharges personal Actions for or by reason of any Trespas comitted in the Wars and all Iudgments and Executions thereon before the first day of May 1658. but doth not restore the party to any Sums of Mony mean Profits or Goods taken away by virtue of such Execution or direct the party to give any account for the same which Act made by the Convention was confirmed by 13 Car. 2. cap. 7. And upon these two Acts of Parliament the Plaintiff expresly averring in his Writ that the former Recovery against him was for an Act of Hostility now brought this Audita Querela The Defendant pleads the former Verdict by way of Estoppel and concludes with a Traverse absque hoc that the taking of his Goods was an Act of Hostility This was argued by Holloway Serejant for the Plaintiff and by Jones Serjeant for the Defendant who chiefly insisted That the Defendant having pleaded the substance of this Matter before and being found against him that he being now Plaintiff could not averr any thing against that Record But the Court were all of Opinion that Iudgment should be given for the Plaintiff for his remedy was very proper upon the Convention and without the Statute of Confirmation and here is no Estoppel in the Case for whether this was an act of Hostility or not is not material neither was it or could it be an Issue upon the former Tryal because all the Matter then in Question was concerning the Trespass which though found against the now Plaintiff yet it might be an act of Hostility but if it were an Estoppel 't is not well pleaded with a Traverse and the Court hath set it at large DE Term. Sanctae Trin. Anno 27 Caroli II. in Communi Banco Mayor and Cominalty of London versus Gatford IN an Action of Debt brought by the Plaintiffs Construction of an Act of Parliament for a Fine of 13 l. 6 s. 8 d. set upon the
one Prescription is directly contrary to the other and for that reason one must be traversed but here the Defendant hath confessed that the Plaintiff hath a Right of Common but t is not an absolute but a qualified Right against which the Defendant may Enclose and here being two Prescriptions pleaded and one of them not being confessed it must from thence necessarily follow that the other is the Issue to be tryed which in this Case is whether the Defendant can enclose or not The Chief Iustice and the whole Court were of Opinion Curia that where there are several Free-holders who have Right of Common in a Common Field that such a Custom as this of enclosing is good because the remedy is reciprocal for as one may enclose so may another But Iustice Atkyns doubted much of the Case at Bar because the Defendant had pleaded this Custom to Enclose in barr to a Freeholder who had no Land in the Common Field where he claimed Right of Common but prescribed to have such Right there as appendant to two Acres of Land he had alibi for which reason he prayed to amend upon payment of Costs Attorny General versus Sir Edward Turner in Scaccario Exposition of the Kings Grant INformation The Case was Viz. The King by Letters Patents granted several Lands in Lincolnshire by express words and then this Clause is added upon which the Question did arise Nec non totum illud fundum solum terras suas contigue adjacen ' to the Premisses quae sunt aqua cooperta vel quae in posterum de aqua possunt recuperari and afterwards a great quantity of Land was gained from the Sea and whether the King or the Patentee was intituled to those Lands was the Question Devise of a possibility good by a common person 2 Cro. 509. pl. 21. 1 Bulst 194. Sawyer for the King argued that he had a good Title because the Grant was void he having only a bare possibility in the thing granted at the time But Levins on the other side insisted that the Grant of those Lands was good because the King may Grant what he hath not in possession but only a possibility to have it But admitting that he could not make such a Grant yet in this Case there is such a certainty as the thing it self is capable to have and in which the King hath an Interest and it is hard to say that he hath an Interest in a thing and yet cannot by any means dispose of it If it should be objected that nothing is to pass but what is contigue adjacen ' to the Premisses granted and therefore an Inch or some such small matter must pass and no more certainly that was not the intention of the King whose Grants are to be construed favourably and very bountifully for his Honour and not to be taken by Inches Postea Company of Ironmongers and Naylor If there are two Marshes adjoyning which are the Kings and he grants one of them by a particular name and description and then he grants the other contigue adjacen ' ex parte australi certainly the whole Marsh will pass and 't is very usual in pleading to say a Man is seised of a House or Close and of another House c. contigue adjacen ' that is to be intended of the whole House In this Case the King intended to pass something when he granted totum fundum c. but if such construction should be made as insisted on then those words would be of no signification 'T is true the word illud is a Relative and restrains the general words and implies that which may be shewn as it were with a Finger and therefore in Doddington's Case 2 Co. 32. a Grant of omnia illa Mesuagia scituate in Wells and the Houses were not in Wells but elsewhere the Grant in that Case was held void because it was restrained to a certain Village and the Pronoun illa hath reference to the Town but in this Case there could be no such certainty because the Land at the time of the Grant made was under Water But if the Patent is not good by the very words of the Grant the non obstante makes it good which in this Case is so particular that it seems to be designed on purpose to answer those Objections of any mistake or incertainty in the value quantity or quality of the thing granted which also supplies the defects for want of right instruction given the King in all cases where he may lawfully make a Grant at the Common Law 4 Co. 34. Moor pl. 571. Bozuns Case And there is another very general Clause in the Patent viz. Damus praemissa adeo plene as they are or could be in the Kings hands by his Prerogative or otherwise * Ante Adeo plene are operative words Whistlers Case 10 Co. And there is also this Clause omnes terras nostras infra fluxum refluxum maris 'T is true Sid. 149. these words praemissis praed ' spectan ' do follow from whence it may be objected that they neither did or could belong to the Premisses and admitting it to be so yet the Law will reject those words rather than avoid the Grant in that part In the Case of the Abbot of * 9 Co. 27. b. Strata Marcella the King granted a Mannor Et bona catalla felonum dicto Manerio spectan ' now though such things could not be appendant to a Mannor yet it was there adjudged that they did pass Such things as these the King hath by his Prerogative and some things the Subject may have by Custom or Prescription as Wrecks c. and in this very Case 't is said that there is a Custom in Lincolnshire that the Lords of Mannors shall have derelict Lands and 't is a reasonable Custom for if the Sea wash away the Lands of the Subject he can have no recompence unless he should be entituled to what he gains from the Sea and for this there are some Authorities as Sir Henry Constable's Case 2 Roll. 168. 5 Co. Land between High-Water and Low-Water Mark may belong to a Mannor But no Iudgment was given Morris versus Philpot in B. R. Release by an Executor before Probate THE Plaintiff as Executor to T. brings an Action of Debt against the Defendant as Administrator to S. for a Debt due from the said intestate to the Plaintiffs Testator The Defendant pleads that the Plaintiff released to him all Brewing Vessels c. and all other the Estate of S. lately deceased this Release was before probate of the Will to which Plea the Plaintiff demurred and whether this Release was a good Barr to the Plaintiffs Action was the Question Ex parte Quer. It was said for the Plaintiff that it was not for if a Conusee release to the Cognisor all his right and title to the Lands of the Cognisor and afterwards sues out
Execution yet he may extend the very Lands so released so if the Debtee release to the Debtor all his right and title which he hath to his Lands and afterwards gets a Iudgment against him he may extend a Moiety of the same Lands by Elegit the reason is because at the time of these Releases given they had no title to the Land but only an inception of a right which might happen to take place in futuro so here a Release by the Executor of the Debtee to the Administrator of the Debtor before Probate of the Will is not good because by being made Executor he had only a possibility to be entituled to the Testators Estate and no Interest 'till Probate for he might refuse to prove the Will or renounce the Executorship It is true a Release of all * Godol 145. pl. 4. Actions had been good by the Executor before Probate because a right of Action is in him and a Debt which consists meerly in Action is thereby discharged but in such case a Release of all right and title would not be good for the reasons aforesaid Ex parte Def. But for the Defendant it was insisted that this Release was a good Plea in Barr for if a Release be made by an Executor of all his right and title to the Testators Estate and then the Executor sues the Party Released as the Administrator is sued in this Case for a Debt due to the Testator the Release is good because if he had recovered in this Case the Iudgment must be de bonis Testatoris which is the subject matter and that being released no Action can lye against the Administrator Adjornatur DE Term. Sancti Mich. Anno 28 Car. II. in Banco Regis Piggot Lessee of Sir Thomas Lee versus the Earl of Salisbury Intrat ' Pasch 26 Car. 2. Rot. 609. IN Ejectment for fourteén Houses and some Gardens in the Parish of St. Martin in the Fields Warranty where by displacing of a Right by a Fine sur concessit it shall barr the Heir Jones 68. the Iury find as to all but one Moiety for the Defendant as for the other Moiety they find that these were formerly the Houses of one Nightingale who was seised thereof in Fée and made a Lease of them which commenced 1 Apr. 7 Jac. yet in being That the Reversion descended to Briget his Daughter and Heir who married William Mitton by whom she had a Daughter named Elizabeth That upon the Marriage of the said Elizabeth with Francis the Son of Sir Oliver Lee by Fine and other Settlements these Houses were settled to the use of the said Bridget for Life then to the use of Francis Lee and the said Elizabeth and the Heirs on the Body of the said Elizabeth to be begotten by Francis And for want of such Issue to William Mitton for Life and afterwards to the right Heirs of Bridget Mitton for ever William Mitton and Bridget his Wife before the expiration of the Term levy a Fine sur concesserunt to two Cognisees wherein the said Husband and Wife conced ' tenementa praed ' totum quicquid habent in tenementis praed ' cum pertin̄ for the Life of the said Husband and Wife and the Survivor of them with Proclamations They find that the Lessee for years attorned and that the Fine thus levied was in Trust for the Earl of Salisbury and that before the first day of February before the Action brought he entred by the direction of the two Cognizees and that he was seised prout Lex postulat That 1 Febr. 7 Jac. Sir Oliver Lee Francis Lee his Son and Heir and Elizabeth his Wife William Mitton and Bridget his Wife by Bargain and Sale convey the Premises to the Earl and his Heirs which was enrolled in Chancery in which Deéd there was a Warranty against Sir Oliver and his Heirs That in the same Term viz. Octab. Purificationis William Mitton and Bridget his Wife levyed a Fine sur Cognisance de droit come ceo c. to the Earl That Francis Lee was Son and Heir of Sir Oliver Lee. That Sir Oliver and Elizabeth died in the Life-time of Francis and that Francis died leaving Issue Sir Thomas Lee the now Lessor of the Plaintiff That the Warranty discended upon him being inheritable to the Estate Tail That the Estate of the Earl of Salisbury descended to the present Earl who was the Defendant That Sir Thomas Lee entred and made a Lease to the Lessor of the Plaintiff Question The Question upon this Special Verdict was if by the Fine sur concesserunt levied 7 Jac. the Estate which the Husband and Wife had in possession only passed or whether that and the Estate for Life which the Husband had after the Tail spent passed likewise If the latter then they passed more than they could lawfully grant because of the intervention of the Estate Tail and then this Fine wrought a * Co. Lit. 338. b displacing or divesting the Estate of William Mitton for Life in Reversion and turned it into a Right and if so then this collateral Warranty of Sir Oliver Lee will discend on Sir Francis and from him to the Plaintiff and will barr his Entry But if the Estate was not displaced and turned into a Right at the time of the Warranty then the Heir is not barred by this collateral Warranty of his Ancestor This Case was argued by Serjeant Pemberton for the Plaintiff and by Sir William Jones the Attorny General for the Defendant Ex parte Quer. And for the Plaintiff it was said that this Fine passed only the Estate which William Mitton and his Wife had in possession and no other and therefore worked no divesting and his Reasons were 1. Such a Construction seems most agreeable to the intention of all the Parties to the Fine 2. It may well stand with the Nature and the Words of the Fine 3. It will be most agreeable both to the Iudgments and Opinions which have formerly béen given in the like Cases And as to the first of these it will be necessary to consider what will be the effect and consequence of levying this Fine both on the one side and the other It cannot be denyed but that there was a Purchase intended to be made under this Fine and that the Parties were willing to pass away their Estate with the least hazard that might be to themselves neither can it be imagined that they intended to defeat this Purchase as soon as it was made which they must do if this Fine works a Forfeiture for then he in Remainder in Tail is entituled to a present Entry and so the Estates for Life which the Baron and Feme had are lost and there was a possibility also of losing the Reversion in Feé which the Tenant in Tail after his Entry might have barred by a Common Recovery And had not the Parties intended only to pass both the Estates which they lawfully might
