Bradburn versus Kennerdale 318 Brason versus Deane 39 Brett versus Whitchott 96 Bridgham versus Frontee 94 Broad versus Piper 268 Burgh's Case 67 C. CAlthrop versus Axtel 168 Capel versus Saltonstal 249 Carter versus Dowrish 226 Chapman versus Lamphire 155 Clarke versus Hoskins 79 Claxton versus Swift 86 Coghil versus Freelove 325 Cole versus Knight 277 Cross versus Garnett 261 D. DAvies Case 246 Dawling versus Venman 108 Dixon versus Robinson 107 Dobson versus Thornigrove 112 Doe versus Dawson 274 Dorrington versus Edwyn 56 E. ECcleston versus Speke 258 Evans versus Crocker 198 F. FItzgerald versus Villiers 236 Fisher versus Wrenn 250 Franshaw versus Bradshaw 235 Friend versus Bouchier 81 G. GRandison Lord versus Countess of Dover 23 Grantham Mil ' his Case 120 Godfrey versus Eversden 264 Gold versus Strode 324 Goring versus Deering 156 H. HAcket versus Herne 134 Hall versus Wybank 311 Hamson Serjeant his Case 89 Hanchet versus Thelwell 104 Harman versus Harman 115 Harrison versus Austin 237 Harrison versus Heyward 295 Hebblethwait versus Palmes 48 Hexam versus Coniers 238 Heyward versus Guppee 191 Hicks versus Gore 84 Hyley versus Hyley 228 Hinton versus Roffey 35 Hitchins versus Bassett 203 Hobbs qui tam versus Young 313 Hoile versus Clerke 218 Holcomb versus Petit 113 Holloway's Case 42 Horner's Company versus Barlow 158 I. JAckson versus Warren 78 Jefferies Mil ' versus Watkyns 161 Jennings versus Hankeys 114 Joyner versus Pritchard 103 K. KEllow versus Rowden 253 King versus Dilliston 221 Knight versus Cole 277 Knight Mil ' Case 117 Kingston versus Herbert 119 The King against Ayloffe 72 The King against Armstrong Mil ' 47 The King against Atkyns Mil ' 3 The King against Barns 42 The King against Baxter 68 The King against Beale 124 The King against Bunny 238 The King against Cony al' 37 The King against Colson al' 72 The King against Dangerfield 68 The King against Darby 139 The King against Fairfax 269 The King against G l. 97 The King against Griffith 201 The King against Grimes al' 220 The King against Hethersel 80 The King against Hinton al' 122 The King against Hockenhal 167 The King against Inhabitants of Malden The King against Johnson 241 The King against Kingsmill 199 The King against Lenthal 143 The King against Marsh al' 66 The King against Plowright al' 94 The King against Rosewell 52 The King against Saloway 100 The King against Sellars 167 The King against Silcox 280 The King against Sparks 78 The King against Warden of the Fleet 335 L. LAngford versus Webber 132 Lambert versus Thurston 275 Lea versus Libb 262 Leigh's Case 332 Letchmere versus Thorowgood 236 Lidcott versus Willows 229 Lock versus Norborne 141 Lutwich versus Piggot 268 M. MAcklesfield Earl 41 Malloon versus Fitzgerald 28 Marsh versus Cutler 41 Mason versus Beldham 73 Mather versus Mills 252 Matthews versus Cary 137 Mayor and Cominalty of Norwich versus Johnson 90 Merchants Adventurers versus Rebow 126 Mordant versus Thorold 281 Moss versus Archer 135 N. NEwton al' versus Stubbs 71 Newton Mil ' versus Creswick 165 Newton versus Trigg 327 Norwich Mayor c. versus Johnson 90 O. OBrian versus Ram 170 Okel versus Hodgkinson 99 Osborn versus Steward 230 P. PAine versus Partrich 289 Palmer versus Allicock 58 Panton versus Earl of Bath 227 Parkinson's Case 265 Pawley versus Ludlow 87 Peak versus Mather 103 Perkins versus Titus 132 Pitt versus Brereton 70 Plimouth Countess versus Throgmorton 153 Pool versus Trumbull 56 Price versus Davies 152 Prince's Case 295 Proctor versus Burdet 69 Prodgers versus Frazier 43 Proud versus Piper 268 Prowse versus Wilcox 163 Putt versus Rawsterne 1 R. REves versus Phelpes 264 Reeves versus Winnington 45 Roberts versus Pain 67 Rodney versus Strode 101 Roe versus Clargis Mil ' 26 Rowsby versus Manning 330 S. SAvier versus Lenthall 273 Shipley versus Chappel 232 Shotter versus Friend 283 Shuttleworth versus Garnat 239 Smith versus Goodier 36 Smith versus Peirce 195 T. TAyler versus Brindley 136 Thirsby versus Helbott 272 Thompson versus Leach 296 Idem versus Eundem 301 Tippet versus Hawkey 263 U. UPton versus Dawkin 97 W. WHitehal versus Squire 276 Wytham Mil ' versus Dutton Mil ' 159 Woodward's Case 211 Y. YArmouth Earl versus Dorrell 75 Young versus Inhabitants of Tottenham 258 DE Term. Sancti Mich. Anno 34 Car. II. in Banco Regis 1682. Sir Francis Pemberton Chief Justice Sir Thomas Jones Justices Sir William Dolben Justices Sir Thomas Raymond Justices Putt versus Rawstern Mil ' AN Action of Trespass was formerly brought for taking of Goods c. and upon Not-guilty pleaded Trespass is no Barr to Trover for the same Goods Raymond 472 the Defendant had a Verdict The same Plaintiff now brought Trover against the same Defendant for those Goods The Defendant pleads in Barr the Iudgment in the former Action of Trespass and upon a Demurrer the Question was Whether a Iudgment in Trespass vi armis may be pleaded in Bar to an Action of Trover for the same Goods This Case was argued by Mr. Saunders for the Plaintiff and by Mr. Pollexfen for the Defendant And to prove that it was no Bar Lacon versus Bernard Cro. Car. 35. Hutt 81. Stiles 202. a Case was cited to be adjudged in the Common Pleas in the 20th year of King James which was an Action of Trover and Conversion of one hundred Sheep The Defendant pleaded a former Iudgment in Trespass brought against him quare cepit abduxit those Sheep and that the Plaintiff in that Action recovered 2 d. damages and that both Actions were for the same thing The Plaintiff replied that the two pence damages were recoverd for the chasing and not for the value of the Cattle and upon a Demurrer had Iudgment For the smalness of the damages implies it was for the chasing and it shall therefore be intended that he had his Cattle again and that the Conversion was afterwards My Lord Coke in Ferrer's Case tells us Ferrer 's Case 6 Co. 7. Cro. Eliz. 676. Co. Ent. 39. Cro. Jac. 15. that a Recovery by Verdict Confession or upon a Demurrer in a personal Action is a good Bar to an Action of the like nature and for the same thing but that must be understood where the same Evidence will maintain both the Actions Iustice Croke reports the same Case to be ended by Arbitration but that it was the Opinion of my Lord Anderson and Iustice Glanvil that Trover and Trespass are Actions of different natures and one may be brought where the other cannot be maintained as upon a demand and denial Trover will lie but not Trespass vi armis because the taking was not tortious And therefore it may be well intended that when the Plaintiff brought Trespass he was
of Wills did not Originally belong to the Spiritual Courts de jure they had that Authority per consensum Regis Magnatum And as those Courts had not original Iurisdiction in such Cases so they had no power to grant Administration 'till enabled by the Statute of Edw. 31 Ed. 3. cap. 11. 3. For before that time the Kings of England by their proper Officers solebant capere bona intestatorum in manus suas 'T is plain that the Ordinary had no power by the Common Law over an Intestate's Estate for he could not maintain an Action to recover any part of it now if the Law had given him a power over the Goods it would likewise have given him an Authority or Remedy to recover them An Action would have lain against him at the Common Law 13 E. 1. cap. 19. and by the Statute of Edw. 1. which was made in affirmance thereof if he had possessed himself of such Goods and refused to pay the Debts Then since he hath no original Power in this Case and this being a special kind of Administration when he hath once executed that power he shall not repeal it and the Court enclined to that Opinion vid. 9 Rep. Henslow's Case DE Term. Sancti Mich. Anno 35 Car. II. in Banco Regis 1683. Roe versus Sir Thomas Clargis IN a Writ of Error Papist is actionable Raymond 482. upon a Iudgment in the common-Common-Pleas in an Action upon the Case wherein the Plaintiff declar'd That the King had made him one of his Privy Council in Ireland and that he was a Deputy Lieutenant of the County of Middlesex and had serv'd in several Parliaments for the Burrough of Christ-Church in Hampshire and that the King having summon'd a Parliament to meet at Westminster he did stand to be a Member of that Burrough and that the Defendant Roe did then speak these words of him Viz. He meaning the Plaintiff is a Papist Vpon a Tryal there was a Verdict and a Iudgment for the Plaintiff This Case was argued by Sir Francis Winnington for the Plaintiff in the Errors and by Mr. Roger North for the Defendant The Questions were these 1. Whether the words abstracted from the Offices set forth in this Declaration were actionable or not 2. Whether they are actionable as joined to those Capacities The Councel for the Plaintiff in the Errors held the Negative in both Points 1. The word Papist is not defin'd either by the Common Law or the Statutes of this Realm for from the first of the Queen to the 25 Car. 2. it is not to be found what a Papist is There are several Statutes between those times which provide against the Iurisdiction of the Pope and which inflict particular Punishments upon committing Offences therein prohibited but none of those Laws give any definition of a Papist If by a Papist is meant him who embraces the Doctrine of the Pope it was punishable before the Reformation to be of a contrary Opinion Now in the vulgar acceptation of the word a man may hold the same Opinion with the Church of Rome and yet not profess the Popish Religion so as to bring himself in danger of any of the Penalties in these Laws There was never yet an Indictment against a person for being a Papist but many have been indicted upon the breach of those Laws made against Recusants by which they incurred the Penalties thereby appointed In Michaelmas 27 H. 8. 27 H. 8. 14. B. an Action on the Case was brought in the Common-Pleas for calling of the Plaintiff Heretick and Willoughby the King's Serjeant argued That the Action would not lye because the word did import a Spiritual Matter of which the Temporal Courts had no knowledge and of that Opinion were the Chief Justice Fitzherbert and Justice Shelley The same may be said in this Case that the word Papist relates to something which is Spiritual of which this Court hath no cognizance Words which are actionable must immediately injure the person of whom they are spoken either in his Profession or bring him in danger of some Punishment Hob. 8. as to call an Attorney Bribing Knave which are adjectively spoken yet 't is an Injury done to him in his Profession It was said at the Trial in the Common-Pleas That 't is actionable to call a Man Papist at this time though it might not be so at another time This seems to be a very vain assertion for though the Times may alter the Law is still the same It would be a very great inconvenience if Men should be deterr'd by Actions to call another Man a Papist for this would be an encouragement to Popery and a check upon the Protestant Religion to punish the Professors thereof for saying a Man is a Papist who is really so both in his Iudgment and Profession But admitting the word to be actionable Not actionable to call a man Papist Cro. Eliz. 191. 't is not so before Conviction for 't is very improperly used and of no signification or discredit before that time 2. These words are not actionable as coupled with his Offices because he hath alledged no particular damage or Loss and his Offices are only Honorary and of no Profit and therefore he could receive no Damage by speaking these words if true when they in no sort relate to his Offices and are too remote to be applied to them 1. E contra The words are actionable in themselves for they scandalize the Plaintiff in his Reputation and may be a means to bring him to corporal Punishment for by several Acts of Parliament many Punishments are inflicted upon Popish Recusants which is the same thing with a Papist they are disabled from holding any Office or Imployment in the Kingdom they are not to come into the Kings presence or within five Miles of the City of London and the calling of him Papist subjects him to the danger of being Indicted for a Traytor for the words are Synonimous When H. 8. took upon him the Supremacy which the Pope had unlawfully Vsurped there were certain Papists in those days who called themselves Roman Catholicks that they might be distinguished from those who bore Allegiance to their lawful King which general appellation was afterwards changed into the word Papist so that both signifie the same thing The Objection that tho Times change the Law is still the same may receive this Answer That when the force of words is changed with the Times those words shall be actionable now which were not so at another time As for Example the proper and genuine signification of the word Knave is a Servant but now the Times have altered the sense of that word and made it to be a term of Reproach so that 't is actionable to call an Attorny Knave who is but a Servant to his Client 1. Then as to the Objection that the word Papist is not defin'd in our Law There is a Statute which disables a
Trust as in the Case of Wardship formerly which always went to the Executor of the Grantee and which was of greater consideration in the Law than the feeding or clothing of an Ideot and of that Opinion was the Court that the King had a good Title to dispose of both the Ward and the Ideot one till he was of Age and the other during his Ideocy Iudgment for the Defendant DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis 1684. Reeves versus Winnington THE Testator was a Citizen and a Freeman of London A Devise of all his Estate passed a Fee and being seised in Fee of a Mesuage c. and likewise possessed of a considerable personal Estate made his Will in which there was this Clause viz. I hear that John Reeves is enquiring after my Death but I am resolved to give him nothing but what his Father hath given him by Will I give all my Estate to my Wife c. The Question was Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage It was argued that she had only an Estate for life because the Words All my Estate cannot be construed to pass a Fee for it doth not appear what Estate was intended and Words in a Will which go to disinherit an Heir must be plain and apparent A Devise was in these Words viz. Sid. 191. Bowman versus Milbank I give all to my Mother all to my Mother and it was adjudged that a Fee did not pass which is as strong a Case as this for by the word All it must be intended All that was in his power to give which is as comprehensive as if he had said All my Estate 'T is true Kerman and Johnson Stiles 281. 1 Rol. Abr. 834. Cro. Car. 447. it hath been adjudged that where a Man devised his whole Estate to his Wife paying his Debts and Legacies that the word Estate there passed a Fee because it was for the benefit of the Creditors there being not personal Assets sufficient to pay all the Debts But that is not found in this Case therefore the Word Estate being doubtful and which will admit of a double construction shall not be intended to pass a Fee Mr. E contra Pollexfen contra The first part of this Sentence consists in negative words and those which are subsequent explain the intention of the Testator viz. That John Reeves should take nothing by the Will The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property like a Release of all Actions which is a good discharge as well of real as personal Actions In common understanding it carries an interest in the Land and then 't is the same as if he had devised all his Fee-simple Estate In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All because it was a Relative Word and had no Substantive joined with it and therefore it might have been intended All his Cattle All his Goods or All his personal Estate for which incertainty it was held void yet Iustice Twisden in that Case said that it was adjudged that if a Man promise to give half his Estate to his Daughter in Marriage that the Lands as well as the Goods are included The Testator devised all his Tenant-right Estate held of such a Manor 3 Keb. 245. Mod. Rep. 100. and this being found specially the Question was Whether any more passed than an Estate for Life because he did not mention what Estate he intended but it was held that the Devisee had a Fee-simple because the Words were as comprehensive as if he had devised all his Inheritance and by these Words a Fee-simple would pass Curia It plainly appears that the Testator intended nothing for John Reeves therefore he can take nothing by this Will and that the Devisee hath an Estate in Fee-simple for the Words All my Estate are sufficient to pass the same Rex versus Sir Thomas Armstrong Saturday June 14th THE Defendant was outlawed for High-Treason and being taken at Leyden in Holland was brought into England and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry and he tried by virtue of the Stature of Ed. 6. which Enacts 5 6 E. 6. cap. 11. That if the Party within one year after the Outlawry or Judgment thereupon shall yield himself to the Chief Justice of England and offer to traverse the Indictment upon which he was outlawed he shall be admitted to such Traverse and being acquitted shall be discharged of the Outlawry He alledged that it was not a year since he was outlawed and therefore desired the benefit of this Law But it was denied because he had not rendered himself according to the Statute but was apprehended and brought before the Chief Iustice Whereupon a Rule was made for his Execution at Tyburn which was done accordingly DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis 1684. Hebblethwaite versus Palmes Mich. 36 Car. II. in B. R. Rot. 448. AN Action on the Case was brought in the Common-Pleas Possession is a sufficient cause to maintain an Action against a wrong doer for diverting of a Watercourse The Declaration was That the Defendant Primo Augusti c. injuste malitiose did break down an ancient Damm upon the River Darwent by which he did divert magnam partem aquae ab antiquo solitu cursu erga molendinum ipsius quer c. ad dampnum c. The Defendant pleaded that before the said Breach made he was seised in Fee of an ancient Mill and of six Acres of Land adjoyning upon which the said Damm was erected time out of mind to turn the Water to his said Mill which Damm was always repaired and maintained by the Defendant and the Tenants of the said Land that his Mill was casually burnt and he not intending to Re-build it suffered the Damm to be broken down and converted the Timber to his own use being upon his own Soil prout ei bene licuit c. The Plaintiff replied that by the breaking of the Damm the Water was diverted from his Mill c. The Defendant rejoyned and justified his Plea and Traversed that the Mill of the Plaintiff was an ancient Mill. And upon a Demurrer to this Rejoynder Iudgment was given for the Plaintiff and a Writ of Error now brought to reverse that Iudgment and for the Defendant in the Action it was argued 1. That the Declaration is not good because the Plaintiff had not set forth that his Mill was an ancient Mill. 2. Because he had not entituled himself to the Watercourse 3. That the Plea was good in Bar to this Action because the Defendant had sufficiently justified having a Right to the Land upon which the Damm was erected and always repaired it As to the first Point it
hath been the constant course for many years in such Actions to set forth the Antiquity of the thing either in express terms or in words which amount to it In 8 Eliz. such an Action was brought Dyer 248. B. Quod defendens divertit multum aquae cursum per levationem constructionem Waerae c. per quod multum aquae quae ad molendinum of the Plaintiff currere consuevit e contra recurrit Which word consuevit doth imply that it was an ancient Mill for otherwise the Water could not be accustomed to run to it Anno 25 Eliz. the like Action was brought 1 Leon. 273. Russel versus Handford wherein the Plaintiff declared Quod cum molendinum quoddam ab antiquo fuit erectum whereof he was seized and the Defendant erected a new Mill per quod cursus aquae pred coarctatus fuit And eighteen years afterwards was Lutterell 's Case in this Court 4 Co. 86. wherein the Plaintiff shewed that he was seized of two old and ruinous Fulling Mills and that time out of Mind magna pars aquae cujusdam rivoli did run from a certain place to the said Mills and that during all that time there had been a certain Bank to keep the current of the said Water within its bounds c. That the Plaintiff did pull down those old Mills and erected two new Mills and the Defendant digged down the Bank c. The like Action happened 14 Car. I. Cro. Car. 499. Palm 290. it was for diverting an ancient Watercourse Qui currere consuevisset debuisset to the Plaintiffs Mill. In all which Cases 1 Roll. Abr. 107. tho' there are various ways of declaring yet they all shew that the constant course was to alledge that the Mills were ancient for 't is that which intitles the Party to his Action 'T is for this reason also that if two Men have contiguous Houses and one stops the other's Lights if they are not ancient an Action will not lye for stopping of them up There may be some seeming difference between a Right to a Watercourse and to Lights in a Window for no Man can prescribe to Light Quatenus such because 't is of common Right to all Men and cannot be claimed but as affixed to a particular thing or purpose A Watercourse may be claimed to several purposes but Water is of as universal use and benefit to Mankind as Light and therefore no particular Man hath a Right to either but as belonging to an antient House or ruunning to an ancient Mill or for some other antient Vse Anno 15 Car. Cro. Car. 575. Sands versus Trefusis I. The Plaintiff Sands declared that he was seised in Fee of a Mill and had a Watercourse running thro' the Defendants Lands to the said Mill and that he stopped it up There was a Demurrer to this Declaration and the same Objection as now was then taken to it viz. that he had not shewed that it was an ancient Mill. And though the Court seemed to over-rule that Objection yet no Iudgment was given The Case of Sly and Mordant was there cited which is Reported by Mr. 1 Leon. 247. id 1 Rol. Abr. 104. Leonard and is this viz. That the Plaintiff was seised in Fee of certain Lands c. and the Defendant had stopped a Watercourse by which his Land was drowned it was adjudged that the Action would lie for this Injury but that is no Authority to support this Declaration 2. The Plaintiff hath not entituled himself to this Water-course either by Prescription or that the Water debuit vel consuevit currere to his Mill for so is the Pleading in Lutterell 's Case and in all the other Cases before cited 3. Therefore the Plea in Bar is good the Defendant having sufficiently justified his Right and the Plaintiff having not Prescribed to it here can be no Trespass done and so concluded that Iudgment ought to be reversed This Case depends upon the Declaration Ex parte Quer. for the Plea in Bar is only argumentative 't is no direct answer to it and the Replication and Rejoynder are not material The Plaintiff hath a good cause of Action for it cannot be denied but where an injury is done to another and Damages ensue 't is sufficient to maintain an Action of Trespass or upon the Case 'T is plain that an Injury was done to the Plaintiff and the Damage is as manifest by diverting of the Watercourse and the loss of his Mill and the Fact is laid to be injuste malitiose The Defendant gives no reason why he injured him but only that he had no use of the Water because his Mill was burnt This is an Action brought by the Plaintiff upon his Possession against a wrong doer Roll. 339 394. Palm 290. in which it is not necessary to be so particular as where one prescribes for a Right A Man may have a Watercourse * Bracton lib. 4. cap. 32. by Grant as well as by Prescription and in such case be need not set forth any particular use of the Water as that it ought to run to his Mill neither is it absolutely necessary to mention the Mill for that is only to inform the Court of the Damages In the Printed Entries there are many Forms of Declarations without any Prescription Rast Ent. 9. B. or setting forth that the Mill was antient as where an Action was brought against the Defendant De placito quare vi armis stagnum molendini ipsius the Plaintiff fregit and this was only upon the Possession Antea The Case in Dyer is a good Authority to support this Action for 't is as general as this viz. for diverting a Watercourse per Constructionem Waerae and doth not shew where it was erected or what Title he had to it So where the Action was for disturbing the Plaintiff 2 Cro. 43. Dent vers Oliver Nota This was after Verdict in collecting of Toll and doth not shew what Title he had to it either by Prescription or Grant but declared only that he was seised in Fee of a Manor and Fair and held good And it was the Opinion of my Lord Hobert That a Declaration for breaking down of a Bank generally includentem aquam Hob. 193. Biccot versus Ward running to the Plaintiffs Mill was good The Authorities cited on the other side do rather maintain this way of Pleading than the contrary for those Cases are wherein the Plaintiff declared that the Water currere consuevit debuisset to the Plaintiffs Mill time out of mind Cro. Car. 499. which words are of the same signification as if he had shewed it to be an antient Mill and that agrees in substance with this Case for the Water cannot be diverted ab antiquo solito cursu if the Mill was not ancient The word solet implies Antiquity Reg. 153. The Writ De secta admolendinum is
fearing that this Daughter might be stoln from her applies her self to my Lady Gore and entreats her to take this Daughter into her House which she did accordingly My Lady had a Son then in France she sent for him and married him to this Ruth she being then under the Age of sixteen years without the Consent of her Mother who was her Guardian The Question was whether this was a Forfeiture of her Estate during Life It was proved at the Trial that the Mother had made a Bargain with the Lessor of the Plaintiff that in case he recovered she should have 1000 l. and the Chirds of the Estate and therefore she was not admitted to be a Witness The Plaintiff could not prove any thing to make a Forfeiture and therefore was nonsuited The Chief Iustice said that the Statute was made to prevent Children from being seduced from their Parents or Guardians by flattering or enticing Words Promises or Gifts and married in a secret way to their disparagement but that no such thing appeared in this Case for Dr. Hascard proved the Marriage to be at St. Clements Church in a Canonical Hour and that many People were present and that the Church Doors were open whilst he married them Anonymus BY the Statute of 21 Jacobi 't is Enacted 21 Jac. c. 23. That no Writ to remove a Suit out of an Inferior Court shall be obeyed unless it be delivered to the Steward of the same Court before Issue or Demurrer joined so as the Issue or Demurrer be not joined within six Weeks next after the Arrest or Appearance of the Defendant In this Case Issue was joined and the Steward refused to allow the Habeas Corpus and the Cause was tried but not before an Utter Barrister as is directed by the Statute Curia The Steward ought to return the Habeas Corpus and they having proceeded to try the Cause no Utter Barister being Steward let an Attachment go Claxton versus Swift Hill 1 Jac. 2. Rot. 1163. THE Plaintiff being a Merchant brought an Action upon a Bill of Exchange If the Plaintiff recover against the Drawer of a Bill he shall not afterwards recover against any of Endorsers setting forth the Custom of Merchants c. and that London and Worcester were ancient Cities and that there was a Custom amongst Merchants that if any person living in Worcester draw a Bill upon another in London and if this Bill be accepted and endorsed the first Endorser is liable to the payment That one Hughes drew a Bill of 100 l. upon Mr. Pardoe paiable to the Defendant or Order Mr. Swift endorsed this Bill to Allen or Order and Allen endorsed it to Claxton The Mony not being paid Claxton brings his Action against Hughes and recovers but did not take out Execution Afterwards he sued Mr. Swift who was the first Endorser and he pleads the first Recovery against Hughes in barr to this Action and avers that it was for the same Bill and that they were the same Parties To this Plea the Plaintiff demurred and the Defendant joyned in the Demurrer Mr. Pollexfen argued that it was a good Barr because the Plaintiff had his Election to bring his Action against either of the Endorsers or against the Drawer but not against all and that he had now determined his Election by suing the Drawer and shall not go back again though he never have Execution for this is not in the nature of a joint Action which may be brought against all 'T is true that it may he made joint or several by the Plaintiff but when he has made his choice by suing of one he shall never sue the rest because the Action sounds in Damages which are uncertain before the Iudgment but afterwards are made certain transeunt in rem judicatam and is as effectual in Law as a Release As in Trover the Defendant pleaded that at another time the Plaintiff had recovered against another person for the same Goods so much Damages 2 Cro. 73. Yelv. 65. Brown versus Wootton and had the Defendant in Execution and upon a Demurrer this was held a good Plea for though in that Case it was objected that a Iudgment and Execution was no satisfaction unless the Mony was paid yet it was adjudged that the cause of Action being against several for which Damages were to be recovered and because a Sum certain was recovered against one that is a good discharge against all the other but 't is otherwise in Debt because each is liable to the entire Sum. Chief Iustice If the Plaintiff had accepted of a Bond from the first Drawer in satisfaction of this Mony it had been a good Barr to any Action which might have been brought against the other Indorsers for the same and as this Case is the Drawer is still liable and if he fail in payment the first Endorser is chargeable because if he make Endorsement upon a bad Bill 't is Equity and good Conscience that the Endorsee may resort to him to make it good But the other Iustices being against the Opinion of the Chief Iustice Iudgment was given for the Defendant Pawley versus Ludlow DEBT upon a Bond. The Condition was That if John Fletcher shall appear such a day coram Justitiariis apud Westm c. that then c. The Defendant pleaded that after the 25th day of November and before the day of the appearance he did render himself to the Officer in discharge of this Bond and to this the Plaintiff demurred Darnel for the Defendant admitted that if a Scire Facias be brought against the Bail upon a Writ of Error 3 Bulstr 191. 2 Cro. 402. who plead that after the Recognizance and before the Iudgment against the Principal affirmed he rendred himself to the Marshal in discharge of his Bail that this is not a good Plea but that the Sureties are still liable 3 Jac. cap. 8. because by the Statute they are not only liable to render his Body but to pay the Debt recovered But if a Iudgment be had in this Court 1 Rol. Abr. 334. pl. 11. and a Writ of Error brought in the Exchequer-Chamber and pending that Writ of Error the Principal is rendred the Bail in the Action are thereby discharged It was argued on the other side E contra that this is not the like Case of Bail upon a Writ of Error for the Condition of a Recognizance and that of a Bond for Appearance are different in their nature the one is barely that the Party shall appear on such a day the other is that he shall not only appear and render his Body to Prison but the Bail likewise do undertake to pay the Debt if Iudgment should be against the Principal Now where the Condition is only for an Appearance at a day if the Party render himself either before or after the day 't is not good Chief Iustice If the Party render himself to the Officer before the
day of Appearance he is to see that he appear at the day either by keeping of him in Custody or letting of him to Bail the end of the Arrest is to have his Body here If he had not been bailed then he had still remained in Custody and the Plaintiff would have his proper remedy but being once let to Bail and not appearing in Court according to the Condition of the Bond that seems to be the fault of the Defendant who had his Body before the day of Appearance Iudgment for the Defendant DE Term. Sancti Hill Anno 1 Jac. II. in Banco Regis 1685. Serjeant Hampson's Case BY the Statute of Queen Elizabeth 't is Enacted 5 Eliz. c. 23. That if the person excommunicated have not a sufficient Addition or if 't is not contained in the Significavit that the Excommunication proceeds for some cause or contempt or of some original Matter of Heresie refusing to have his Child baptized to receive the Sacrament to come to Divine Service or Errors in Matters of Religion or Doctrine Incontinency Usury Simony Perjury in the Ecclesiastical Court or Idolatry he shall not incurr the Penalties in the Act. Serjeant Hampson was excommunicated for Alimony and now Mr. Girdler moved that he might be discharged because none of the aforesaid Causes were contained in the Significavit Curia He may be discharged of the Forfeiture for that reason but not of the Excommunication Anonymus ONE who was outlawed for the Murder of Sir Edmund Bury Godfrey now brought a Writ of Error in his Hand to the Bar praying that it might be read and allowed It was read by Mr. Astry Clerk of the Crown The Errors assigned were viz. That it did not appear upon the Return of the Exigent in the first Exact ' that the Court was held pro Comitatu That the Outlawry being against him and two other persons 't is said in the last Exact ' that Non comperuit but doth not say nec eorum aliquis comperuit For these Reasons the Outlawry was reversed and he held up his Hand at the Barr and pleaded Not-guilty to his Indictment and was admitted to Bail and afterwards he was brought to his Trial and no Witness in behalf of the King appearing against him he was acquitted The Mayor and Commonalty of Norwich versus Johnson A Writ of Error was brought to reverse a Iudgment given for the Plaintiff in the common-Common-Pleas in an Action of Waste Waste lies against an Executor de son tort of a Term. The Declaration was that the Plaintiff demised a Barn to one Took for a certain Term by vertue whereof he was possessed and being so possessed died that the Defendant was his Executor who entred and made Waste by pulling down of the said Barn The Defendant pleaded that Took died intestate and that he did not administer The Plaintiff replyed that he entred as Executor of his own Wrong and to this Plea the Defendant demurred and the Plaintiff joined in the Demurrer This Case was argued by Mr. Appleton of Lincolns-Inn for the Plaintiff who said That an Action of Waste would not lie against the Defendant because the Mayor and Commonalty c. had a remedy by an Assise to recover the Land upon which the Barn stood and a Trover to recover the Goods or Materials and that such an Action would not lie against him at the Common Law because he neither was Tenant by the Curtesie nor in Dower against whom Waste only lay So that if the Plaintiff is entituled to this Action it must be by vertue of the Statute of Gloucester 6 Ed. 1. c. 5. but it will not lie against the Defendant even by that Statute because the Action is thereby given against the Tenant by the Curtesie in Dower for Life or Years and treble Damages c. But the Defendant is neither of those and this being a penal Law which not only gives treble damages but likewise the Recovery of the place wasted ought therefore not to be taken strictly but according to Equity Tenants at sufferance or at Will by Elegit or Tenants by Statute Staple 11 H. 6. c. 5. and also Pernors of Profits were never construed to be within this Statute and therefore a particular Act was made to give him in Reversion an Action of Waste where Tenant for life or years had granted over their Estates and yet took the Profits and committed Waste Then the Question will be Co. Lit. 371. what Estate this Executor de sontort hath gained by his Entry And as to that he argued that he had got a Fee-simple by Disseisin and that for this reason the Plaintiff was barred from this Action for if the Son purchase Lands in Fee and is disseised by his Father who maketh a Feoffment in Fee to another with Warranty and dieth the Son is for ever barred for though the Disseisin was not done with any intention to make such a Feoffment 1 Roll. Abr. 662. yet he is bound by this Alienation So where a man made a Lease for life and died and then his Heir suffered a Recovery of the same Land without making an actual Entry this is an absolute Disseisin because the Lessee had an Estate for life but if he had been Tenant at Will it might be otherwise But admitting that the Defendant is not a Disseisor then the Plaintiffs must bring their Case to be within the Statute of Gloucester as that he is either Tenant for life or years If he is Tenant for Life he must be so either by right or by wrong He cannot be so by right because he had no lawful Conveyance made to him of this Estate besides 't is quite contrary to the Pleading which is that he entred wrongfully Neither can he be so by wrong for such particular Estates 6 Co. 25. as for life or years cannot be gained by Disseisin and so is Heliar's Case in 6 Co. Then if this should be construed an Estate for years it must be gained either by the Act of the Party or by the Act of the Law but such an Estate cannot be gained by either of those means First it cannot be gained by the Act of the Party Moor 126. Kendrick versus Burges because an Executor de son tort cannot have any interest in a Term and for this there is an express Authority in this Court which was thus viz. A Lease in Reversion for years was granted to a man who died intestate his Wife before she had administred sold this Term to the Defendant and afterwards she obtained Letters of Administration and made a Conveiance of the same Term to the Plaintiff and Iudgment was given for the last Vendee because it was in the case of a Reversion of a Term for years upon which no Entry could be made and of which there could be no Executor de son tort though it was admitted by the Court that such an Executor might make a good sale of
' Francisco Wythens Mil ' Justiciariis Richardo Holloway Mil ' Justiciariis Thoma Walcot Mil ' Justiciariis MEmorandum That the First day of this Term Sir Thomas Jones Chief Justice of the Common-Pleas had his Quietus and Sir Henry Beddingfield one of the Justices of the same Court succeeded him in that Office Likewise the Honourable William Mountagu Esq Lord Chief Baron of the Exchequer had his Quietus and Sir Edward Atkyns one of the Barons of the same Court succeeded him Sir Job Charleton one of the Justices of the Common-Pleas had his Quietus but was made Chief Justice of Chester and Sir Edward Lutwich the King's Serjeant was made one of the Justices of the Common-Pleas and Serjeant Heath was made one of the Barons of the Exchequer Okel versus Hodgkinson THE Father and Son join in a Fine in order to make a Settlement upon the second Wife of the Father who was only Tenant by the Curtesie the Remainder in Tail to his said Son One of the Cognizors died after the Caption and before the Return of the Writ of Covenant and now a Writ of Error was brought to Reverse it and this was assigned for Error Curia If it had been in the Case of a Purchasor for a valuable Consideration the Court would have shewed him some favour but it being to do a wrong to a young Man they would leave it open to the Law THE first day of this Term being the 22th day of April there was a Call of Serjeants viz. Sir John Holt of Grays-Inn Recorder of London who was made Kings Serjeant Sir Ambrose Phillips made also Kings Serjeant Christopher Milton John Powell John Tate William Rawlinson George Hutchins William Killingworth Hugh Hodges and Thomas Geers They all appeared that day at the Chancery-Bar where having taken the Oaths the Lord Chancellor Jefferies made a short Speech to them after which they delivered a Ring to him praying him to deliver it to the King They went from the Inner-Temple-Hall to Westminster and Counted at the Common-Pleas and gave Rings the Motto whereof was DEUS REX LEX Dominus Rex versus Saloway SAloway drowned himself in a Pond and the Coroners Enquest found him Non Compos Mentis because 't is more generally supposed that a Man in his Senses will not be Felo de se The Kings Councel moved for a Melius Inquirendum and that the Inquisition might be quashed for that it sets forth Quod pred Defend circa horam octavam ante meridiem in quoddam stagnum se projecit per abundantiam aquae ibidem statim suffocat emergit ' erat which is insensible Pemberton Serjeant contra Here is no Exception taken to the substance of the Inquisition and the word suffocat had been sufficient if the word emergit ' had been left out The Court were of Opinion that there being another word in this Inquisition which carries the sense 't is therefore sufficient but if it had stood singly upon this word Emergit ' it had not been good And this Fact happening about the time of the general Pardon the Court was of Opinion that where an Interest is vested in the King a Pardon of all Forfeitures will not divest it but that nothing was vested here before Inquisition found 2. It was objected that this Inquisition ought to set forth that Saloway came by his death by this means Et nullo alio modo quocunque To which it was answered by Pemberton that in matters of Form only the Iudges have sent for the Coroner into Court and ordered him to amend it Rodney versus Strode AN Action on the Case was brought against three Defendants one of them suffered Iudgment to go by default In a joynt Action the Jury may sever the Damages and the other two pleaded Not Guilty The Cause was tryed the last Assises at Exeter and it was for imposing the Crime of Treason upon the Plaintiff and for assaulting and imprisoning of him there was a Verdict for the Plaintiff and 1000 l. damages against Mr. Strode and 50 l. against the other Defendant who pleaded The Plaintiff entred a nolle prosequi against him who let the Iudgment go by default and against the other Defendant for the 50 l. damages and took judgment only against Mr. Strode Serjeant Pemberton moved for a new Trial by reason of the excessive Damages which were not proportioned to the quality of the Plaintiff he being a Man of mean Fortune But it was opposed by the Plaintiff for that the Defendant pursued him as a Traytor and when he was apprehended for that Crime he caused him to be arrested for 1000 l. at the Suit of another person to whom he was not indebted so that upon consideration of the Circumstances of the Case the Court refused to grant a new Tryal Then Serjeant Pemberton for the Defendants moved in arrest of Iudgment and for cause shewed that the Iury have found both guilty and assessed several Damages which they cannot do because this is a joynt Action to which the Defendants have pleaded jointly and being found guilty modo forma the Iury cannot assess the damages severally for the damage is the same by the one as the other Cro. Eliz. 860. Austen vers Millard al' and therefore it hath been adjudged that where an Action of Battery was brought against three and one pleaded not guilty and the other two Son Assault demesne and several damages found against them it was held ill for that very reason because it was a joint offence 'T is true where there are divers Defendants and damages assessed severally the Plaintiff hath his election to take execution de melioribus damnis but this is when the Trials are at several times So 't is where they plead several Pleas Cro. Car. 239. Walsh versus Bishop as in an Action of Battery one pleads not guiity and the other justifies and both Issues are found for the Plaintiff in such case he may enter a non pros against one and take Iudgment against the other because their Pleas are several but where they plead jointly the Iury cannot sever the Damages But Mr. 1 Bulst 157. Sampson vers Cramfield al' Rast Entr. 677. b. Pollexfen for the Plaintiff insisted that even in this case damages may be assessed severally for where two Defendants are sued for the same Battery and they plead the same Plea yet damages may be assessed severally So was Trebarefoot and Greenway 's Case in this Court which was an Action for an Assault and Battery and false Imprisonment one of the Defendants pleaded not Guilty and the other justified Issue was joined and there was a Verdict for the Plaintiff and damages assessed severally the Plaintiff entred a nolle prosequi as to one and took judgment against the other and upon this a Writ of Error was brought in this Court and the Iudgment was affirmed So if an Action of Trespass be brought against two for taking of 100 l.