many Settlements would be shaken in which nothing was more usual now than to Covenant to stand seised to the Vse of himself and the Heirs Males of his Body c. They all agreed also That the Estate being well limited William should take per formam Doni as special Heir for Voluntas Donatoris in charta manifeste expressa observetur and 't is apparent Thomas intended that William should have it or else the Limitation to his Heirs Males had been needless So that taking it for granted that the Estate Tail once vested is not spent by his dying without Issue but it comes to William by descent and not as a Purchasor for so he could not take it because he is not Heir and till Thomas be dead without Issue the Tail cannot be spent so there was no difficulty in that Point And they held the Opinions of Dyer and Saunders in Creswold's Case to be good Law who were divided from the other Iustices but they doubted of Pybus and Mitford 's Case whether it was Law or not they doubted also whether by any Construction Thomas could be said to have an Estate for Life by implication they doubted also of the springing Vse but they held that this Limitation was good in its creation and Iudgment was given accordingly Cockram Executor versus Welby Statute of Limitations not pleadable by a Sheriff who levied mony by fi fa. and nine years pass Mod. Rep. 245. IN Debt the Plaintiff declared that his Testator recovered a Iudgment in this Court upon which he sued out a Fieri facias which he delivered to the Defendant being Sheriff of Lincoln and thereupon the said Sheriff returned Fieri feci but that he hath not paid the Mony to the Plaintiff per quod actio accrevit c. The Defendant pleaded the Statute of Limitations to which the Plaintiff demurred And the question was whether this Action was barely grounded on the Contract or whether it had a Foundation upon matter of Record If on the Contract only then the Statute of 21 Jacobi cap. 16. is a good Plea to barr the Plaintiff of his Action which Enacts That all Actions of Debt grounded upon any Lending or Contract without Specialty shall be brought within six years next after the Cause of Action doth accrew and in this Case nine years had passed But if it be grounded upon matter of Record that is a Specialty and then the Statute is no barr Serjeant Barrel held this to be a Debt upon a Contract without specialty for when the Sheriff had levied the Mony the Action ceases against the Party and then the Law creates a Contract and makes him Debtor as it is in the Case of a Tally delivered to a Customer It lies against an Executor where the Action arises quasi ex contractu which it would not do if it did not arise ex maleficio as in the Case of a Devastavit 'T is true The Iudgment recovered by the Testator is now set forth by the Plaintiff Executor but that is not the ground but only an inducement to the Action for the Plaintiff could not have pleaded nul tiel Record so that 't is the meer receiving the Mony which charges the Defendant and not virtute Officii upon a false return for upon the receipt of the Mony he is become Debtor whether the Writ be returned or not and the Law immediately creates a Contract and Contracts in Law are as much within the Statute as Actual Contracts made between the Parties All which was admitted on the other side but it was said that this Contract in Law was chiefly grounded upon the Record and compared it to the Case of Attornies Fees which hath been adjudged not to be within the Statute though it be quasi ex contractu because it depends upon Matter of Record Rolls Abridg. tit Debt 598. pl. 17. And afterwards in Michaelmas-Term following by the Opinions of the Chief Justice Wyndham and Atkins Iustices it was held that this Case was not within the Statute because the Action was brought against the Defendant as an Officer who acted by vertue of an Execution in which Case the Law did create no Contract and that here was a Wrong done for which the Plaintiff had taken a proper remedy and therefore should not be barred by this Statute Iustice Scroggs was of a contrary Opinion for he said if another received Mony to his use due upon Bond the Receipt makes the Party subject to the Action and so is within the Statute But by the Opinions of the other Iustices Iugdment was given for the Plaintiff Major versus Grigg In Banco Regis THE Plaintiff brought an Action Covenant to save harmless and the Plaintiff sets forth no Title in the disturber good after Verdict Cro. Eliz. 914. Cro. Jac. 315 425. Vaugh. 120 121. 2 Sand. 178. Mod. Rep. 66. for that the Defendant Non indempnem conservavit ipsum de concernente occupation̄ quorundam clausorum c. secundum formam agreamenti and sets forth a disturbance by one who commenced a Suit against him in such a Term concernente occupation̄ clausorum praed ' but doth not set forth that the person suing had any Title which it was said ought to have been shewn as if a Man makes a Lease for years and covenants for quiet enjoyment in an Action brought by the Lessee upon that Covenant it must be shewn that there was a lawful Title in the person who disturbed or else the Action will not lie But this being after a Verdict and the Plaintiff setting forth in his Declaration that the disturber recovered per Judicium Curiae the Court now were all of Opinion that Iudgment should be given for the Plaintiff Taylor versus Baker In Banco Regis Payment to the Marshal no discharge to the Plaintiff at whose Suit the Defendant was in Execution Jones 97. THE Case was viz. a Man being in Execution doth actually pay the Mony to the Marshal for which he was imprisoned and thereupon was discharged and whether he should pay it again to the Plaintiff upon a second Execution was the Question Sanders argued that he should not pay it again he said this Case was never adjudged and therefore could produce no Authority in Point to warrant his Opinion but parallel Cases there were many As if the Sheriff take Goods in Execution by vertue of a Fieri Facias whether he sells them or not yet being taken from the party against whom the Execution was sued he shall plead that taking in discharge of himself and shall not be liable to a second Execution though the Sheriff hath not returned the Writ and the reason is because the Defendant cannot avoid the Execution and he would therefore be in a very bad condition if he was to be charged the second time And if the Sheriff should die after the Goods are taken in Execution his Executors are liable to the Plaintiff to satisfie the debt for they have paid pro
an Estate Tail and therefore the pleading the Lease is not material for if it were a Lease expired yet the Plaintiff could not recover and therefore the praeter is wholly idle and insignificant of which the Plaintiff ought not to take notice because the Lands which come under the praeter are not chargeable The Plaintiff hath traversed as he ought what is material and is not bound to take notice of any thing more And of that Opinion was the whole Court and held the praeter idle and the general Replication good and Iudgment was given for the Plaintiff Prince versus Rowson Executor of Atkinson EXecutor de son tort cannot retain Executor de son tort cannot retain The Defendant in this Case pleaded that the Testator owed his Wife dum sola 800 l. and that he made his Will but doth not shew that he was thereby made Executor and therefore having no Title he became Executor de son tort for which cause his Plea was held ill and Iudgment was given for the Plaintiff Norris versus Palmer THE Plaintiff brought an Action on the Case against the Defendant for causing him falso malitiose to be indicted for a Common Trespass in taking away one hundred Bricks Case after an acquittal upon an Indictment for Trespas by which means he was compelled to spend great Sums of Mony and that upon the Trial the Iury had acquitted him The Defendant demurred to the Declaration and Barrel Serjeant said for him that the Action would not lie and for a President in the Case he cited a like Iudgment between Langley versus Clerk in the King's Bench Trin. 1658. 2 Sid. 100. In which Action the Plaintiff was indicted for a Battery with an intent to ravish a Woman and being acquitted brought this Action and the Court after a long Debate gave Iudgment for the Plaintiff but agréed that the Action would not lie for a Common Trespass as if it had beén for the Battery only but the Ravishing was a great scandal and for that reason the Plaintiff recoverd there but this is an ordinary Trespass and therefore this Action will not lie But Pemberton Serjeant held that the Action would lie because it was in the nature of a Conspiracy Sid. 463 464. 1 Cro. 291. and done falsly and malitiously knowing the contrary and thereby the Plaintiff was put to great Charges all which is confessed by the Demurrer And the Case cited on the other side is express in the Point for the Court in that Case could take notice of nothing else but the Battery for the intent to ravish was not traversable and therefore it was idle to put it into the Indictment It is now settled that an Action on the Case will lye for a malitious Arrest where there is no probable cause of Action and this Case is stronger than that because in the one the party is only put to Charges and in the other both to Charges and Disgrace for which he hath no remedy but by this Action The Court agreéd that the Action would lie after an acquittal upon an Indictment for a greater or lesser Trespass The like for citing another into the Spiritual Court without cause 3 Ass 13. 1 Rol. Abr. 112. pl. 9. Postea F. N. B. 116. D. 7 E. 4. 30. 10 H. 4. Fitz. Conspiracy 21. 13. 3 E. 3. 19. The Defendants Council consented to wave the Demurrer and plead and go to Tryal The King versus Turvil The King presented being intituled by a Simoniacal Contract his Presentee shall not be removed though the Symony is pardoned QUare Impedit The King was intituled to a Presentation by the Statute of 31 Eliz. cap. 6. because of a Simoniacal Contract made by the rightful Patron and he accordingly did present Then comes the Act of General Pardon 21 Jac. cap. 35. by which under general Words it was now admitted that Symony was pardoned In which Act there is a beneficial Clause of Restitution viz. The King giveth to his Subjects all Goods Chattels Debts Fines Issues Profits Amerciaments Forfeitures and Sums of Mony forfeited by reason of any Offence c. done And whether the Kings Presenteé or the Patron had the better Title was the Question This Case was only mentioned now but argued in Michaelmas Term following by Serjeant Jones that the Kings Presenteé is intituled he agreed that Symony was pardoned but not the consequences thereof for 't is not like the Case where a Stroak is given at one time and death happens at another if the Stroak which is the first offence is pardoned before the death of the party that is a Pardon likewise of the Felony for 't is true the Stroak being the cause of the death and that being pardoned all the natural Effects are pardoned with the Cause But legal Consequences are not thus pardoned as if a Man is outlawed in Trespass and the King pardons the Outlawry the Fine remains 6 E. 4. 9. 8 H. 4. 21. 2 Roll. Abr. 179. In this Act of Pardon there are words of Grant but the Presentation is not within the Clause of Restitution for 't is an Interest and not an Authority vested in the King and therefore a thing of another nature than what is intended to be restored because it is higher and shall not be comprehended amongst the general words of Goods and Chattels c. which are things of a lower nature and are all in the personality Cro. Car. 354. Conyers Serjeant argued for the Title of the Patron Ex parte Def. and said that there were three material Clauses in this Act. 1. A Pardon of the Offences therein mentioned in general and particular words 2. That all things not excepted shall be pardoned by general words as if particularly named 3. The Pardon to be taken most favourably for the Subject upon which Clauses it must necessarily follow that this Offence is pardoned and then all the consequences from thence deduced will be likewise pardoned and so the Patron restored to his Presentation for all Charters of Restitution are to be taken favourably Pl. Com. 252. The Presentation vests no legal Right in the Presentee for in the Case of the King 't is revocable after Institution and before Induction Co. Lit. 344. b. So likewise a second Presentation will repeal the first Rolls 353. And if the Kings Presentee dies before Induction that is also a Revocation if therefore the Party hath no legal Right by this Presentation and the King by the Simony had only an authority to present and no legal Interest vested then by this Act he hath revoked the Presentation and the right Patron is restored to his Title to present The Court were all of Opinion absente Ellis That the Kings Presentee had a good Title and by consequence the Patron had no right to Present this turn for here was an Interest vested in the King like the Case where the King is intituled to the Goods of a Felo