the Common Law for a false Oath made by any Witness and therefore an Action will not lye for a scandalous Affidavit Adjornatur Anonymus NOta An Action of Assault and Battery Release of one Def. shall not discharge the rest of a personal thing and false imprisonment was brought against four Defendants the Plaintiff had Iudgment and they brought a Writ of Error The Plaintiff in the Action pleaded the Release of one of them and to this Plea all four jointly demur The Opinion of the Court was that Iudgment might be given severally for they being compelled by Law to join in a Writ of Error the release of one shall not discharge the rest of a personal thing But where divers are to recover in the personalty 6 Co. Ruddock's Case the Release of one is a Bar to all but it is not so in point of discharge If two Coparceners make a Lease of a House and the Rent is in arrear and one of them brings the Action and recovers the Iudgment shall be arrested because one alone hath recovered in Debt for a moiety when both ought to join But it is agreed that if one Tenant in Common make a Lease rendring Rent which afterwards is in arrear Litt. Sect. 316. they must join in an Action of Debt because it savours of the Personalty But 't is otherwise in case of the Realty DE Term. Sanct. Trin. Anno 2 Jac. II. in Banco Regis 1686. Herbert Chief Justice Wythens Justices Holloway Justices Wright Justices Sawyer Attorny General Powis Sollicitor General Aldridge versus Duke ASsault Trespass continued many years and the Statute of Limitations pleaded the Jury gives Damages only for the last six years Battery Wounding and Imprisoning of him from the 10th of August 24 Car. 2. usque exhibitionem Billae The Defendant pleaded not Guilty infra sex infra Annos The Plaintiff replied that the Writ was sued out 2 Octobris 1 Jacobi 2. And that the Defendant was Guilty within six years next before the Writ brought Vpon this Issue was joyned and a Verdict was given for the Plaintiff and entire damages given Mr. Pollexfen moved two Exceptions in Arrest of Iudgment 1. That a Verdict cannot help what appears to be otherwise upon the face of the Record Now here the Plaintiff declared that he was imprisoned the 10th of August 24 Car. 2. which is 13 years since and being one entire Trespass the Issue is found as laid in the Declaration which cannot be for so many years between the cause of Action and bringing of the Writ for if a Trespass be continued several years the Plaintiff must sue only for the last six years for which he hath a compleat cause of Action but when those are expired he is barred by the Statute When the Plaintiff hath any cause of Action Sid. 25. then the Statute of Limitations begins as in an Action on the Case for words if they are actionable in themselves without alledging special damages the Plaintiff will recover Damages from the time of the speaking and not according to what loss may follow So in Trover and Conversion when there is a cause of Action vested and the Goods continue in the same possession for seven years afterwards in such case 't is the first conversion which entitles the Plaintiff to an Action So in the Case at Bar tho' this be a continued imprisonment yet so much as was before the Writ brought is barred by the Statute Thompson contra The Verdict is good for the Iury reject the beginning of the trespass and give Damages only for that which falls within the six years and this may be done because 't is laid usque exhibitionem Billae If the Defendant had pleaded not Guilty generally Cro. Car. 160 381 404. then Damages must be for the 13 years though the Plaintiff of his own shewing had brought his Action for a thing done beyond the time limited by the Statute but having pleaded not Guilty at any time within six years if the Verdict find him guilty within that time 't is against him As to the Objection that the Cause of Action ariseth beyond six years tho' it doth appear so in the Declaration yet that doth not exclude the Plaintiff for there might have been Process out before or he might be disabled by an Outlawry which may be now reversed or he might be in Prison and newly discharged from which time he hath six years to begin his Action for being under either of these circumstances the Statute doth not hurt him Curia If an Action of false Imprisonment be brought for seven years and the Jury find the Defendant guilty but for two days 't is a Trespass within the Declaration This Statute relates to a distinct and not to a continued Act for after six years it will be difficult to prove a Trespass many accidents may happen within that time as the death or removal of Witnesses c. Iudgment was given for the Plaintiff Dobson versus Thornistone THE Plaintiff was a Husbandman Words spoken of a Farmer actionable who brought an Action against the Defendant for these words He owes more mony than he is worth he is run away and is broke He had a Verdict and it was moved now in Arrest of Iudgment that the Words being spoken of a Farmer are not actionable To say that a Gentleman is a Cozener Hill 28 Eliz. B.R. Godb. 40. a Bankrupt and hath got an Occupation to deceive Men though he used to Buy and Sell yet being no Merchant 't was the better Opinion of the Court that the Words were not actionable So to say of a Farmer Stiles 420. that he is a Whoreson Bankrupt Rogue and it not appearing that he got his living by Buying and Selling or that the Words were spoken of him relating to his Occupation 't is not actionable For it must not only appear that the Plaintiff hath a Trade Sid. 299. Hutt 50. but that he gets his Living by it otherwise the Words spoken of him will not bear an Action But the Court held the Words to be actionable the like Iudgment was given in the Case of a Carpenter Mich. 3 Jac. for Words Viz. He is broke and run away Anonymus NOta Misentry of a Writ of Enquiry amendable without paying Costs Iudgment was given upon a Demurrer and a Writ of Enquiry was awarded and in the Entry thereof upon the Roll the Words per Sacramenum duodecim proborum legalium hominum were left out and now the Question was Whether it shall be amended It was said that a Capiatur for a Misericordia shall be amended upon the new Statute of Jeofails after a Verdict but whether upon a Demurrer it was doubted In a Quo Warranto Iudgment was entred by disclaimer Cro. Car. 184. by the consent of all Parties and the Words virtute praetextu literarum patentium geren dat 17 Jacobi were wrote in the Margin of the
my Lord Coke to be an allowance by the King 's Grant to any person for the sole buying or selling of any thing restraining all others of that Liberty which they had before the making of such a Grant 3 Inst 181. and this he tells us is against the ancient and fundamental Rights of this Kingdom This Patent agreeth exactly with that Definition 9 E. 3. cap. 1. 18 E. 3. c. 3. 25 E. 3. c. 2. Roll. Abr. 180. 2 R. 2. c. 1. 11 R. 2. c. 7. and therefore it must be against Law 't is against an Act of Parliament which gives Liberty to Merchants to buy and to sell in this Realm without disturbance and 't is expresly against the Statute of 21 Jac. cap. 3. which declares all such Letters Patents to be void That which may give some colour to make such Grants good 2 Inst 540. 11 Rep. is a pretence of Order and Government in Trade but my Lord Coke was of Opinion that it was a hinderance to both and in the end it produced Monopolies There is a great difference between the King's Grant and his Prohibition for the one vests an Interest which is not done by the other and all Prohibitions determine by the King's death but Grants still remain in force Adjornatur Langford versus Webber IN Trespass for the taking of a Horse Justification upon a bare possession good against a wrong doer the Defendant justified for that Joseph Ash was possessed of a Close c. and that the Defendant as his Servant took the Horse in that Close Damage fesant And upon a Demurrer to this Plea for that the Defendant did not shew what Title Ash had to this Close The Councel for the Defendant insisted that it being in Trespass 't is sufficent to say that Ash was possessed because in this Case possession is a good Title against all others But it might have been otherwise in Replevin The Title of the Close is not in question Cro. Car. 138. Yelv. 74. Cro. Car. 571. pl. 10. the possession is only an inducement to the Plea and not the substance thereof which is the taking of the Horse and the Law is plain that where the interest of the Land is not in question a Man may justifie upon his own possession against a wrong-doer Mr. Pollexfen on the other side alledged that damage fesant would bring the Title of the Land in question But the Court gave Iudgment for the Defendant Perkins versus Titus A Writ of Error was brought to reverse a Iudgment given in the common-Common-Pleas Fine upon an Admittance where it must be certain in Replevin for taking of the Plaintiff's Sheep The Defendant avowed the taking damage fesant The Plaintiff replied that the Lands where c. were Copy-hold held of the Manor of Bushy in Com. Hertf. the Custom whereof was that every Tenant of the said Manor qui admissus foret to any Copyhold Estate should pay a years Value of the Land for a Fine as the said Land is worth tempore Admissionis And upon a Demurrer the Question was 1. Whether this be a good Plea or not as 't is pleaded 2. If it be good as pleaded then whether such a Custom may be supported by Law 1. It was for the Plaintiff in the Writ of Error now and in Michaelmas Term following argued that it was not a good Custom The substance of whose Arguments were that Fines are either certain or incertain those which are incertain are arbitrary and therefore cannot be due of Common Right nor by Custom for there can be no Custom for an incertain Fine and such is this Fine for the value of the Land cannot be known because as this Custom is pleaded it doth not appear whether it shall be a years value past or to come at the time of the admittance of the Tenant A Custom to assess rationabilem denariorum summam for a Fine upon an admittance that is to say 13 Rep. 1. being two years Rent of a Tenant of the yearly value of 53 s. 4 d. is no good Custom A Lease is made for so many years as a third person shall name this is altogether incertain 13 Edw. 3. Fitz. Abr. 273. but when the Term is named then 't is a good Lease but this can be done but once How can this Fine be assessed It cannot be by Iury for then it stands in need of the Common Law and will be therefore void for a Custom must have nothing to support it but usage 1. Neither can this be a good Custom as 't is pleaded because all Customs are made up of repeated Acts and Vsages and therefore in pleading them it must be laid time out of mind which is not done here for admissus foret hath a respect to future admissions and are not to those which are past 2. Here is no time laid when this Fine shall be paid for 't is said Quilibet tenens qui admissus foret c. solvet tantam denariorum summam quantum terra valebat per Annum tempore admissionis c. which last words must be taken to relate to the value of the Land and not to the time when the Fine shall be paid so that if there be such a Custom which is Lex loci and not fully set forth and expressed the Common Law will not help it by any Construction 2. Point Whether such a Custom can be good by Law And they argued that it cannot Where the Fine is certain the Lord may refuse to admit without a tender of it upon the prayer of the person to be admitted 4 Rep. 27. b. but where 't is incertain the Lord is first to admit the Tenant and then to set the Fine the reasonableness whereof is to be determined by Iudges before whom the Case shall depend or upon Demurrer or by a Iury upon proofs of the yearly value of the Land but for non payment of an unreasonable Fine the Lord cannot enter Cro. Eliz. 779. Cro. Car. 196. The Law admits of no Custom to be good but such as is very certain for incertainty in a Custom as well as in a Grant makes both void and therefore 't is held a void Custom for an Infant to make a Feoffment when he can measure an Ell of Cloth Rol. Abr. 565. 6 Rep. 60. Davies Rep. 37. It may be objected that certum est quod certum reddi potest the meaning of which saying must be quod certum reddi potest by something which is certain for if this Rule should be taken to be an answer to incertainties it would destroy all the Books which say a Custom must be certain The Law is very clear Fitz. Bar. 177. 2 Rol. Abr. 264. that a Custom is void for the incertainty therefore this Custom must be void for the value of Land is the most incertain thing in nature and therefore Perjury will not lye for swearing to the value Serjeant Fuller and Mr.
Finch contra The chief Objection is the incertainty of this Custom now if a Custom as incertain as this hath been held good in this Court 't is a good Authority to support this Custom And as to that it was said that a Custom for a person whom a Copy holder should name to have his Land after his death and that he should pay a Fine for his admitance And if the Lord and Tenant cannot agree about the Fine that then the rest of the Tenants should assess it 1 Rol. Rep. 48. 2 Cro. 368. 4 Leon. 238. Noy 3. 2 Brownl 85. this was adjudged a good Custom by the Court of Common-Pleas and affirmed upon a Writ of Error in this Court It was the Case of Crab and Bevis cited in Warne and Sawyers Case Adjornatur Afterwards the first Iudgment was affirmed and all the Court held the Custom to be a good Custom Hacket versus Herne JVdgment was had in Debt upon a Bond against Father and Son Where the Defendants in the Action must joyn in a Writ of Error and afterwards the Father alone brought a Writ of Error and the Error assingned was that his Son was under Age but because the Son did not join in the Errors the Court ordered the Writ to be abated If a Quare impedit be brought against a Bishop and others and Iudgment be against them all they must likewise all join in a Writ of Error unless it be where the Bishop claims only as Ordinary 'T is true Rol. Abr. 929. pl. 30. this is against the Opinion of my Lord Rolls in his Abridgment who puts the Case that where a Scire Facias was brought against four Executors who pleaded plene administraverunt the Iury find Assets in the Hands of two of them and that the other eant inde sine die two bring a Writ of Error and altho' at the opening of the Case it was held that the Writ should abate for that reason because brought only by two yet he says the Iudgment was afterwards affirmed and the Writ held good But there is a difference where a Writ of Error is brought by the Plaintiffs in the original Action 5 Co. 25. a Ruddock's Case and when by the Defendants for if two Plaintiffs are barred by an erronious Iudgment and afterwards bring a Writ of Error the Release of one shall bar the other because they are both actors in a personal thing to charge another and it shall be presumed a Folly in him to join with another who might release all But where the Defendants bring a Writ of Error 't is otherwise for it being brought to discharge themselves of a Iudgment the Release of one cannot barr the other because they have not a joint Interest but a joint burthen and by Law are compelled to join in Errors Mosse versus Archer COvenant by an Assignee of an Assignee of Lands which were exchanged the Breach assigned was Breach not well assigned that a Stranger habens jus titulum did enter c. There was a Uerdict for the Plaintiff and it was now moved in Arrest of Iudgment that the Plaintiff had not shewed a sufficient breach for he sets forth the Entry of a Stranger habens jus titulum but doth not shew what Title and it may be he had a Title under the Plaintiff himself 2 Cro. 315. Hob. 35. after the Exchange made and to prove this the Case of Kirby and Hansaker was cited in point and of that Opinion was all the Court. Nota It was said in this Case that an Exchange ought to be executed by either Party in their Life-time or else it is void Taylor versus Brindley THE Original in Trespass was quare Clausum fregit Variance between the Original and Declaration where 't is no Error and the Plaintiff declared quare Clausum Domum fregit and had Iudgment in the common-Common-Pleas and a Writ of Error was brought in this Court and the variance between the Original and Declaration was assigned for Error and that one was not warranted by the other But Serjeant Levinz argued that because the Original was certified three Terms since 2 Cro. 674. 1 Rol. Abr. 790. n. 7. Cro. Car. 272. 18 Eliz. cap. and no Continuances between it and the Declaration therefore that could not be the Original to this Action and that the Court might for that reason intend a Verdict without an Original which is helped by the Statute of Jeofails But he argued that where the Original varies from the Declaration and is not warranted by it 't is not aided by this Statute Iudgment was affrmed DE Term. Sancti Mich. Anno 3 Jac. II. in Banco Regis 1687. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Sawyer Attorny General Powis Sollicitor General Mathews versus Cary Pasch 3 Jac. Rot. 320. TRespass for entring of his House and taking of a Silver Tankard Where the Defendant justifies by way of excuse he must set forth the Warrant and that he took the Goods virtute Warranti The Defendant made conusance as Bayliff of the Dean and Chapter of Westminster for that the place where c. was within the Iurisdiction of the Leet of the said Dean who was seised of a Court Leet which was held there such a day c. And that the Iury did present the Plaintiff being a Tallow-Chandler for melting of stinking Tallow to the annoyance of the Neighbours for which he was amerced and that the Amerciament was affered to 5 l. which not being paid the Defendant by a Mandate of the said Dean and Chapter distreined the Tankard c. The Plaintiff replied de injuria sua propria absque hoc that he did melt Tallow to the annoyance of the Neighbours c. And upon a Demurrer to this Replication it was argued this Term by Mr. Pollexfen for the Defendant and Tremaine for the Plaintiff and afterwards in Michaelmas Term 1 Will. Mariae by Mr. Bonithan and Serjeant Thompson for the Defendant It was said for the Defendant that a Presentment in a Court Leet which concerns the person as in this Case and not the Free hold 5 H. 7.3 Fitz. Bar. 271. Bro. Abr. tit Travers sans ceo pl. 183. Presentment in Court pl. 15. was not traversable and that the Amerciament was a Duty vested in the Lord for which he may distrain or bring an Action of Debt Co. Entr. 572. But on the other side it was said that if such a Presentment is not traversable the party hath no remedy 't is contrary to the Opinion of Fitzherbert in Dyer Dyer 13. b. who affimed the Law to be that it was traversable and that if upon such a Presentment a Fine should be imposed erroniously 11 Co. 42. 1 Rol. Rep. 79. it may be avoided by Plea and this agrees with the second Resolution in Godfrey 's Case 2. It was objected to the Plea that it was not good for it sets
to Sir Edward Biggs against the Countess as Administratrix of the Earl of Plymouth wherein the Plaintiff sets forth a Writing by which the Earl had given power to Sir Edward to be the Collector and Receiver of his Mony and Rents and that he promised to allow him 100 l. per Annum for his pains and in default of payment thereof that Sir Edward should detein the same which Writing was in these Words following viz. I do direct and appoint Sir Edward Biggs to take and receive to his own use 100 l. of lawful Mony of England out of the first Mony which he shall receive of mine The Action was brought for 75 l. being his Salary for three quarters of a year and Iudgment by Nil dicit It was argued this Term and in Easter Term by Councel on both sides It was agreed on all sides that the Earl left sufficient Assets to satisfie all his Bond Creditors but not enough to pay Debts upon simple Contract First it was said for the Plaintiff in the Errors that no Action of Debt will lie against an Executor upon a Mutuatus 11 Co. Godfreys Case because the Testator might have waged his Law but this was not much insisted on 2. That admitting an Action would lye yet this is an erronious Iudgment because the Suit was for 75 l. for three quarters Salary when by the Writing Sir Edward was to serve the Earl a whole year and this being an entire Contract shall not be seperated Therefore he cannot be well entituled to the Actionn unless his Testator had served a year and he had averred it so in his Declaration As where a Covenant was to pay 2 s. Yelv. 133. 7 Co. 10. Allen 9. for copying every Quire of Paper and the Breach assigned that he copyed 4 Quire and 3 sheets for which 8 s. and 3 d. was due to the Plaintiff 't is true he had Iudgment but it was reversed because it was an entire Covenant of which no apportionment could be made pro rata 3. That which was chiefly insisted on was to make these words amount to an Obligation that so it might be satisfied amongst the Bond Creditors But those who argued for the Plaintiff in the Errors said that it cannot be an Obligation for it was only a bare Letter of Attorney and an Authority and no more for there were no words to oblige the Earl or which can make a Warranty and therefore if the Mony was not received the Party to whom the Note was given could not resort back to him who made it had they been both living neither shall the Plaintiff now to his Administratrix Like the common Cases of the assigning of Iudgment if the Assignee doth not receive the Mony he cannot have an Action against the Assignor who only directs and appoints him so to do But on the other side Ex parte Def. the second Objection was thus answered viz. That this being only an Executory thing the Plaintiff may now bring an Action for so long time as his Testator served and this may be apportioned secundum ratam if the Law should be otherwise the Case of all Servants would be bad for they are generally hired for a year and not usually serve so long In an Assumpsit to pay for a years board Sid. 225. and the Plaintiff had declared only for three quarters of a year but yet had Iudgment because as the Book saith if there be any variance in the Agreement 't is for the advantage of the Defendant The 3d. Vaughan 92 93. Pl. Com. 182. Dyer 21. Objection answered viz. When a Man is indebted to another by simple Contract which is aknowledged by Deed an Action of Debt will lie against his Executor for any thing which is under Hand and Seal will amount to an Obligation especially where the Debt is confessed Now there are words in this Deed to shew that Mony was due and that makes it a Bond. But the Court was of Opinion that this was an entire Agreement and therefore the Action not well brought for three quarters Salary and for this reason the Iudgment was reversed Nisi c. Chapman versus Lamphire AN Action on the Case was brought for scandalous words spoken of the Plaintiff Words spoken of a Carpenter where actionable who declared that he was a Carpenter and a Freeman of the City of London and that he got great Sums of Mony by buying of Timber and Materials and by building of Houses and that the Defendant having discourse of him and of his Trade spoke these words viz. He is broken and run away and will never return again There was a Verdict for the Plaintiff and a Motion was now made in arrest of Iudgment for that a Carpenter was not a Trade within the Statute of Bankrupts and a day being given to speak to it again Mr. Pollexfen argued that before the Statutes made against Bankrupts words spoken reflecting upon a man in his Trade were actionable even at the Common Law because it might be the occasion of the loss of his Livelyhood 1 Rol. Abr. 59. pl. 6. Hutton 60. and therefore it was actionable to say of a Scrivener that he is broken and run away and dares not shew his Face and yet a Scrivener was not within the Statutes of Bankrupcy before the Act of 21 Jac. therefore the Action must lie at the Common Law because words disparage him in his Trade But the Councel for the Defendant said that these words were not actionable for they do not tend to his disparagement he may be broke and yet as good a Carpenter as before The Case of one Hill in 2 Car. Latch 114. in this Court was much stronger than this the words spoken of him were viz. Hill is a base broken Rascal and hath broken twice already and I will make him break the third time the Plaintiff had Iudgment but it was arrested A Carpenter builds upon the Credit of other men and so long as the words do not touch him in the skill and knowledge of his Profession they cannot injure him Chief Iustice The Credit which the Defendant hath in the World may be a means to support his skill for he may not have an opportunity to shew his Workmanship without those Materials for which he is entrusted The Iudges were divided in Opinion two against two and so the Plaintiff had his Iudgment there being no Rule made to stay it so that he had his Iudgment upon his general Rule for Iudgment but if it had been upon a Demurrer or Special Verdict then it would have been adjourned to the Exchequer Chamber Goring versus Deering IN an Appeal for the Murder of Henry Goring Esq Auterfoits convict of Manslaughter no good Plea in an Appeal for Murder brought by his Widow The Defendant pleaded that he was indicted for the said Murder at the Sessions-house in the Old Bayly in Middlesex that he was found guilty of Manslaughter
a new Recovery Debt will not lie F.N.B. 122. E. and to prove this there is and Authority in Fitzherbert where a Prior had Iudgment for an Annuity and brought a Scire Fac. upon that Iudgment against the Successor of the parson who was to pay it and obtained a Iudgment upon that Scire Fac. to recover the arrearages and afterwards brought an Action of Debt upon the last Iudgment and the Book says fuit maintein There is another Case in 2 Leon. 2 Leon. 14. 4 Leon. 186. 15 H. 7.16 where 't is held that an Action of Debt will lye upon a Iudgment in a Scire Facias upon a Recognizance Which Objections may receive this Answer First As to the Case in Fitzherbert 't is admitted to be Law but 't is not an Authority to be objected to this purpose because the first Iudgment for the Annuity charges the Successor but the Original Iudgment in this Case doth not charge the Husband so the Cases are not parallel The like answer may be given to the Case in Leonard for a Recognizance is a Iudgment in it self and Debt will lie upon it without a Sci. Fa. upon that Iudgment But on the other side it was argued E contra that the award of execution is absolute against Husband and Wife for 't is a Recovery against both whereas before it was only the Debt of the Wife but now 't is joynt against the one as well as the other The Iudgment upon the Sci. Fa. is a distinct Action It cannot be denied but that if a Woman be indebted and marrieth the Husband is chargable during the Coverture Bro. Ab. tit Baron and Feme pl. 27. 49 E. 3.35 b. which shews that by the Marriage he is become the principal Creditor As to the Sci. Fa. t is true at the Common Law if a Man had recovered in Debt and did not sue forth Execution within a year and a day he must then bring a new Original 1 H. 5. 5. a 43 Ed. 3.2 b. and the Iudgment thereon had been a new Recovery but now a Sci. Fa. is given by the Statute instead of an Original and therefore a Iudgment thereon shall also be a new Iudgment for tho' t is a Iudicial Writ yet 't is in the nature of an Action because the Defendant may plead any matter in Bar of the Execution upon the first Iudgment 1 Inst 290. b. and 't is for this reason that a Release of all Actions is a good bar to it Besides Rast Ent. 193. 4 Leon. 186. Dyer 214. b. an Action of Debt will lie upon a Iudgment on a Sci. Fa. which shews that 't is an Action distinct from the Original and upon such a Iudgment the Defendant may be comitted to Prison several years afterwards without a new Sci. Fa. The Husband may have execution of a Iudgment recovered by him and his Wife after the death of his Wife without a Sci. Fa. 1 Mod. Rep. 179. for the Iudgment hath made it a proper Debt due to him and he alone may bring an Action of Debt upon that Iudgment and it seems to be very reasonable that he should have the benefit of such a Iudgment and yet not be charged after the death of his Wife when there hath been a Recovery against both in her life-time This is like the Case where a Devastavit is returned against Husband and Wife as Executrix Moor 299. 3 Cro. 216. Cro. Car. 603. Sid. 337. and a Iudgment thereon quod querens habeat executionem de bonis propriis the Wife dies yet the Husband shall be charged for the Debt is altered If it should be otherwise this inconvenience would follow that if the Wife should die F.N.B. 121. c. 1 Rol. Abr. 351. 10 H. 6.11 the Husband will possess himself of her Estate and defraud the Creditors so that he takes her but not cum onere But the Law is otherwise for if a Feme being Lessee for years doth marry and the Rent is behind and she dies the Husband shall be charged with the Rent arrear because he is entituled to the Profits of the Land by his marriage To which it was answered that if a Man should marry an Exerecutrix and then he and his Wife are sued and Iudgment obtained against them to recover de bonis testatoris and thereupon a Fi. Fa. is awarded to levie the Debt and Damages and the Sheriff returns a Devastavit and then the Wife dies the Husband is not chargeable because the Iudgment is not properly against him who is joyned only for conformity but if upon the return of the Devastavit there had been an award of execution De bonis propriis that would have been a new Iudgment and the old one De bonis testatoris had been discharged 1 Roll. Abr. 351. and then the Husband must be charged for the new wrong Adjornatur Afterwards in 1 Will. Mar. the Iudgment was affirmed Bowyer versus Lenthal INdebitatus Assumpsit quantum meruit ad insimul computasset Valerent for Valebant good after Verdict The Plaintiff had a Iudgment by default in the Court of common-Common-Pleas and a Writ of Enquiry was brought and entire Damages given and now the Defendant brought a Writ of Error and it was argued that if any of the Promises be ill Iudgment shall be reversed the Error now assigned was in the second Promise Viz. That in consideration that the Plaintiff would let the Defendant have Meat Drink and Lodging he promised to pay so much Quantum rationabiliter valerent it should have been valebant at the time of the Promise made Sed non allocatur So the Iudgment was affirmed DE Termino Paschae Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Powis Attorny General Wm. Williams Sollicitor General NOTA Wednesday May 2. being the first day of this Term Sir Bartholomew Shower Recorder of London was called within the Bar. Heyward versus Suppie IN an Action of Covenant which was to make such an Assignment to the Plaintiff Covenant to make an Assignment as Council should advise according to an Agreement made between him and the Defendant as Council should direct and advise and for non-performance thereof this Action was brought the Defendant pleaded non est factum and Iudgment was obtained against him Vpon which a Writ of Error was brought and the common Error assgned It was objected that the Plaintiffs Council should give the advice because he is the person interested This Objection was answered by Mr. Pollexfen who said that the Defendant had likewise an interest in this matter for 't is an advantage to him to make the Assignment that his Covenant might be saved 't is true it had been otherwise if the Covenant had been to make such a Conveyance as Council should advise for then the person to whom the Covenant is made may chuse whether he will have a Feoffment