but if he will justifie by vertue of any particular Estate he must shew the Commencement of that Estate and then such pleading as here will not be good But when the Matter is * Yelv. 75. Cro. Car. 138. collateral to the Title of the Land and for any thing which appears in the Declaration the Title may not come in question such a Iustification as this will be good In this Case no Man can tell what the Plaintiff will reply 't is like the Cases of Inducements to Actions which do not require such certainty as is necessary in other Cases So where an Action is brought for a Nusance and he intitles himself generally by saying he is possessionat ' pro termino annorum 't is well enough and he need not to set forth particularly the Commencement because he doth not make the Title his Case for which reason Iudgment was given for the Defendant Crosier versus Tomlinson Executor IN an Action on the Case Statute of Limitations of personal Actions extends to Indebitatus Assumpsit The Plaintiff declared that the Defendants Testator being in his Life time viz. such a day indebted to the Plaintiff in the Sum of 20 l. for so much Mony before that time to his use had and received did assume and promise to pay the same when he should be thereunto required and that the Testator did not in his Life time nor the Defendant since his death pay the Mony though he was thereunto required The Defendant pleads that the Testator did not at any time within six years make such promise The Plaintiff replies that he was an Infant at the time of the promise made and that he came not to full Age till the year 1672. and that within six years after he attained the Age of one and twenty years he brought this Action and so takes advantage of the promise in the Statute of * 21 Jac. c. 16. Limitations that the Plaintiff shall have six years after the disability by Infancy Coverture c. is removed And the Defendant demurred by Serjeant Rigby Ex parte Def. and the reason of his Demurrer was because in the said Proviso Actions on the Case on Assumpsit are omitted This Act was made for quieting of Estates and avoiding of Suits as appears by the Preamble and therefore shall be taken strictly there is an enumeration of several Actions in the Proviso and this is Casus omissus and so no benefit can be taken of the Proviso In a Writ of Error upon a Iudgment brought 4 Car. 1. in the Court of Windsor the Iudges held that an Action on the Case for * Cro. Car. 163 513 535. Debt upon Escape is out of the Statute 1 Sand 37. But an Action for Escape is not Sid. 305. So is Debt for not setting out of Tithes for these are not grounded upon any Contract Cro. Car. 513. Hut 109. slandering of a Mans Title is out of this Act because such an Action was rare and not brought without special damages But Hide Chief Iustice doubted 1 Cro. 141. The Law-makers could not omit this Case unadvisedly because 't is within those sorts of Actions enumerated by this Act. This Promise was made to the Plaintiff when he was but a day old and it would be very hard now after so many years to charge the Executor Ex parte Quer. But Turner Serjeant argued that though an Indebitat̄ assumpsit is not within the express words of the Proviso yet 't is within the intent and meaning thereof and so the Rule is taken in 10 Co. 101. in Bewfages Case quando verba statuti sunt specialia ratio autem generalis statutum intelligendum est generaliter And this is a Statute which gives a general remedy and the mischief to the Infant is as great in such Actions of Indebitatus assumpsit as other Actions and therefore 't is but reasonable to intend that the Parliament which hath saved their Rights in Debts Trovers c. intended likewise that they should not be barred in an Indebitatus Assumpsit In 2 Anders 55. Smith versus Colshil Debt was brought upon a Bond the Defendant there pleaded the Statute of the 5 E. 6. of selling of Offices the words of which are viz. That every Bond to be given for money or profit for any Office or Deputation of any Office mentioned in the Statute shall be void against the Maker In that case the Bond was given to procure a Grant of the Office and also to exercise the same now though this was not within the express words of the Statute yet the Bond was held void and if it should be otherwise the mischiefs which the Statute intended to remedy would still continue and therefore the intent of the Law-makers in such cases is to be regarded for which reason if Actions of Indebitatus Assumpsit are within the same mischief with other Actions therein mentioned 2 Anders 123 150. Cor. Car. 533. 19 H. 8. 11. such also ought to be construed to be within the same remedy But he took the Case of * Cro Car. 245. Swain versus Stephens to rule this Case at Bar in which Case this very Statute was pleaded to an Action of Trover and the Plaintiff replied that he was beyond Sea and upon a Demurrer to the Replication the Court held Trover to be within the Statute it being named in the Paragraph of Limitation of personal Actions which directs it to be brought within the time therein limited that is to say all Actions on the Case within six years and then enumerates several other Actions amongst which Trover is omitted yet the Court were then of Opinion that Trover is implied in those general words Curia And of that Opinion was the Chief Iustice and Wyndham and Atkyns Iustices That upon the whole frame of the Act it was strong against the Defendant for it would be very strange that the Plaintiff in this Case might bring an Action of Debt and not an Indebitatus Assumpsit When the Scope of an Act appears to be in a general sense the Law looks to the meaning and is to be extended to particular Cases within the same reason and therefore they were of Opinion That Actions of Trespass mentioned in the Statute are comprehensive of this Action because 't is a Trespass upon the Case and the words of the Proviso save the Infants Right in Actions of Trespass And therefore though there are not particular words in the enacting Clause which relate to this Action yet this Proviso restrains the severity of that Clause and restores the Common Law and so is to be taken favourably and this Action being within the same reason with other Actions therein mentioned ought also to be within the same remedy But Iustice Ellis doubted whether Actions of Trespass could comprehend Actions on the Case and that when the Parliament had enumerated Actions of Trespass Trover Case for Words c. If they had intended
enough and Iudgment was given accordingly When this Cause was tried at the Barr which was in Easter-Term last the Lord Mohun offered to give his Testimony for the Plaintiff but refused to be sworn offering to speak upon his Honour but Iustice Wyld told him in Causes between Party and Party he must be upon his Oath The Lord Mohun asked him whether he would answer it The Iudge replyed that he delivered it as his Opinion and because he knew not whether it might cause him to be questioned in another place he desired the rest of the Iudges to deliver their Opinions which they all did and said he ought to be sworn and so he was but with a salvo jure for he said there was an Order in the House of Peers That 't is against the Priviledge of the House for any Lord to be sworn Anonymus DEBT upon the Statute for not coming to Church and concludes Per quod Actio accrevit eidem Domino Regi quer̄ ad exigend ' habend ' The Exception after Iudgment was taken that it ought to have been only Actio accrevit eidem the Plaintiff qui tam c. and not exigend ' habend ' for the King and himself Sed non allocatur For upon search of Presidents the Court were all of Opinion that it was good either way Anonymus Factor where he cannot sell but for ready Mony IN Accompt Iudgment was given quod computet and the Defendant pleads before the Auditors that the Goods whereof he was to give a reasonable accompt were bona peritura and though he was carefull in the keeping of them yet they were much the worse that they remained in his hands for want of Buyers and were in danger of being worse and therefore he sold them upon Credit to a Man beyond Sea The Plaintiff demurred and after Argument by Barrel Serjeant for the Plaintiff and Baldwin Serjeant for the Defendant the whole Court were of Opinion that the Plea was not good Curia For if a Merchant deliver Goods to his Factor ad merchandizand ' he cannot sell them upon Credit but for ready Mony unless he hath a particular Commission from his Master so to do for if he can find no Buyers he is not answerable and if they are bona peritura and cannot be sold for Mony upon the delivery the Merchant must give him authority to sell upon Trust If they are burned or he is robbed without his own default he is not lyable and in this Case it was not pleaded that he could not sell the Goods for ready Mony and the Sale it self was made beyond Sea where the Buyer is not to be found like the Case of * 1 Bulst 103. Yelv. 202. Sadock and Burton where in Accompt against a Factor he pleads that he sold the Iewel to the King of Barbary for the Plaintiffs use and upon a Demurrer the Plea was held naught for when a Factor hath a bare Authorty to sell in such Case he hath no power to give a day of payment but must receive the Mony immediately upon the Sale Therefore in the Case at Barr if the Master is not bound by the Contract of the Servant without his Consent or at least the Goods coming to his use neither shall the Servant have Authority to sell without ready Mony unless he hath a particular Order for that purpose There was another thing moved in this Case for the Plaintiff that the Plea ought to be put in upon Oath for having pleaded that he could not sell without loss he ought to swear it Fitzh Accompt 47. But no Opinion was delivered herein only the Chief Iustice said that the Plaintiff ought to have required the Plea upon Oath for otherwise it was not necessary But for the substance of the Plea it was held ill and Iudgment was given for the Plaintiff Harris's Case SErjeant Hopkins moved for a Prohibition The Case was Husband dies his Wife Executrix she dies before Probate Administration must be to the next of kin of the Husband 22 23 Car. 2. cap. 10. A Man makes a Will and appoints his Wife to be Executrix and devises a Shilling to his Daughter for a Legacy and dies the Executrix before Probate of the Will dies also intestate and whether the Goods shall be distributed by the Act for settling Intestates Estates amongst the next of kin to the Executrix or to the next of kin to the Testator her Husband was the Question Since she dying before Probate her Husband in Iudgment of Law died also intestate This Case seems to be out of the Statute the Husband having made a Will and the Act intermeddles only where no Will is made The Court delivered no Iudgment in it but seemed to incline that the Statute did extend to this very Case and that Administration must be committed to the next of kin of the Husband but if there should be no distribution it must then be according to the Will of the Testator Reder versus Bradley IT was moved to reverse a Iudgment given in an Honour Court upon a Writ of false Iudgment brought here Judgment reversed in an inferior Court where the damage was laid to 30 l. The Plaintiff declared in the Action below that there was a Communication between him and the Defendant concerning the Service of his Son and it was agreéd between them that in consideration the Plaintiff would permit his Son to serve him the Defendant promised to pay the Plaintiff 30 s. The Plaintiff avers that he did permit his Son to serve him and that the Defendant hath not paid him the 30 s. There was a Verdict for the Plaintiff and the Exceptions now taken were 1. 'T is not said that the Iurors were electi ad triand ' c. 2. He lays his damage to 30 l. of which a Court Baron cannot hold Plea for the difference taken by my Lord Coke is where Damages are laid under 40 s. Costs may make it amount to more but where 't is laid above in such Case all is coram non Judice for which reason Iudgment was reversed but in this Court the Iudge doth not pronounce the Reversal as 't is done in the Kings Bench. Lane versus Robinson Inferior Court TRespass for taking of his Cattel the Defendant justifies by vertue of an Execution in an Action of Trespass brought in a Hundred Court and the Plaintiff demurred Serjeant Pemberton took two Exceptions to the Plea 2 Cro. 443 526. Hob. 180. Sid. 348. 1. Because the inferior Court not being of Record cannot hold Plea of a Trespass quare vi armis contra pacem but it was not allowed for Trespasses are frequently brought there and the Plaintiff may declare either vi armis or contra pacem Postea 2. The Defendant reciting the Proceedings below saith taliter processum fuit whereas he ought particularly to set forth all that was done because not being in a Court