Contract for that Service with the Master was at Land But the principal reason why Mariners Wages are sued for in the Admiralty is because the Ship is liable as well as the Master who may be poor and not able to answer the Seamen Curia Take a Trial upon the necessity in this Case Anonymus THE Plaintiff recovered a Verdict against the Defendant in an Action upon the Case The Defendant now moved by his Council The Court will not order a Plaintiff to file the Venire Facias that the Plaintiff should file the Venire Facias and Distringas because all Writs which are returnable in this Court ought to be filed otherwise a Damage may ensue to the Officers and a Wrong to the King upon the Forfeitures of Issues by the Iurors which are always estreated upon the coming in of the Distringas The Council insisted upon it that it was the Common Law of this Realm and that it was the Right of the Subject that all Writs which issue out of the King's Courts should be filed that the Panel of the Venire Facias is part of the Record and that an Attaint could not be brought against the Iury if these Writs were not filed because non constat de personis This matter was referred to some of the ancient Clerks of the Court and to the Secondary Aston who reported that the Court never ordered a Plaintiff to file a Venire Facias against his Will Davies 's Case TRespass against Davies and Powel for breaking of the Plaintiffs Close and chasing and killing of Fowl in his Free Warren Prescription for all the Tenants of a Mannor to fowl in a Warren good though it was objected that it was too large The Defendant as to all the Trespass but chasing and killing of the Fowl pleaded Not-Guilty and as to that he sets forth that the Dean and Chapter of Exeter were seized in Fee of the Mannor of Brampton of which the said Warren was parcel and that they and all those whose Estates they had c. had liberty for themselves their Tenants and Farmers to fowl in the said Warren that the Dean and Chapter did make a Lease of parcel of the said Mannor to the Defendants for one and twenty years reserving a Rent c. and so they justifie as Tenants c. they did fowl in the said Warren The Plaintiff replied de injuria sua propria Vpon which they were at Issue and there was a Verdict for the Defendants Mr. Pollexfen moved in arrest of Iudgment because 't is an unreasonable Prescription for an interest in every Tenant of the Mannor to fowl in that Warren It hath been so ruled for a Common Roll. Abr. 399. without saying for his Cattle Levant and Couchant for it must be for a certain number In this Case the Prescription is not only in the person of the Lord but for all his Farmers and Tenants who cannot prescribe to have a free Warren in alieno solo E contra E contra It was argued that such a Prescription might not be good upon a Demurrer but 't is well enough after a Verdict 'T is not an Objection to say that this Prescription is too large for all Tenants as well Freeholders as Copyholders to prescribe in the Soil of another and so there may not be enough for the Lord himself Yelv. 187. 2 Cro. 256. because this is a Profit apprender in alieno solo and for such the Tenants of a Mannor may prescribe by a Que estate exclusive of the Lord and of that Opinion was the Court so the Defendant had his Iudgment Anonymus NOTA. An Information was brought in this Court for throwing down of Hedges and Ditches in which there were several Defendants who pleaded specially and the Clerk of the Crown Office demanded 13 s. and 4 d. for every Name which came to 17 l. for his Fees in this Plea and by reason of the great charge the Defendants did not plead but let Iudgment go by default Mr. Pollexfen moved that the Plea might be received and that it might be enquired what Fees were due which the Court would not try upon a Motion but advised an Indictment of Extortion if their Clerk was guilty Rex versus Inhabitantes de Malden SErjeant Shaw moved to affirm an Order made upon an Appeal to the Quarter Sessions of the Peace for the County of Essex The Case was viz. Order of Sessions quashed for settling a poor Man because he had not given formal notice in writing John Pain served an Apprentiship at Malden where he married and had several Children His Wife died he marryed another Woman who had a Term for years of an House in the Parish of Heybridge where he lived for a year and left Malden Afterwards he returned to Malden was rated to the Poor and lived there two years then he dyed In a short time after his death his Widow and Children were removed by an Order of two Iustices to Heybridge from which Order they appeal and by the Order of Sessions they were declared to be Inhabitants of Malden It was now moved by Mr. Pollexfen to quash it because it doth not appear that he gave any formal Notice in Writing to the Overseers of Malden when he returned from Heybridge and therefore ought to be settled there and not at Malden for being taxed to the Poor will not amount to Notice and he cited a stronger Case which was viz. The Churchwardens of Covent Garden certified under their Hands that such a person was an Inhabitant within their Parish but because no Note was left with them pursuant to the Statute notwithstanding such Certificate he was held to be no Inhabitant within their Parish and of that Opinion was all the Court. Anonymus IN Replevin three persons made Cognizance as Bayliffs to A. Whether an Infant should make Cognizance per Attorn or per Guardianum and so justifie the taking of the Cattle Damage Feasant in his Ground The Plaintiff replied that the Cattle were taken in his Ground and traverseth the taking in the place mentioned in the Cognizance There was Iudgment for the Defendant upon which a Writ of Error was brought and the Error assigned was that one of the Bayliffs was an Infant and made Cognizance per Attornatum when he ought to do it per Guardianum Mr. 2 Cro. 441. 2 Sand 212. 1 Rol. Abr. 228. 3 Cro. 441. Pollexfen This might be pleaded in Abatement but 't is not Error for an Infant Administrator may bring an Action of Debt per Attornatum because he sues in the Right of another and so his Infancy shall be no impediment to him The Bayliff in this Case is as much a Plaintiff as the Administrator in the other for he makes Cognizance in the Right of another and in such case if two are of Age and one is not they who are of Age may make an Attorney for him who is not So if there are two
Executors one of them of Age 2 Sand. 212. and the other not one may make an Attorney for the other There is no difference between Executors and Infants in this Case for Executors recover in the right of the Testator and the Bayliffs in the Right of him who hath the Inheritance Besides the Avowants are in the nature of Plaintiffs and whereever a Plaintiff recovers the Defendant shall not assign Infancy for Error Adjornatur Capel versus Saltonstal INdebitatus assumpsit in the Common Pleas Where there are several Plaintiffs in a personal thing and one dyeth before Judgment the Action is abated in which Action there were four Plaintiffs one of them died before Iudgment the others recover and now the Defendant brought a Writ of Error in this Court to reverse that Iudgment and the Question was whether the Action was abated by the death of this person Those who argued for the Plaintiffs in the Action held that the Debt will survive and so will the Action for 't is not altered by the death of the party for where Damages only are to be recovered in an Action well commenced by several Plaintiffs and part of that Action is determined by the Act of God or by the Law and the like Action remaineth for the residue the Writ shall not abate As in Ejectment if the Term should expire pending the Suit 1 Inst 285. the Plaintiff shall go on to recover Damages for though the Action is at end quoad the possession yet it continues for the Damages after the Term ended So if the Lessor bring Waste against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for Damages but the Survivor So where Trover was brought by two 2 Bulst 262. 1 Inst 198. and after the Verdict one of them died the Iudgment shall not be arrested because the Action survives to the other Mr. Pollexfen contra He admitted the Law to be that where two Iointenants are Defendants the death of one would not abate the Writ because the Action is joint and several against them But in all Cases where two or more are to recover a personal thing there the Death or Release of one shall abate the Action as to the rest though 't is otherwise when they are Defendants and are to discharge themselves of a personalty 6 Co. 25. b. Ruddock's Case 2 Cro. 19. And therefore in an Audita Querela by two the death of one shall not abate the Writ because 't is in discharge Now in this Case Iudgment must be entred for a dead Man which cannot be for 't is not consistent with reason The Case of Wedgewood and Bayly is express in it which was this Trover was brought by six and Iudgment for them one of them died the Iudgment could not be entred 'T is true where so many are Defendants and one dies the Action is not abated but then it must be suggested on the Roll. Curia Actions grounded upon Torts will survive but those upon Contracts will not The Iudgment was reversed Fisher versus Wren In the common-Common-Pleas THE Plaintiff brought an Action of Trespass on the Case Prescription and Custom alledged together and declared that he was seized of an ancient Mesuage and of a Meadow and an Acre of Land parcel of the Demesnes of the Mannor of Crosthwait and sets forth a Custom to grant the same by Copy of Court Roll and that there are several Freehold Tenements parcel of the said Mannor and likewise several Customary Tenements parcel also thereof grantable ad voluntatem Domini and that all the Freeholders c. time out of Mind c. together with the Copyholders according to the Custom of the said Mannor have enjoyed solam seperalem Pasturam of the Ground called Garths parcel of the said Mannor for their Cattle Levant and Couchant c. and had liberty to cut the Willows growing there for the mending of their Houses and the Defendant put some Cattle into the said Ground called Garths which did eat the Willows by reason whereof the Plaintiff could have no benefit of them c. Vpon Not Guilty pleaded there was a Verdict for the Plaintiff And now Serjeant Pemberton moved in arrest of Iudgment and took these Exceptions 1. As to the manner of the Prescription which the Plaintiff had laid to be in the Freeholders and then alledged a Custom for the Copyholders c. and so made a joint Title in both which cannot be done in the same Declaration because a Prescription is always alledged to be in a person and a Custom must be limited to a place and therefore an entire thing cannot be claimed both by a Prescription and Custom Vaughan 215. Carter 200. 1 Sand. 351. because the Grant to the Freeholders and this Vsage amongst the Copiholders could not begin together 2. As to the Custom 't is not good as pleaded to exclude the Lord for it can never have a good Commencement because Copyholders have Common in the Lords Soil only by permission to improve their Estates which Common being spared by the Lord and used by the Tenant becomes a Custom but no Vsage amongst the Tenants or permission of the Lord can wholly divest him of his Soil and vest an Interest in them who in the beginning were only his Tenants at Will 2 Sand. 325. 3. The third Exception and which he chiefly relyed on was viz. That this is a Profit apprender in alieno Solo to which all the Tenants of the Mannor are entituled and that makes them Tenants in Common and therefore in this Action where Damages are to be recovered they ought all to join 'T is true in real Actions Tenants in Common always sever 1 Inst 197 198. Godb. 347. but in Trespasses quare Clasum fregit and in personal Actions they always join and the reason is plain because in those Actions though their Estates are several yet the Damages survive to all and it would be unreasonable to bring several Actions for one single Trespass E contra It was argued that it cannot be denied E contra but that there may be a Custom or Prescription to have solam seperalem pasturam but whether both Prescription and Custom can be joyned together is the doubt now before the Court and as to that he held it was well enough pleaded 1 Sand. 351. for where there is an unusual Right there must be the like remedy to recover that Right it was thus pleaded in North's Case But admitting it not to be well pleaded 't is then but a double Plea to which the Plaintiff ought to have demurred and this may serve for an Answer to the first Exceptions Then as to the last Objection that 't is a Profit apprender in alieno solo for which all the Tenants ought to join 't is true a Common is no more than a Profit apprender
3 Willielmi Judicium Iudgment was given for the Defendant absente Dolbin Iustice who was also of the same Opinion It was held that the Custom was well alledged both as to the manner and matter 't is true all Customs must have reasonable beginnings but it would be very difficult to assign a lawful commencement for such a Custom as this is so it would be for the Custom of Gavelkind or Burrough English which are circumscribed to particular places and since 't is sufficient to alledge a Custom by reason of the place where t is used it may be as reasonable in this Case to say that there hath been an ancient Ferry-Boat kept in this place 't is but only an inducement to the Custom which did not consist so much in having a Right to the Passage as to be discharged of Toll This might have a lawful beginning either by a Grant of the Lord to the Ancestors of the Defendant or by the agreement of the Inhabitants A Custom alledged for all the Occupiers of a Close in such a Parish to have a Foot-way Cro. Car. 419. Co. Lit. 110. b. Cro. Eliz. 746. 1 Roll. Rep. 216. c. is not good the reason is because the Plaintiff ought to prescribe in him who hath the Inheritance but where a thing is of necessity and no manner of profit or charge in the Soil of another but only a thing in discharge or for a Way to a Market or to be quit of Toll in such cases not only a particular person but the Inhabitaints of a Vill may alledge a Prescription This may be as well alledged as a Custom to turn a Plow upon another mans Land or for a Fisherman to mend his Nets there 'T is good as to the matter for 't is only an easment 't is like a Custom alledged for a Gateway or Watercourse and for such things Inhabitants of a Vill Cro. Eliz. 441. or all the Parishioners of a Parish may alledge a Custom or Vsage in the place 2. Point But as to the Plea in Bar 't is not good because the execting of a Bridge is but laying out a Way t is a voluntary act and no man by reason of his own act can be discharged of what he is to do upon the interest he hath in the Ferry If the Defendant had petitioned the King to destroy the Ferry and got a Patent to erect a Bridge and had brought a Writ ad quod dampnum and it had been found by inquisition to be no damage to the People then he might safely have built this Bridge 3. But notwithstanding the Plea is not good yet the Plaintiff can have no advantage of it because he cannot have an Action on the Case for this matter for by his own shewing 't is a common Passage Cro. Car. 132 167. 1 Inst 56. a. Cro. Eliz. 664. 13 Co. 33. Davis 57. which is no more than a common High-way now for disturbing him in such a Passage no Action on the Case will lie unless he had alledged some particular damage done to himself for if he could maintain such an Action any other person is entituled to the like and this would be to multiply Suits which the Law will not allow but hath provided a more apt and convenient remedy which is by presentment in the Leet If Toll had been extorted from him F. N. B. 94. 22 H. 6.12 then an Action on the Case had been the proper remedy but no such thing appeared upon this Declaration Prince 's Case THE Suggestion in a Prohibition was that Prince was seized of the Rectory of Shrewsby ut de feodo jure and that he being so seised de jure ought to present a Vicar to the said place but that the Bishop of the Diocess had of his own accord appointed a person thereunto This Exception was taken to it viz. He doth not say that he was Impropriator but only that he was seised of the Rectory in Fee so it not appearing that he had it Impropriate he ought no to present the Vicar Iustice Dolben replied That in several places in Middlesex the Abbots of Westminster did send Monks to say Mass and so the Vicaridges were not endowed but he put in and displaced whom he pleased That he had heard my Lord Chief Iustice Hales often say that the Abbot had as much reason to displace such Men as he had his Butler or other Servant Curia Declare upon the Prohibition and try the Cause Harrison versus Hayward Pasch 2 Gulielmi Rot. 187. AN Agreement was made to assign a Stock upon Request When a thing is to be done upon request the performance must be when the person requires it and the Defendant cannot plead that he was ready to assign after the promise made and for non-performance an Action was now brought setting forth the Agreement and that the Plaintiff did request the Defendant at such a time c. The Defendant pleaded that he was ready to assign the Stock after the promise made c. and upon a Demurrer it was ruled if the thing was not to be done upon Request then the Defendant was bound to do it in a convenient time after the promise but it being to be done upon request the time when the Plaintiff will require the performance of the Agreement is the time when the Defendant must do it Iudgment pro Quer. Thompson versus Leach WRit of Error upon a Iudgment in Ejectment given in the common-Common-Pleas Surrender not good without acceptance of the Surrendree 2 Vent 198. the Case upon the special Verdict was thus Viz. Simon Leach was Tenant for Life of the Lands in question with Remainder in contingency to his first second and third Son in Tail Male Remainder to Sir Simon Leach in Tail c. This Settlement was made by the Will of Nicholas Leach who was seised in Fee The Tenant for Life two months before he had a Son born did in the absence of Sir Simon Leach the Remainder man in Tail seal and deliver a Writing by which he did Grant Surrender and Release the Lands which he had for Life to the use of Sir Simon Leach and his Heirs and continued in possession five years afterwards and then and not before Sir Simon Leach did accept and agree to this Surrender and entred upon the Premisses But that about four years before he thus agreed to it Simon Leach the Tenant for Life had a Son born named Charles Lessor of the Plaintiff to whom the Remainder in contingency was thus limited The Tenant for Life died then Sir Simon Leach suffered a Common Recovery in order to bar those Remainders 1. The Question was whether this was a legal and good Surrender of the Premisses to vest the Freehold immediately in Sir Simon Leach without his Assent before Charles Leach the Son of Simon Leach the Surrenderor was born so as to make him a good Tenant to the Precipe upon which the Recovery was
the Neglect in this Case was in the Servant the Action may be brought against all the Owners for it is grounded quasi ex contractu though there was no actual Agreement between the Plaintiff and them And as to this purpose 2 Sand. 345. Hob. 206. Hutt 121. 1 Mod. 198. 't is like the Case where a Sheriff levies Goods upon an Execution which are rescued out of the hands of his Bailiffs this appearing upon the Retorn an Action of Debt will lie against him though there was no actual Contract between the Plaintiff and him for he having taken the Goods in Execution there is quasi a Contract in Law to answer them to the Plaintiff 2. As to the second Point it was ruled that Not-Guilty was a good Plea to any Mis-feazance whatsoever and that a Plea in Abatement viz. that the rest of the Owners super se susceperunt simul cum Defendente absque hoc quod Defendens super se suscepit tantum had been no more than the general Issue 3 Cro. 554. Vering versus More but he hath not pleaded thus Iustice Dolben agreed that the Action ought to be brought against all the Proprietors it being upon a Promise created by Law but he was Opinion that this Matter might have been pleaded in Abatement Gold versus Strode AN Action was brought in Somersetshire and the Plaintiff recovered and had Iudgment and died Intestate Gold the now Plaintiff took out Letters of Administration to the said Intestate in the Court of the Bishop of Bath and Wells and afterwards brought a Scire Facias upon that Iudgment against the Defendant to shew Cause quare Executionem habere non debeat He had Iudgment upon this Scire Facias and the Defendant was taken in Execution and escaped An Action of Debt was brought by the said Gold against this Defendant Strode who was then Sheriff for the Escape and the Plaintiff had a Verdict It was moved in arrest of Iudgment and for Cause shewen that if the Administration was void then all the dependencies upon it are void also and so the Plaintiff can have no Title to this Action Now the Administration is void because the entring upon Record of the first Iudgment recovered by the Intestate in the County of Middlesex where the Records are kept made him have bona notabilia in several Counties and then by the Law Administration ought not to be committed to the Plaintiff in an inferior Diocess but in the Prerogative Court Curia The Sheriff shall not take advantage of this since the Iudgment was given upon the Scire Fac. and the Capias ad satisfaciendum issuing out against the then Defendant directed to the Sheriff made him an Officer of this Court and the Iudgment shall not be questioned by him for admitting it to be a Recovery without a Title yet he shall take no advantage of it till the Iudgment is reversed 'T is not a void but an erronious Iudgment and when a person is in execution upon such a Iudgment and Escapes and then an Action is brought against the Goaler or Sheriff 8 Co. 141. and Iudgment and Execution thereon though the first Iudgment upon which the party was in execution should be afterwards reversed yet the Iudgment against the Goaler being upon a collateral thing executed shall still remain in force The Ca. Sa. 21 E. 4. 23. b. Cro. El. 164. Moor 274. 2 Cro. 3. 1 Rol. Abr. 809 God b. 403. 2 Leon. 84. was a sufficient authority to the Sheriff to take the Body though grounded upon an erronious Iudgment and that Execution shall be good till avoided by Error and no false Imprisonment will lie against the Goaler or Sheriff upon such an Arrest Coghil versus Freelove In the common-Common-Pleas DEBT for Rent was brought against the Defendant as Administratrix of Thomas Freelove her late Husband deceased Debt for Rent incurred after an assignment by an Administrator for the privity of Contract is not determined by the death of the intestate 2 Vent 209. in which Action the Plaintiff declared That on the 1st of May 21 Car. 2. he did by Indenture demise to the said Thomas Freelove one Messuage and certain Lands in Bushey in Hertfordshire Habendum from Lady day then last past for and during the term of 21 years under a yearly Rent that by virtue thereof he entred and was possessed That on the 7th of March 1685. the said Thomas Freelove died Intestate and that the next day Administration of his Goods and Chattels was granted to the Defendant and that 78 l. was in arrear for Rent due at such a time for which this Action was now brought in the Detinet The Defendant confessed the Lease prout c. and the death of the Intestate and that the Administration was granted to her but saith that before the Rent was due she by Articles made between her of the one part and Samuel Freelove of the other part did assign the said Indenture and all her right title and interest thereunto and which she had in the Premisses unto the said Samuel Freelove who entred and was possessed that the Plaintiff had notice of this Assignment before he brought this Action but nothing was said of his acceptance To this Plea the Plaintiff demurred and the Defendant joined in Demurrer And Iudgment was given by the Opinion of the whole Court for the Plaintiff against the Authorities following Viz. Cro. Eliz. 555. 'T is true in Overton and Sydal 's Case it was resolved that if an Executor of Lessee for years assign his Interest Debt for Rent will not lye against him after such Assignment the reason there given was because the personal privity of the Contract is determined by the death of the Lessee as to the Debt it self and for the same reason the Executor shall not be lyable to the Rent after the death of the Lessee if such Lessee doth make an assignment of his Term in his life-time My Lord Coke mentioning this Case 3 Co. 24. a. in his third Report affirms that it was resolved by Popham Chief Iustice and the whole Court that if an Executor of a Lessee for years assign his Interest Debt will not lye against him for Rent due after such an Assignment Pop. 120. but my Lord Popham himself in Reporting that very Case tells us he was of another Opinion which was that so long as the Covenant in the Lease hath the nature and essence of a Contract it shall bind the Executor of the Lessee who as well to that as to many other purposes represents the person of the Testator and is privy to his Contracts T is true my Lord Popham held in that Case that the Action did not lye but because it was brought by the Successor of a Prebendary upon a Lease made by him in his life-time who being a single Corporation the personal Contract was determined by his death But the same Case reported by others Moor 251.
before a Coroner the person having drowned himself it was suffocat ' emergit fuit if it had stood singly upon the word emergit it had been insensible but the word suffocat ' expressing the sense it was held good 100 4. Where nothing is vested in the King before Office found ibid. 5. It must always be found that there is an Estate in the person offending and a cause of Forfeiture of that Estate to vest it in the King 336 Interest in a thing See Pardon 4. Where a Man may have an interest in a Chattel without a Property 61 2. Devise to a Wife and Children after Debts and Legacies paid an interest vests in the Devisees but 't is otherwise in case of Administration for there no Interest vests till actual distribution 65 3. A Man may have a Property tho' not in himself as in the Case of Joyntenancy 97 Intestate See Administration Innuendo The proper office of it is to make the subject matter certain 53 2. It will not help insensible words 54 Joyntenancy and Tenancy in Common See Abatement 3. Baron and Feme 12. Interest 3. If one Joyntenant bring an Action against the other unless he pleads the Jointenancy in abatement the Plaintiff will recover 97 2. If two Coparceners lease a House and the Rent is arrear and one brings an Action and recovers Judgment shall be arrested because both ought to joyn 109 3. Tenants in Common must join in the personalty but 't is otherwise in real Actions for though their Estates are several yet the Damages to be recovered survive to all 109 251 4. Where one Commoner may bring an Action against his Fellow 251 Joint Action See Action for a wrong 6. Ioyntenancy 2 3. Where an Action may be joint or several at the Election of the Plaintiff 86 2. Where 't is brought against three Defendants who plead jointly the Jury may sever the Damages and the Plaintiff may take Execution de melioribus damnis as well as where their Pleas are several and Tryals at several times 101 102 3. Judgment against two and one brought a Writ of Error and assigned the Infancy of the other for Error the Writ was abated because both did not joyn 134 4. The Defendants in the original Action must joyn in a Writ of Error but it seems otherwise where the Plaintiffs bring Error 135 5. Two covenant to sell Lands and the Purchasor agreed to pay the Mony to one of them he alone ought to bring the Action 263 6 Where there are several Proprietors of a Vessel for carriage of Goods which are damaged by carrying the Action must be brought against all or against the Master alone 321 322 7 Where two Tenants in Common were sued for not setting out of Tythes the Action ought to be brought not against him who set them out but against the other who carried them away 322 8. Two are bound joyntly one is sued he may plead in Abatement that he was bound with another but cannot plead Non est factum 323 9 In all Cases which are grounded upon Contracts the Parties who are Privies must be joyned in the Action ibid. 10 Action must be brought against all where a promise is created by Law 324 Issue Must be joyned upon an affirmative and a negative by concluding to the Country 80 Iudges The making altering and displacing of several Judges Serjeants at Law and King's Council 71 99 100 104 125 143 191 239 Iustices of Peace Offences against the Statute of 23 Eliz c. 1. for not coming to Church may be enquired of by them in their Sessions 79 2. Where a Statute appoints a thing finally to be done by them yet the Court of King's Bench may take Cognizance of it 95 3. Conviction for keeping of a Gun before a Justice of Peace the time when he had not 100 l. per Annum must be precisely alledged 280 Iustification See Pleading 4 5. Where 't is pleaded by way of Excuse to an Action of Trespass for the taking of any thing the Defendant must averr the Fact to be done and set forth the Warrant to him directed and the taking virtute Warranti and not generally that he took it by a Mandate c. 138 2. In Replevin where the Defendant made Conusance in right of the Lord he may Justifie the taking generally ibid. Iudgment 1. At the Common Law no Execution could be of a Judgment after a year and a day but the remedy was to bring an Action of Debt upon Judgment 187 189 2. Now a Scire Fac. is given upon a Judgment after the year by the Statue of W. 2. 189 3. When a Judgment is once execucuted the Goods are in custodia legis and shall not be taken away by an Exchequer Process or by the Commissioners of Bankrupts 236 L. Lapse See Notice Lease A Covenant in a Lease for years that the Lessee should pay the Rent without obliging his Executors or Administrators 't is determined by his Death 231 2. For 99 yeas if three persons or any of them so long live reserving a Rent and an Herriot upon the death of either the Beast of the Assignee shall not be taken for a Herriot for the Lessee is to pay his best Beast and that shall not be carried further than to the person named 231 Libel Where a Fine and Corporal punishment was imposed upon the Offender after Conviction 68 Limitation An Estate was setled upon Trustees to the use of A. and her Heirs provided she marry with the consent of Trustees remainder over to B. This is a Limitation and not a Condition 32 Limitation of Action See 21 Jac. 16. Where a Trespass is laid with a continuando for more than six years and the Statute pleaded and entire Damages it must be intended only for that which falls within the six years and that the Jury rejected the beginning of the Trespass 111 2. This Statute relates to a distinct and not to a continued Account 112 3. It provides a Remedy when the Plaintiff is beyond Sea at the time when his Right accrews and saves it till he returns whether it may be extended in a Case where the Defendant is beyond Sea longer than six years from the time the Plaintiff was entituled to the Action 311 312 Local Actions Whether Covenant will lie by an Assignee of a Reversion against an Assignee of a Lessee in any other place than where the Land lieth 337 2. Debitum contractus sunt nullius loci ibid. 3. Debt for Rent upon a Lease for years brought upon the Contract and Covenant between the same Parties are transitory ibid. 4. If Privity of Contract is gone by making an Assignment and only a privity in Law remains the Action must be brought in the County where the Land lieth ibid. M. Mayor See Corporation Marriage See Condition 3. Evidence 7. Limitation Notice A Maid above 12 and under 16 taken from Parents or Guardian and Married forfeits her Estate to the next in
upon the Estate which Affidavit was produced in Court but not suffered to be read but as a Note or Letter unless the Plaintiff would produce a Witness to swear that he was present when the Oath was taken before the Master And an Objection was made to the Settlement it self which recited That whereas a Marriage was intended to be had between the said Edmund Goodier and Elizabeth Mees now in consideration thereof and of a Portion he conveyed the said Mannor to the Feoffees to the use of himself for life and after his decease to the use of the said Elizabeth for life but doth not say from and after the Solemnization of the said Marriage so that if she had not married Mr. Goodier yet after his decease she would have enjoyed the Estate for life Vpon the whole matter the Iury found for the Defendant Dominus Rex versus Coney and Obrian THE Defendants were convicted for the Murder of Mr. Murder was pardoned by the name Felonica interfectio and held good 10 E. 3. c. 3. 13 R. 2. c. 1. Tyrrwhite and Mr. Forster in a Duel and now pleaded their Pardon in which there was a Clause Non obstante the Statute of Ed. 3. which appoints him that hath a Pardon of Felony to find Sureties for his Good Behaviour before it shall be allowed and another Non obstante to the Statute of R. 2. which enacts that if the Offence be not specified in the Pardon it shall not be allowed Now the Word Murdrum was not in this Pardon the Offence was expressed by these general Words Felonica interfectione and whether it did extend to pardon Murder was the Question Mr. Astry the Clerk of the Crown informed the Court that one Alexander Montgomery of Eglington pleaded the like Pardon for Murder but it was held insufficient and the Court gave him time to get his Pardon amended which was done likewise in this Case The Defendants came again on another day and Councel being allowed to plead for them insisted that the Pardon was good and that the Murder was sufficiently pardoned by these Words that it is in the power of the King to pardon by general Words and his intent did plainly appear to pardon the Defendants That the murther of a person is rightly expressed by felonious killing though not so properly as by the word Murdrum it self the omission of which word will not make the Pardon void And to prove this he cited the Sheriff of Norfolk's Case 2 R. 3. 7. a. who was indebted to the King during the time he was Sheriff and was pardoned by the Name of J. W. Esquire who was the same person de omnibus debitis computis c. Afterwards he was charged in the Exchequer for 100 l. where he pleaded this Pardon and it was held good though he was not named Sheriff and so not pardoned by the name of his Office yet the Kings intention appearing in his Charter and having pardoned him by his right Name that was sufficient and in that Case the King himself was concerned in point of interest The Books all agree More 752. Lucas's Case 8 Co. 18. 3 Inst 234. that before the Statute of R. 2. the King might pardon Murder by the word Felony now this Prerogative being incident to the Crown and inseparable from the person of the King was not designed to be wholly restrained by that Act for the Parliament only intended that by specifying the Offence in the Pardon the King should be rightly informed of the nature of it and when he understands it to be Murder he would not grant a Pardon But admitting his power to be restrained by that Statute Stamf. 101. yet a Non obstante is a dispensation of it and therefore this Pardon ought to be allowed The Pardon was held good by the whole Court And Jefferies the Chief Justice said that he had proposed this Case to all the Judges of England Sid. 366. and they were all of the same Opinion and that he remembred Dudley's Case where a Pardon in general words was allowed DE Term. Sancti Hill Anno 35 Car. II. in Banco Regis 1683 4. Brason versus Dean A Covenant upon a Charter Party for the Freight of a Ship A thing lawful to be done when the party did covenant to do it and afterwards prohibited the Covenant is binding The Defendant pleaded that the Ship was loaded with French Goods prohibited by Law to be imported and upon Demurrer Judgment was given for the Plaintiff for the Court were all of Opinion That if the thing to be done was lawful at the time when the Defendant did enter into the Covenant though it was afterwards prohibited by Act of Parliament yet the Covenant is binding Barnes versus Edgard TRespass for breaking his Close and impounding of his Cattle Where Damages are under 40 s. the Plaintiff must have ordinary Costs Vpon Not Guilty pleaded the Plaintiff had a Verdict but Damages under 40 s. Whereupon Mr. Livesay the Secondary refused to tar full Costs alledging it to be within the Statute of 22 23 Car. 2. by which 't is Enacted 22 23 Car. 2. cap. 9. That in all Actions of Trespass Assault and Battery and other personal Actions wherein the Judge shall not certifie upon the back of the Record that a Battery was proved or the Freehold or Title of the Land chiefly in question if the Jury find the Damages under 40 s. the Plaintiff shall recover no more Costs than Damages Mr. Pollexfen moved for Costs alledging that this Act doth not extend to all trespasses but only to such where the Freehold of the Land is in question If the Action had been for a Trespass in breaking his Close and Damages given under 40 s. there might not have been full Costs but here is another Count for impounding the Cattle of which the Defendant is found guilty and therefore must have his Costs The like Case was adjudged in this Court in Hillary Term last Smith versus Batterton Raym. 487. Jones 232. which was Trespass for breaking and flinging down Stalls in the Market place The Plaintiff had a Verdict and 2 d. damages and upon a debate whether he should have full Costs the Court were of Opinion that it was not within that Statute because the Title could not come in question upon the destruction of a Chattle In the principal Case the Plaintiff had ordinary Costs DE Termino Paschae Anno 36 Car. II. in Banco Regis 1684. Marsh versus Cutler THE Plaintiff obtained a Iudgment in an Hundred Court for 58 s. and 4 d. If Debt be brought upon a Specialty for part of the Sum the Plaintiff must shew how the other is discharged 2 Cro. 498 499 529 530. and brought an Action of Debt upon that Iudgment in this Court for 58 s. only and did not shew that the 4 d. was discharged and upon Nultiel Record pleaded and a Demurrer to that Plea the
the Court of Arches the Case was Prohibition not granted where a temporal loss may ensue The Plaintiff was presented by the Mayor and Aldermen of Bristol to the Parish Church of Christ-Church in the said City and the Defendant libelled against him because he was not 23 years of Age when made Deacon nor 24 when he entred into the Orders of a Priest 13 Eliz. c. 12. and the Statute requires that none shall be made a Minister or admitted to preach being under that Age. The reason now alledged for a Prohibition was because this Matter was triable at Law and not in the Spiritual Court because if true a Temporal Loss viz Deprivacion might follow But the Court denied the Prohibition and compared this Case to that of a Drunkard or ill Liver who are usually punished in the Ecclesiastical Courts though a temporal loss may ensue and if Prohibitions should be granted in all Cases where Deprivation is the consequence of the Crime it would very much lessen the Practice of those Courts David Burgh 's Case THE Parishioners of St. Leonard Foster Lane gave this Man who had a Wife and five Children 5 l. in Mony to remove into another Parish upon Condition that if he returned in 40 days that he should repay the Mony he removed accordingly and stayed away by the space of 40 days the Parish to which he removed obtained an Order upon an Appeal for his settlement in the last Parish where he was lawfully an Inhabitant which Order being removed into this Court and the Matter appearing thus upon Affidavits they declared their Opinion only upon the Order to remove viz. That the Man had gained a Settlement in the Parish to which he removed for he being an Inhabitant there for so long time as was required by Law to make a Settlement and not disturbed by the Officers they were remiss in their Duty and the Court would not help their negligence DE Term. Sanctae Trin. Anno 1 Jac. II. in Banco Regis 1685. Dominus Rex versus Dangerfield THE Defendant was convicted of publishing a Libel wherein he had accused the King when Duke of York that he had hired him to kill the late King Charles c. And on Fryday June 20. He was brought to the Barr where he received this Sentence viz. That he should pay the Fine of 500 l. That he should stand twice in the Pillory and go about the Hall with a Paper in his Har signifying his Crime That on Thursday next he should be whipped from Algate to Newgate and on Saturday following from Newgate to Tyburn which Sentence was executed accordingly and as he was returning in a Coach on Saturday from Tyburn one Mr. Robert Frances a Barrister of Greys-Inn asked him in a jeering manner whether he had run his Heat that day who replied again to him in scurrilous words whereupon Mr. Frances run him into the Eye with a small Cane which he had then in his Hand of which wound the said Mr. Dangerfield died on the Monday following Mr. Frances was indicted for this Murder and upon Not-guilty pleaded was tried at the Old-Bayly and found guilty and executed at Tyburn on Fryday July the 24th in the same year Mr. Baxter's Case HE was a Nonconformist Minister against whom an Information was exhibited for writing of a Book which he Entituled A Paraphrase upon the New Testament and the Crime alledged against him in the said Information was That he intending to bring the Protestant Religion into contempt and likewise the Bishops innuendo the Bishops of England did publish the Libel in which was contained such words c. setting forth the words He was convicted And Mr. Williams moved in arrest of Iudgment that the words in the Information and the Bishops therein mentioned were misapplied to the Protestant Religion and the Bishops of England by such Innuendoes which could not support this Charge against the Defendant That the Distringas and Habeas Corpora were inter nos Richardum Baxter which could not be because the Information was exhibited in the name of the Attorney General But the Court over-ruled these Exceptions and said that by the word Bishops in this Information no other could be reasonably intended but the English Bishops thereupon the Court fined him 500 l. and ordered him to give Security for his Good Behavior for seven years Procter versus Burdet AN Action of Covenant was brought by an Apprentice setting forth the Indenture by which the Defendant In Covenant the Breach was generally assigned and held good his Master had covenanted to find and allow the Plaintiff Meat Drink Lodging and all other things necessary during such a time and the Breach was as general as the Covenant viz. That he did not find hind him Meat Drink Lodging alia necessaria The Plaintiff had Iudgment by Nil dicit and upon a Writ of Enquity brought entire Damages were given against the Defendant And in a Writ of Error upon this Iudgment the Error assigned was that the Breach was too general and that entire Damages were given amongst other things for alia necessaria and doth not say for what 2 Cro. 436. Astel versus Mills and a Case was cited in the Point in Trinity-Term 16 Jacobi where the Iudgment was reversed for this very reason The Council contra argued that that which is required in an Action of Covenant is that there may be such a certainty as the Defendant may plead a former Recovery in Barr if he be sued again and therefore one need not be so particular in assigning of the Breach upon a Covenant as upon a Bond for in a Bond for performance of Covenants where there is a Covenant to repiar if it be put in suit 't is not sufficient to say That the House is out of repair but you must shew how but in a Covenant 't is enough to say That it was out of repair If in this Case the Plaintiff had shewed what necessaries were not provided for him Kelway 85. it would have made the Record too long and therefore 't is sufficient for him to say that the Defendant did not find alia necessaria That Case in 2 Cro. 2 Cro. 304 367. 1 Rol. Rep. 173. 3 Bulst 31. 2 Saund. 373. has since been adjudged not to be Law for many contrary Iudgments have weakened the Authority of it viz. That the Breach may be assigned as general as the Covenant as where a Man covenanted that he had a lawful Estate and Right to let c. the Breach assigned was that he had no lawful Estate and Right to let c. and doth not shew that the Lessor had not such Right or that he was evicted yet it was held good Curia In a Quantum meruit they formerly set out the Matter at length but now of late in that Action in general Words and also in Trover and Conversion pro diversis aliis bonis hath been held good which is as
it because the words were an entire Sentence and spoken altogether at the same time and therefore if a Prohibition should not go it would be a double vexation DE Termino Paschae Anno 1 Jac. II. in Banco Regis 1685. Earl of Yarmouth versus Darrel THE Plaintiff brought an Action on the Case Grant of the King of sole Printing not good setting forth Letters Patents of King Charles the II. by which the Sole Printing of Blank Writs Bonds and Indentures were granted to him excepting such Forms which belonged to the Custom-House and which were formerly granted to Sir Roger L'Estrange that this Grant was to continue for the space of 30 Years and that the Defendant had notice thereof and had printed 500 Blank Bonds which he laid to his damage of the sum of 40 l. Vpon Not Guilty pleaded the Iury found a special Verdict the substance of which was that the Defendant was a Stationer and that the Company of Stationers for the space of 40 years last past before the granting of these Letters Patents had constantly printed Blank Bonds and so made a general conclusion Mr. Trindar argued for the Plaintiff and the only Question was Whether this Patent did vest a sole Interest in the Plaintiff exclusive to all others In his Argument he insisted on these Points 1. That the King hath a Prerogative in Printing and may grant it Exclusive to others 2. That this Prerogative extends to the Case at the Bar. That he hath such a Prerogative 't is confirm'd by constant Vsage for such Grants have been made by the Kings of England ever since Printing was invented But to instance in a few Viz. The Patent for Printing of Law-Books was granted to one More on the 19th day of January in the 15th year of King James the I. And when that Patent was expired another was granted to Atkyns and others on the 15th day of November in the 12th year of King Charles the II. In 23. Eliz. a Patent was granted to the Company of Stationers for the sole Printing of Psalm-Books and Psalters for the space of 30 years And on the 8th of August 31 Eliz. the like Patent was granted to Christopher Barker for Life Another Patent to the Company of Stationers for printing of Corderius c. These and many more of the like nature shew what the constant usage hath been Now the Statute of Monopolies doth not reach to this Case because of the Proviso therein to exempt all such Grants of sole Printing and by the Statute of King Charles the II. for regulating of the Press 14 Car. 2. cap. 33. 't is Enacted That no person shall Print any Copy which any other hath or shall be granted to him by Letters Patents and whereof he hath the sole Right and Priviledge to Print And upon the breaches of these Statutes several Iudgments have been given Between Streater and Roper in this Court Mich. 24 Car. 2. Rot. 237. 't is true the Iudgment was against the Plaintiff but upon a Writ of Error brought in Parliament that Iudgment was reversed The same Term there was a Iudgment given upon a special Verdict in the common-Common-Pleas for the Plaintiffs Hill 35 Car. 2. B. R. Rot. 99. who were the Company of Stationers against Seymour for Printing of Almanacks And they obtained the like Iudgment against Wright for Printing of Psalters and Psalm-Books Now to apply this to the principal Case 't is to be considered that these Books for which the sole Printing was so claimed were of a publick nature and importance relating to the good and benefit of the Subjects and so likewise are Blank Bonds for there may be false and vitious Impressions to the ruin and destruction of many innocent people And as a farther Argument that the King hath this Prerogative 't is likewise to be considered that where no individual person can claim a Property in a thing there the King hath a Right vested in him by Law and it cannot be pretended that any particular person hath a Right to Print those Bonds therefore the finding that such were printed by the Company for above 40 years is immaterial because there being an inherent Prerogative in the King whenever he exerts it all other persons are bound up who were at liberty before To prove which the Iudgment in the Case of the East-India Company is express in point for before that Patent the subject had liberty to Trade to those places prohibited by that Grant but afterwards they were restrained by that Grant Neither is this in the nature of a Monopoly 11 Co. 84. 't is not like that of the sole Grant of making Cards which hath been adjudged void and with great reason because that Grant reached to prohibit a whole Trade and therefore differs from this Case for the Defendant may print other Instruments or Books and exercise his Trade in some other lawful and profitable Commodities and so might the Merchants in the Case of the East-India Company for they were restrained by the Patent as to particular places but might Trade to any other part of the World Neither will the Subjects in general receive any prejudice by this or such like Grants for if the Patentees make ill use of their Priviledges tho' it cannot be properly called an Office yet 't is a Trust and a Scire Facias will lie to repeal their Grants It was argued by the Councel for the Defendant E contra That the Verdict having found that the Company of Stationers had used to print those Bonds for above 40 years before the making of this Grant the Question will be Whether they are now divested of a Right so long enjoyed And as to that 't is not a new thing to object That notwithstanding such Grants yet other persons have insisted on a Right to Print and have printed accordingly Thus the sole Printing of Law-Books was granted to one Atkyns yet the Reports of Iustice Jones and my Lord Chief Iustice Vaughan were printed without the direction of the Patentees Printing as 't is a manual Occupation makes no alteration in this Case for the King hath as great a Prerogative in Writing any thing that is of a publick Nature as he hath in Printing of it Now considering Printing as an Art exclusive from the thing printed this Patent is not good For if a Man invent a new Art and another should learn it before the Inventor can obtain a Patent if afterwards granted 't is void Then consider it in relation to the thing printed 1 Roll. 4. 11 Co. 53. id which in this Case are Blank-Bonds 't is not a new Invention because the Company of Stationers have printed such above 40 years and for that reason this Patent is void for where the Invention is not New there Trade shall not be restrained No Man can receive any prejudice by the printing of such Bonds for they are of no Vse till filled up 't is only a bare Manufacture
of setting of so many Letters together but filling up the Blanks makes them of another nature Grants of things of less moment have been adjudged Monopolies 2 Rol. Abr. 215. pl. 5. as a Patent for the sole making of all Bills Pleas and Briefs in the Council of York for by the same reason a like Patent might be granted to make all Declarations in the Courts of Westminster Hall Curia The King hath a Prerogative to Grant the sole Printing to a particular person all the Cases cited for the Plaintiff do not reach the reason of this Case for there is a difference between things of a publick Vse and those which are publick in their Nature even Almanacks have been used to ill purposes as to foretel future Events yet they are of publick Vse to shew the Feasts and Fasts of the Church The Court enclined that the Patent was not good Jackson versus Warren A Motion was made in arrest of Iudgment Amendment for that the day when the Assises were to be held and the place where were left out of the Distringas and so a mis-tryal But the Court were of another Opinion 1 Roll. Abr. 201. for if there had been no Distringas the Tryal had been good because they Jurata is the Warrant to try the Cause which was right and therefore the Distringas was ordered to be amended by the Roll. Dominus Rex versus Sparks 'T IS Enacted by the Statute of 1 Eliz. Where a Punishment is directed by a Statute the Judgment must be pursuant 1 Eliz. cap. 2.13 14 Car. 2. cap. 4. That every Minister shall use the Church-Service in such Form as is mentioned in the Book of Common-Prayer and if he shall be convicted to use any other Form he shall forfeit one whole Years profit of all his Spiritual Promotions and suffer six Months Imprisonment And by the Statute of King Charles the II. All Ministers are to use the publick Prayers in such Order and Form as is mentioned in the Common-Prayer-Book with such Alterations as have been made therein by the Convocation then sitting The Defendant was indicted at the Quarter-Sessions in Devonshire for using alias Preces in the Church alio modo than mentioned in the said Book and concludes contra formam Statuti He was found Guilty and fined 100 Marks and upon a Writ of Error brought Mr. Polexfen and Mr. Shower argued for the Plaintiff in Error that this Indictment was not warranted by any Law and the Verdict shall not help in the case of an Indictment for all the Statutes of Jeofails have left them as they were before Now the Fact as 't is said in this Indictment may be no offence because to use Prayers alio modo than enjoyn'd by the Book of Common-Prayer may be upon an extraordinary occasion and so no Crime But if this should not be allowed the Iustices of Peace have not power in their Sessions to enquire into this matter or if they had power they could not give such a Iudgment because the punishment is directed by the Statute and of this Opinion was the whole Court The Chief Iustice said that the Statute of the 23 Eliz. 23 Eliz. cap. 1. could have no influence upon this Case because another Form is now enjoyned by later Statutes but admitted that Offences against that Statute were enquitable by the Iustices The Indictment ought to have alledged that the Defendant used other Forms and Prayers instead of those enjoyned which were neglected by him for otherwise every Parson may be indicted that useth prayers before his Sermon other than such which are required by the Book of Common-Prayer Clerk versus Hoskins DEbt upon a Bond for the performance of Covenants in certain Articles of Agreement in which it was recited That whereas the now Defendant had found out a Mystery in colouring Stuffs and had entred into a Partnership with the Plaintiff for the term of seven Years he did thereupon Covenant with him that he would not procure any person to obtain Letters Patents within that Term to exercise that Mystery alone The Defendant pleaded that he did not procure any person to obtain Letters Patents c. The Plaintiff replied and assigned for breach that the Defendant did within that term procure Letters Patents for another person to use this Mystery alone for a certain time Et hoc petit quod inquiratur per patriam And upon a Demurrer to the Replication these Exceptions were taken 1. That the Plaintiff hath not set forth what Term is contained in the Letters Patents 2. That he had pleaded both Record and Fact together for the procuring is the Fact and the Letters Patents are the Record and then he ought not to have concluded to the Country Prout patet per Recordum To which it was answered That the Plaintiff was a Stranger to the Term contained in the Letters Patents and therefore could not possibly shew it but if he hath assigned a full breach 't is well enough Then as to the other Exception viz. the pleading of the Letters Patents here is not matter of Record here is a plain negative and affirmative upon which the Issue is joyned and therefore ought to conclude hoc petit c. Curia There is a Covenant that the Defendant shall not procure Letters Patents to hinder the Plaintiff within the seven Years of the Partnership Now this must be the matter upon which the breach ariseth and not the Letters Patents so that it had been very improper to conclude prout patet per Recordum Iudgment for the Plaintiff Rex versus Hethersal THE Defendant was Felo de se Melius inquireddum not granted but for misdemeanor of the Jury and the Coroners Inquest found him a Lunatick and now Mr. Jones moved for a Melius inquirendum but it was denied because there was no defect in the Inquisition but the Court told him that if he could produce an Affidavit that the Iury did not go according to their Evidence or of any indirect Proceedings of the Coroner then they would grant it But it was afterwards quashed because they had omitted the year of the King Friend versus Bouchier Trin. 34 Car. 2. Rot. 920. EJectment upon the Demise of Henry Jones What words in a Will make a general Tail of certain Lands in Hampshire The Iury found this Special Verdict following Viz. That William Holms was seised in Fee of the Lands in question who by his last Will dated in the year 1633. devised it to Dorothy Hopkins for Life Remainder to her first Son and to the Heirs of the Body of such first Son c. and for default of such Issue to his Cousin W. with several Remainders over And in default of such Issue to Anne Jones and to her Heirs who was the Lessor of the Plaintiff That before the sealing and publishing of this Will he made this Memorandum Viz. Memorandum that my Will and Meaning is That Dorothy Hopkins
the one took 70 l. and the other 30 l. damages shall be assessed severally It was admitted that regularly the damages ought to be entire especially where the Action is joint but where the Facts are several damages may likewise be so assessed but in this Case the Iury hath done what the Court would do had it béen in a Criminal Cause Curia This is all but one Fact which the Iury is to try 'T is true when several Persons are found Guilty criminally then the damages may be severed in proportion to their Guilt but here all are equally guilty of the same offence and it seems to be a contradiction to say that the Plaintiff is injured by one to the value of 50 l. and by the other to the value of 1000 l. when both are equally Guilty Every Defendant ought to answer full as much as the Plaintiff is damnified now how is it possible he should be damnified so much by one and so little by the other But notwithstanding this Opinion Iudgment was afterwards given for the Plaintiff Peak versus Meker IN an Action on the Case for Words the Plaintiff declared that he was a Merchant and bred up in the Church of England and that when the present King came to the Crown the said Plaintiff made a Bonfire at his Door in the City of London and that the Defendant then spoke of him these words for which he now brought this Action viz. He innuendo the Plaintiff is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his Door but he The Plaintiff had a Verdict and 500 l. Damages were given A Writ of Error was brought but it was adjudged without argument that the words were actionable Joyner versus Pritchard AN Action was brought upon the Statute of R. II. Admiralty for prosecuting of a Cause in the Admiralty Court which did arise upon the Land it was tried before the Chief Iustice in London and a Verdict for the Plaintiff Mr. Thompson moved in Arrest of Iudgment for that the Action was brought by Original in which it was set forth that the Defendant prosecut fuit adhuc prosequitur c. in Curia Admiralitat now the prosequitur is subsequent to the Original and so they have recovered Damages for that which was done after the Action brought Curia These words adhuc prosequitur must refer to the time of suing forth this Original like the Case of a Covenant for quiet Enjoyment and a breach assigned that the Defendant built a Shed whereby he hindred the Plaintiff that he could not enjoy it hucnsque which word must refer to the time of the Action brought and not afterwards Iudgment was given for the Plaintiff Dominus Rex versus ........ AN Information was brought against the Defendant for Forgery Forgery setting forth that the Defendant being a man of ill fame c. and contriving to cheat one A. did forge quoddam scriptum dated the 16th day of October in the year 1681. continens in se scriptum obligatorium per quod quidem scriptum obligatorium praed A. obligatus fuit praed Defend in quadraginta libris c. He was found Guilty and afterwards this Exception was taken in arrest of Iudgment Viz. That the Fact alledged in the Information was a contradiction of it self for how could A. be bound when the Bond was forged 2. It is not set forth what that scriptum obligatorium was whether it was scriptum sigillatum or not Curia The Defendant is found Guilty of the forging of a Writing in which was contained quoddam scriptum obligatorium and that may be a true Bond. Iudgment was arrested MEMORANDUM On Tuesday April the 27th Sir Thomas Powes of Lincolns-Inn was made Sollicitor General in the Place of Mr. Finch and was called within the Bar. Hanchet versus Thelwal IN Ejectment a special Verdict was found Devise What words in a Will make an Estate for Life and what in Tail in which the Case did arise upon the construction of the words in a Will Viz. The Testator being seised in Fee had Issue Two Sons and Four Daughters He made his Will and devised his Estate being in Houses by these words Viz. Irem I give and bequeath to my Son Nicholas Price my Houses in Westminster and if itplease God to take away my Son then I give my Estate to my four Daughters naming them share and share alike and if it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving And if all my Sons and Daughters dye without Issue then I give my said Houses to my Sister Anne Warner and her Heirs Nicholas Price entred and died without Issue then the four Sisters entred and Margaret the eldest married Thellwel and died leaving Issue a Son who was the Lessor of the Plaintiff who insisted upon his Title to a fourth part of the Houses The Question was what Estate the Daughters took by this Will whether joint Estates for Life or several Remainders in Tail If only joint Estates for Life then the Plaintiff as Heir to his Mother will not be entituled to a fourth part if several Remainders in Tail then the Father will have it during his Life as Tenant by the Curtesie This Case was argued this Term by Mr. Pollexfen for the Plaintiff And in Hillary Term following by Councel for the Defendant The Plaintiffs Council insisted that they took joint Estates for Life and this seemed to be the intent of the Testator by the words in his Will the first Clause whereof was Viz. I give and bequeath my Houses in W. to Nicholas Price Now by these words an Estate for Life only passed to him and not an Inheritance for there was nothing to be done or any thing to be paid out of it 2. The next Clause is Viz. If it please God to take away my Son then I give my Estate to my four Daughters share and share alike Now these words cannot give the Daughters a Fee-simple by any intendment whatsoever but if any word in this Clause seems to admit of such a Construction it must be the word Estate which sometimes signifies the Land it self and sometimes the Estate in the Land But here the word Estate cannot create a Fee-simple because the Testator gave his Daughters that Estate which he had given to his Son before and that was only for Lise Then follow the words share and share alike and that only makes them Tenants in Common 3. The next Clause is Viz. If it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving These words as they are penned can have no influence upon the Case 4. Then followeth the last Clause Viz. And if all my Sons and Daughters dye without Issue then I give c. These words create no Estate tail in the
the person who made Oath before them The Commissioners sign the Depositions and they ought to produce them so signed to the Court and prove it for Depositions are often suppressed by Order of the Court. If a true Copy of an Affidavit made before the Chief Iustice of this Court be produced at a Trial 't is not sufficient to convict a Man of Perjury This is not like the Case of Perjury assigned in an Answer in Chancery taken in the Country for that is under the Parties Hand but here is nothing under the Defendant's Hand and therefore the Commissioners ought to be in the Court to prove him to be the Man The Court were equally divided The Chief Iustice and Wythens Iustice were of Opinion that it was not Evidence to convict the Defendant of Perjury it might have been otherwise upon the Return of a Master of Chancery for he is upon his Oath and is therefore presumed to make a good Return but Commissioners are not upon Oath they pen the Depositions according to the best of their skill and a man may call himself by another name before them without any offence The Commissioners cannot be mistaken in the Oath tho' they may not know the person for this Court may be so mistaken in those who make Affidavits here but not in the Oath if the Commissioners or the Clerk to the Commission had been here they would have been good Evidence If an Affidavit be made before a Iustice of the Peace of a Robbery as enjoyned by the Statute if you will convict the person of Perjury you must prove the swearing of the Affidavit The Attorney General perceiving the Opinion of the Court rather than the Plaintiff should be nonsuit because no Evidence could be given offered to enter a Nolle prosequi which the Court said could not be done because the Iury were sworn but he insisted upon it and said he would cause it to be entred Sir John Knight's Case AN Information was exhibited against him by the Attorney General upon the Statute of 2 E. 3. Information upon the Statute for going armed 2 E. 3. c. 3. Which prohibits all persons from coming with Force and Arms before the King's Justices c. and from going or riding armed in affray of Peace on pain to forfeit his Armour and suffer Imprisonment at the King's Pleasure This Statute is confirmed by that of R. 2. 20 R. 2.1 with an Addition of a farther punishment which is to make a Fine to the King The Information sets forth that the Defendant did walk about the Streets armed with Guns and that he went into the Church of St. Michael in Bristol in the time of Divine Service with a Gun to terrifie the King's Subjects contra formam Statuti This Case was tryed at the Bar and the Defendant was acquitted The Chief Iustice said that the meaning of the Statute of Ed. 3. was to punish People who go armed to terrifie the Kings Subjects 'T is likewise a great Offence at the Common Law as if the King was not able or willing to protect his Subjects and therefore this Act is but an affirmance of that Law and it having appointed a Penalty this Court can inflict no other Punishment than what is therein directed DE Term. Sancti Hill Anno 2 3 Jac. II. in Banco Regis 1686 7. Kingston versus Herbert A Common Recovery was suffered Anno 22 Jacobi primi Where a Scire Facias must go to the Tertenants before Judgment be reversed and a Writ of Error was brought about five years since to reverse it and Iudgment was given for the Reversal and it was now moved to set aside that Reversal because there was no Scire Facias against the Tertenants Mr. Williams who argued for the Reversal said that the want of a Scire Facias must be either in Law or in Fact it cannot be Error in Law for that must appear upon the Record it self which it doth not here It cannot be Error in Fact because there is no necessity of such a Writ 't is only discretionary in the Court and not ex necessitate juris But on the other side it was insisted that the Court cannot proceed to examine Errors before a Scire Facias is awarded to the Tertenants Dyer 320 331. for they may have a Matter to plead in Barr to the Writ as a Release c. and the Party cannot be restored to all which he hath lost by the suffering of the Recovery unless the Defendant be brought in upon the Scire Facias Curia The only Question is whether this Iudgment be well given without a Scire Facias The Secondary hath reported that the Practice is so Then as to the Ojection that such a Scire Facias is not ex necessitate juris but only discretionary 't is quite otherwise for 't is not only a cautionary Writ as all other Scire Facias but 't is a legal caution which in a manner makes it necessary 'T is true if there had been a Iudgment corruptly obtained this Court might have set it aside but if Erronice 't is a doubt whether it may be vacated but according to the Forms and Methods of Law Adjornatur Baldwin versus Flower BAron and Feme brought an Action on the Case for Words spoken of the Wife Words where actionable without special damage The Declaration was that the Defendant having some discourse with another person called the Wife Whore and that she was his Whore and concluded ad dampnum ipsorum c. The Plaintiff had a Verdict and it was now moved in arrest of Iudgment for that the Words were not actionable without alledging special damage But it was answered Rol. Abr. 35. placit 7. that the Action was well brought To say A Man is rotted with the Pox is actionable without alledging special damage because the person by such means will lose the Communication and Society of his Neighbours As to the Conclusion ad dampnum ipsorum 't is good for if she survive the Husband the Damages will go to her and so are all the Presidents Curia The Words are actionable And three Iustices were of Opinion that the Conclusion of the Declaration was as it ought to be which Iustice Wythens denied for if an Innkeepers Wife be called a Cheat and the House loses the Trade the Husband hath an injury by the Words spoken of his Wife but the Declaration must not conclude ad dampnum ipsorum Sir Thomas Grantham's Case HE bought a Monster in the Indies which was a Man of that Country who had the perfect Shape of a Child growing out of his Breast as an Excrescency all but the Head This Man he brought hither and exposed to the sight of the People for Profit The Indian turns Christian and was baptized and was detained from his Master who brought a Homine Repleg ' the Sheriff returned that he had replevied the Body but doth not say the Body in which