Case of * Sid. 233. the Marquess of Dorchester He is no more to be valued than the Black Dog which lies there which were Words of disesteem and only the Opinion of the Defendant in which Case Iudgment was affirmed in a Writ of Error Object If it be objected to what purpose this Statute was made if no Action lies upon it but what lay at the Common Law Answ The Plaintiff now upon the Statute must prosecute tam pro Domino Rege quam pro seipso which he could not do at the Common Law And it has beén held in the Starr-Chamber that if a Scandalum Magnatum be brought upon this Statute the Defendant cannot justifie because 't is brought qui tam c. and the King is concerned but the Defendant may explain the Words and tell the occasion of speaking of them if they are true they must not be published because the Statute was to prevent Discords Object These Words carry in them no disesteem Answ According to a Common Vnderstanding they are Words of disrespect and of great disesteem for 't is as much as to say that the Plaintiff is a Man of no Honour he is one who lives after his own Will and so is not fit to be employed under the King if any precedent discourse had qualified the speaking these Words it ought to have been shewn by the Defendant which is not done and therefore he concluded that the Words notwithstanding what was objected were actionable and so by the Opinion of him Wyndham and Scroggs Iustices Iudgment was given for the Plaintiff Atkins Iustice of a contrary Opinion Anonymus AN Action of Assault Battery Amendment after a Demurrer joyned and before Judgment given good Wounding and false Imprisonment for an hour was brought against the Defendant who pleads quoad venire vi armis Not-Guilty and as to the Imprisonment he justified as Servant to the Sheriff attending upon him at the time of the Assize from whom he received a Command to bring the Plaintiff being another of the Sheriffs Servants from the Conventicle where finding of him he to wit the Defendant did molliter manus imponere upon the Plaintiff and brought him before his Master quae est eadem transgressio To this the Plaintiff demurred and shewed for Cause 1. That the Substance of the Iustification is not good 2 Cro. 360. because the Servant could not thus justifie though his Master might for the Lord may beat his Villain without a Cause but if he command another to do it an Action of Battery lies against him 2 H. 4. 4. But though this might have been good if well pleaded yet 't is not good as pleaded here for 2. The Defendant saith quoad venire vi armis Not-Guilty Harding and Ferne Postea but saith nothing of the wounding which cannot be justified and therefore this Plea is not good for which reason it was clearly resolved that the Plea was ill but the Court inclined that the Substance of the Plea was well enough The Chief Iustice and Iustice Scroggs were of Opinion that a Man may as well send for his Servant from a Conventicle as from an Alehouse and may keep him from going to either of those places And the Chief Iustice said that he once knew it to be part of a Marriage Agreement that the Wife should have leave to go to a Conventicle But in this Case Leave was given to amend the Plea Sid. 107. and put in quoad vulnerationem Not-Guilty and it was held that though the Parties had joined in Demurrer yet the Defendant might have Liberty to amend before Iudgment given Singleton versus Bawtree Executor Traverse must be where the Charge in the Declaration is not fully answered ASsumpsit against the Defendant as Executor who pleads the Testator made one J. S. Executor who proved the Will and took upon him the Execution thereof and administred the Goods and Chattels of the Testator and so concludes in Abatement Et petit Judicium de Brevi with an Averment that J. S. Superstes in plena vita existit To this Plea the Plaintiff demurred because the Defendant ought to have traversed absque hoc that he was Executor or administred as Executor and so are all the Pleadings 9 H. 6. 7. 4 H. 7. 13. 7 H. 6. 13. But Serjeant Pemberton for the Defendant said that there is a difference when Letters of Administration are granted in case the Party die intestate and when a Man makes a Will and therein appoints an Executor for in that Case the Executor comes in immediately from the death of the Testator but when a Man dies intestate the Ordinary hath an Interest in the Goods and therefore he who takes them is Executor de son tort and may be charged as such but 't is otherwise generally where there is a Will and a rightful Executor who proveth the same for he may bring a Trover against the Party for taking of the Testators Goods though he never had the actual possession of them and therefore the taking in such case will not make a Man Executor de son tort because there is another lawful Executor but 't is true that if there be a special Administration 't is otherwise as if a Stranger doth take upon him to pay Debts or Legacies or to use the Intestates Goods such an express Administration will make him Executor de son tort and liable as in Read's Case 5 Co. So in this Case the Defendant pleads that J. S. was Executor which prima facie discharges him for to make him chargeable the Plaintiff ought in his Replication to set forth the special Administration that though there was an Executor yet before he assumed the Execution or proved the Will the Defendant first took the Goods by which he became Executor of his own Wrong and so to have brought himself within this distinction which was the truth of this Case and that would have put the matter out of dispute which not being done he held the Plea to be good and so prayed Iudgment for the Defendant The Court were of Opinion that prima facie this was a good Plea for where a Man * 2 Sand. 28. confesses and avoids he need not traverse and here the Defendant had avoided his being chargeable as Executor de son tort by saying that there was a rightful Executor who had administred the Testators whole Estate but the Surmise of the Plaintiff and the Plea of the Defendant being both in the * 2 Cro. 579. pl. 9. Sid. 341. 1 Sand. 338. affirmative no Issue can be joined thereon and therefore the Defendant ought to have traversed that he was Executor or ever administred as Executor the rather because his Plea gives no full Answer to the Charge in the Declaration being charged as Executor who pleads that another was Executor and both these matters might be true and yet the Defendant liable as Executor de son tort which
Anno 30 Car. II. in Communi Banco The Case of one Randal and his Wife an Administrator c. Judgment may be avoided without a Writ of Error by a Plea where the Party is a Stranger to it DEBT upon a Bond against the Defendant as Administrator They plead a Iudgment recovered against the Intestate in Hillary Term 26 27 Car. 2. and that they had not Assets ultra The Plaintiff replies that there was an Action against the Intestate but that he dyed before Iudgment and that after his death Iudgment was obtained and kept on foot per fraudem The Defendant traversed the Fraud but did not answer the death of the Intestate and upon a Demurrer it was said for the Plaintiff that the Iudgment was ill and that he being a Stranger to it could neither bring a Writ of Error or Deceit and had no other way to avoid it but by Plea and that 't is put as a Rule That where Iudgment may be reversed by a Writ of Error the Party shall not be admitted to do it by Plea but a Stranger to it must avoid it by Plea because he is no Party to the Iudgment as if a Scire Facias be brought against the Bail 't is a good Plea for them to say that the Principal was dead before Iudgment given by way of excusing themselves to bring in the Body but 't is not good to avoid the Iudgment because 't is against the Record Cro. Eliz. 199. which must be avoided by Writ of Error 1 Roll. Abr. 449 742. The Court were of Opinion that the Plaintiff might avoid the Iudgment without a Writ of Error especially in this Case where 't is not only erroneous but void Hill versus Thorn IN an Arbitrament it was held by the Court Rules in an Award that if two things be awarded the one within and the other not within the Submission the later is void and the breach must be assigned only upon the first 2. If there be a Submission of a particular difference and there are other things in Controversie if in such Case a general Release is awarded 't is ill and it must be shewed on the other side to avoid the Award for that cause 3. If the Submission be of all differences till the 10th day of May 1 Sand. 33. and a Release awarded to be given of all differences till the 20th day of May if there be no differences between those two days the Award is good if any it must be shewed in Pleading 1 Roll. Abr. 257. otherwise the Court will never intend it 4. Smith and Shelbury Antea That reciprocal Covenants cannot be pleaded in barr of another and that in the assigning of a Breach of Covenant 't is not necessary to averr performance on the Plaintiffs side Staples versus Alden DEBT upon a Bond conditioned to deliver forty pair of Shooes within a Month at Holborn-Bridge to Henry Knight a Common Carrier to G. for the use of the Obligee Tender of Goods to the Man shall be a Tender to the Master The Defendant pleaded that in all that space of a Month Henry Knight did not come to London but that such a day at Holborn-Bridge he delivered forty pair of Shooes to A. G. the Carriers Porter To this Plea the Plaintiff demurred for that the Condition being to do something to a Stranger the Defendant at his peril ought to perform it 33 H. 6. 13. 4 H. 7. 4. like the Case where the Action of Debt was brought upon a Bond conditioned that the Defendant should give such a Release as the Iudge of the Prerogative Court should think fit the Defendant pleaded that the Iudge did not appoint any Release and it was adjudged no good Plea because the Obligation is on his part and he ought to tender a Release to the Iudge Cro. Eliz. 716. But on the other side it was said that a delivery to the Servant is a delivery to the Master himself and if parcels of Goods are delivered to the Porter and lost an Action lies against the Master Curia The Court absente North Chief Iustice held the Plea to be good and that such a Construction was to be made as was according to the intent of the Parties and that a delivery to the Man was a delivery to the Master whereupon Iudgment was given for the Defendant Gillmore versus Executor of Shooter In Banco Regis A new Act shall not take away an Action to which the Plaintiff was entituled at the Commencement of the Act. INdebitatus Assumpsit There was a Treaty of Marriage between the Plaintiff who was of kin to the Testator and the Daughter of one Harris with whom he afterwards had 2000 l. as the Marriage Portion and Mr. Shooter in his Life time promised to give the Plaintiff as much or to leave him worth so much by his Will This Promise was made before the 24th day of June before this Action brought the Marriage took effect Harris paid the 2000 l. and Shooter dyed in September following having made no payment of the Mony or any Provision for the Plaintiff by his Will This Action was commenced after Shooter's death and upon the Tryal a Special Verdict was found upon the Act of Frauds and Perjuries 29 Car. 2. c. 29 Car. 2. which Enacts That from and after the 24th day of June in the year 1677. no Action shall be brought to charge any person upon any Agreement made in consideration of Marriage c. unless such Agreement be in Writing c. And that this was a bare Promise without Writing And by Wyld and Jones absente Twisden Iudgment was given for the Plaintiff for it could not be presumed that the Act had a retrospect to take away an Action to which the Plaintiff was then intituled For if a Will had been made before the 24th day of June and the Testator had dyed afterwards yet the Will had been good though it had not been in pursuance of the Statute Aster versus Mazeen In C. B. IN Covenant Breach assigned did relate to three Covenants the Declaration concludes sic fregit Conventionem and good the Plaintiff declared upon an Indenture in which the Defendant had covenanted that he was seised in Fee c. and would free the Premisses from all Incumbrances in which there was also another Covenant for quiet Enjoyment and the Breach assigned was upon an Entry and Eviction by another and concludes sic Coventionem suam praedictam fregit in the singular Number And upon a Demurrer to the Declaration Maynard Serjeant said That the Breach did relate to all the three Covenants and therefore the Conclusion was ill because he did not shew what Covenant in particular and if he should obtain a Iudgment upon such a Declaration the Recovery could not be pleaed in Barr to another Action brought upon one of the other Covenants But Conyers for the Plaintiff said that Conventio is