the said Master c. for the use of the Company and that no Member of the Company should buy rough Horn within four and twenty miles of London but of those two Men so appointed under a Penalty to be imposed by the said Master Warden c. That the Defendant did buy a quantity of rough Horn contrary to the said Law c. There was Iudgment in this Case by default And for the Defendant it was argued that this was not a good By-Law 1. Because it doth restrain Trade 11 Co. 54. Hob. 210. for the Company are to use no Horns but such as those two Men shall buy and if they should have occasion for more than those Men should buy then 't is plain that Trade is thereby restrained 2. The Master c. hath reserved a power which they may use to oppress the Poor because they may make what Agreements they will amongst themselves and set unreasonable prices upon those Commodities and let the younger sort of Tradesmen have what quantity and at what rates they please To which it was answered by Serjeant Thompson First This By-Law is for the encouragement of Trade because the Horns are equally to be distributed when brought to the Hall for the benefit of the whole Company But the material Objection was that this being a Company incorporated within the City of London they have not Iurisdiction elsewhere but are restrained to the City and by consequence cannot make a By-Law which shall bind at the distance of four and twenty miles for if they could make a Law so extensive they might by the same reason enlarge it all over England and so make it as binding as an Act of Parliament and for this reason it was adjudged no good By-Law Sir John Wytham versus Sir Richard Dutton ASsault and False Imprisonment 14 Octob. 36 Car. 2. c. The Defendant as to the Assault before the 6th day of November pleads Not-Guilty and as to the False Imprisonment on the said 6th day of November in the same year he made a special Iustification viz. That 28 Octob. 32 Car. 2. c. the King by his Letters Patents did appoint the Defendant to be Captain general and Chief Governour of Barbadoes and so sets forth the Grant at large by which he appoints twelve Men to be of the King's Council during pleasure of which the Plaintiff Wytham was one that the Defendant had also power by the advice of that Council to appoint and establish Courts Iudges and Iustices and that the Copies of such Establishments must be sent hither for the King's Assent with power also to establish a Deputy-Governour that by vertue of these Letters Patents the Defendant had appointed Sir John Wytham to be Deputy-Governour of the said Island in his absence and that he being so constituted did male arbitrarie execute the said Office That when the Defendant returned to Barbadoes viz. 6 Novemb 35 Car. 2. he called a Council before whom the Plaintiff was charged with male Administration in the absence of the Defendant viz. That he did not take the usual Oath for observing of Trade and Navigation that he assumed the Title of Lieutenant Governour and that Decrees made in Court were altered by him in his Chamber Vpon which it was then ordered that he should be committed to the Provost Marshal until discharged by Law which was done accordingly in whose Custody he remained from the 6th day of November to the 20th of December following which is the same Imprisonment c. To this Plea the Plaintiff demurred and the Defendant joyned in Demurrer Mr. Pollexfen argued for the Plaintiff and Serjeant Thompson for the Defendant 1. It was said for the Plaintiff that the Causes of his Commitment if any yet were such which they ought not meddle withal because they relate to his Mis-behaviour in his Government for which he is answerable to the King alone But supposing they might have some cause for the committing of him this ought to be set forth in the Plea that the Plaintiff might answer it for to say he did not take the Oath of Deputy Governour in what concerned Trade and Navigation is no cause of Commitment because there was no Body to administer that Oath to him for he was Governour himself Then to alledge that he did alter in his Chamber some Decrees made in the Court of Chancery that can be no cause of Commitment for the Governour is Chancellor there Besides the Defendant doth not shew that any Body was injured by such alterations neither doth he mention any particular Order but only in general so 't is impossible to give an Answer to it 2. He doth not alledge that the Plaintiff had made or done any of these things but that he was charged to have done it and non constat whether upon Oath or not The Governour hath a large power given by these Letters Patents to make Laws such as he by consent of a general Council shall enact Ex parte Def. The Fact is set forth in the Plea the Plaintiff was committed by vertue of an Order of Council until he was brought to a general Court of Oyer and Terminer by which Court he was again committed That the Court had power to commit him is not denied for the King is not restrained by the Laws of England to govern that Island by any particular Law whatsoever and therefore not by the Common Law but by what Law he pleaseth For those Islands were gotten by Conquest or by some of his Subjects going in search of some prize and planting themselves there Calvin 's Case The Plaintiff being then committed by an Order of Council till he should be discharged by due course of Law this Court will presume that his Commitment was legal The Court were all of Opinion that the Plea was not good so Iudgment was given for the Plaintiff but afterwards 5 Willielmi Mariae this Iudgment was reversed by the House of Peers Sir Robert Jefferies versus Watkins THIS was an Action brought for a Duty to be paid for weighing of Goods at the Common Beam of London Verdict cures a defective Declaration setting forth that the Lord Mayor c. time out of mind kept a common Beam and Weights and Servants to attend the weighing of Goods That the Defendant bought Goods c. but did not bring them to the Beam to be weighed per quod proficuum amisit Vpon Not-Guilty pleaded there was a Verdict for the Plaintiff and it was moved in arrest of Iudgment that the Plaintiff had not brought himself within the Prescription for he doth not say that the Defendant sold the Goods by Weight and this is a fault which is not helped by a Verdict This had been certainly naught upon a Demurrer and being substance is not aided by this Verdict This is Substance for the Duty appears to be wholly in respect of the Weights which are kept now Weighing being the Principal and it
being no where alledged that the Goods were weighed elsewhere or that they were such which are usually sold by Weight then there is no need of bringing of them to the Beam If one prescribes to a Common and doth not say for Cattle Levant and Couchant the Prescription is not good This being the consideration of the Duty it ought to be precisely alledged as in an Assumpsit where the Plaintiff declared that in consideration that the Defendant owed him 40 l. he promised to pay it ante inceptionem proximi itineris to London Yelv. 175. 2 Cro. 245. and alledged that such a day incepit iter suum ad London ' but for omitting the Word proxime Iudgment was arrested after Verdict because the Duty did arise upon the commencement of his next Iourney The true reason why any thing is helped by Verdict is for that the thing shall be presumed to be given in Evidence at the Trial. Mr. E contra Pollexfen contra Here is enough set forth in the Plea to shew that the Goods were not weighed and it must be given in Evidence at the Trial that they were sold contrary to the Custom which is the only Offence to be proved The want of Averment that the Goods sold by the Defendant were not weighed shall not vitiate this Declaration after a Verdict To prove this some Authorities were cited Cro. Eliz. 458. 2 Cro. 44. Siderfin 218. Palmer 360. Cro. Car. 497. as where in Trespass the Defendant justified for Common by Prescription for Beasts Levant and Couchant and that he put in his Beasts utendo Communia Issue was taken upon the Prescription and found for the Defendant now though he did not averr that the Cattle were Levant and Couchant yet it was held that it was cured by a Verdict And of this Opinion were three Iudges now but Iustice Allybon differed for says he if this Declaration should be good after a Verdict then a Verdict will cure any fault in Pleading Iudgment for the Plaintiff Prowse versus Wilcox AN Action on the Case for scandalous Words Words spoken of a Justice of the Peace where actionable The Plaintiff declared that he was a Justice of the Peace for the County of Somerset that there was a Rebellion in the West by the Duke of Monmouth and others that search was made for the Defendant being suspected to be concerned in that Rebellion and that the Defendant thereupon spoke these words of the Plaintiff viz. John Prowse is a Knave and a busie Knave for searching after me and other honest Men of my sort and I will make him give me satisfaction for plundering me There was a Verdict for the Plaintiff and the Iudgment being stayed till the Return of the Postea Mr. Pollexfen moved that the Plaintiff might have his Iudgment because the Words are actionable 1 Roll. Abr. 59. pl. 3. for they touched him in his Office of a Iustice of a Peace It was objected to stay the Iudgment that the Words were improper and therefore could not be actionable But admitting them so to be yet if they in any wise reflect upon a Man in a publick Office they will bear an Action Shore contra The Plaintiff doth not lay any Colloquium of him as a Justice of the Peace or that the words were spoken of him relating to his Office or the Execution thereof and therefore an Action will not lie though an * Vid. antea Rex versus Darby 2 Cro. 315. Information might have been proper against him If a Man should call another Lewd Fellow and that he set upon him in the High-way and took his Purse from him an Action will not lie because he doth not directly charge him with Felony or Robbery The Court were divided in Opinion two against two so the Plaintiff had his Iudgment Boyle versus Boyle A Libel was in the Spiritual Court against a Woman causa jactitationis Maritagii Prohibition granted The Woman suggests that this person was indicted at the Sessions in the Old-Bayly for marrying of her he then having a Wife living contra formam Statuti Godb. Rep. Can. 507. Hales 121. 1 Jac. cap. 11. Sid. 171. that he was thereupon convicted and had Iudgment to be burned in the Hand so that being tried by a Iury and a Court which had a Iurisdiction of the cause and the Marriage found a Prohibition was prayed Serjeant Levinz moved for a Consultation because no Court but the Ecclesiastical Court can examine a Marriage for in the Dower Writ is always directed to the Bishop to certifie the lawfulness of the Marriage and if this Woman should bury this Husband and bring a Writ of Dower and the Heir plead Ne unques accouple c. this Verdict and Conviction shall not be given in Evidence to prove the illegality of the Marriage but the Writ must go to the Bishop This is proved by the Case of Emerton and Hide in this Court The Man was married in fact and his Wife being detained from him she being in the Custody of Sir Robert Viner brought an Habeas Corpus she came into the Court but my Lord Hales would not deliver the Body but directed an Ejectment upon the Demise of John Emerton and Bridget his Wife that the Marriage might come in question It was found a Marriage and afterwards at an Hearing before the Delegates this Verdict was not allowed to be given in Evidence because in this Court one Iury may find a Marriage and another otherwise so that it cannot be tried whether they are legally married by a Temporal Court 'T is true this Court may controle the Ecclesiastical Courts but it must be eodem genere E contra E contra It was said that if a Prohibition should not go then the Authority of those two Courts would interfere which might be a thing of ill consequence If the lawfulness of this Marriage had been first tried in the Court Christian the other Court at the Old-Bayly would have given Credit to their Sentence But that Court hath been prohibited in a Case of the like nature 2 Cro. 535. for a Suit was there commenced for saying That he had a Bastard The Defendant alledged that the Plaintiff was adjudged the reputed Father of a Bastard by two Iustices of the Peace according to the Statute and so justified the speaking of the words and this being refused there a Prohibition was granted and so it was in this Case by the Opinion of three Iudges Dr. Hedges a Civilian being present in the Court said that Marriage or no Marriage never came in question in their Court upon a Libel for Jactitation unless the Party replies a lawful Marriage and that the Spiritual Court ought not to be silenced by a Proof of a Marriage de facto in a Temporal Court for all Marriages ought to be de jure of which their Courts had the proper Iurisdiction Sir John Newton versus Francis Creswick IN an Action on the
' ac qd ' Record ' ill ' in nullo vitiosum aut defectivum existit Ideo considerat ' est qd ' Judicium praed ' adjudication ' executionis superinde in omnibus affirmetur ac in omni suo robore stet effectu dict' causis materiis superius pro Error ' assign ' in aliquo non obstante Et ulterius per Cur. Judgment affirmed Domini Regis Dominae Reginae nunc hic cons est qd ' praedict ' Abel Ram recuperet versus praefatum Donatum Obrian octodecim libras eidem Abel per Curiam Domini Regis Dominae Reginae nunc hic secundum formam Statuti in hujusmodi casu edit ' provis adjudicat ' pro mis custag ' dampn ' suis quae sustin ' occasione dilationis executionis Judicij praedict ' praetextu prosecutionis praedict ' Brevis de Errore Et qd ' praedictus Abel habeat inde executionem c. Obrian versus Ram. ERror to reverse a Iudgment given in Ireland Whether a Sci. fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her dum sola upon a Scire Fac. brought against the Plaintiff in the Errors setting forth that Debt was brought upon a Bond against Elizabeth Grey and a Iudgment was thereupon obtained for 800 l. dum sola That the said Elizabeth afterwards intermarried with Mr. Obrian That a Scire Facias was brought upon that Iudgment against Husband and Wife to shew cause why the Plaintiff should not have execution That upon this Scire Facias there were two Nichils returned and thereupon Iudgment was had against Husband and Wife It rested for a year and a day and then the Wife died and the Plaintiff brought a new Scire Fac. against the Husband alone to shew cause why he should not have Execution upon the first Iudgmont The Defendant pleaded that there was another Scire Fac. brought against him and his Wife for the same Cause c. And upon a Demurrer to this Plea Iudgment was given in Ireland against him The Question now was whether this Scire Fa. will lye against the Husband alone after the death of his Wife This Case was argued by Mr. Finch and Mr. Pollexfen that the Husband was not chargable It was admitted on all sides that if a Feme sole is indebted and marries that an Action will lye against the Husband and Wife and he is lyable to the payment of her Debts It was agreed also that if a Iudgment be had against a Feme sole and she marries and afterwards dies that the Husband is not chargable because her Debts before Coverture shall not charge him unless recovered in her Life-time In like manner no Debts which are due to her dum sola shall go to the Husband by virtue of the inter-marriage if she dye before those are recovered but her Administrator will be entituled to them which may be the Husband but then he hath a Right only as Administrator 1 Roll Abr. 351. and the reason is because such Debts before they are recoverd are only choses in Action And from hence the Council did inferr that the Iudgment in this Case against the Wife dum sola did not charge the Husband Then the Question will be if the Husband is not chargeable by the Original Iudgment whether the Iudgment on the Scire Fac. had not made an alteration and charged him after the death of his Wife And as to that it was said that this Iudgment upon the Scire Fac. made no new charge for 't is only quod habeat executionem c. and carries the first Iudgment no farther than it was before for 't is introduced by the Sci. Fac. At the Common Law no Execution could be had upon a Iudgment after a year and a day and there was then no remedy but to bring an Action of Debt upon that Iudgment This Inconvenience was remedied by the Statute of Westm W. 2. cap. 45. the 2. which gives a Scire Fac. upon the Iudgment to shew cause why Execution should not be had which can be no more than a liberty to take Execution upon the Original Iudgment which cannot charge the Husband in this case because 't is only a consequence of that Iudgment and creates no new charge for a Release of all Actions will discharge this award of Execution But the Reasons why the original Iudgment shall not be carried farther by the Iudgment in the Scire Fac. are as follow 1. By considering the nature of a Scire Fac. which lay not at the Common Law but is given by the Statute in all persosonal Actions the words whereof are these Viz. 2 Inst 469. Sid. 351. Observandum est de caetero quod ea quae inveniuntur irrotulat c. Vpon which words it is evident that the execution of the first Iudgment on Record is all which is given by this Act after the year and day and it takes off that bar which was incurred by the lapse of time and gives a speedy Execution of the Iudgment recorded 2. The Proceedings upon a Scire Facias shew the same thing for the Writ recites the first Iudgment and then demands the Defendant to shew cause why the Plaintiff should not have Execution thereon juxta vim formam effectum recuperationis praed but prays no new thing 3. A Scire Facias is not an Original but a Iudicial Writ which depends purely upon the first Iudgment 1 Roll. Abr. 777. pl. 6. 8 Co. 143 Dr. Drurie's Case and a Writ of Error suspends the execution of both so likewise if the Original Iudgment be reversed even a Iudgment obtained upon a Scire Facias will be reversed in like manner 4. The Law doth not charge a Man without an Appearance but here is none and the Statute can never operate upon this Case because that extends only to such Iudgments upon which there has been a Recovery and here is nothing recovered upon this Scire Facias for 't is only to have Execution upon the first Iudgment If the Law should be otherwise this absurdity would follow Viz. There would be a Recovery without a Record for the purport of the Scire Facias is only to have Execution according to the form and effect of the Record and the very Record it self doth not charge the Husband Besides the first Iudgment did charge the Lands of the Wife which are still liable to satisfie the Debt why therefore must the Lands of the Husband be charged Cannot the Administrator of the Wife bring a Writ of Error to reverse this Iudgment and if it should be reversed shall the Husband pay the Debt and the Administrator of the Wife be restored The Objections made by the Council on the other side against this Opinion were viz. That if an Action of Debt will lie upon a Iudgment in a Scire Facias the Original Iudgment is by this means carried farther for without
Defendant Elizabeth The Question in which Case was whether by the Entry of the Son who was Tenant at Will and his making of this Lease the Father was disseised of the Freehold And it was held not for it was found in that Verdict that he occupying at Will and entring by his Fathers Assent the Lease was also intended to be made by his Assent But on the other side it was said that this Fine was a Barr by the express Words of the Statute of H. 7. E contra which excludes in all Cases but where there is Fraud or the person is incapable 4 H. 7. c. 24. or where the Right to be barred is not divested In this Case John Basket had an Interest and present Right and though it be closed with a Trust yet that will not make any difference 1. Cro. Car. 550. 10 Co. 56. Here is no Fraud for the Fine was levyed by Tenant in Tail in possession but if there had been Fraud it ought to be found otherwise it shall not be presumed This is not like Blunden's Case for there the Son was Tenant at Will but 't is not found by this Verdict that John occupied at Will There is no difference between this Term and a Trust of a Term to attend the Inheritance whose Interest shall be barred by such a Fine and Nonclaim because the Trust is included in the Fine and therefore the Trustees not making of their Claim within the five years are for ever excluded It cannot be denied but a Term for years is such an Interest which may be barred by Fine 5 Co. 123. 't is Saffin's Case expresly which was a Lease for years to commence in futuro after a Lease then in being should be determined the first Lease ended the second Lessee did not enter but the Reversioner did and made a Feoffment and levyed a Fine and five years passed without Entry or Claim by the second Lessee it was adjudged that this Fine was a Barr to him for when his future Interest commenced then and not before he had such a present Interest in the Land which might be divested and turned to a Right To which it was answered that this differs from Saffin's Case which was an interesse Termini and the Case of Alport which was an Executory Devise If John Basket had still continued in Possession it might have altred the Case but he died and his Wife entred and then the five years passed without any Claim Adjournatur Evans versus Crocker A Special Verdict in Ejectment was found in Ireland In Ejectment where the Entry seems to be before the Title yet the Declaration is good and Iudgment given there for the Plaintiff and now a Writ of Errour was brought in this Court and the Common Error assigned The Objection was to the Declaration which was That the Plaintiff declared upon a Demise made 12 Junii c. Habendum a praedicto duodecimo die Junij which must be the 13th day of the same Month usque c. virtute cujus quidem dimissionis he entred c. and that the Defendant postea scilicet eodem duodecimo die Junij did eject him c. So that it appears upon the Face of the Declaration that the Defendant entred before the Plaintiff had a Title for the Lease commenced on the 23th of June and the Entry was on the 12th of that Month. And it was said that this agrees with a former Resolution in this Court where the Lease was made the 24th of June for five years Habendum a die datus Siderfin 8. 2 Cro. 96. which must be the 25th by vertue whereof the Plaintiff entred and that the Defendant postea scilicet 24th Junij did eject him which must be before the commencement of the Lease Curia The Plaintiff entred as a Disseisor by his own shewing and thereupon Iudgment was reversed Rex versus Kingsmill QUO Warranto against the Defendant to shew cause why he executed the Office of a Bayliff of the Hundred of Barnstaple Grant of an Hundred where good c. The Defendant pleaded that the said Hundred was an ancient Hundred and that the Office of Bayliff was an ancient Office and that the Hundred Court was an ancient Court held from three Weeks to three Weeks before the Steward thereof that the Return of Writs was an ancient Liberty and Franchise which did belong to the said Bayliff that King Charles I. was seized of the said Franchise jure Coronae in Fee who by Letters Patents dated c. did grant the same to one North Habendum the said Hundred to him and his Heirs and that by several mesne Assignments it came to and was vested in the Defendant and so he justified to have Retorna Brevium To this Plea the Plaintiff demurred And for the King it was argued that this Claim was not good First as to the manner of the Grant as 't is here pleaded viz. that the King was seized in Fee c. and that he granted the Franchise Habendum the said Hundred That such a Grant can never include the Hundred for nothing can pass in the Habendum but what was mentioned in the Premisses 2. The Defendant hath derived a Title from the Crown to this Office of a Bayliff which must be either by Grant or Prescription It cannot be by Grant for 't is a Question whether the Hundred Court can now be separated from the County Court it hath been derivative from it in former times when the Sheriffs did let those Hundreds to farm to several persons who put in Bayliffs errant to the great oppression of the People which was the occasion of the making of the Statute of Ed. 14 E. 3. c. 9. 3. by which such Hundreds were united and rejoyned to the Counties as to the Bailiwicks thereof 4 Inst 267. except such as were then granted in Fee by the King or his Ancestors Now these Hundreds were usually granted to Abbots and other religious persons 31 H. 8. c. 13. and their Possessions coming afterwards to the King by the dissolution of their Abbies and Monasteries are now merged in the Crown and cannot be regranted after the making of that Statute And as the Defendnat cannot have a Title by Grant so he hath not prescribed to have this Office 't is true the Plea sets forth that 't is an ancient Office but that is not a Prescription but a bare Averment of its Antiquity But admitting he had alledged it by way of Prescription 14 H. 4.89 he could not do it by a Que Estate to have Retorna Brevium A man cannot preserive to have Cognizance of Pleas in an Hundred Court he may in a County Palatine because 't is of a mixed Iurisdiction Neither can he prescribe to have Return of the King's Writs Abbot de Strata Marcella because they are matter of Record Here is a good Title pleaded E contra It was never yet denied but that
which he claims he ought to shew the other Will by which it must appear that nothing is contradictory to it or that it doth confirm the first but if Presumptions shall be admitted it must be in favour of the Heir for nothing shall be presumed to disinherit him Afterwards in Trinity-Term 5 Willielmi Iudgment was given for the Plaintiff and a Writ of Error was brought in the House of Peers to reverse that Iudgment but it was affirmed Anonymus A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Ejectment for Lands in the County of Essex in which a Special Verdict was found viz. That R. F. What Words in a Will make Tenants in Common was seized in Fee of the Lands in question who had Issue two Daughters Frances Jane Frances had Issue Philp Frances Anne R. F. the Father devised unto Philip Frances and Anne the Children of his Daughter Frances and to Jane his other Daughter the Rents and Profits of his Mannor of Spain for thirty years to hold by equal parts viz. the three Grandchildren to have one Moiety and his Daughter Jane the other Moiety And if it happen that either of them should die before the thirty years expired then the said Term should be for the benefit of the Survivor and if they all die then the same was devised over to other Relations Afterwards he made a Codicil in these words viz. I give Power and Authority to my Executors to let my whole Lands for the Term of thirty years for the benefit and behalf of my Children Anne one of the Granchildren died without Issue Frances another of the Grandchildren died but left Issue The first Question was whether the Power given to the Executors by the Codicil will take away that Interest which was vested in the Grandchildren by the Will Mr. Appleton argued that it would not because the Executors had only a bare Authority to let it or improve it for the benefit of the Children there was no Devise of the Land to them If Power be given to Executors to sell Lands 't is only an Authority and not an Interest in them but a bare Authority only to let is of much less importance 2. After the Testator had devised the Profits of these Lands to his Grandchildren and Daughter equally to be divided during the term and had provided that if any dye without Issue that then it should survive and if all dye then to remain over to collateral Relations c. Whether Frances being dead but leaving Issue her Interest shall survive to Philip or go to such her Issue As to that he held that the Testator made them Tenants in Common by equal parts and therefore he devised it by Moieties in which there can be no Survivorship 'T is like a Devise to the Wife for life 2 Cro. 448. 1 Roll. Abr. 833. King versus Rumbal Cro. Car. 185. and after her decease to his three Daughters equally to be divided and if any of them die before the other then the Survivors to be her Heirs equally to be divided and if they all die without Issue then to others c. the Daughters had an Estate Tail and there was no Survivorship So in this Case it shall never go to the third Grandchild as long as any Issue of the second are living On the other side it was argued that they are Ioyntenants and not Tenants in Common E contra for the Testator having devised one Moiety to his three Grandchildren joyntly by equal parts that will make them Ioyntenants But the Court were all of Opinion that the words in the Will shew them to be Tenants in Common for equally to be divided runs to the Moieties So the Iudgment was affirmed Woodward 's Case THE Statute of 23 H. 8. c. 9. Church Ornaments are a personal Charge upon the Inhabitants and not upon those who live else where though they occupy Lands in that Parish Godb. 134. pl. 4. 152. pl. 29. 154. pl. prohibites a Citation out of the Diocess wherein the Party dwelleth except in certain Cases therein mentioned one whereof is viz. Except for any Spiritual Cause neglected to be done within the Diocess whereunto the Party shall be lawfully cited One Woodward and others who lived in the Diocess of Litchfield and Coventry but occupied Lands in the Diocess of Peterborough were taxed by the Parishioners where they used those Lands for the Bells of the Church and they refusing to pay this Tax a Suit was commenced against them in the Bishop of Peterborough's Court who thereupon suggested this Matter and prayed a Prohibition because they were not to be charged with this Tax it being only for Church Ornaments And a Prohibition was granted the reason given was because 't is a personal charge to which the Inhabitants only are liable and not those who only occupy in that Parish and live in another but the repairing of the Church is a real Charge upon the Land let the Owner live where he will DE Term. Sanct. Trin. Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices The Bishop 's Case Friday June 15th THE King having set forth a Declaration for Liberty of Conscience did on the 4th day of May last by Order of Council enjoyn that the same should be read twice in all Churches c. and that the Bishops should distribute it through their respective Diocesses that it might be read accordingly The Archbishop of Canterbury who then was together with six other Bishops petitioned the King setting forth that this Declaration was founded upon a dispensing Power which had been declared illegal in Parliament and therefore they could not in Honour or Conscience make themselves Parties to the Distribution and Publication of this Declaration who thereupon were summoned before the King in Council and refusing there to give Recognizance to appear before the Court of Kings Bench they were committed to the Tower by Warrant of the Council-Board The Attorney General moved for a Habeas Corpus retornable immediate and the same Morning in which that Motion was made Sir Edward Hales Lieutenant of the Tower returned the same and they were all brought into the Court. The Substance of the Return was viz. That they were committed to his Custody by Warrant under the Hands and Seals of the Lord Chanchellor Jefferies and also naming more of the Lords of the Privy-Council Dominos Concilij for contriving making and publishing a Seditious Libel against the King c. Then it was prayed that the Return might be filed and that the Information which was then exhibited against them for this Crime might be read and that they might all plead instanter Serjeant Pemberton Mr. Finch and Mr. Pollexfen oppsed the reading of it and moved that the Bishops might be discharged because they were not legally before the Court for it appears upon the Return that there is no lawful cause of
Indebitatus Ass will lye for a Fine upon an Admission c. That a Fine was due to him for an admission That upon the death of the said Lord the Manor descended to W. as his Son and Heir who died and the Plaintiff as Executor to the Heir brought an Indebitatus Assumpsit for this Fine He declared also that the Defendant was indebted to him in 25 l. for a reasonable Fine c. The Plaintiff had a Verdict and entire Damages and it was now moved in arrest of Iudgment that an Indebitatus will not lie for a Customary Fine because it doth not arise upon any Contract of the Parties but upon the Tenure of the Land for upon the death of the Lord there is a Relief paid for there must be some personal Contract to maintain an Action of Debt or an Indebitatus Assumpsit 2 Cro. 599. Jones 339. and therefore it was held that where the Plaintiff locasset a Ware-house to the Defendant he promised to pay 8 s. per Week An Assumpsit was brought for this Rent and a Verdict for the Plaintiff And a Motion was made in Arrest of Iudgment that this was a Lease at Will and the weekly payment was in the nature of a Rent and it was agreed that an Assumpsit would not lie for a Rent reserved because it sounds in the Realty but because it was only a Promise in consideration of the occupying of the Warehouse the Action was held to be well brought 2. Where the Cause of an Action is not grounded upon a Contract but upon some special Matter there an Indebitatus Assumpsit will not lie and therefore it will not lie upon a Bill of Exchange or upon an Award or for Rent though there is a Privity both of Contract and Estate without a special Assumpsit E contra E contra It was argued that the Action lies for though a Fine savours of the Realty yet 't is a certain Duty In all Cases where Debt will lie upon a simple Contract there an Assumpsit will lie likewise 't is true this doth concern the Inheritance but yet 't is a Contract that the Tenant shall be admitted paying the Fine It hath been also maintained for Mony had and received out of the Office of Register for the Plaintiffs use and for Scavage Mony due to the Mayor and Commonalty of London 3 Keb. 677. which is also an Inheritance 'T is a Contract implyed by Law and therefore the Action is well brought Afterwards in Michaelmas Term 1 Willielmi Mariae by the Opinion of Iustice Dolben 2 Leon. 79. Eyre and Gregory Iudgment was given for the Plaintiff But the Chief Iustice was of another Opinion for he held that if the Defendant had died indebted to another by Bond and had not Assets besides what would fatisfie this Fine if the Executor had paid it to the Plaintiff it would have been a Devastavit in him Suppose the Defendant promiseth that in consideration that the Plaintiff would demise to him certain Lands that then he would pay the Rent If the Defendant pleads Non Assumpsit Cro. Car. Acton versus Symonds the Plaintiff must prove an express Promise or be Non suit Also here is no Tenure or Custom set out Yet by the Opinion of the other three Iustices the Plaintiff had his Iudgment Rex versus Johnson INformation upon the Statute of 29 30 Car. 2. cap. 1. Pardon after a Verdict for the King excuseth the Forfeiture prohibiting the Importation of several French Commodities and amongst the rest Lace under the Penalty of 100 l. to be paid by the Importer and 50 l. by the Vendor and the Goods to be forfeited The Information sets forth that a Packet containing so many yards of Lace was imported by the Defendant from France and that he did conceal it to hinder the Seisure and that he did privately sell it contra formam Statuti Vpon Not-Guilty pleaded the King had a Verdict and on the 2d of October there came forth a general Pardon in which were these Words viz. That the Subjects shall not be sued or vexed c. in their Bodies Goods or Chattels Lands or Tenements for any Matter Cause or Contempt Misdemeanour Forfeiture Offence or any other thing heretofore done committed or omitted against us Except all Concealments Frauds Corruptions Misdemanours and Offences whereby we or our late Brother have been deceived in the Collection payment or answering of our Revenues or any part thereof or any other Mony due or to be due to us or received for us or him and all Forfeitures Penalties and Nomine Poena's thereupon arising and all Indictments and Informations or other Process and Proceedings now depending or to be depending thereupon The Question now was whether this Forfeiture was excused by this Pardon The Attorney General argued that it was not because an Interest is vested in the King by the Iudgment and that no particular or general Pardon shall divest it without words of Restitution So was Tooms's Case who had Iudgment against another 1 Sand. 361. and then became Felo de se his Administrator brought a Scire Facias quare Executionem non haberet The Debtor pleaded that after the Iudgment the Intestate hanged himself which was found by the Coroners Enquest returned into this Court. The Plaintiff replied the Act of Pardon But it was adjudged for the Defendant for when the Inquisition was returned then the Debt was vested in the King which could not be divested without particular words of Restitution and which were wanting in that Act of Pardon The most proper word in the Body of this Pardon which seems to excuse the Defendant is the word Offence but the same word is likewise in the Exception viz. Except all Offences c. in collecting or paying of Mony due to us and all Forfeitures c. Now the concealing of forfeited Goods from Seisure is an Offence excepted for 't is a remedy for the King's Duty of which he was hindred by the Concealment 'T is true the first part of the Pardon excuseth all Misdemeanours comitted against the King in his standing Revenue but this Exception takes in all Concealments and Frauds in answering of the Revenue and this Information is principally grounded upon Fraud 5 Co. 56. so that the Exception ought to be taken as largely for the King as the Pardon it self to discharge the Subject No Fraud tending to the diminution of the Revenue is pardoned for it excepts not only all Concealments in collecting the Revenue but other Mony due or to be due to the King If therefore when the King is entituled by Inquisition Office or Record there must be express and not general words to pardon it and since this Fact was committed before the Pardon came out and so found by the Iury whose Verdict is of more value than an Enquest of Office so that the King by this means is entituled to the Goods by Record
so his Son is justly and rightly sued as Son and Heir In some Cases the persons are to be named not by way of a Title but as a Pedigree as if there be Tenant for Life the Reversion in Fee to an Ideot and an Vncle who is right Heir to the Ideot levied a Fine and died living the Ideot leaving Issue a Son named John who had Issue William who entred the Question was whether the Issue of the Vncle shall be barred by this Fine It was the Opinion of two Iudges that they were not barred because the Vncle died in the life-time of the Ideot and nothing attached in him March 94. Cro. Car. 524. and because the Issue claim in a collateral Line and do not name the Father by way of Title but by way of Pedigree But Iustice Jones who hath truly Reported the Case Jones 456. was of Opinion that the Issue of the Vncle were barred because the Son must make his Conveyance from the Father by way of Title The Iury have found that the Reversion did descend to the Defendant as Heir to the last John 't is true it descends as a Reversion but that shall not charge him as Heir to the Father Jenk's Case 1 Cro. for the other was seised of the Estate Tail which is now spent and the last who was seised of the Fee was the Father and so the Defendant must be charged as his Heir 'T is likewise true that where there is an actual Seisin you must charge all but in this Case there was nothing but a Reversion Tremaine Serjeant for the Defendant In this Case the Plaintiff should have made a special Declaration for the Estate-Tail and the Reversion in Fee are distinct and seperate Estates John the Nephew might have sold the Reversion and kept the Estate Tail if he had acknowledged a Statute or Iudgment it might have been extended and if so then he had such a Seisin that he ought to have been named A Man becomes bound in a Bond and died Debt is brought against the Heir it is not common to say that he had nothing by descent but only a Reversion expectant upon an Estate Tayl. In the Case of Chappel and Lee Covenant was brought in the Common-Pleas against Judith Daughter and Heir of Robert Rudge She pleaded Riens per descent Issue was joyned before Sir Francis North then Chief Iustice and it appearing upon Evidence that Robert had a Son named Robert who died without Issue a Case was made of it and Iudgment was given for the Defendant the Plaintiff took out a new Original and then the Land was sold so the Plaintiff lost his Debt Adjornatur Afterwards in Hillary Term a Gulielmi Mariae Iudgment was given for the Plaintiff by the Opinion of three Iustices against Iustice Eyre who argued that the Defendant cannot be charged as immediate Heir to his Father 't is true the Lands are Assets in his Hands and he may be charged by a special Declaration Dyer 368. pl. 460. In this Case the intermediate Heirs had a Reversion in Fee which they might have charged either by Statute Iudgment or Recognizance they were so seised that if a Writ of Right had been brought against them they might have joyned the Mise upon the Mere right which proves they had a Fee and though it was expectant on an Estate Tail 3 Co. 42. Ratcliff's Case yet the Defendant claiming the Reversion as Heir ought to make himself so to him who made the Gift The person who brings a Formeden in Descender must name every one to whom any Right did descend 8 Co. 88. F.N.B. 220. c. Rast Ent. 375. otherwise the Writ will abate A Man who is sued as Heir or who entitles himself as such must shew how Heir The Case of Duke and Spring is much stronger than this 2 Rol. Abr. 709. 2 Cro. 161. for there Debt was brought against the Daughter as Heir of B. She pleaded Riens per descent and the Iury found that B. died seised in Fee leaving Issue the Defendant and his Wife then with Child who was afterwards delivered of a Son who died within an hour and it was adjudged against the Plaintiff because he declared against the Defendant as Daughter and Heir of the Father when she was Sister and Heir of the Brother who was last seised But the other three Iudges were of a contrary Opinion The Question is not whether the Defendant is lyable to this Debt but whether he is properly charged as Heir to his Father or whether he should have been charged as Heir to his Nephew who was last seised It must be admitted that if the Lands had descended to the Brother and Nephew of the Defendant in Fee that then they ought to have been named but they had only a Reversion in Fee expectant upon an Estate Tail which was incertain and therefore of little value now though John the Father and Son had this Reversion in them yet the Estate Tail was known only to those who were Parties to the Settlement 'T is not the Reversion in Fee Bro. Fit Descent pl. 30.37 Ass pl. 4. but the Possession which makes the party inheritable and therefore if Lands are given to Husband and Wife in Tail the Remainder to the right Heirs of the Husband then they have a Son and the Wife dies and the Husband hath a Son by a second Venter and dies the eldest Son enters and dies without Issue and his Vncle claimed the Land against the second Son but was barred because he had not the Remainder in Fee in possession and yet he might have sold or forfeited it But here the Reversion in Fee is now come into possession and the Defendant hath the Land as Heir to his Father t is Assets only in him and was not so either in his Brother or Nephew who were neither of them chargeable because a Reversion expectant upon an Estate Tail is not Assets Iudgment was given for the Plaintiff DE Term. Sancti Mich. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Young versus Inhabitants de Totnam AN Action was brought against the Hundred for a Robbery in which the Plaintiff declared that he was Robbed apud quendam locum prope Faire Mile Gate in such a Parish He had a Verdict And now Serjeant Tremaine moved in arrest of Iudgment and the Exceptions taken were these viz. 1. That it doth not appear that the Parish mentioned in the Declaration was in the Hundred 2. Neither doth it appear that the Robbery was committed in the High-way 3. The Plaintiff hath not alledged that it was done in the day time for if it was not the Hundred is not lyable by Law But these Exceptions were all disallowed because it being after a Verdict the Court will suppose that there was Evidence given of these Matters at the Trial so the Plaintiff had his Iudgment Eggleston al' versus Speke alias Petit.