Assurances c. of Land not being the Lands of the late King Queen Prince c. and not being Land sold for any pretended Delinquency since the first of June 1641. and all Statutes and Judgments suffered by the Offenders from being impeached from which it appears that the Parliament lookt upon entailed Lands as forfeited for if Estates made to others upon a valuable consideration had need of a Proviso to save them from Forfeiture à fortiori the Estates out of which those are derived have need of such a saving and therefore must be forfeit by the Act for which Reasons these Lands are forfeited As to the great Objection which hath been made and insisted on the other side and which is Trudgeons Case 22 Eliz. 1 Inst 130. Where Tenant in Tail was attainted in a Praemunire and it was adjudged that he should forfeit his Land but during his Life for though the Statue of 16 R. 2. cap. cap. 5. Enacts That in such Case their Lands Tenements Goods and Chattels shall be forfeited to the King yet that must be understood of such an Estate as he may lawfully forfeit and that is during his own life and therefore being general Words they do not take away the force of the Statute de donis so that his Lands in Fee-simple for life c. shall be forfeited but the Land entailed shall not during his life But the Answer is plain For in the Reign of R. 2. when the Statute of Praemunire was made Estates Tail were under a Perpetuity by the said Statute de donis which Statute is now much weakened in the Point of Alienation and the Law is quite altered since that time and 't is apparent by multitude of Presidents that such strict Constructions have not been made since that time to preserve Estates Tail from Forfeitures without special and particular Words 4 Co. 164. and therefore in the Case of Adams and Lambert which is a Case in Point the Iudges there construed Estates Tail to be forfeit for want of special Words in the Statute of 1 E. 6. cap. 14. to save it and that was only a Law made for suppressing of superstitious Vses upon a politick consideration but this is a much greater Offence intended to be punished by this Act in which there are demonstrations both from the Words and intent of the Law-makers to make this Estate forfeited to the Crown than in that Case so much relied on And Iudgment was given accordingly Wyld died before Iudgment was given but Iustice Twisden said he was of that Opinion and Jones Iustice concurred Basset versus Salter After an Escape the Plaintiff may have a Ca. Sa. or Sci. Fa. against the Sheriff IN an Action for an Escape the Question was whether the Plaintiff may take out a Ca. Sa. or have a Fi. Fa. against the Defendant after the Sheriff or Gaoler voluntarily suffer him to escape but the Court would not suffer it to be argued because it had been lately settled that it was at the Election of the Plaintiff to do either and upon a Writ of Error brought in the Exchequer-Chamber the Iudges there were of the same Opinion But in the Lord Chief Iustice Vaughan's time the Court of Common Pleas were divided but 't is since settled 1 Roll. Abridg. 901 902. If there be an Escape by the Plaintiffs consent though he did not intend it the Law is hard that the Debt should be thereby discharged as where one was in execution in the Kings Bench and some Proposals were made to the Plaintiff in behalf of the Prisoner who seeing there was some likelyhood of an Accomodation consented to a Meeting in London and desired the Prisoner might be there who came accordingly and this was held to be an Escape with the * If it had been by the consent of the Sheriff he could never take him again but the Plaintiff might Sid. 330. consent of the Plaintiff and he could never after be in Execution at his Suit for the same Matter Peck versus Hill In Communi Banco Bond good given in discharge of another Mod. Rep. 221. DEBT upon a Bond brought against the Defendant as Administrator who pleads that he gave another Bond in his own Name in discharge of the first Bond and upon Issue joined it was found for the Defendant and it was moved that Iudgment might not be entred hereupon because it was a bad Plea But North Chief Iustice and Wyndham and Scroggs Iustices were of Opinion that it was a good Plea because there was other Security given than what the Plaintiff had before for upon the first Bond he was only lyable de bonis Intestatoris but now he might be charged in his own Right Co. Lit. 122. b. which may be well said to be in full satisfaction of the first Obligation for where the Condition is for payment of Mony to the Party himself there if he accept any collateral thing in satisfaction 't is good If a Security be given by a Stranger it may discharge a former Bond and this in effect is given by such And 't is not like the Case in Hobert where a Bond was given by the same Party upon that very day a former Bond was payable and adjudged not a good discharge for the Obligee was in no better condition than he was before Iustice Atkins doubted but inclined that one Bond cannot be discharged by giving another though the Discharge be applied to the Condition of the Bond and for this he cited Cro. Car. 85. Cro. Eliz. 716 727. which was a Case adjudged so in Point and therefore this Plea upon Demurrer should have been over-ruled yet since Issue was taken upon it and a Verdict for the Defendant the Plea is helped by the Statute of Jeofails 32 H. 8. here being a direct Affirmative and Negative But as to that the Chief Iustice and Scroggs Iustice replied that an immaterial Issue no ways arising from the Matter is not helped as an Action of Debt upon a Bond laid to be made in London and the Defendant saith that it was made in Middlesex and this is tried 't is not aided by the Statute but there must be a Repleader But because it was sworn that the Obligor who was the intestate was alive four years after the time that the second Bond was given and for that reason it could not be given upon the accompt of the Defendants being liable as Administrator but must be intended a Bond to secure a Debt of his own therefore a new Trial was granted Cook and others versus Herle Covenant will lie in the personalty tho' the Grant be executed by the Statute of Uses which makes a Distress the proper remedy Mod. Rep. 223. IN Covenant the Case was this Charles Cook made a Iointure to Mary his Wife for life and died without Issue the Land descended to Thomas Cook his Brother and Heir who grants an Annuity or Rent Charge of 200 l. per
annum to the Plaintiffs in Trust for Mary and this was to be in discharge of the said Iointure Habendum to them their Heirs Executors Administrators and Assigns in Trust for the said Mary for Life with a Clause of Distress and a Covenant to pay the 200 l. per annum to the said Trustees for the use of the said Mary the Breach assigned was that the Defendant had not paid the Rent to them for the Use of Mary The Defendant demurred specially for that it appears by the Plaintiffs own shewing that here is a Grant of a Rent-Charge for life which is executed by the Statute of Vses and therefore there ought to have been a Distress for Non-payment which is the proper remedy given by the Statute and this Action will not lie in the personalty 2. 'T is said the Defendant did not pay it to the Plaintiffs for the use of Mary which is a Negative pregnant and implies that it was paid to them 3. 'T is not averred that the Mony was not paid to Mary and if 't is paid to her then the Breach is not well assigned Ex parte Quer. But Serjeant Baldwin for the Plaintiff replyed that it was not a Question in this Case whether this Rent Charge was executed by the Statute or not for quacunque via data an Action of Covenant will lie and that the Breach was assigned according to the Words of the Covenant and so prima facie 't is well enough for if the Defendant did pay the Mony to the Plaintiffs he may plead it and so he may likewise if he paid it to Mary Curia The Court were all of Opinion that this Rent-Charge was executed by the Statute of Vses by the express Words thereof which executes such Rents granted for Life upon Trust as this Case is and transfers all Rights and Remedies incident thereunto together with the possession to Cestuy que use so that though the power of distraining be limited to the Trustées by this Deéd yet by the Statute which transfers that power to Mary she may distrain also but this Covenant being collateral cannot be transferred The Clause of Distress by the express Words of the Act is given to the Cestuy que use but here is a double Remedy by Distress or Action for if the Lessée assign his Interest and the Rent is accepted of the Assignee yet a Covenant lies against the Lessée for Non-payment upon the express Covenant to * Hayes and Bickerstaff Hollis and Carr Antea pay so if a Rent be granted to S. and a Covenant to pay it to N. for his use 't is a good Covenant And it was agreed that the assignment of a Breach according to the Words of the Covenant is good enough and that if any thing be done which amounts to a performance the other side must plead it as in this Case the Defendant might have pleaded that the Mony was paid to Mary which is a performance in substance but it shall not be intended without pleading of it Whereupon Iudgment was given for the Plaintiff Read versus Dawson DEBT upon Bond against the Defendant as Executor Repleader after an immaterial Issue Issue was joyned whether the Defendant had Assets or not on the thirtieth day of November which was the day on which he had the first notice of the Plaintiffs original Writ and it was found for the Defendant that then he had not Assets It was moved for a Repleader because it was said this was an immaterial Issue for though he had not Assets then yet if he had any afterwards he is liable to the Plaintiffs Action But Barrel Serjeant moved for Iudgment upon this Verdict by reason of the Statute of 32 H. 8. which helps in Cases of Mispleading or insufficient Pleading 'T is true there are many Cases which after Verdict are not aided by this Statute as if there are two Affirmatives which cannot make an Issue or when after a Traverse Issue is joyned with an hoc petit quod inquiratur per patriam this is no Issue 2 Anders 6 7. Yelv. 210. Hob. 126. So if there be no Plea at all as if an Action is brought against Baron and Feme and she pleads only 2 Cro. 288. So if the Party puts himself super patriam where it should be tried by Record or if the Plea be nothing to the purpose or lie not in the Mouth of the Parties such immaterial Issues as these cannot be good The difference in Moor 867. is if the Plea on which the Issue is joyned hath no colourable pretence in it to barr the Plaintiff or if it be against an express Rule in the Law there the Issue is immaterial and so as if there was no Issue and therefore 't is not aided by the Statute but if it hath the countenance of a legal Plea though it want necessary matter to make it sufficient there shall be no Repleader because 't is helped after Verdict Here the Parties only doubt whether there were Assets at the time of the notice and 't is found there were none and so Iudgment was to be given accordingly and of that Opinion was the whole Court But Iustice Atkins was clear of Opinion that if the Parties join in an immaterial Issue there shall be no Repleader because 't is helped after Verdict by these Words in the Statute viz. any Issue 'T is not said an Issue joined upon a material Point and the intent of the Statute was to prevent Repleaders and that if any other Construction should be made of that Act he was of Opinion that the Iudges sate there not to expound but to make a Law for by such an Interpretation much of the benefit intended by the Act to the Party who had a Verdict would be restrained Curia The other Iustices were all of Opinion that since the making of this Statute it had been always allowed and taken as a difference that when the Issue was perfectly material there should be no Repleader but that it was otherwise where the Issue was not material And Iustice Scroggs asked merrily If Debt be brought upon a Bond and the Defendant pleads Robin Hood dwelt in a Wood and the Plaintiff joyns Issue that he did not this is an immaterial Issue and shall there not be a Repleader in such Case after Verdict Ad quod non fuit responsum Beaumont versus ........ Wager of Law THE Plaintiff brings an Action of Debt upon a Iudgment obtained against the Defendant in a Court Baron having declared there in an Action on the Case upon an Assumpsit and recovered The Defendant came to wage his Law and was ready to swear that he owed the Plaintiff nothing Sid. 366. but the Court held that he was not well advised for by the Recovery in the inferior Court it became now a Debt and was owing and being asked whether he had paid the Mony he answered that he owed nothing Whereupon the Court