Intratur Trin. 1 W. M. Rot. 249. THis was a Trial at the Bar A Will shall not be revoked by a subsequent Writing unless that be also a good Will by a Wiltshire Iury in an Ejectment brought by the Plaintiffs as Heirs at Law to Ann Speke who died seized in Fee of the Lands in Question Vpon not Guilty pleaded this Question did arise at the Trial Whether the Answer of a Guardian in Chancery shall be read as Evidence in this Court to conclude the Infant There being some Opinions that it ought to be read and the Defendants Council insisting on the contrary Mr Iustice Eyres being the Puisne Iustice was sent to the Court of Common-Pleas then sitting to know their Opinions who returning made this Report That the Judges of that Court were all of Opinion that such Answer ought not to be read as Evidence for it was only to bring the Infant into Court and to make him a Party Then the Plaintiffs proceeded to prove their Title as Heirs at Law viz. by several Inquisitions which were brought into Court and by the Heralds Office The Defendants Title likewise was thus proved viz. That the Lady Speke being seised in Fee c. did by Will dated in March 1682. devise the Lands to John Petit for Life Remainder to the Defendant and his Heirs for ever That the Lady Speke died so seised that John Speke the Tenant for Life and Father to the Defendant was also dead c. This Will was proved by several Witnesses one of which likewise deposed that my Lady Speke made two other Wills subsequent to this now produced and a Minister prov'd that she burnt a Will in the Month of December which was in the year 1685. Then the Plaintiffs produced another Will made by her at Christmas 1685. attested by three Witnesses but not in the presence of my Lady so that though it might not be a good Will to dispose the Estate yet the Council insisted that it was a good Revocation of the other for 't is a Writing sufficient for that purpose within the sixth Paragraph of the Statute of Frauds The Case of Sir George Sheers was now mentioned whose Will was carried out of the Chamber where he then was into a Lobby and signed there by the Witnesses but one of them swore that there was a Window out of that Room to his Chamber through which the Testator might see the Witnesses as he lay in his Bed Vpon which Evidence the Iury found this special Verdict viz. That Ann Speke being seised in Fee c. did on the 12th day of March 1682. make her Will and devised the Lands to John Pettit for Life and afterwards to George his Son and to his Heirs for ever upon condition that he take upon him the Name of Speke That the 25th of December 1685. she caused another Writing to be made purporting her Will which was signed sealed and published by her in the presence of three Witnesses in the Chamber where she then was and where she continued whilst the Witnesses subscribed their Names in the Hall but that she could not see them so subscribing They find that the Lessors of the Plaintiff are Heirs at Law and that they did enter c. This matter was argued in Easter Term following and the Question was whether this Writing purporting a Will was a Revocation of the former or not and that depended upon the Construction of the sixth Paragraph in the Act of Frauds viz. All Devises of Lands shall be in Writing and signed by the party or some other in his presence and by his express Directions and shall be attested by three or four Witnesses c. and that such devise shall not be revocable but by some other Will or Codicil in Writing or other Writing c. declaring the same Now the want of Witnesses doth not make the last Will void in it self but only quoad the Lands therein devised it hath its operation as to all other purposes It must therefore be a Revocation of the former and this is agreeable to the Resolution of the Iudges in former times for there being nothing in the Statute of Wills which directs what shall be a Revocation 32 H. 8. cap. 1. Dyer 143. the Iudges in Trevilian's Case did declare that it might be by word of mouth or by the very intention of the Testator to alter any thing in the Will for before the late Statute very few words did amount to a Revocation Moor 429. 1 Roll. Abr. 614 615 616. If Lands are devised and afterwards a feoffment is made of the same but for want of Livery and Seisin 't is defective yet this is a Revocation of the Will though the Feoffment is void The Council on the other side argued that this Will was not void by any Clause in the Statute of Frauds E contra for if this is a Revocation within that Statute then this second Writing purporting a Will must be a good Will for if 't is not a good Will then 't is not a good Revocation within that Law No Man will affirm that the latter Writing is a good Will therefore the first being a Devise of Land cannot be revoked but by a Will of Land which the second is not This Statute was intended to remedy the mischief of parol Revocations and therefore made such a solemnity requisite to a Revocation It cannot be denied but that this latter Writing was intended to be made a Will but it wanting that perfection which is required by Law it shall not now be intended a Writing distinct from a Will so as to make a Revocation within the meaning of that Act. If a Man hath a power of Revocation either by Will or Deed and he makes his Will in order to Revoke a former this is a Writing presently but 't is not a Revocation as long as the person is living Therefore a Revocation must not only be by a Writing but it must be such a Writing which declares the intention of a Man that it should be so which is not done by this Writing Vpon the first Argument Iudgment was given for the Defendant that the second Will must be a good Will in all Circumstances to Revoke a former Will Cross versus Garnet THE Plaintiff declared that on such a day and year there was a discourse between him and the Defendant concerning the Sale of two Oxen then in the possession of the Defendant and that they came to an agreement for the same that the Defendant did then sell the said Oxen to the Plaintiff and did falsly affirm them to be his own ubi revera they were the Oxen of another Man The Plaintiff had a Verdict Cro. Eliz. 44. 1 Rol. Rep. 275. 2 Cro. 474 1 Roll. Abr. 91. More 126. Yel 20. Sid. 146. and Serjeant Thompson moved in arrest of Iudgment that the Declaration was not good because the Plaintiff hath not alledged that the Defendant did affirm the
quarter for by such means Diseases may be brought into a Family and a Man hath no security either for his Goods or Mony This was the Opinion of Iustice Twisden in Coutrell's Case Sid. 29. and it seems to be very natural and therefore the chief reason why power was given by the Statute to the Overseers to raise mony was that they might place poor Children to such who were willing to take them for Mony for otherwise they might compel a Man to receive his Enemy into his Service He relied on the Case of the King and Price Hillary 29 and 30th of Car. II. which was an Order of the like nature moved to be quashed And Iustice Twisden said in that Case that all the Iudges of England were of Opinion that the Iustices had not such a Power and therefore that Order was quashed 'T is plain that by the Statute of the 43 Eliz. E contra the Iustices may place out poor Children where they see it convenient and so the constant practice hath been so is the Resolution of the Iudges in Dalton which was brought in by the Lord Chief Iustice Hyde but denied so to be by Iustice Twisden for no other reason but because Iustice Jones did not concur with them In Price 's Case this matter was stirred again but there hath been nothing done pursuant to that Opinion Since then the Iustices have a power to place out poor Children 'T is no Objection to say that there may be an inconvenience in the exercise of that power by placing out Children to improper persons for if such things are done the Party hath a proper remedy by way of Appeal to the Sessions Three Iustices were of Opinion that the Iustices of Peace had such a Power and therefore they were for confirming the Order and Iustice Dolbin said it was so resolved in the Case of the King and Gilliflower in the Reign of King James the first Foster being then Chief Iustice tho' the Iudges in Price 's Case were of another Opinion The Chief Iustice was now likewise of a different Opinion for the Statute means something when it says that a Stock shall be raised by the Taxation of every Inhabitant c. for putting out of Children Apprentice There are no compulsory words in the Statute for that purpose nor any which oblige a Master to take an Apprentice and if not the Iustices have not power to compel a Man to take a poor Boy for possibly such may be a Thief or Spy in the Family But this Order was quashed for an apparent fault which was that the Statute has entrusted the Churchwardens and Overseers of the Poor by and with the Approbation of two Iustices to bind Apprentices c. And the Churchwardens are not mentioned in this Order DE Term. Sancti Hill Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Thirsby versus Helbot DEBT upon a Bond for performance of an Award Award void where a person who is a Stranger to the Submission is ordered to be a Surety Vpon Nullum Arbitrium pleaded the Plaintiff replyed and shewed an Award made which amongst other things was that the Defendant should be bound with Sureties such as the Plaintiff should approve in the Sum of 150 l. to be paid to him at such a time and that they should seal mutual Releases and assigned a Breach in not giving of this Bond. There was a Verdict for the Plaintiff and now Serjeant Pemberton moved in arrest of Iudgment that this was a void Award because 't is that the Defendant shall be bound with Sureties c. and then Releases to be given now the Sureties are Strangers to the Submission and therefore the Defendant is not bound to procure them He relied upon the Case of Barns and Fairchild 1 Roll. Abr. 259. which was an Award that all Controversies c. should cease and that one of the Parties should pay to the other 8 l. and that thereupon he should procure his Wife and Son to make such an Assurance c. this was held to be void because it was to bind such persons who were not Parties to the Submission Tremain Serjeant contra E contra That Cause doth not come up to this at the Barr because by this Award the Party was to sign a general Release whether the Defendant paid the Mony or not But the Court was of Opinion that the Award was void because it appointed the Party to enter into a Bond with such Sureties as the Plaintiff shall like and Releases then to be mutually given Now if the Plaintiff doth not like the Security given then he is not to seal a Release and so 't is but an Award of one side Savier versus Lenthal ASsisa ven ' recogn ' si Willielmus Lenthal Armiger Henricus Glover Armiger Johannes Philpot Generosus Thomas Cook Generosus Samuel Ellis Generosus injuste c. Assize disseisiverunt Thomam Savier de libero tenemento suo in Westm infra triginta annos c. Et unde idem Thomas Savier per Jacobum Holton Attornatum suum queritur quod disseisiverunt eum de officio Marr ' Maresc ' Domini Regis Dominae Reginae coram ipso Rege Regina cum pertin ' c. The Cryer made Proclamation and then called the Recognitors between Thomas Savier Demandant and William Lenthal Tenant who were all at the Bar and severally answered as they were called Then Mr. Goodwin of Greys-Inn arraigned the Assize in French but the Count being not in Parchment upon Record the Recognitors were for this time discharged and ordered to appear again the next day But the Council for the Tenant relied on the authority in Calvert's Case that the Title ought to be set forth in the Count Plo. Com. 403. 4 E. 4.6 which was not done now and therefore the Demandant ought to be nonsuited But the Writ being returnable that day was ex gratia Curiae adjourned to the Morrow afterward and if the Demandant did not then make a Title he must be nonsuited The next day the Iury appeared Then the Cryer called Thomas Savier the Demandant and then the Tenants and afterwards the Recognitors and the Assize being arraigned again the Demandant set forth his Title Then Sir Francis Winnington of Council for Mr. Lenthal one of the Tenants appeared after this manner Vouz avez icy le dit Williem Lenthal jeo prye oyer del Brief del Count. Then the other Tenants were called again three times and they not appearing Process was prayed against them Doe versus Dawson BAil was put in to an Action brought by the Plaintiff Bail liable if the Principal had two Terms after an Injunction dissolved and before he declared the Defendant obtained an Injunction to stay Proceedings at Law which was not dissolved for several Terms afterwards Then the Injunction was dissolved and the Plaintiff delivered his Declaration and had Iudgment by default
and now he brought a Scire Fac. against the Bail who pleaded that no Declaration was delivered or filed against the Principal within two Terms after the Action commenced and the Bail entred and upon a Demurrer the Plaintiff had Iudgment against them for the Bail are liable so as the Principal in the Action declare soon after the Injunction dissolved and it s no fault in the Plaintiff that he did not declare sooner for if he had he would have been in contempt of the Court of Chancery for a Breach of the Injunction Anonymus A Writ of Error was brought to reverse a Recovery suffered in the grand Sessions of Wales Error to reverse a Recovery there must be a Scire Fac. against the Heir and Tertenants Dyer 321. The Question now was whether there ought to be a Scire Fac. against the Tertenants and the Heir It was said that t is discretionary in the Court and that the first Case of this nature was in my Lord Dyer where a Writ of Error was brought in B. R. to reverse a Fine levyed in the County Palatine of Chester and a Scire Facias was brought against the Heir but not against the Tertenants But the Heir in this Case is an Infant so that if he be admitted to be a Defendant he ought not to appear during his Minority and there is no remedy till his full Age. Curia 'T is not necessary in point of Law but it seems to be the course of the Court and that must be followed and 't is reasonable it should be so because the Errors upon a Recovery should not be examined before all the Parties are in Court therefore there should be a Scire Facias against the Heir and the Tertenants Sid. 213. Lambert versus Thurston TRespass Quare vi armis clausum fregit c. Trespass Quare vi Armis lies for small Damages which the Plaintiff had laid to his Damage of 20 s. The Defendant demurred to the Declaration and for cause shewed that B. R. hath not cognizance either by the Common Law or by the Statute of Gloucester to hold Plea in such an Action where the Damages are laid to be under 40 s. But the Court were of another Opinion That an Action of Trespass Quare vi armis will lie here let the Damage be what it will So the Plaintiff had Iugment DE Termino Paschae Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Whitehal versus Squire TRover for a Horse What shall be a Conversion what not the Defendant pleaded Not Guilty and a special Verdict was found viz. That John Mathers was possessed of this Horse who on the 4th day of December in the first year of King James the II. put him to Grass to the Defendant who kept him till the first day of May following That John Mathers died Intestate and before Administration was granted the Plaintiff desired the Defendant to Bury the said Mathers and that he would see him satisfied for his Expences and accordingly the Defendant did Bury him Then the Plaintiff gave this Horse to the Defendant in part of satisfaction for the Charges of the Funeral and a Note under his Hand to pay him 23 l. more The Plaintiff afterwards took out Administration and brought his Action against the Defendant for this Horse and whether this was a conversion or not was the Question Iustice Dolben and Eyre held that it was not but the Chief Iustice was of another Opinion Cole versus Knight Hill 1 2. Rot. 810. SCire Fac. upon a Iudgment of 6000 l. Release by one Executor of a Legacy is not a good bar to a Sci. Fa. upon a Judgment brought by the Plaintiffs Knight and Donning as surviving Executors of John Knight against the Defendant Cole and his Wife as Executrix of John Lawford setting forth That Sir John Knight Mr. Eyre and John Knight had recover'd a Iudgment of 6000 l. against John Lawford That John Knight survived who made his Will and appointed John Kent Thomas Knight and William Donning to be his Executors that he died the Debt and Damages not being satisfied that they the said Knight and Donning proved the Will that John Kent died and that John Lawford made his Will and appointed his Daughter Mary now the Wife of Thomas Cole to be sole Executrix and soon after departed this Life that Cole proved Lawford's Will and that the Debt was not yet paid The Defendant Cole and his Wife pleaded a Release from Donning one of the Plaintiffs by which he acknowledged to have received of the said Cole and his Wife as Exetutrix of the last Will and Testament of John Lawford the Sum of 5 l. being a Legacy given to him by Lawford and then in general words he released the said Cole and his Wife of the Legacy and of all Actions Suits and Demands whatsoever which he had or might have against the Defendants Cole and his Wife as Executrix of John Lawford or may or can have for any matter or thing whatsoever To this Plea the Plaintiff demurred and the Question was whether the Release is a good Bar or not It was argued to be no Bar for it being given upon the receipt of the Legacy is tied up to that only and shall not be taken to release any other thing If a Man should receive 10 l. and give a Receipt for it and doth thereby acquit and release the person of all Actions Debts 2 Roll. Abr. 409. Duties and Demands nothing is released but the 10 l. because the last words must be limited to those foregoing 'T is no new thing in the Law for general words to be restrained by those which follow as for instance if a Release be of all Errors Actions Suits and Writs of Error whatsoever Het 15. it hath been held that an Action of Debt upon a Bond was not released but only Writs of Error And this seems to be the intent of the Parties here that nothing but the Legacies should be released and therefore those general words which follow must be confined to the true meaning and intention of him who gave the Release So 't is if a Man promise to pay 40 s. Yelv. 156. to another during Life a Release of all Quarrels Controversies and Demands which he had or may have will not discharge this Annuity because the Execution of the Promise was not to be 'till the Rent should be due So likewise a Release of all Demands will not discharge a growing Rent 1 Sid. 141. 2. If this should be a good Release it discharges only such Actions which he hath in his own Right for by the words all Actions which he had are released Cro. Eliz. 6. 1 Leon. 263. now if an Executor grant omnia bona sua the Goods which he hath as Executor do not pass E contra E contra It was argued that this is a good Bar for by
long a Man may live in one of these ancient Houses Such a Custom might be good in point of Tenure for it might have a reasonable commencement between Lord and Tenant but this cannot be good as laid in this Declaration for several Reasons 1. Because 't is not alledged that the Defendants of right ought to keep a Boat there or that it was necessary for them to be always attending for possibly it might require the use of skilful Men and therefore in all Actions brought for not repairing of Ways 't is alledged that the Defendant reparare debuit 2. Because it brings a Charge without any recompence 8 E. 4.18 Br. Tit. Customs pl. 46. and this must be very unreasonable 'T is true that a Custom for Fishermen to dry their Nets upon another Man's Ground is good which may seem to be a Charge upon the Land without any Reward but the reason is because the catching of Fish is for the publick benefit and every man may have advantage by it A Custom to have solam separalem pasturam hath been formerly doubted whether good or not but 't is now held to be good because the Lord of the Soil might have some other Recompence for it 3. Because 't is unlimited for the Tenants may pass and repass ad libitum according to this Custom but it ought to be laid for their necessary occasions for otherwise the Defendants may be deprived of their Freehold because the Tenants may always keep the Boat in use The 2d Point was not much insisted on which was as to the matter of the Plea only it was said that it was not so well to take away the whole Prescription that the Plea might have been good if it had been quousque the Bridge fall or decayed then the Prescription doth revive again The 3d. Point Then supposing the Declaration to be sufficient yet as this is upon the Record the Plaintiff could not have this Action because he had set forth this to be a publick and common Ferry for all People to pass and that he was hindred but doth not shew any particular damage and therefore can have no cause of Action 'T is like the Case of a common High-way which is out of repair 27 H. 8. 27. a. 1 Inst 56. Moor 108. Cro. Eliz. 664. 5 Co. 104. for which no man can bring an Action unless he hath a particular damage or loss more than the rest of the People passing that way but the Party ought to be indicted and this is to prevent multiplicity of Suits for if one man may have an Action every person traveling that way may have the like Another Exception was taken to the Declaration viz. that all the Custom is laid to be for the Inhabitants of an ancient Vill to pass Toll-Free from Ferry-Lane to Adventurers-Bank and they do not alledge that Bank to be within the Vill. Those who argued for the Plaintiff held this to be a good Custom E contra as set forth by him and as such 't is not confined to the same Rules with a Prescription which must have a lawful commencement but it is otherwise in a Custom for 't is sufficient if it be certain and reasonable The Cases cited on the other side are not to this purpose because they concern only such Customs which relate to some Interest or profit in the Land of another person but this Custom is only in a matter of exemption and easment This was the very difference taken by the Iudges in Gatewood 's Case 6 Co. where it was held to be a good Custom for every Inhabitant of a particular Town to have a Way over such Lands to go to Church or Market because this was matter of easement and no profit Now a Passage over a River is no more than a way and may be tied up to one or more persons according to their comorancy Since therefore no Interest is claimed by the Plaintiff but only an easment this Prescription need not be laid in the Owners but in the Inhabitants of the Vill of Littleport It may be compared to a Case where a Custom was laid for the Inhabitants of a Town to pay a Modus in discharge of Tythes Hob. 118. Yelv. 163. this was held good because it was by way of discharge in the persons Lands without claiming any profit in that of another 'T is also like the common Case of a Market when a Man has pitched his Stall there no person can remove it for he hath a right ratione comorantiae Then as to the first Objection upon the first Point That a Custom to pass and repass ad libitum cannot be good it was answered this passage was in the nature of a High way over which a Man may pass as often as he will and therefore 't is well enough as laid in the Declaration 2. As to the Objection that it ought to be laid in some person and not in the Inhabitants it was said this was an easment to the Plaintiff and no such thing can be to one man but it makes another a Crespasser and 't is no Interest in the Plaintiff to be discharged of a Charge A Custom to grind at the Lords Mill discharged of Toll rules this Case for is it not as much charge for a Lord of a Mannor to keep a Mill as for the Defendant to keep a Boat If the Plaintiff had prescribed then this had come within the the Rules of Gatewood 's Case But he hath alledged a Custom and when such Allegations are made they ought not to be too narrowly searched for No reason can be given why an Infant at 15 years of Age shall be capable to make a Feoffment in one Town and not in another 18 Ed. 4.3 3. Then as to the third point that this being laid to be a Common Ferry the Plaintiff ought to shew some special damage to maintain an Action To which it was answered that the right was on the Plaintiff's side and that was sufficient to maintain the Action 'T is not like the Case of a Common-High-way as mentioned on the other side because this Action is confined to Littleport alone and no Man is intituled to it but such who inhabit that Vill so that every Man cannot bring an Action As to the Exception to the form of the Declaration that Adventurers-Bank is not laid to be in the Vill it was said that the Plaintiff only claimed a right of passage over the River which is laid to be in the Vill of Littleport 2 Cro. 555 557. the Bank is only the terminus ad quem 't is like the Case where the Defendant covenanted to repair a Mill and the Water-courses in a Parish and also the Banks belonging to the Mill in which Case the Plaintiff had Iudgment tho' he did not shew in what Vill the Banks were because it shall be intended to be in the same Vill where the Mill was Afterwards in Trinity Term
that at the Common Law a Man might exercise what Trade he would therefore this Statute is penned in the Negative to prevent many inconveniences which happened before the making of this Law Some Authorities there are where Informations have been brought upon this Statute Cro. Car. 347. 1 Sand. 312. and the Defendants have pleaded the the Custom of London for a Man Educated in one Trade to exercise another and upon Demurrer such Pleas have been over-ruled but reason in this Case is the best Authority Iourny-men who work for Hire cannot be within the meaning of this Statute but the Defendant by employing such had an influence upon the Trade and so 't is found viz. That he provided Materials and paid the Workmen and therefore he and not the Master workman who is but a Iourny-man is the person who did exercise the Trade not being an Apprentice the management was for his Profit the Workmen had no more but their Wages and it would be very mischievous if the Statute should be otherwise construed A Widow shall not exercise her Husbands Trade Hutt 132. unless she is enabled by the Custom of the place and possibly she might live so long with him as to be very skilful in it but the Act being penned in the Negative must have a large construction and therefore an Vsage against it will not take away its force Paying the Wages is as much as using the Trade himself 't is properly his driving the Trade by the Hands and Labour of his Servants 1 Jac. 1. c. 22. And it seems plain by the Statute of 1 Jac. 1. that this may be done for that Statute Enacts that no person using the Mystery of Tanning Leather by himself or any other person shall exercise the Craft of a Shoe-Maker c. which shews that the Trade may be carried on by Servants and Workmen A Goldsmith never makes his own Plate he only provides Materials for the Workmen but yet he is a Trader within the Statute because he makes profit of the Plate An Inn-keeper who sells Beer Bread c. in his House is not within this Statute because 't is part of his Trade to provide such things for his Guests but if he sells any quantities out of Doors 2 Bulst 187. he is then within the reach of this Law which ought to have a very beneficial construction because 't is made to maintain skilful Men in Trades which is for the publick good of Mankind 2. 'T is plain that he who useth one Trade cannot exercise another therefore a Coach-maker shall not make his own Whéels if he doth 't is exercising the Trade of a Wheel-right and so of the Iron and Leather and the other Materials which make up a Coach In Mr. Noy 133. Hunter versus Moon Attorney Noy 's Reports there is a Case of an Information brought upon this Statute against the Defendant being a Felt-maker for dying of his own Hatts and it was adjudged for him that 't is part of his Trade but this is but a single Authority and many have been against it since that time At the Assises in Cambridge the like Information was tryed against a Comb-maker for exercisng the Trade of a Horner it was insisted on that it was part of his Trade for he fitted the Horn for his use in making of Combs but there was a Verdict for the Plaintiff for it was held to be an exercising of the Trade of an Horner and the Council for the Defendant who were learned Men did acquiesce under that Iudgment He who is a Servant who undergoes no hazard but is to have a certain reward for his labour doth not exercise a Trade but 't is the Master who emploies him who hath all the Profit and who in this Case sells at the same rate as if he paid the Clothworker The Statute saith That none who hath not served as an Apprentice in any Mystery c. shall use the same c. Now he who employs Men in his House useth the Trade c. For suppose a Merchant should hire Iourny-men Shoemakers to work in his House for the Plantations this can be no other thing than the exercising of the Trade of a Shoemaker Private usage is not within the meaning of this Law but if what is done be for profit and gain and not confined to a particular Family 't is an exercising of a Trade within the intention of this Statute If the Defendant had sold these Cloths in England he had been a Draper and having exported them he is a Merchant Wherefore for these Reasons Iudgment was given for the Plaintiff But Iustice Dolbin was of another Opinion he said that no encouragement was ever given to Prosecutions upon this Statute and that it would be for the common good if it was repealed for no greater punishment can be to the Seller than to expose Goods to Sale ill wrought for by such means he will never sell more In this Case there is no inconvenience to the Company of Clothworkers because that Trade is a manual Occupation for hire the Master Workman is the person who useth the Trade and the Defendant hath done nothing but what is the proper work of a Merchant in his own House which cannot be a publick use of the Trade The intent of the making of this Statute was to prevent Idleness and that there might be generally a good Manufacture Now the Defendant hath well answered both these ends for he hath employed Men in the working and not only so but such Men who were bound Apprentices and served seven years in that very Trade such who could work well and to whom he gave good Wages 'T is the interest of a Merchant that his Cloth be well wrought but the Clothworker careth not how 't is done so he hath his Wages and by this care and industry of the Defendant that Trade which was almost lost abroad is now come into Reputation again Bradburn versus Kennerdale Mich. 4 Jac. Rot. 640. ERror to reverse a Iudgment in an inferior Court at Chester in Replevin for the taking of a Cow Replication whether good without a Traverse The Defendant made Cognizance as Bailiff to Sir Peter Warburton setting forth that before the taking c. Sir Peter was seised in Fee of the Mannor of Arkey of which the locus in quo was parcel and for that the Cow was there Damage Feasant he took it c. The Plaintiff in barr to the Avowry confesseth That Sir Peter Warburton was seised in Fee c. but that before that time Sir George Warburton his Father was seised of the said Mannor and likewise of one Mesuage in Fee c. and being so seised made a Lease thereof for three Lives viz. for the Life of G. H. the Father and for the Lives of his two Sons George and John alterius eorum diutius viventis that one of them was dead and that the other entred and was seised as
Occupant and let the Land to the Plaintiff until c. Et hoc paratus est verificare The Defendant demurred to this Replication and had Iudgment The Matter now in Debate was upon Exceptions to the Barr. 1. For want of a Traverse that Sir Peter Werburton was seised in Fee at the time of the taking c. 2. For want of a sufficient Title alledged in the Plaintiff for that by the Statue of Frauds all Occupancy is now taken away It was argued that the Replication was good without a Traverse Co. Ent. 504. for where the Plaintiff hath confessed and avoided as he hath done here if he had traversed likewise that would have made his Replication double He confesseth that Sir P. W. was seised in Fee of the Mannor but afterwards the Seisin was expresly alledged to be in Sir George the Father and that the place where was parcel thereof which is a Confession and an Avoidance The Avowant should have traversed this Lease but the Traverse of the Plaintiff upon him had made it a worse Issue Agreeable to this Case in reason is that which was adjudged in this Court in Michaelmas-Term 10 Car. 1. It was in Trespass Cro. Car. 384. the Defendant pleaded that the locus in quo was the sole Freehold of John c. and justified by his Command The Plaintiff replyed that the Land was parcel of the Mannor of Abbots Anne and that W. was seised in Fee and levied a Fine to the use of himself and Wife for their Lives the Remainder to E. for 100 years if he lived so long who after the death of the Cognizors entred and made a Lease to the Plaintiff And upon a Demurrer to this Replication the same Exception was then taken as now viz. that the Plaintiff did not confess and avoid the Freehold of John but the Plaintiff had Iudgment for the Barr being at large and the Title in the Replication being likewise so too the Plaintiff may claim by a Lease for years without answering the Freehold The not concluding with a Traverse is but a form and the Court will proceed according to the Right of the Cause without such form 27 Eliz. c. 5. 't is a defect which after a Ioinder in Demurrer is expresly helped by the Statute of Ieofails which enables the Court to amend defects and want of Forms other than such for which the party hath demurred The Case of Edwards and Woodden is in point Cro. Car. 323. 6 Co. Heyley 's Case Dyer 171. b. 1 Leon. 77 78. contra it was in Replevin the Defendant made Cognizance as Bailiff to Cotton for that the place where c. was so many Acres parcel of a Mannor c. that Bing was seised thereof in Fee who granted a Rent Charge out of it to Sir Robert Heath in Fee who sold it to Cotton c. The Plaintiff in Barr to the Conusance replied and confessed that the Land was parcel of the Mannor c. and that Bing was seised in Fee prout c. and granted the Rent to Sir R. H. but that long before the Seisin of Bing c. one Leigh was seised thereof in Fee who devised it to Blunt for a Term of years which Term by several Assignments came to Claxton who gave the Plaintiff leave to put in his Cattel c. And upon a Demurrer to this Replication an Exception was taken to it for that the Plaintiff did not shew how the Seisin and Grant of Bing to Sir R. H. was avoided for having confessed a Seisin in Fee prout c. that shall be intended a Fee in possession and notwithstanding he had afterwards set forth a Lease for years in Leigh by whom it was devised to Blunt c. and so to Claxton it may be intended that the Grantor was only seised in Fee of the Reversion and therefore the Plaintiff ought to have traversed the Seisin aliter vel alio modo But three Iudges seemed to encline that the Replication was good and that the Plaintiff had well confessed and avoided that Seisin in Fee which was alledged by the Defendant for he had shewed a Lease for years precedent to the Defendants Title and which was not chargeable with the Rent and his pleading that the Grantor Bing was seised in Fee must be only of a Reversion expectant upon that Lease But if his Confession that Being was seised in Fee prout c. shall be intended a Seisin in Fee in possession yet the Replication is good in substance because the Charge against the Plaintiff is avoided by a former Estate and in such Case 't is not necessary to take a Traverse But after all it was held that if it be a defect 't is but want of a Form which is aided by the Statute and that is this very Case now in question The want of a Traverse seldom makes a Plea ill in substance but a naughty Traverse often makes it so because the adversary is tied up to that which is material in it self so that he cannot answer what is proper and material and therefore in Ejectment upon a Lease made by E. I. Yelv. 151. Bedel versus Lull the Defendant pleaded that before E. I. had any thing to do c. M. I. was seised in Fee after whose death the Land descended to his Heir and that E. entred and was seized by Abatement The Plaintiff replied and confessed the Seisin of M. but saith that he devised it in Fee to E. I. who entred absque hoc that E. I. was seized by Abatement and upon a Demurrer this was held to be an ill Traverse for the Plaintiff had confessed the Seisin of M. and avoided it by the Devise and therefore ought not to have traversed the Abatement for having derived a good Title by the Devise to his Lessor 't is an Argument that he entred lawfully and it was that alone which was issuable and not the Abatement therefore it was ill to traverse that because it must never be taken but where the thing traversed is issuable Then it was said that the Conusance was informal because the Avowant should have said that the Locus in quo c. contains so many Acres of Ground c. he only saith that it was parcel of a Mannor besides he neither prays Damages nor Retorn ' Habend ' 2. As to the 2d Point it was said that the Statute of Frauds doth not take away all Occupancy it only appoints who shall be a special Occupant Besides here is a Title within the Statute for a Lease for Lives is personal Assets so is a Term in the Hands of an Executor de son tort and in this Case the entring of one Brother after the death of the other made him an Executor de son tort More 126. Sid. 7. and it was never yet doubted but that there may be such an Executor of a Term. Whereupon it was concluded that the Barr was good both as to the Form
mistaken in that Action and being in the wrong was barred but that will be no Bar where a right Action is brought as if I deliver a Bond to another for advice who refusing to redeliver it I bring an Action of Trespass and am barred either by Verdict or Demurrer yet I may bring Detinue Trespass and Detinue are not the same Actions Pro Def. and therefore a Iudgment in one shall be no bar to the other but where two Actions are brought for one thing to be recovered in such case a Recovery in one shall be a bar to the other There is no substantial difference between Trespass and Trover for the disposing of the Goods in the one case is the same with the Conversion in the other the taking vi armis and likewise the Conversion are both tortious and therefore either Action may be well brought But for the Reasons given by the Plaintiffs Council he had Iudgment by the Opinion of the Chief Iustice and the other two Iudges Jones and Raymond of which Iustice Dolben did very much doubt Dominus Rex versus Sir Robert Atkins Knight of the Bath al' AN Indictment was found at the Quarter Sessions held for the County of the City of Bristol 4 Octob. 33 Car. 2. The County of the City of Bristolâ— against Sir Robert Atkins Knight of the Bath and Recorder and Senior Alderman of the said City Sir John Knight Alderman John Lawford Alderman and Joseph Creswick Alderman setting forth 1. That King Henry the VII th by his Charter dated 17 Decemb 15 Regni sui granted to the Mayor and Commonalty of the Town of Bristol the now City of Bristol being then a Town and to their Successors That if any shall procure abett or maintain any Debate and Discord upon the Election of the Mayor or other Minister he shall be punished instantly by the Mayor and two Aldermen to be chosen and named by the Mayor after the quantity and quality of his offence according to the Laws and Custom of the Realm 2. That according to the Priviledges granted by Queen Elizabeth to the Mayor and Commonalty of the said City and their Successors by Charter dated 28 June 23d of her Reign After which time as the Indictment sets forth the said Town was made a City there have been or ought to have been from the time of the making the said Charter twelve Aldermen whereof the Recorder was to be and now is one 3. That according to the Priviledges so as aforesaid granted by all the time aforesaid which is from the time of the Charter after the death of every Alderman the Mayor and the rest of the surviving Aldermen eorum major pars ad summonitionem of the said Mayor being called together have accustomed to choose another person of the circumspect Citizens to be an Alderman in the place of him so deceased and the Mayor and Aldermen by the same Privileges so granted have been and ought to be Iustices of the Peace for the said City 4. That continually after the time of the said Charter of Queen Elizabeth the Recorder and the rest of the Aldermen were and ought to be of the Privy Council de privato Concilio of the Mayor in particular Cases concerning the Government of the City whensoever the Mayor shall call them together And such Privy Council by all the time aforesaid which still is from the said Charter of Queen Elizabeth have not accustomed nor ought not to be called together to transact any Business belonging to that Council unless by the Summons and in the presence of the Mayor That after the death of one Sir John Lloyd being at his death an Alderman of the said City the said Sir Robert Atkins then being Recorder Sir John Knight John Lawford Esquire and Joseph Creswick being all Aldermen then of the City and free Burgesses of the City to make debate and discord upon the Election of an Alderman in the place of the Alderman so dead 8 March 33 Car. 2. in the Parish and Ward of St. Andrew within the said City did conspire to hold a Privy Council of the Aldermen of the said City and therein to choose an Alderman sine summonitione in absentia contra voluntatem Richardi Hart Militis then being Mayor of the City And in pursuance of their said wicked Conspiracy the day and year aforesaid entred by force and arms into the Tolzey and in the Chamber of the Council of the Mayor and Commonalty of the said City commonly called The Council House and there riotously c. did assemble and the same day and year they the said four Aldermen una cum aliis Aldermannis which must be two more Aldermen at the least which makes six and there were but five more in all then in being taking the Mayor in the said rest of the Aldermen not knowing their purposes held a Privy Council of Aldermen and then and there as much as in them lay chose Thomas Day for an Alderman in the place of Sir John Lloyd sine aliqua summonitione per praedictum Richardum Hart then Mayor to meet and in his absence and against his Will And they farther caused to be entred in the Common Council-Book the said Election as an Order of the Privy Council in which Book the Acts of the Mayor and Aldermen in their Privy Council are commonly written from whence great Discord hath risen c. Which Indictment was tryed at the Assises at Bristol by Nisi Prius and the Defendants found guilty and thereupon Sir Robert Atkins one of the Defendants having then lately before this Case been one of the Judges of the Common Pleas but then discharged of his Place after eight years sitting there secure came into the Court of Kings Bench and in Arrest of Iudgment argued his own Case not as Council nor at the Bar but in the Court in his Cloak having a Chair set for him by the Order of the Lord Chief Iustice and said as followeth 1. The Indictment in the first place mentions the Letters Patents of King H. 7. made to the Mayor and Commonalty of Bristol that the Mayor with two Aldermen such as he should choose should by their discretions according to Law punish such as should make debate and discord at the Elections of Officers They have not pursued this course against us but gone the ordinary way of Indictment and therefore I shall not need to speak to it 2. The Indictment in the next place proceeds to mention Letters Patents of Queen Elizabeth granted to the Mayor and Commonalty in the 23d year of her Reign which provides that there shall be twelve Aldermen and how upon the death or removal of an Alderman a new one should be chosen that is by the Mayor and the surviving Aldermen and the greater number of them being call'd together as the Indictment suggests by the Summons of the Mayor The whole Indictment and the Offence we are charged with being
which she had discontinued by joining in the Fine with her second Husband but yet it was adjudged no Forfeiture because it was not within the intent of the Statute to restrain Women to dispose of their own Estates but only such as came from the Husband So here Vses are in the nature of private Laws and must be governed by the like intention of the Parties now 't is not to be supposed that the Father did intend to disinherit his only Daughter and Heir without notice of this Settlement therefore though he had not appointed any person in particular to give her notice yet it must of necessity be presumed that his intention was that she should have the Estate unless she had refused upon notice to comply with those Conditions imposed upon her Now the Daughter being Heir at Law and so having a good Title by descent if there be any Conveiance made by her Ancestor to defeat that Title and to which she is a Stranger she ought by the Rules of Law and Reason to have notice of it and so is the express Resolution in Frances's Case where the Devise and the Feoffment were both made to the Heir at Law And the reason why in Fry and Porter's Case notice was not held necessary was because the Devise was to a Grandaughter who was not Heir at Law for the Earl of Newport had three Sons then living and therefore the Parties whom it concerned had the same means to inform themselves upon what Conditions they were to have the Estate 3. The notice here given was not sufficient for as the Ordinary himself in Green's Case ought to have given the Patron notice of the Deprivation before a Lapse should incurr so the Trustees here ought to give the Daughter notice of this Proviso before she shall lose her Estate for Non-performance of the Conditions on which she should take it especially since the notice she had of this Proviso was not certain for 't is said she had notice not to marry without the consent of the Trustees but 't is not shewed who they are or how she should apply her self to them Besides there is something in this Proviso which the finding in the Verdict will not supply for it may be literally true that the Daughter married without the consent of the Trustees and yet no breach of the Condition because the Proviso is to restrain her from marrying without the consent of them or their Heirs now it was not found that the Feoffees were then living and if they were dead their Consent cannot be required and she might have the consent of their Heirs Mr. Franklyn who was the Husband of Laetitia the Aunt in Remainder hath likewise forfeited that Estate which he hath or may have in right of his Wife if she had any right by not taking upon him the name of Fitzgerald for if the Father would have disinherited his Daughter for Non-performance of this Proviso a fortiori he shall be intended to disinherit his Sister for making frustrate his desire in the settlement of his Estate In Easter-Term following Iudgment was given That the Estate Tail was not determined for want of notice according to the resolution in Frances's Case Hinton versus Roffey AN Action of Debt was brought against the Defendant In pleading the Statute of Usury the Agreement and the Sum taken must be set out 12 Car. 2. c. 13. who pleaded the Statute of Usury but did not shew any particular Agreement only in general that he was indebted to the Plaintiff in a Sum not exceeding 180 l. neither did he seth forth when the Interest of the Mony did commence and on what day it became due And upon a Demurrer it was objected that this Plea was too general because the Defendant ought to shew in particular what the Sum was in which he was indebted and how much the Plaintiff took above 6 l. per Cent. for if the certainty thereof did not appear there could be no Fact applied to it But on the other side it was alledged that it was not material to shew the certain Sum which the Plaintiff took above 6 l. E contra per Cent. and therefore not necessary to set forth the particular Agreement between them for having pleaded and made a substantial Averment to bring his Case within it 't is well enough without shewing how much he took above six in the hundred And this Case was compared to Debt against an Administrator Moon versus Andrews Hob. 133. who pleaded in Bar a Iudgment c. and that he had fully administred and had not Assets praeterquam bona c. non attingen to 5 l. and upon Demurrer this was held a good Plea for though in strictness of Pleading the Defendant ought to have shewed the certain value of the Goods and not to have said non attingen to 5 l. yet the substance sufficiently appears that he had not more than 5 l. to satisfie a Debt of an 100 l. for which that Action was brought Jefferies Chief Iustice and the Court gave Iudgment for the Plaintiff because the Defendant ought to have set forth the Agreement and to apply it to the Sum in the Declaration Smith versus Goodier IN Ejectment for the Mannor of Heythorpe Attornment must be proved where an Ejectment is brought for a Mannor parcel in Rent and Services c. Vpon Not-guilty pleaded there was a Trial at Bar by an Oxfordshire Iury. The Title of the Lessor of the Plaintiff was That Edmund Goodier Esquire was seized in Fee of the said Mannor part in Demesnes some part in Leases for years with Rent reserved and some part in Services and being so seized made a Feoffment in Fee to Sir John Robinson and Sir William Rider and their Heirs in Trust for Sir Robert Masham This Deed was dated in 1647. and the consideration was 5000 l. paid to Goodier there was a Letter of Attorny of the same date with the Deed and Livery and Seisin endorsed Serjeant Maynard who was of Council for the Defendant put the Plaintiff to prove an Attornment of the Tenants for having declared for a Mannor Lit. Sect. 553. 1 Roll. Abr. 293. parcel in Rents and Services those would not pass without an Attornment and of this Opinion was the whole Court but the Plaintiff would not prove an Attornment The Defendant made a Title under the Marriage Settlement of the said Goodier who in 17 Jacobi married Elizabeth Mees and then he setled the said Mannor upon himself for life and upon his Issue in Tail Male and that the Defendant was the Heir in Tail But on the other side it was insisted that this Settlement was fraudulent against the Purchasor Evidence of a Fraudulent Settlement and that it could not be thought otherwise because both the Original and Counterpart were found in Mr. Goodiers Study after his death and because he had made Oath before a Master in Chancery that there was no incumberance
general as this Case There are many instances where Breaches have been generally assigned and held ill that in Croke is so but the later Opinions are otherwise Affirmetur Judicium Pye versus Brereton A Lease was made of Tythes for three years rendring Rent at Michaelmas and Lady-day and an Action of Debt was brought for Rent arrear for two years Vpon Nil debet pleaded the Plaintiff had a Verdict and it was now moved in Arrest of Iudgment that the Declaration was too general for the Rent being reserved at two Feasts 2 Cro. 668. the Plaintiff ought to have shewed at which of those Feasts it was due But the Council for the Plaintiff said That it appears by the Declaration that two years of the three were expired so there is but one to come which makes it certain enough Curia This is helped by the Verdict but it had not been good upon a Demurrer DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. MEmorandum That in Trinity-Vacation last died Sir Francis North Baron of Guilford and Lord Keeper of the Great Seal of England at his House in Oxfordshire being a Man of great Learning and Temperance And Sir George Jefferies Baron of Wem and Chief Justice of the Kings-Bench had the Seal delivered to him at Windsor and was thereupon made Lord High Chancellor of England And Sir Edward Herbert one of the Kings Council succeeded him in the Place of Chief Justice There died also this Vacation Sir Thomas Walcott one of the Justices of the Kings-Bench and he was succeeded by Sir Robert Wright one of the Barons of the Exchequer Sir John Newton al' versus Stubbs IN an Action on the Case for Words Words laid to be spoke ad tenorem effectmu sequen ' not good The Plaintiffs declared that they were Iustices of the Peace for the County of Gloucester c. and that the Defendant spake these scandalous Words of them Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie Men out of their Estates postea eodem die c. they spoke these words Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie me and Mr. Creswick out of our Estates And afterwards these words were laid in Latin without an Anglice ad tenorem effectum sequen ' c. There was a Verdict for the Plaintiffs and entire damages and now Mr. Trindar moved in Arrest of Iudgment 1. That the words in the Declaration are laid in Latin Roll. Abr. 74. pl. 2. without an Anglice and without an Averment that the hearers did understand Latin 2. 'T is not expressly alledged that the Defendant spoke those very words for being laid ad tenorem effectum sequen ' something may be omitted which may alter the sense and meaning of them Cro. Eliz. 857. and for this very reason Iudgment was staied though the Court held the words to be actionable Rex versus Ayloff al' THey were Outlawed for High-Treason Treason and on Tuesday the 27th day of October they were brought to the Bar and a Rule of Court was made for their Execution on Fryday following The Chief Iustice said that there was no hardship in this proceeding to a Sentence upon an Outlawry because those Malefactors who wilfully flie from Iustice and a new Crime to their former Offence and therefore ought to have no benefit of the Law for tho' a Man is Guilty yet if he put himself upon his Tryal he may by his submissive Behaviour and shew of Repentance incline the King to mercy In Felonies which are of a lower nature than the Crimes for which these persons are attainted flight even for an Hour is a forfeiture of the Goods of the Criminal so likewise a Challenge to three Iuries is a defiance to Iustice and if that be so then certainly flying from it is both despising the mercy of the King and contemning the Iustice of the Nation They were both Executed on Frday the 30th of October following Dominus Rex versus Colson al' AN Information was exhibited against the Defendants Information for a Riot not good setting forth that they with others did riotously assemble themselves together to divert a Watercourse and that they set up a Bank in a certain place by which the Water was hindred from running to an antient Mill in so plentifull a manner as formerly c. Vpon Not Guilty pleaded it came to a Tryal and the Iury found that Quoad factionem Ripae the Defendants were Guilty and quoad Riotum not Guilty And now Mr. Williams moved in arrest of Iudgment because that by this Verdict the Defendants were acquitted of the charge in the Information which was the Riot and as for the erecting of the Bank an Action on the Case would lie and the Iudgment was accordingly arrested Mason versus Beldham Trin. 1 Jac. Rot. 408. THE Plaintiff brings his Action against the Defendant Quantum meruit will lie for Rent and sets forth That in consideration that he would suffer the Defendant to enjoy a House and three Water-Mills c. he promised to pay so much yearly as they were reasonably worth and avers that they were worth so much And upon a Demurrer the Question was whether this Action would lie for Rent It was argued for the Defendant that it would not lie Cro. Eliz. 242. 786 859. 2 Cro. 668. because it was a real Contract 'T is true there is a Case which seems to be otherwise 't is between Acton and Symonds Cro. Car. 414. which was in consideration that the Plaintiff would demise to the Defendant certain Lands for three years at the Rent of 25 l. by the year he promised to pay it this was held to be a personal Promise grounded upon a real Contract and by the Opinion of three Iudges the Action did lie because there was an express promise alledged which must also be proved But Iustice Croke was of a contrary Opinion Mr. Pollexfen contra If a Lease be made for years reserving a Sum in gross for Rent and which is made certain by the Lease in such case an Action of Debt will lie for the Rent in arrear But if where no Sum certain is reserved as in this Case a Quantum meruit will lie and no reason can be given why a Man may not have such an Action for the Rent of his Land as well as for his Horse or Chamber And Iudgment was given for the Plaintiff Anonymus THere was a Libel in the Spiritual Court for scandalous Words Prohibition for words where some are actionable and others not Viz. She is Bitch a Whore an old Bawd And a Prohibition was now prayed by Mr. Pollexfen because some of the words were actionable at Law and some punishable in the Spiritual Court and therefore prayed that it might go Quoad those words which were actionable at Law The Chief Iustice granted
Paper Book by the then Attorny General but by reason of a stroak cross them the Clerk omitted them in engrossing the Iudgment But upon a Motion the Court held this amendable at the Common Law Curia The Error is only a Misentry of the Writ of Enquiry and amendable without paying of Costs Mr. Aston the Secondary said that Costs were never paid in this Court upon such Amendments nor in the Common Pleas until my Lord Chief Iustice Vaughan's time but he altered the Practice and made that Rule that if you amend after a Writ of Error brought you must pay Costs Holcomb versus Petit. A Devastavit was brought against an Administrator of a rightful Executor who pleaded an insufficient Plea Administrator of a rightful ful Executor is liable to a Devastavit 30 Car. 2. c. 7. and upon a Demurrer the Question was upon the Statute of 30 Car. 2. The Title whereof is An Act to enable Creditors to recover Debts of Executors and Administrators of Executors in their own wrong which is introductory of a new Law and charges those who were not chargeable before at the Common Law but it enacts That when Executors of persons who are Executors de son tort or Administrators shall convert the Goods of any person deceased that they shall be liable as their Testator or Intestate would have been Gold held that he shall not be charged for where an Act of Parliament charges an Executor in such case an Administrator shall be likewise charged but if an Administrator be charged that shall never extend to an Executor The Rule is A majori ad minus valet Argumentum sed non e contra therefore the rightful Executor shall not be charged by this Act which only makes Executors of Executors de son tort lyable Pollexfen contra There can be no reason given why the Act should make an Administrator of an Administrator lyable to a Devastavit and not an Administrator of an Executor de son tort for the mischief will be the same and therefore a rightful Executor who wasts the Testator's Goods ought to be charged The Recital of this Act is large enough the Preamble is general and the enacting Clause expresseth Executors and Administrators of Executors de son tort but then it also mentions Administrators but not such who are their Administrators de son tort Now the Word Administrator is in it self a general Word and extends to any one who meddles with the personal Estate so that the Preamble being general and the Act remedial 't is within the same mischief Curia The Word Administrator is very comprehensive for when an Executor pleadeth he saith Plene administravit If a rightful Executor waste the Goods he is a kind of an Administrator de son tort for abusing of the Trust There is no Superiority between an Executor or an Administrator for by this Act they are both equal in power as to the Goods of the deceased Iudgment was given that the Administrator of the rightful Executor shall be liable Jenings versus Hankeys 'T IS enacted by the Statute of 13 Car. Where an Informer shall be a Witness though he hath part of the Penalty 13 Car. 2. c. 10. 2. That they who kill course hunt or take away Red or Fallow Deer in any Ground where Deer are kept c. or are aiding therein if such are convicted by Confession or Oath of one Witness before one Justice of the Peace within six Months after the Offence done shall forfeit 20 l. one Moiety to the Informer the other to the Owner of the Deer to be levied by Distress by Warrant under the Justice's Hand The Defendant was convicted by the Oath of the Informer and Mr. Shower moved that it might be quashed because the Informer is not to be admitted as a Witness he being to have a Moiety of the Forfeiture The Party to an usurious Contract shall not be admitted as an Evidence to prove the Vsury 12 Co. 68. 2 Rol. Abr. 685 because he is Testis in propria causa and by their Oath may avoid their own Bonds Mr. Pollexfen contra The Statute gives power to convict by the Oath of a credible Witness and such is the Informer 'T is not a material Objection to say That the Informer shall not be a Witness because he hath a Moiety of the Forfeiture for in Cases of the like nature the Informer is always a good Witness As upon the Statute for suppressing of Conventicles the Informer is a good Witness and yet he hath part of the Penalty for otherwise that Act would be of little force for if who sees the People met together be not a good Witness no Body else can Curia In the Statute of Robberies a Man swears for himself because there can be no other Witness he is a good Witness Harman versus Harman DEBT upon a Bond against an Administrator Notice of a Debt must be given to an Administrator who pleaded Fully administred and that he had not notice of this Bond before such a day In this Case a special Verdict was found upon which the Question was Whether Notice was necessary to be given of Debts of an inferior nature The Court gave no Opinion but they agreed that a Iudgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond and that 't is no Devastavit in an Executor to pay a Debt upon such a Contract before a Bond Debt Vaughan 94. of which he had no Notice So where an Obligor did afterwards enter into a Recognizance in the nature of a Statute 2 Anders 159. 1 Mod. 157. and Iudgment was against him upon the Bond and then he dyed his Executrix paid the Creditor upon the Statute and the Obligee brought a Scire Facias upon the Judgment on the Bond Debt and she pleaded payment of the Recognizance this was held a good Plea for she is not bound to take Notice of the Iudgments against the Testator without being acquainted therewith by his Creditors for she is in no wise privy to his Acts. DE Term. Sancti Mich. Anno 2 Jac. II. in Banco Regis 1686. Anonymus AN Information was exhibited against the Defendant for Perjury Perjury in a Deposition taken before Commissioners in Chancery setting forth that a Bill in Chancery was exhibited by one A. B. and the Proceedings thereon The Perjury was assigned in a Deposition made by the Defendant 30 Julii 1683. and taken in that Cause before Commissioners in the Country It was tried this day at the Barr and the Question was Whether the Return of the Commissioners that the Defendant made Oath before them shall be a sufficient Evidence to convict him of Perjury without their being present in Court to prove him the very same person Serjeant Pemberton for the Defendant admitted an Information will lie in this Case against him but the Commissioners must be here or some other person to prove that he was
forth that the Plaintiff was amerced and that it was affered at the Court and so he hath confounded the Office of the Iurors and Affearers together which he ought not to do for he should be amerced to a certain Sum Hob. 129. Rol. Abr. 542. and not in general which Sum may be mitigated or affered by others If it had been a Fine 8 Co. 38. 1 Leon. 142. it need not be affered because that is imposed by the Court but this is an Amerciament which is the act of the Jury and therefore it must be affered 3. The chiefest Exception was to the matter of the Warrant viz. the Defendant sets forth that he seised by virtue of a Precept from the Dean and Chapter whereas he ought to shew it was directed to him from the Steward of the Court and then to set forth the Warrant without which he cannot justifie to distrain for an Amerciament And of this Opinion was the whole Court and therefore Iudgment was given for the Plaintiff in Michaelmas Term Primo Will. Mariae If it had been in Replevin where the Defendant made cognizance in the right of the Lord it might be well enough as here pleaded but where 't is to justifie by way of excuse there you must averr the Fact and alledge it to be done and set forth the Warrant it self 3 Cro. 698.748 1 Leon. 242. and the taking virtute Warranti for a Bayliff of a Liberty cannot distrain for an Amerciament by virtue of his Office but he must have a Warrant from the Steward or Lord of the Leét for so doing The other Exception that the Amerciament ought to be to a Sum Rast Ent. 606. Co. Ent. 665. the Presidents are otherwise for an Amerciament per duodecim probos legales homines adtunc ibidem jurat ad 40 s. afferat ' is well enough but the Warrant is always set forth Dominus Rex versus Darby THE Defendant was indicted for speaking of scandalous words of Sir J.K. a Justice of the Peace Viz. Sir J.K. Indictment for Scandalous words is a buffle-headed Fellow and doth not understand Law he is not fit to talk Law with me I have bafled him and he hath not done my Clyent Justice Mr. Pollexfen for the Defendant said that an Indictment would not lye for these words because not spoken to the Party in the exceution of his Office but behind his back it will not lye for irreverent words but for Libels and Writings because such are publick but words are private offences But the Court being of Opinion that an Indictment would lye where an Action would not because it respects the publick Peace and that an Action would not lye in this Case unless the party had a particular loss Sid. 65. 2 Cio 5 8. and therefore it hath been held not to be actionable to call a Iustice of Peace Fool Ass Coxcomb He then took Exceptions to the Form of the Indictment 1. There is no place of Abode laid where the Defendant did inhabit which is expresly required by the Statute of H. 5. Viz. 1 H. 5. cap. 5 That in Indictments there shall be addition of the Estate Degree c. and of the Towns Hamlets Places and Counties where the Defendants dwell And by the Statute of H. 6. 8 H. 6. cap. 12 which gives the Iudges power to amend Records in affirmations of Iudgments such defects which are named in the Statute of H. 5. are excepted and therefore where a Writ of Error was brought to reverse an Outlawry upon the Statute of 5 Eliz. for Perjury 2 Cro. 167. the Defendant was Indicted by the Name of Nicholas Leech de Parochia de Aldgate and did not shew in what County Aldgate was and for this cause it was reversed 2. The Caption is coram Justiciariis ad pacem dicti Domini Regis conservand ' and the word nunc is left out It was the Opinion of Iustice Twisden that it ought to be nunc conservand ' Sid. 422. for otherwise it may be the Peace of King Stephen The Councel on the other side said that it was a new Doctrine that the King shall not have the same Remedy by an Indictment which the Subject may have by an Action What is the meaning of the words of all Commissions de propalationibus verborum As to the first Exception they said that the Indictment was certain enough for the Defendant is laid to be de Almondbury in the West-Riding of Yorkshire To the second Exception they said that ad pacem conservand ' without nunc is well enough for it cannot be intended upon this Indictment that they were Iustices to preserve the Peace in any other Kings Reign and what was quoted out of Siderfin is but the Opinion of one single Iudge This is a Scandal upon the Government and 't is as much as to say that the King hath appointed an ignorant Man to be a Iustice of Peace for which an Indictment will lye And of that Opinion was the whole Court and gave Iudgment accordingly Ball versus Cock A Writ of Covenant did bear Teste the first day of Trinity Term Error to reverse a Fine where the Cognisor died after the Caption and before it passed the King's Silver retornable tres Trinitatis and it was taken by Dedimus 30 Julii A Writ of Error was brought to reverse this Fine and the Error assigned was that the Cognizor died after the Caption and before the Enrolment at the King's Silver Office It was argued by the Councel for the Plaintiff in the Writ of Error that a Fine Sur Cognizance de droit c. is said to be levied when the Writ of Covenant is returned and the Concord and King's Silver which is an antient Revenue of the Crown pro licencia concordandi duly entred for though the Cognisor dieth afterwards Dyer 220. b. 5 Co. 37. Cro. Eliz. 469. the Fine is good and the Land passeth but if the King's Silver be not entred the Fine may be reversed by Writ of Error for it is an Action and Iudgment and the death of either Party abates it If it should be objected that this cannot be assigned for Error because 't is against the Record which is Placita terrae irrotulat de Termino Sanctae Trinitatis anno primo Jacobi c. 'T is true an Error cannot be assigned against the very essence of a Record but in the matter of time it may and so 't is in this Case 'T is like Syer's Case 32 Eliz. 3 Inst 230. 4 Co. Hind's Case 10 H. 7.24 who was indicted for a Burglary supposed to be done primo Augusti and upon the Evidence it appeared to be done primo Septembris and though he was acquitted of the Indictment for that reason viz. because the Iudgment relates to the day of the Indictment yet it was resolved by all the Iudges of England that the very day needs not be set down in
ground he had for such an Opinion is not known the Year Books quoted in the Margent will not warrant it for they are in no sort parallel That Case in the 27th of H. 27 H. 6.3 6. is no more than Tenant at Will cannot grant over his Estate because he hath no certain or fixed Interest in it and much to the same purpose is the Book of 22 E. 22 E. 4.5 4. there cited But suppose this to be a void Grant and to amount to a determination of the Tenancy at Will yet if the Trustees had no notice of it that shall not determine their Estates A Devise to an Executor that he shall have the oversight of the Testators Estate till his Daughter should come of Age Yelv. 73. the Executor made a Lease at Will rendring Rent before the year expired the Daughter came of age to whom the Tenant at Will attorned the Executor brought an Action of Debt against him for the Rent arrear it was held that this Attornment to the Daughter was no determination of his Will for it would be of ill consequence to the Lessor if such a Tenant should determine his Will a day or two before the end of the year who had enjoyed all the Profits of the Land 2. Whether he may make a Deputy 'T is true a judicial Officer cannot make a Deputy unless he hath a Clause in his Patent to enable him because his Judgment is relied on in matters relating to his Office which might be the reason of the making of the Grant to him neither can a Ministerial Officer depute one in his stead if the Office be to be performed by him in person but when nothing is required but a Superintendency in the Office he may make a Deputy This appears more evident in the common Case of a Sheriff who is an Officer made by the Kings Letters Patents and 't is not said that he shall execute his Office per se vel sufficientem Deputatum suum Roll. Rep. 274. 1 Leon. 146. 3 Leon. 99. Cro. Eliz. 173. yet he may make a Deputy which is the Vnder-Sheriff against whom Actions may be brought by the Parties grieved And such a Deputy may be made without a Deed for he claims no Interest in the Office but as a Servant Cro. Eliz. 67. 10 Co. 192. a. and therefore where an Action on the Case was brought against the Deputy of a Sheriff for an Escape who pleaded that the Sheriff made him his Deputy to take Bail of Prisoners and that he took Bond c. and shewed no Deed of Deputation yet the Plea was held good upon a Demurrer 3. Whether the Assignment of this Trust without giving notice to this Court be a Forfeiture Tenant in Fee simple may do it for he hath a power so to do by reason of the Dignity of his Estate He who grants this Office without acquainting of this Court therewith must remain an Officer still and is subject to all Duties and Attendance till the Court hath notice of the Grant But there is no occasion of acquainting the Court in this Case for upon the Grant made to the Trustees by Mr. Lenthal he is still the Officer though he hath not the same Estate It was objected that Sir Edward Norris c. hath not said any thing to the Escapes but that doth neither concern Mr. Lenthal or the Trustees 2 Cro. 17. for if he be Tenant at Will they are not answerable for his neglect for 't is a personal Tort in him If Tenant for years makes a Feoffment 't is a Forfeiture of his Estate but if he makes a Lease and Release though 't is of the same operation yet it will not amount to a Forfeiture Now if any Escapes should happen there is a plain remedy for the Parties agrieved for if Tenant at Will remaineth in possession of an Office and suffers voluntary Escapes his Office shall be seised into the Hands of this Court then he in the Reversion must make his Claim and when that is done he is an Officer nolens volens and this was the Duke of Norfolk's Case Now though these Escapes are found by the Inquisition to be voluntary yet they are answered in the Plea for that part of the Inquisition is traversed and that they were vi armis and this being not yet tried the Court cannot give Iudgment thereon If there be many negligent Escapes these shall not amount to a Forfeiture as if a Rebel should break Prison or the Prison should be on Fire those are negligent but the Officer should not be so much as fined But if it should be a Forfeiture the Neglect must be particularly alledged for the Word Neglect is too general Adjornatur 5 E. 4.27 Dyer 66. Anonymus A Man was indicted for using of a Trade not being an Apprentice An Indictment quashed for misreciting of a Statute against the Statute of 5 Eliz. cap. 4. And now a Motion was made to quash it because the Act gives power to two Iustices of the Peace Quorum unus to hear and determine Offences committed against any branch thereof either by Indictment or Information before them in their Sessions and 't is not said that one of the Iustices before whom this Indictment was taken was of the Quorum This Objection was answered by the Court that the Sessions cannot be kept without one Iustice of the Quorum The Act saith That it shall not be lawful to any person other than such who did then lawfully use any Art Mystery or Manual Occupation to set up any Trade used within this Realm except he had been an Apprentice for seven years c. and 't is not averred that the Trade mentioned in the Indictment was a Trade used before the making of the Act. This seemed to be a material Objection but the Indictment was quashed for misreciting of the Statute Price versus Davies ERror to reverse a Fine taken by Commission and the Error assigned was that the Cognizor died before the return of the Writ of Covenant But this Point was not argued because Iustice Allybon was of Opinion that the Plaintiff in the Errors had not well entituled himself by the Writ for it was brought by him ut Consanguineus Haeres scilicet Filius c. but doth not shew how he was of Kindred To this Objection Sir William Williams the Solicitor General replyed that if a Descent be from twenty Ancestors 't is not necessary to say that he was Son and Heir of such a one who was Son and Heir of such a one and so to the twentieth Ancestor Agreable to this are all the Presidents in Formedons 't is only said that Jus descendit Adjornatur The Countess of Plymouth versus Throgmorton ERror to reverse a Iudgment in the Common Pleas in an Action of Debt upon a Mutuatus brought by Mr. Contract where 't is entire shall not be separated in an Action of Debt Throgmorton as Executor