and so North Chief Iustice said that it had been lately ruled in the Common Pleas. Afterwards the Court of Kings-Bench was moved for a Prohibition in this Case and it was denied so that in this Case there was the Opinion of all the three Courts This matter was so much laboured because twenty four Quakers were reported to be concerned in the Rate and they were unwilling to pay towards the Building of a Church Paget versus Vossius In B. R. A Trial at the Bar in Ejectione Firmae Judgment given upon the Construction of words in a Will Jones 73. 1 Ventris 325. in which the Iury found a special Verdict The Case was Viz. That Dr. Vossius the Defendant being an Alien and a Subject of the States of Holland falling into Disgrace there had his Pension taken from him by Publick Authority Afterwards he came into England and contracted a great Friendship with one Dr. Brown a Prebendary of Windsor Then a War broke out between England and Holland and the King issued forth his Proclamation declaring the said War and the Hollanders to be Alien Enemies Dr. Brown being seised of the Lands now in question being of the value of 200 l. per Ann. and upwards made his Will in these words in Writing Inter alia Viz. Item I give all my Mannour of S. with all my Freehold and Copyhold Lands c. to my dear Friend Dr. Isaac Vossius during his Exile from his own Native Country but if it please God to restore him to his Country or take him out of this Life then I give the same immediately after such restoration or death to Mrs. Abigal Hevenigham for ever A Peace was afterwards concluded between England and Holland whereby all Intercourses of Trade between the two Nations became lawful but Dr. Vossius was not sent for over by the States nor was there any offer of kindness to him but his Pension was disposed of and given to another That the Doctor might return into his own Country when he pleased but that he still continued in England And whether he or the Lessor of the Plaintiff Mrs. Heveningham had the better Title was the question Nota Dr. Vossius was enabled to take by Grant from the King Ex parte Quer. Pemberton Serjeant for the Lessor of the Plaintiff argued that the Estate limited to the Defendant is determined which depended upon the construction of this Devise He did agree that the Will was obscure and the intent of the Devisor must be collected from the circumstances of the Case and it is a Rule That according to the * 2 Cro. 62 371 416. intent of the Parties a Will is to be interpreted 'T is plain then that the Devisor never intended the Defendant an Estate for Life absolutely because it was to depend upon a Limitation and the Words are express to that purpose for he devises to him during his Exile c. Now the Question is not so much what is the genuine and proper sence and signification of those Words as what the Testator intended they should signifie 1. Therefore the most proper signification of the Word Exile is a penal Prohibiting a person from his Native Country and that is sometimes by Iudgment or Edict as in the case of an Act of Parliament and sometimes 't is chosen to escape a greater Punishment as in cases of Abjuration and Transportation c. But he did not think that the Testator took the Word Exile in this restrained sense for Dr. Vossius was never formally or solemnly Banished if that should be the sense of the Word then nothing would pass to the Doctor by this Will because the Limitation would be void and like to the Case of a Devise to a Married Woman durante viduitate and she dies in the life-time of her Husband or to a Woman Sole during her Coverture or of a Devise to A. the Remainder to the right Heis of B. and A. dies living B so that this could not be his meaning 2. The Word Exile in common parlance is taken only for absence from ones Native Country but this is a very improper signification of the Word and nothing but a Catachresis can justifie it and therefore the Testator could not intend it in this sense 't is too loose and inconsiderable an Interpretation of the Word for the Iudgment of the Court to depend on unless there were circumstantial Proofs amounting almost to a Demonstration that it was thus meant But it plainly appears by the following Words this was not the meaning of the Testator for 't is said If it please God to restore him to his Country which shews that there was some Providence or other which obstructed his return thither and so could not barely intend a voluntary absence for if so he might have expressed it viz. during his absence from his Country or till his return thither or whilst he should stay in England and not in such doubtful Words 3. By the Word Exile is meant a persons lying under the displeasure of the Government where he was born or of some great persons who have an Influence upon the Government or have an Authority over him which makes him think convenient considering such circumstances to withdraw himself and retire to some other place and this is a sense of the Word between both the former and even in the Common Law we are not strangers to the acceptation of the Word in that sense There is a Case omni exceptione major in the Writ of Waste which is fecit vastum de domibus venditionem de boscis exilium de hominibus 't is in the Register and in the Writ on the Statute of Marlebridge cap. 24. where by the exilium de hominibus is meant the hard usage of Tenants or the menacing of them whereby they flie from their Habitations 2 H. 6. 11. 'T is found in this Case that the Defendant was under the displeasure of his Governours the War broke out and therefore it might not then be safe for him to return and for that reason he might think it safe for himself to abide here and this Dr. Brown the Testator might know which might also be the reason of making the Will But now all acts of Hostility are past and so the Defendants recess is open and it hath pleased God to restore the Doctor but he is not pleased to restore himself for the Iury find he is not returned now if a Man hath an Estate under such a Limitation to do a thing which may be done when it pleaseth the party in such case if he neglect or refuse to do the thing the Estate is determined 15 H. 7. 1. If I grant a Man an Annuity till he be promoted to a Benefice and I provide a Presentation for him and he will not be Instituted and Inducted the Annuity ceases so shall the Estate in this Case because the Devisor seems to appoint it to the Defendant till he may return
of a Bond was that the Defendant should shew the Plaintiff a sufficient discharge of an Annuity who pleaded that he tendered a good and sufficient discharge in general without setting it forth it was not good Mod. Rep. 67. 3. The Plea is that the Indenture had the usual Covenants but doth not set them forth and for that cause 't is also too general In 26 H. 8. 1. The Condition was for the performance of Covenants one whereof was that he should make such an Estate to the Plaintiff as his Council should advise The Defendant pleaded that he did make such Conveiance as the Council of the Plaintiff did advise and the Plea was held ill and too general because he shewed not the Nature of the Conveyance and yet performance was pleaded according to the Covenant But notwithstanding these Exceptions the whole Court were of Opinion that this Plea was good for if the Defendant had set forth the whole Deed verbatim yet because the Lands are in Jamaica and the Covenants are intended such as are usual there the Court cannot judge of them but they must be tried by the Iury. He hath set forth that the Conveyance was by a Deed of Bargain and Sale which is well enough and so it had been if by Grant because the Lands lying in Jamaica pass by Grant and no Livery and Seisin is necessary if any Covenants were unreasonable and not usual they are to be shewed on the other side And so Iudgment was given for the Defendant Spring versus Eve Verdict cures the misrecital of the time of the Session of Parliament DEBT upon the Statute of 29 Eliz. cap 4. by the Sheriff for his Fées for serving of an Execution After Verdict for the Plaintiff it was moved in an arrest of Iudgment by Serjeant Pemberton because the time of holding the Parliament was mis-recited being mistaken in both the Statute Books of Poulton and Keble as it appeared by the Parliament Roll whereupon Iudgment was staied till this Term and the Court had Copies out of the Rolls of the time when the Parliament was held and they were all clear of Opinion that the time was mistaken in the Declaration and so are all the Presidents for the Plaintiff here declared that this Statute was made at a Session of Parliament by Prorogation held at Westminster 15 Febr. 29 Eliz. and there continued till the dissolution of the same whereas in truth the Parliament began 29 Octob. and not on the 15th of February for it was adjourned from that time to the 15th of February and then continued till it was dissolved My Lord Coke in his 4th Institutes fol. 7. takes notice of this mistake in the printed Books But the Court were all of Opinion Curia that though it was mistaken and ought to have been otherwise yet being after * Dyer 95. Yelvert 127. 2 Cro. 111. pl. 9. Br. Abr. tit Parl. 87. Verdict 't is well enough and the rather because this is a particular Act of Parliament and so they are not bound to take notice of it and therefore if it be mistaken the Defendant ought to have pleaded Nul tiel Record but since he hath admitted it by Pleading they will intend that there is such a Statute as the Plaintiff hath alledged and they could not judicially take notice of the contrary The Serjeant perceiving the Opinion of the Court desired time to speak to it being a new Point and told the Court that they ought to take notice of the Commencement of private Acts which the whole Court denyed And the Chief Iustice said that they were not bound to take notice of the Commencement of a general Act for the Court was only to expound it and though this had not been in the Case of a particular Act where 't is clear the Defendant ought to plead Nul tiel record yet being after Verdict 't is well enough because the Party took no benefit of it upon the Demurrer and because of the multiplicity of Presidents which run that way So in the Case upon the Statute of Tythes though it be mistaken yet it hath often been held good as if an Action be brought upon that Statute for not setting out of Tythes declaring quod cum quarto die Novembris anno secundo Edw. 6. It was Enacted c. and the Parliament began 1 Ed. 6. and was continued by Prorogation until 4 Novembris yet this hath often been held good and Multitudo errantium tollit peccatum And though in this Case the Parliament was adjourned but in that upon the Statute of Ed. 6. it was prorogued yet the Chief Iustice said that as to this purpose there was but little difference between an Adjournment and a Prorogation for an Adjournment is properly where the House adjourn themselves and a Prorogation is when the King adjourns them But Iustice Atkins doubted whether the Court ought not to take notice of the Commencement of a general Act and could have wished that there had been no such resolution as there was in the Case of Partridge and Strange in Pl. Commentaries for that he was satisfied with the Argument of Serjeant Morgan in that Case who argued against that Iudgment and held that he who vouched a Record and varies either in the Year or Term hath failed of his Record But since there had been so many Authoritis since in confirmation of that Case he would say nothing against it But he held that there was a manifest difference betwéen an Adjournment and a Prorogation for an Adjournment makes a Session continue but after a Prorogation all must begin de novo and that an Adjournment is not always made by themselves for the Chancellor hath adjourned the House of Péers ex mandato Domini Regis and Queen Elizabeth adjourned the House of Commons by Commission under the Great Seal 4 Iust 7 Mires versus Solebay Servant shall not be charged in Trover for taking Goods by the Command of his Master IN a Special Verdict in Trover and Conversion the Case was this viz. H. being possessed of several Sheep sells them in a Market to Alston but did not deliver them to the Vendée and afterwards in that very Market they discharge each other of this Contract and a new Agreément was made between them which was that Alston should drive the Sheep home and depasture them till such a time and that during that time H. would pay him so much every Week for their Pasture and if at the end of that time then agreed between them Alston would pay H. so much for his Sheep being a price then also agreed on that then Alston should have them Before the time was expired H. sells the Sheep to the Plaintiff Mires and afterwards Alston sells them to one Marwood who brought a Replevin against the Plaintiff for taking of the Sheep and the Officers together with Solebay the Defendant who was Servant to Marwood did by his Order and in assistance
here for want of * 2 H. 4. 12. Bro Accompt 24 65 89. privity and because there is no contract 't is only a tort a disseisin and the Plaintiff might have brought an Assise for this Office which lies at the Common Law and so it hath been adjudged in Jehu Webb's Case 1 Inst 212. 8 Co. 4. Which is also given by the Statute of Westm 2. cap. 25. for a profit apprender in alieno solo The Plaintiff might have brought an Action on the Case against the Defendant for disturbing of him in his Office and that had been good because it had been grounded on the wrong In this Case the Defendant takes the Profits against the will of the Plaintiff and so there is no Contract but if he had received them by the consent of the Plaintiff 6 H. 6.9 1 Roll. Abr. 597 pl. 5. yet this Action would not lie for want of privity 'T is true in the Case of the King where his Rents are wrongfully received the party may be charged to give an accompt as Bayliff so also may the Executors of his Accomptant because the Law createth a privity but 't is otherwise in the Case of a common person 10 Co. 114. b. 11 Co. 90. b. Because in all Actions of Debt there must be a Contract or quasi ex contractu and therefore where Iudgment was had and thereupon an Elegit and the Sheriff returned that he had apprised the Goods and extended such Lands which he delivered to the Plaintiff ubi revera he did not per quod actio accrevit which was an Action of Debt but it was adjudged that it would not lie because the Sheriff had not returned that he medled with the Goods or with the value of them and therefore for want of certainty how much to charge him with this Action would not lie but an Action on the Case for a false Return but if he had returned the Goods sold for so much Mony certain Godb. 276. 2 Sand. 344. 2 Cro. 566. which he had delivered then an Action of Debt would lie for though 't is not a Contract 't is quasi ex contractu Hob. 206. 3. Point The Iury find that the Defendant received the Profits for seven years and that the Plaintiff had his Patent but two years and do not shew what was received by the Defendant within those two years and then the Court cannot apply it But on the other side it was said by Sawyer Ex parte Quer. That this Non obstante was good for where an Act of Parliament comes to restrain the Kings power and prerogative it was always held so to be and he relied upon the Iudgment of 2 H. 7. f. 6. that the King might dispense with the Statute of 23 H. 6. Pl. Com. 502. b. Dyer 303. which he affirmed to be the constant Vsage ever since and that therefore the Law is so taken to be at this day As to the second Point both he and the Sollicitor General Winnington said That an indebitatus assumpsit would lie here for where one receives my Rent I may charge him as Bayliff or Receiver or if any one receive my Mony without my order though 't is a tort yet an indebitatus will lie because by the Receipt of the Mony the Law creates a promise and the Action is not grounded on the tort but on the receipt of the Profits in this Case As to the Objection about the finding they held that to be nugatory and idle for it cannot be intended that the Damages given were for the time the Defendant received the Profits before the Plaintiff had his Patent neither is there any thing found in the Verdict to that purpose In Michaelmas-Term following Judgment the Court gave Iudgment for the Plaintiffs 1. They held that the King might dispense with this Statute for the Subject had no interest nor was in any wise concerned in the Prohibition it was made only for the ease of the King Hob. 146. and by the like reason he might dispense with the Statute of 4 H. 4. 24. That a Man shall hold the Office of Dyer 203. Aulnager without a Bill from the Treasurer and with the Statute of 31 H. 6. 5. That no Customer or Comptroller shall have any Estate certain in his Office because these and such like Statutes were made for the ease of the Sovereign and not to abridge his Prerogative and that the general Clause of Non obstante aliquo alio Statuto was sufficient 2. 4 H. 7. 6. b. Moor 458 An Indebitatus Assumpsit will lye for Rent received by one who pretends a Title for in such case an Accompt will lye wherever the Plaintiff may have an Accompt an Indebitatus will lye As to the finding 't is well enough for the Iury assess Damages occasione praemissorum in narratione mentionat which must be for the time the Plaintiff had the Office and that a Patent would make a Man an Officer before admittance Steward Executor of Steward versus Allen. Demand must be made where an Interest is to be determined DEBT for a Rent reserved upon a Lease for years in which there was a Proviso That if the Rent be behind and unpaid by the space of a Month next after any or either of the Daies of payment then the Lease to be void The Plea was That the Rent was behind a Month after a day on which it was reserved to be paid and so the Lease is void to which Plea the Plaintiff demurred because the Defendant did not say that the Plaintiff demanded the Rent for though the Rent be due without demand yet the Interest shall not be determined without it which must be expressly laid in the Pleading and of that Opinion was the Court except Iustice Atkyns who doubted Searl versus Long. Quare Impedit real mainpernors must be returned upon the Summons Pone and Grand Cape 2 Inst 124. Mod. Rep. 248. IVdgment final was given in a Quare Impedit according to the Statute of Marlebridge cap. 12. Which Serjeant Pemberton moved to set aside He said that at the Common Law the Process in a Quare Impedit was Summons Pone and Distress infinite which being found mischievous in respect of a Lapse it was therefore provided by this Statute that if the disturbers do not appear upon the Summons then they shall be Attached to appear at another day c. Now here upon the Attachment the Sheriff hath returned Attachiatus fuit by John Doe and Richard Roe who are feigned persons and not mainpernors for the Defendant hath made Oath That he did not know any such persons neither was he ever Attached so that 't is not only a matter of Form for he ought to have that notice which the Law requires it being so penal upon him 'T is probable this Mistake might arise from Mr. Dalton who in his Book of the Office of Sheriffs in the Returns of Writs
there hath put down these feigned Attachers for Examples sake from whence the Sheriff in this Case might inferr that they need not be real persons as in truth they ought both upon the Summons Pone and Distress and he cited a Case lately adjudged where the like Return was made upon the Grand Cape and the Iudgment set aside and of this Opinion was the whole Court and said Where the Process is so fatal the Party ought to be duly served and that the Sheriff ought to have gone to the Church and to have seised the Profits and if there be nothing to return a Nihil and though the Iudgment was given before the Term or long since yet when 't is Irregular 't is to be set aside and so it was now and being moved again the Court continued of their former Opinion The like Case was moved in Michaelmas-Term following between Fleming and Lee where the Patron Defendant was thus summoned and never appeared and the Incumbent did cast an Essoign and a Case was cited betwéen Vivian and the Bishop of London Mich. 23 Car. 2. in C. B. where the like Iudgment was set aside But on the other side it was objected that leaving due notice upon the Summons was as much as was required for the other Writs are only to give the Defendant time to plead and therefore 't is not necessary that notice should be given upon every one of the Writs for if once served 't is enough 11 H. 6. 3 4. 36 H. 6. 23. 8 H. 6. 8. Long 5 to E. 4. 26. 29 E. 3. 42 43. Doctor and Stud. 125 126. 21 H. 6. 56. But the Court were of Opinion that the Defendant having not appeared nor cast an Essoign and Iudgment final being given Curia it was reason that all the Process should be served really of which there had been no occasion if he had either appeared or essoined and therefore the Process not being duly served Iudgment was set aside Rast Ent. 217. And they held that the Essoign of the other Defendant was no wise binding to the Patron Defendant because they may sever in Pleading and so that Iudgment was likewise set aside DE Term. Sancti Mich. Anno 29 Car. II. in Communi Banco Sir John Otway versus Holdips Executor c. Bond to pay 40 l. when an Accompt shall be stated 't is a Covenant and not a Solvendum DEBT upon Bond brought by the Plaintiff against the Defendant as Executor wherein the Testator did acknowledge himself to be indebted to the Plaintiff in 40 l. which he thereby did covenant to pay when such a Bill of Costs should be stated by two Attornies indifferently to be chosen between them and sets forth in his Declaration that he named one Attorny and desired the now Defendant to name another which he refused and so intitles himself to this Action The Defendant pleads Non detinet to which the Plaintiff demurred But the Plea was not offered to be maintained because the Executor cannot plead Non detinet but where the Testator himself might plead Nil debet which in this Case he could not do But it was insisted that the Declaration is not good because the Mony was to be paid upon an accompt stated which not being done by the Plaintiffs own shewing 't is not yet due and this ought to be taken as penned viz. Solvendum and not an express Covenant But on the contrary it was held not to be a Solvendum but a Covenant to pay the Mony the Debt and the Duty being in the first place ascertained but if it be a Solvendum and repugnant to the Obligatory Clause 't is void 21 Ed. 4.36 As the Defendant would have it expounded it would be in his power totally to defeat the Bond either way for if he would never chuse an Attorny there could be never any thing due The whole Court were of Opinion that it was not a Solvendum but a Covenant which did not take away the Duty ascertained by the Obligation and if it should not be a Covenant but an entire Bond then it would be in the Power of the Obligor whether ever it shall be payable but be it either the one or the other the Plaintiff having named an Attorny ought to recover and Iudgment was accordingly given for him Dunning versus Lascomb DEBT on a Bond the Condition was to pay Mony when a Ship should go from A. to C. and from thence to Bristol and should arrive there or at any other Port of discharge in England the Ship going from A. to C. took in Provisions at Bristol but not to be discharged there but proceeded in her Voiage to Cales and was cast away And by the Opinion of the Court the Mony was not payable but if he had never intended to perform the Voyage it might have been otherwise 1 Roll. Abr. 142. 39 H. 6.10 Iudgment for the Defendant nisi Atkins versus Bayles AN Information was exhibited against the Defendant Outlary pleaded to an Information good being a Iustice of the Peace for refusing to grant his Warrant to suppress a Conventicle The Defendant pleads an Outlary in disability and the Plantiff demurred 1. 3 Inst 194. This Plea is not good because the King is interested qui tam c. and therefore where the Informer dies the Attorny General may proceed 2. The Statute gives power to any person to inform c. by which general Words the Disability of this person is removed But the Court held that there was no colour in either of these Objections 3. 'T is not pleaded sub pede sigilli sed non allocatur for it need not be so pleaded being in the same Court 4. 'T is not averred that the Plaintiff was the same person who was outlawed but it was answered that the praedictus makes that certain and that though the King be interessed yet the Informer only is Plaintiff and intituled to the benefit and that though he was disabled yet he might sue for the King Moor 541. Dyer 227. b. Cro. Eliz. 583. but not for himself and therefore Iudgment was given that the Plea was good Harwood Bincks versus Hilliard c. Notice where 't is agreed to be in writing must be so pleaded BY an Agreement between the Plaintiffs and the Testator of the Defendant a parcel of Lands was to be sold for 400 l. but if it did not arise to so much then they covenanted with each other to repay proportionable to the Abatement and the Defendant's Testator covenanted for himself and his Executors to pay his proportion to the Plaintiffs so as the Plaintiffs gave him notice in writing of the said Sale by the space of ten days but doth not say that such notice was to be given to his Executors or Administrators And now the Plaintiffs averred that they gave notice accordingly to the Defendant who was Executor and the breach assigned was that he hath not paid c. The
reason alone the Plaintiff had no cause of Demurrer for the Defendant may well disclose the matter of Law in Pleading which is a much cheaper way than to have a Special Verdict and that this is on the same reason of giving of colour but if the matter by which the Defendant justifies be all matter of Fact and proper for the Tryal of a Iury then the Dfendant ought to plead the General Issue And as to the Matter of the Plea the Chief Iustice and Wyndham Iustice held it to be good for the Common which was pleaded was a Common by Grant and not argumentatively pleaded for if the Defendant had pleaded an express Grant of Common in those two places and the Plaintiff had demanded Oyer of the Deed it would have appeared that there was no such Deed and this had been a good cause of Demurrer If this Plea should not be good it would be very mischievous to the Defendant for there being a perpetual Vnity as to the Freehold there can be no Prescription to the Common but there being a constant enjoyment thereof by the Tenants and so a perpetual Vsage and a Grant made referring to that Vsage 't is well enough And since whilst the Lands were in possession of the Lord the Commoners could not complain of a Surcharge why should they if he grant the Premisses the Granteé being in loco c. In the Case of the King a Grant of tot talia Libertates Privilegia quot qualia the Abbot lately had 9 Co. 23. Abbot de Strata Marcella was held good by such general Words Here the Lord Paget granted to the Defendant that which the Lessées had before viz. that Common which the Tenants had time out of mind and it cannot be conceived but that the Tenants had a Right for as a Tort cannot be presumed to be from time immemorial so neither shall it be intended that the Lord gave only a Licence and permitted his Tenants to enjoy this Common But Iustice Atkins was of Opinion that the Plea was not good he said he knew not by what Name to call this Common for it was no more than a Permission from the Lord that the Tenants might put their Cattle into his Freehold or a Connivance at them for so doing and if it be taken as a new Grant then nothing can pass but the Surplus for the Lord cannot derogate from his former Grant and the new Grantee shall not put in an equal proportion with him who hath the Prescription for if he may then such Prescription would be quite destroyed by such puisne Grant for as the Lord might grant to one so he might to twenty and then there would not be sufficient Common left for him who prescribes to the Right So that he conceived that the Defendant had no Right of Common or if he had any it would not be till after the Right of the Plaintiff was served and he said that Vsage shall not intend a Right but it may be an Evidence of it upon a Tryal But if there had been an Vsage 't is now lost by the Vnity of the Possession and shall not be revived by the new Grant like the Case of Massam and Hunter Yelv. 189. there was a Copyholder of a Messuage and two Acres in Feé which the Lord afterwards granted and confirmed to him in Fee cum pertinentiis it was adjudged that though the Tenant by Vsage had a Right to have Common in the Lord's Wast yet by this new Grant and Confirmation that Right was gone the Copyhold being thereby extinguished for the Common being by Vsage and now lost these Words cum pertinentiis in the new Grant will not revive it But notwithstanding Iudgment by the Opinion of the other three Iustices was given for the Defendant Week's Case A Prohibition was prayed to the Ecclesiastical Court at Bristol the Suggestion was that he was excommunicated for refusing to answer upon Oath to a Matter by which he might accuse himself viz. to be a Witness against another that he himself was present such a day and saw the other at a Conventicle which if he confessed they would have recorded his Confession of being present at a Meeting and so have proceeded against him The Court granted a Prohibition but ordered him to appear in the Ecclesiastical Court to be examined as to the other persons being there Anonymus A Man wins 100 l. of another at play Gaming not within the Statute where the Security is given to a third person the Winner owed Sharp 100 l. who demanded his Debt the Winner brought him to the other of whom he won the Mony at Play who aknowledged the Debt and gave Sharp a Bond for the payment of the 100 l. who not being privy to the Matter or knowing that it was won at Play accepted the said Bond and for default of payment puts it in Suit the Obligor pleads the Statute of Gaming The Plaintiff in his Replication discloseth the Matter aforesaid and saith that he had a just Debt due and owing to him form the Winner and that he was not privy to the Monies being won at Play c. and that he accepted of the said Bond as a Security for his Debt and the Defendant demurred And the Court were all of Opinion Hill and Phesant Antea that this Case was not within the Statute the Plaintiff not knowing of the Play and though it be pleaded that the Bond was taken pro Securitate and not for satisfaction of a just Debt it was held well enough like the Case of Warns and Ellis Yelv. 47. Warns owed Alder 100 l. upon an usurious Contract and Alder owed the Plaintiff Ellis 100 l. for which they were both bound and in an Action of Debt brought upon this Bond Warns pleads the Statute of Vsury between him and Alder and Ellis replyed as the Plaintiff here and upon a Demurrer it was adjudged for the Plaintiff by thrée Iudges because the Plaintiff had a real Debt owing him and was not privy to the Vsury And upon this Case the Court relyed and said the Reason of it governed this Case at the Barr whereupon Iudgment was given for the Plaintiff Tissard versus Warcup INdebitatus Assumpsit for 750 l. laid out by the Plaintiff for the use of the Defendant Vpon Non assumpsit pleaded there was a Tryal at the Barr and the Evidence was that the Defendant and another now deceased farmed the Excise that the Mony was laid out by the Plaintiff on the behalf of the Defendant and his Partner and that the Defendant promised to repay the Mony out of the first Profits he received Curia And by the Opinion of the whole Court this Action would not lie 1. Two Partners being concerned the Action cannot be brought against one alone he ought in this Case to have set out the death of the other But if Iudgment be had against one the Goods in Partnership may be
as much as is required by Law 'T is true a Subject is bound to serve the King in such capacity as he is in at the time of the Service commanded but he is not obliged to qualifie himself to serve in every capacity Neither doth it appear in this Case that the Defendant was able to remove this Incapacity and that should have been shewn on the other side and all Iudges are to judge upon the Record The intent of the Statute is That if persons will not qualifie themselves they shall not execute any Office and it was made to keep Roman Catholicks out of Places but not to force them to accept of Offices of Trust in the Government and it designs no punishment for quitting but for executing of a place contrary to the Law but if this be an Offence this Information will not lie and for that 2. It was argued That if a thing be either commanded or forbidden by a Statute the transgression in either Case is an Offence punishable by Information 25 H 6. pl. 9. b. 7 H. 4. 5. but when an Act doth not generally command a thing but only sub modo the party offending is punishable no otherwise than designed by that Law as where the Statute of 18 H. 6. cap. 11. prohibits any Man from being a Iustice of the Peace unless he have 40 l. ê‘ AnÌ„ and the Statute of 5 6 E. 6. cap. 16. which makes such Bargains as are therein mentioned about buying of Offices void if such Office be forfeitable then an Information will lie but when 't is ipso facto void as in both the former Cases then 't is otherwise because the punishment is executed by the Statute it self and therefore where the avoidance is made by the Act there is no need of an Information And the Objection of impotentia voluntatis is not material to this purpose because Symony buying of Offices not subscribing the 39 Articles according to the Statute of the Queen these are all voluntary Acts yet no Information lies against such Offenders because the Statutes execute the punishment The intent of the Parliament is here declared the disability of the person makes the Office void void to all intents for the Right of Infants or Men in Prison is not saved so that admitting it to be an Offence if the Duty be not performed yet if such a qualification be requisit to make a Man to act in such an Office or perform such a Duty if that qualification be wanting the Party is only punishable by the loss of the Office The Act doth not distinguish between Offices of Trust and Profit And as to the other Objection viz. That 't is in the power of the Defendant to qualifie himself the same might as well be objected against all the Popish Recusants upon the Statute of 3 Jac. and if a Statute doth disable persons or abridge the King of their Services there is no injury done because the King himself is party to the Act but if mischiefs were never so great since they are introduced by a Law they cannot be avoided till that Law is changed 3. But admitting the Information to be good and that this is an Offence for which it will lie yet the Excommunication is a sufficient excuse it appears by the Verdict that the Defendant was absolutely disabled to be Sheriff for if he is to take the Oath and receive the Sacrament in order to it if he cannot be admitted to the Sacrament as being under the Sentence of Excommunication that is an excuse The Defendant is only argued into a Guilt for the Iury have not found any they do not say that it was in his power to yield Obedience or that he might have enabled himself they only find his incapacity and though it was a voluntary Act which was the cause of his disability yet in such Cases the Law doth not look to Causes so remote If a Man be in Prison for Debt it is his own Act for contracting it and not paying but yet an Outlary against him whilst in Prison shall be reversed because the immediate Cause viz. the Imprisonment and the Iudgment was in invitum and the Law looks no farther and so Iudgment was prayed for the Defendant But the Court were all of Opinion that this Information would lye and that the Defendant was punishable for not removing the disability it being in his power to get himself absolved from the Excommunication And so Iudgment was given against him and a Writ of Error brought c. Godfrey versus Godfrey In Communi Banco Intrat ' Hill ult Rot. 321. DEBT upon a Bond for performance of an Award Award of a lesser Sum in satisfaction of a greater and good in which the Arbitrators had taken notice of 72 l. in controversie and had awarded 50 l. in satisfaction The Defendant pleads Nullum fecerunt Arbitrium the Plaintiff replies an Award and sets it forth and assigns a Breach to which the Defendant demurred because it appeared by the Award that 72 l. was in controversie for Rent due and that 50 l. was awarded in full satisfaction of 72 l. and general Releases to be given but it did not appear that any other Matter was in Controversie between the Parties though the Submission was general and Arbitrators may reduce incertain things to a certainty but they cannot make a Debt certain to be less except there were other differences for which likewise this Release was to be given 10 H. 7. 4. But the whole Court were of Opinion that the Award was good Curia for that the Arbitrators might consider other Matters between the Parties neither did it appear by the Award that the 72 l. was due but in demand only and 't is unreasonable for him to find fault with his own case for he alledges that he ought to pay 72 l. and complains because the other Party is contented with 50 l. and demands no more Iudgment for the Plaintiff Wright versus Bull. Condition where 't is disjunctive 't is in the Election of the Party to have either DEBT upon a Bond for payment of 40 l. The Condition whereof was That if the Defendant should work out the said 40 l. at the usual Prices in packing when the Plaintiff should have occasion for himself or his Friends to imploy him therein or otherwise shall pay the 40 l. then the Bond to be void The Defendant pleads that he was always ready to have wrought out the 40 l. but that the Plaintiff did never imploy him and upon Demurrer the Plea was held ill because the Defendant did not averr that the Plaintiff had any occasion to make use of him and for that it was at his Election either to have Work or Mony Basket and Basket Antea and not having imployed him but brought his Action that is a request in Law and so he hath determined his Election to have the Mony and Iudgment was accordingly given for the