and not of Murder prout patet per Recordum that he was Clericus paratus fuit legere ut Clericus if the Court would have admitted him and that he is the same person c. To this Plea the Appellant demurred The truth of this Case was that after the Conviction and before the Sentence an Appeal was brought so that the Defendant had not an opportunity to pray his Book It was argued by Mr. Pollexfen for the Appellant and by Sir George Treby for the Appellee If the Statute of 3 H. 3 H. 7. c. 1. 7. was not in the way this Plea might be a good Barr to the Appeal because before the making of that Law Auterfoits convict c. had been a good Plea but now that Statute deprives the Defendant of that benefit for 't is enacted That if any man be acquitted of Murder at the King's Suit or the Principal attainted the Wife or next Heir to him so slain may take and have their Appeal of the Murder within a year and a day after the said Murder done against the said persons so acquitted or attainted if they be alive and the Benefit of * Nota At this time Clergy was allowed for Murder but now taken away by the Statute of 23 H. 8. c. 1. Hales Pl. Cor. 232. Clergy before not had Now though the Party be neither acquitted or attainted but is only convicted of Manslaughter yet the word Attaint in this Statute signifies the same with Convict and this appears by the penning of the Act in that Clause which mentions the benefit of Clergy viz. That if any man be attainted of Murder the Heir shall have an Appeal if the benefit of Clergy be not had Now an Attainder supposeth a Conviction for one is the consequence of the other and if it should not signifie the same thing in this place then that Clause would be in vain because if it should be taken for the Iudgment given upon the Conviction then 't is too late for the Party to have any benefit of his Clergy Thus it was held in the second Resolution of Wrot and Wigg's Case that the word Attaint in this very Act shall not be intended only of a person who hath Iudgment of Life 4 Co. 46. a. but also of one Convict by Confession or Verdict 'T is true 2 Anders 68. 't is said in that case and so likewise in Holecroft's Case that Auterfoits convict of Manslaughter upon an Indictment of Murder is a good Bar to an Appeal at the Common Law as well as if the Clergy had been allowed the reason may be because in both those Cases the Iudgments were by Confession so that the Court ought to have granted the Clergy but this is a Conviction by Verdict which alters the Case E contra Auterfoits convict is a good Plea at the Common Law in all other Cases Treason only excepted at this day it appears by the Statute of H. 7. that the year and day which was the time allowed for the Appeal and in which time the Kings Indictment could not be tried was an usage but not a Law therefore that Act provides that the King shall proceed upon the Indictment within the year and a day and not stay for the Appeal of the Party If the Party be attainted or acquitted the Wife or next Heir shall have an Appeal but not if he be convicted But now admitting that the word Attaint hath the same signification with the word Convict yet this is a good Plea both within the Words and the Equity of the Statute This appears upon the Construction of that Law which must be expounded according to the vulgar Sense and signification of the words and therefore where the Statute saith That an Appeal lies where the benefit of Clergy is not had is that it is not had de Jure but the Clergy in this Case was de Jure and the Defendant was ready to read if he had been admitted thereunto by the Court. Thus is the Statute of Malbridge about the taking away of Wards viz. Si parentes conqueruntur that is if they had cause to complain 2. This Statute hath been expounded according to Equity for though it gives an Appeal to the Wife or next Heir of him slain yet if a Woman be killed her next of Kin shall bring an Appeal Therefore by the same Equity these words viz. The benefit of Clergy not had shall be construed had by the Grant of the Court Co. Ent. 355. for if a Man be indicted without the addition of Clerk he cannot demand his Clergy unless the Court ask him but if he be indicted with that addition then he may demand it because 't is supposed by the Court that he can read That this Appeal was not well brought these Exceptions were taken grounded upon the Statute of Gloucester by which seven things are required in an Appeal of Murder 6 E. 1. ca. 9. That the Appellor declare the Fact the Year the Day the Hour the Year of the King the Town where the Fact was done and with what Weapon the Party was slain Now in this Case there is a defect in two of the things required by that Statute 1. That of the Hour which is laid too general for 't is circa horam octavam which is not certain enough 2. They have laid no Vill for 't is that the Defendant did assault the Husband of the Appellant in Parochia Sancti Martini in Campis now though that word Parochia has crept into Fines and Recoveries and likewise into Indictments it must not be allowed in Appeals There may be several Vills in one Parish and though this is ruled good in Indictments it ought not to be so here because of the difference between an Indictment and an Appeal Stamf. 80. b. Doct. Stud. 48. for in Indictments you need not mention the Hour but it must be done in Appeals A Parish is an Ecclesiastical Division and though such may be a Vill 't is not necessary Ex vi termini that it should be so But afterwards in Trinity-Term 4 Jac. the Chief Iustice delivered the Opinion of all the Iudges except Iustice Street who were assembled for that purpose at Serjeants-Inn that this was no good Plea and that the Court ought not to ask the Prisoner what he had to say and so to let him into the benefit of his Clergy Tamen quaere for 't is otherwise resolved The Company of Horners versus Barlow DEBT upon a By-Law wherein the Company set forth A By-Law restrained to London and not to extend farther that they were incorporated by Letters Patents of King Charles I. and were thereby empowred to make By-Laws for the better Government of their Corporation and that the Master Warden and Assistants of the Company made a Law viz. That two Men appointed by them should buy rough Horns for the Company and bring them to the Hall there to be distributed every Month by
per Billam sine Brevi nostro per Judicium ejusdem Curiae recuperavit versus Donatum Obrian Armigerum Elizabetham Obrian alias Grey uxorem ejus tam quoddam debitum octingent ' libr ' sterling ' quam tres libras undecim solid ' sex denar ' consimilis monetae quae eidem Abel in in eadem Curia nostra coram nobis adjudicat ' fuer ' pro dampnis suis quae fustin ' tam occasione detentionis debiti illius quam pro mis custag ' suis per ipsum circa sectam suam in hac-parte apposit ' unde convict ' sunt sicut nobis constat de Recordo Executio tamen Judicii praed ' adhuc restar faciend ' ê‘ut ex insinuatione ipsius Abel accepimus Unde nobis supplicavit idem Abel sibi de remedio suo congruo in hac parte adhiberi nos volentes eidem Abel fieri quod est justum vobis praecipimus sicut alias vobis praeceperimus qd ' per probos legales homines de Balliva vestra Scire fac praefat ' Donat ' Obrian Elizabethae uxor ' ejus qd ' sint coram nobis apud the Kings Courts die Mercurii prox post Octab. Sancti Hillarii prox futur ' ad ostend ' si quid pro se habeant vel dicere sciant quare praed ' Abel executionem suam versus eos de debito dampnis praed habere non debet juxta vim formam effectum recuperationis praed si sibi viderit expediri ulterius factur ' receptur ' quod Curia nostra coram nobis de eo adtunc ibidem cons in hac parte Et habeas ibi tunc nomina eorum per quos eis Scire fec Et hoc breve Teste Robero Booth Mil. apud the Kings Courts vicesimo octavo die Novembris Anno Regni nostri tricesimo secundo Cuppaidge Savage Ryves Infranominat ' Donat ' Elizabetha nihil habent aut eorum alter habet in balliva nostra per quod eis aut eorum alteri Scire Fac. Return possumus neque sunt nec eorum alter est invent in eadem Sic respond ' Johannes Coyne Samuel Walton Armiger ' Vic' Record ' adjudication ' execution ' super praed breve de Scire Fac ' ult ' mentionat ' Placita coram Domino Rege apud the Kings Courts de Termino Paschae Anno Regni Domini Caroli Secundi Dei gratia Angliae Scotiae Franciae Hiberniae Regis Fidei Defensoris c. The Placita tricesimo tertio Test Willielmo Davis Mil ' Savage Ryves Dominus Rex mandavit Vic' Com' Civitat ' Dublin Breve suum Clausum in haec verba ss The Entry of the Scire Fac. Carolus Secundus Dei gratia Angliae Scotiae Franciae Hiberniae Rex Fidei Defensor c. Vic' Com. Civitat Dublin Salutem Cum Abel Ram de Civitate Dublin Aldermannus nuper in Curia nostra coram nobis apud the Kings Courts per Billam sine Brevi nostro ac per Judicium ejusdem Curiae recuperavit versus Donatum Obrian Armigerum Elizabetham Obrian alias Grey uxorem ejus tam quoddam debitum octingent ' librarum sterling quam tres libr. undecim solid sex denar ' consimilis monetae qui eidem Abel in eadem Curia nostra coram nobis adjudicat ' fuer ' pro dampnis suis quae sustin ' tam occasione detentionis debiti illius quam pro mis custag ' suis per ipsum circa sectam suam in hac parte apposit ' unde convict ' sunt sicut nobis constat de Recordo Executio tamen Judicii praed adhuc restat faciend ' prout ex insinuatione ipsius Abel accepimus Unde nobis supplicavit idem Abel sibi de remed ' suo congruo in hac parte adhiberi nos volentes eidem Abel fieri quod est justum vobis praecipimus qd per probos legales homines Balliva vestra Scire Fac ' praefat Donat ' Obrian Elizabethae uxori ejus qd ' sint coram nobis apud the Kings Courts die Sabbati prox post Quinden ' Sancti Martini prox futur ' ad ostend ' si quid pro se habeant vel dicere sciant quare praed ' Abel executionem suam versus eos de debito dampnis praed ' habere non debet juxta formam effectum recuperationis praed si sibi viderit expediri ulterius factur ' receptur ' quod Curia nostra coram nobis adtunc ibidem de eo cons in hac parte Et habeatis ibi tunc nomina eorum per quos eis Scire fec Et hoc Breve Teste Roberto Booth Mil ' apud the Kings Courts sexto die Novembris Anno Regni nostri tricesimo secundo Ad quem diem coram Domino Rege apud the Kings Courts ven ' praed ' Abel in propria persona sua Vic. Return videlicet Johannes Coyne Samuel Walton Armigeri retorn ' qd ' praed ' Donat ' Obrian Elizabetha uxor ejus nihil habuer ' in Balliva sua per quod eis Scire fac potuissent neque fuer ' invent ' in eadem praed ' Donat ' Elizabetha non ven ' Ideo sicut alias praecept ' fuit eisdem Vic. Alias Scire Fac. awarded qd ' per probos c. Scire fac praefat Donat ' Elizabethae quod essent coram Domino Rege apud the Kings Courts die Mercurii prox post Octab. Sancti Hillarii ad ostend ' in forma praed ' si c. Et ulterius c. Idem dies dat' est praefat ' Abel ibidem c. Ad quem diem coram dicto Domino Rege apud the Kings Courts ven ' praed ' Abel per praed Faustinum Cuppaidge Attornatum suum praefat ' Vic' ut prius retorn ' qd ' praed ' Donat ' Elizabetha nihil habuer ' in Balliva sua per quod eis Scire fac potuissent neque fuer ' invent ' in eadem praed Abel optulit se quarto die placiti versus praefat The Defendants appear and plead that the Mony due upon the Judgment was levied upon a Fi. Fa. Donatum Elizabetham Et super hoc idem Donat ' Elizabetha per Henricum Daniel Attornatum suum ven ' dicunt qd ' praefat ' Abel executionem versus eos de debito dampnis praed ' habere non debet quia dic qd ' praed ' Abel infra unum annum post recuperationem praed ' prosecut ' fuit Breve Domini modo Regis adtunc Vic' Com' Civitatis Dublin direct ' de Fieri fac de bonis catallis praefat ' Donati Elizabethae debit ' dampn ' praed ' qd ' ill ' haberent hic in Curia die Mercurii prox post Quinden ' Paschae prox post recuperationem debiti dampn ' praed ' ad reddend ' praefat ' Abel
the King may be seized in Fee of an Hundred and that he may grant Retorna Brevium the Statutes are plain in it 14 E. 3. c. 9. for otherwise how came any Lords to have Hundreds in Fee but by the Kings Grants And 't is as plain that Hundreds may be divided from the County 2 E. 3. c. 12. for else to what purpose was the Statute of Lincoln made which adjoins Hundreds and Wapentakes to the Counties and provides that they shall never be separated again this shews that they were divided at that time The Objections which have been made are viz. That the Defendant cannot have a Title to this Office by Grant and he hath not made any Prescription to it The Reasons given why he could not have it by Grant were because ancient Hundreds which were united to the Counties by the Statute of Ed. 3. could never afterwards be divided from them by any Grant of the King and those which were excepted in that Statute as being granted in Fee by the King or his Ancestors when they come again to the Crown cannot be regranted because they are merged in it In answer to which it was said that such ancient Liberties which were created by the Crown and did subsist by the King 's Grant before the Statute of Ed. 3. when afterwards they came to the King were not merged but remained a distinct Interest in him The Hundred of Gartree in the County of Leicester was such a Liberty it was an ancient Hundred and granted by Ed. 2. Cole versus Ireland Raym. 360. to John Sedington not in Fee but durante bene placito Regis this Grant was long before the making of the Statute of Ed. 3. and yet afterwards this very Hundred was granted to several other persons by the suceeding Kings of England which shews it was merged in the Crown when it came to the King The other Objection was that Retorna Brevium doth not lie in Prescription Now as to that though it be true that no Title by Prescription can be made to such Franchises and Liberties which cannot be seized as forfeited before the cause of Forfeiture appears on Record because Prescription being an Vsage in pais doth not extend to such things which cannot be had without matter of Record 1 Inst 114. b. Yet my Lord Coke is clear that a good Title may be made to hold Pleas Leets Hundreds c. by Prescripteon only without Matter of Record But notwithstanding what was said to maintain this Plea Iudgment was given against the Defendant Rex versus Griffith THE Defendant was convicted of Manslaughter at the Old-Bayly Indictment for Murder the Party was found guilty of Manslaughter and pleaded his Pardon and afterwards the Indictment was quashed to save the Forfeiture of his Goods and the Record being removed into this Court by Certiorari he pleaded his Pardon and had Iudgment Quod eat inde sine die But being once convicted the Dean and Chapter of Westminster did seize his Goods as forfeited by that Conviction who thereupon although he was out of the Court by that Iudgment yet he moved by his Council to quash the Indictment The Exceptions taken were viz. That the Indictment was Per Sacramentum duodecim proborum legalium hominum jurat ' onerat ' praesentat ' existit modo forma sequen ' Midd. ss Juratores pro Domino Rege praesentant c. That there was no President to warrant such an Indictment for this may be the Presentment of another Iury it being very incoherent to say that it was presented by the Oaths of twelve Men that the Iury do present It ought to be praesentat ' existit quod c. and so is the form of this Court as the Clerk of the Crown inform'd them 2. They present that Griffith and two others did make an Assault on the Body of the deceased and that quidam Johannes in nubibus did wound him with a Gun so that 't is uncertain who did shoot and what Gun was discharged which ought to be certainly laid in the Indictment Vaux 's Indictment for Poisoning Ridley was 4 Co. 44. b. that the said Ridley not knowing the Beer to be poyson'd but being perswaded by Vaux recepit bibit but did not say venenum praedictum and so it not appearing what thing he did drink which ought to have been expresly alledged the Indictment was held insufficient And the reason is plain for an Indictment for Felony being a Declaration for the King against the Life of a Subject ought to set forth a sufficient certainty of the Fact which shall not be supplied either by Argument or any intendment whatsoever And therefore in Long 's Case the Defendant was indicted for discharging a Gun upon Long 5 Co. 122. b. Dans eidem Henrico Long mortale vulnus and doth not say percufsit for which reason that Indictment was also held insufficient because in all Indictments for Murder they ought expresly to alledge a stroke given For these Reasons the Indictment was quashed and a new Roll was made on which this Indictment and Certiorari were both entred and Iudgment quod exoneretur and this was done to avoid the seizure And afterwards in Michaelmas Term primo Will. Mar. it was said by the Chief Iustice that it must be intended these were two persons for no Court would justifie such a Iudgment Anonymus IN Assault and Battery After a Traverse you must not conclude to the Country the Defendant pleaded a Release of all Actions c. The Plaintiff replied that the Release was gotten by duress c. The Defendant rejoyned and shewed cause why it was not gotten by duress but that he sued forth a Capias and did Arrest him c. and that the Release was voluntary c. The Plaintiff surrejoyns and saith that it was gotten by duress absque hoc that it was voluntary Et hoc petit quod inquiratur per patriam Vpon this Issue the Cause was tryed Dyer 353. a. 1 Inst 126. a. Cro. Car. 316. Sid. 341. 2 Cro. 588. 2 Rol. Rep. 186. and the Plaintiff had a Verdict and now it was moved in Arrest of Iudgment that he ought not to conclude to the Country after a Traverse because a Traverse it self is Negative and therefore the Defendant ought to have joyned issue in the Affirmative 't is true if issue had been joyned before the Traverse it might have been helped by the Statute of Ieofails but it was not so in this Case and therefore the Iudgment was Arrested Hitchins versus Basset Mil ' IN Ejectment upon the Demise of Mr. Nosworthy The Iury found a special Verdict A subsequent Will which doth not appear shall not be a Revocation of the former the substance of which was Viz. That Sir Henry Killigrew was seised in Fee of the Lands in question in the County of Cornwal and being so seised did in the year 1644. devise the
the Wife they both had their existence at one and the same time and it appear'd they were made to distinct purposes but here no body can tell what was designed or intended by the Testator in this subsequent Will And therefore it hath been held Cro. Car. 51. Eyres Case Godolph 443. Perkins 92. b. that where a Man devised Legacies to his two Brothers and afterwards in his sickness was asked to leave Legacies to his said Brothers he replied he would leave them nothing but devised a small Legacy to his Godson and died This Discourse was set down in a Cocidil which together with the Will was proved in common form This Codicil was not a revocation of the Legacies given to the Brothers because the Testator took no notice of the Will which he had made in the time of his Health and non constat what he intended by these words which were set down in the Codicil If therefore doubtful words shall not make a revocation of a former Will a fortiori a subsequent Will especially when the contents of such Will doe not appear shall not revoke a former It was argued for the Defendant E contra And The only Objection is That a latter Will being made and it not appearing to the Iury what was contained in that Will it can be no revocation because no express words of revocation can be found or any thing which is contradictory to the first Will and without the one or the other a former Will cannot be revoked But this is contrary to all the Authorities in the Books Linwood 175. Swinb 7 part Sect. 14. 2 H. 5.8 pl. 3. Offiice of Ex. 443. which shew that a Testament which is good in the beginning may become void by making of a subsequent Will by words of revocation or by words contradicting each other for in such cases 't is not doubted but the first Will is revoked But the meaning must be that by the very making of a latter Will the first is become void This may be collected from the nature of a Will which a Man hath power to alter in part or in all at any time during his Life but when he makes a new Will it must be presumed that he declared his whole mind in it for if his Intentions are to alter any part the Law hath appointed a proper Instrument for that purpose which is a Codicil but when he maketh aliud Testamentutum 't is a sign that he intended nothing of his former Will should take any effect when he had so easie a method to alter it in part Every subsequent act of the Testator shews that he intends a revocation either by word or deed and there is great reason why it should be so because every revocation of a Will is in the nature of restitution to the Heir It cannot be denied but that a Will may be revoked by words without writing before the making of the Statute against Frauds 1 Rol. Abr. 614. Dyer 310. b. c. As if a Man should say that he would alter his Will when he came to such a place and he should dye before he came thither this is a revocation But it never was yet controverted but a revocation may be by Deed as if a Man devise Lands to another 1 Rol. Abr. 614. and afterwards makes a Feoffment to the use of his Will this was always held a revocation So it is if Lands which are well given by a Will are afterwards by another Will devised to the Poor of the Parish 1 Rol. Abr. 614. pl. 4. tho' this last Will is void because the Devisees have not a capacity to take yet 't is a revocation of the first Will and shall a Will which is lost be of less authority than such which is void 'T is not denied but that there may be a subsequent Will which may not contradict the first so is Coward 's Case where both Wills did appear to be consistent but that is not parallel with this because the Iury hath found that the Testator made aliud Testamentum which word aliud imports a distinct Will from the former 'T is agreed also that a Man may make many Wills and that they may stand together and it must also be agreed that such are but partial Wills because they are but pieces of the whole tho' written in several papers but when 't is found in general that aliud Testamentum was made it must naturally be intended of his whole Estate The Case in the Year Book of Richard III. is an Authority in point where in Trespass the Defendant justified the taking of the Goods by vertue of a Will by which they were devised to him and of which Will he was made Executor The Plaintiff replied that the Testator made another Will and thereby did constitute him Executor and this was held a good Replication without a Traverse that the Defendant was Executor because by the making of the second Will the other was void in Law and therefore the shewing that he was Executor was not to avoid the first Will which the Law doth adjudge to be of no force but to make to himself a Title to the Goods taken out of his possession If a Man should make twenty Codicils without dates they may all stand together but if he make two Wills without dates they are both void the reason is because by the making of the later Will the first is destroyed and it being incertain which is the last rather than the Rules of Revocation should be broken they adjudge both to be void It cannot be reasonably objected that this later Will may devise the same Lands to the same person for why should a Man be thought so vain Besides if it was so the Plaintiff should have claimed under that Will But this cannot be the same Will because 't is contrary to the Verdict which hath not found it to be idem but aliud Testamentum besides 't is in the Case of an Heir who shall not be disinherited by an intendment that the later Will is the same with the first Neither can the Statute of Wills have any influence upon this Matter 32 H. 8. c. 1. 34 H. 8. c. 5. 'T is true at the Common Law no Land could be devised by a Will but now by the Statutes of H. 8. Lands c. in Socage may be devised by Will and if held in Knights Service then only two parts in three Godolph 299. but it must be by the last Will. Now how can any Man say that this shall be a Devise of the Lands by the last Will of the Testator when the Iury find he made aliud Testamentum the Contents whereof are not necessary to be shewed because the Defendant claims as Heir and not as Executor It must not be intended that this Will shall confirm or stand with the other because the Law is otherwise and therefore if the Plaintiff would have supported his Will by
Commitment and that for two reasons 1. Because the persons committing had not any Authority so to do for upon the Return it appears that they were committed by several Lords of the Council whereas it should have been by so many Lords in Council or by Order of Council 2. They ought not to be committed for this Fact which is only a Misdemeanour The Bishops are Peers and therefore the Process ought to be a Summons by way of Subpoena out of the Crown Office and not to commit them the first time If a Man comes in voluntarily he cannot be charged with an Information neither can a person who is found in Court by any Process be so charged if it be illegal as if a Peer be committed by Capias Iustice Allybon replyed that when a Commitment was made by the Lord Chief Iustice of this Court his Name is to the Warrant but not his Office 't is not said Committitur per Capitalem Justiciarium Angliae c. for he is known to be so and why should not a Commitment by such persons Dominos Concilij be as good as a Commitment by Sir Rob. Wright Capitalem Justiciarium That it was enough for the Officer to return his Warrant and when that is done the Court will presume that the Commitment was by the Power which the Lords in Council had and not by that Power which they had not To which it was answered by Mr. Finch that the Lord Chief Iustice always carries an Authority with him to commit where-ever he goes in England but the Lords of the Privy Council have not so large a Power for though they be Lords of the Council always yet they do not always act in Council Then the Statute of 17 Car. 1. cap. 10. was read in which there is mention made of a Commitment by the Lords of the Privy Concil c. But it was answered that that Statute was to relieve against illegal Commitments and those enumerated in that Act were such only and none else And it was strongly insisted that Peers of the Realm cannot be committed at the first instance for a Misdemeanour before Iudgment and that no President can be shewed where a Peer hath been brought in by Capias which is the first Process for a bare Misdemeanour The constant Proceedings in the Starr-Chamber upon such Informations were Crompt Jurisdiction 33. Dyer 315. 4 Inst 25. Regist 287. viz. First the Lord Chancellor sent a Letter to the person then if he did not appear an Attachment went forth The Kings Council answered Sir Baptist Hick's Case Hob. that a Peer may be committed for the Breach of the Peace for which Sureties are to be given and can there be any greater Breach of the Peace than a Libel against the King and Government 'T is certainly such a Breach of the Peace for which Sureties ought to be demanded for where there is any seditious Act there must be a Breach of the Peace and if Sureties are not given then the person must be committed The Objections were over-ruled by three Iudges Then the Information was read which in Substance was viz. That the King by vertue of his Prerogative did on the 4th day of April in the third year of his Reign publish his gracious Declaration for Liberty of Conscience which was set forth in haec verba That afterwards viz. 27 Aprilis in the fourth year of his Reign the King did publish another Declaration reciting the former in which he expressed his care that the Indulgence by him granted might be preserved c. that he caused this last Declaration to be printed and to manifest his favour more signally towards his Subjects on the 4th day of May 1688. it was Ordered in Council that his Declaration dated the 27th day of April last be read on two several days in all Churches and Chappels in the Kingdom and that the Bishops cause the same to be distributed through their several Diocesses c. That after the making of the said Order c. the Bishops naming them did consult and conspire amongst themselves to lessen the Authority and Prerogative of the King and to elude the said Order and in further prosecution of their said Conspiracy they with Force and Arms did on the 18th day of May c. unlawfully maliciously c. frame compose and write a Libel of the King subscribed by them which they caused to be published under the pretence of a Petition Then the Petition was set forth in haec verba In contemptum dicti Domini Regis c. The King's Council moved that the Defendants might plead instanter for so they said is the course of the Court when a Man is brought thither in Custody or appears upon Recognizance But the Council on the other side prayed an Imparlance and a Copy of the Information and argued that the Defendants ought not to plead instanter because their Plea ought to be put in Writing and that they ought to have time to consider what to plead that it was impossible to make any Defence when they did not know the Accusation and that the Practice of the Court anciently was with them 'T is true when a Subpoena is taken out and the Party doth not appear but is brought in by Capias he shall plead instanter and the reason is because he hath given delay to the Cause So 't is likewise in Cases of Felony or Treason but not to an Information for a Misdemeanour Then the Clerk of the Crown informed the Court that it was the Course to plead instanter in these following Cases viz. when the person appears upon a Recognizance or in propria persona or is a Prisoner in Custody upon any Information for a Misdemeanour where no Process issued out to call him in As to the Objection that the Defendants cannot make any Defence without a Copy of the Information the Vsage is otherwise even in Cases where a Man's Life is concerned and what greater difficulty can there be to defend an Accusation for a Misdemeanour than a Charge for High-Treason certainiy the Defendants all know whether they are innocent or not These Points being over-ruled by the Court the Archbishop offered a Plea in writing the Substance of which was that they naming all the Defendants were Peers of Parliament and ought not to be compelled to answer this Misdemeanour immediately but they ought to appear upon due Process of Law and upon their Appearance to have a Copy of the Information and afterwards to imparle and because they were not brought in by Process they pray the Iudgment of the Court. This Plea was offered to the end that what was denied before upon a Motion might be settled by the Opinion of the Court but it was over ruled Then they pleaded severally Not-Guilty and were tried at the Barr a Fortnight afterwards by a Middlesex Iury and acquitted Anonymus In the Common-Pleas AN Action of Debt was brought upon a Bond against the Defendant
Where an Averment may be made of another person so as it consists with the Condition of a Bond. in which Bond the said A. B. the elder and A. B. the younger were joyntly and severally bound in the penal Sum of 1000 l. conditioned that if the above bounden A. B. omitting the word younger do and shall forbear knowingly and wittingly to come to or write Letters unto C. the Wife of D. that then the Obligation to be void The Defendant pleaded that he did not come to or write Letters to the said C. knowingly c. The Plaintiff replied that he exhibited an Information against A. B. the younger shewing in what Term and that it was agreed between them that in consideration that he would forbear to prosecute the same the said A. B. the elder together with A. B. the younger should become bound to the Plaintiff in 1000 l. that the said A. B. the younger should not knowingly or wittingly come into the Company c. then sets forth the Bond and the Condition thereof at large and avers that A. B. in the Condition mentioned is A. B. the younger and farther that the said A. B. the younger did afterwards knowingly come into the Company c. The Defendant re-joyned and said that the Plaintiff ought not to averr that the aforesaid A. B. the younger is the person in the Condition of the said Bond c. And upon a Demurrer the Question was whether the Plaintiff was estopped by the words in the Condition to make such an Averment It was argued for the Plaintiff that he might make such an Averment which is to reduce a thing to a certainty which was very incertain before if it be not repugnant in it self nay sometimes an Averment doth reduce contradictory things to a certainty 'T is plain that A. B. the younger is bound in this Bond the Objection is that A. B. the elder being of the Name and being likewise bound that the Condition might referr to either 'T is agreed there are many Cases where a Man shall be estopped to averr against a Record but this Averment is not contradictory to any thing in the Record for it appears by the Pleadings that the Information was prosecuted against A. B. the younger and therefore he must be intended to be bound not to come to the said C. knowingly c. If an Estate should be devised to A. and the Name of the Testator omitted in the Will 2 Leon. 35. yet the Devise is good by averring of the Name and by proof that it was his intention to give it him by his Will So if the Plaintiff should claim a Title under the Grant of such a person Knight and the Iury find he was an Esquire Lit. Rep. 181 223. but that the Knight and the Esquire are both the same person this is a good Declaration 'T is usual to make an Allegation even against the express words of a Condition to shew the truth of an Agreement Cro. Car. 501. as if Debt be brought upon a Bond of 100 l. conditioned to pay 50 l. within six Months the Defendant pleaded the Statute of Vsury the Plaintiff replied that he lent the Mony for a year and alledged that by the mistake of the Scrivener the Bond was made paiable in six Months The Defendant rejoyned that it was lent for six Months only And upon a Demurrer this was adjudged to be a good Allegation though it was against the very words of the Condition which is a stronger Case than this at the Barr because the Averment consists with the Condition of the Bond. If a Man should levy a Fine and declare the Vses thereof to his Son William and he hath two Sons of that Name 4 Co. 71. 8 Co. 155. a. Dyer 146. then an Averment is made that he intended to declare the Vses to his youngest Son of that Name this Averment out of the Fine hath been adjudged good for the same reason given already which is because it standeth with the words thereof and 't is a good Issue to be tried It cannot be objected that the Bond is illegal being entred into for the not prosecuting of an Information because a Nolle prosequi was entred as to that Matter so 't is the Act of the Court. Lastly It was said that every Estoppel must be certain to every intent which cannot be in this Case for by the words of this Condition 't is incertain which of the Obligors shall be intended E contra It was argued that an Estoppel is as well intended by Law as expressed by Words that if an Averment can be taken yet this is not well because the Plaintiff hath absolutely averred that A. B. in the Condition is A. B. the younger he should have said that A. B. in the Condition is intended A. B. the younger which might have been traversed and Issue taken thereon No Iudgment was given for this Case was ended by Compromise Hoil versus Clerk In the common-Common-Pleas THIS was a special Verdict in Ejectment for Lands in Wetherfield A subsequent Will though not made pursuant to the Statute is a Revocation of a former in the County of Essex upon the demise of Abigail Pheasant The Iury find that one John Clark was seised in Fee of the Lands in question who by his last Will in writing bearing date the 14th day of September in the year 1666. devised the same to Benjamin Clark for Life so to his first and second Sons c. in Tayl Male and for default of such Issue then to his two Sisters for Life Remainder over c. This Will was attested by one Witness only They find that the said John Clark made another dated the sixth day of February 1672. which was 13 years after the making of his first Will and that by this last Will he revoked all former Wills and Testaments by him made They find an Endorsement on this Will written by the Testator himself in these words Viz. My Will and Testament dated the 6th of February 1679. and then published by me in the presence of three Witnesses They find that this last Will was so published and attested by three Witnesses in his presence but that it was not signed by the Testator in their presence They find that Benjamin Clark entred and devised the Lands to Mary Micklethwaite who made a Lease thereof to the Plaintiff for three years upon whom the Defendant entred This Case was argued at the Bar and in this Term at the Bench Seriatim The single Question was 29 Car. 2. cap. 3. whether this last Will not being duly executed according to the Statute is a Revocation of the first Will or not It was admitted by all that it was a good Will to pass the personal Estate but as to the point of Revocation the Court was divided Iustice Lutwitch argued that it was not a Revocation He agreed that if the last Will hath any respect to the first it must be as a
Revocation or not at all which revocation must depend upon the construction and exposition of the sixth Paragraph in the Statute of Frauds c. the words whereof are Viz. That no Devise of Lands c. or any clause thereof shall be Revoked otherwise than by some Codicil in Writing or other Writing declaring the same or by burning cancelling tearing or obliterating the same by the Testator himself or in his presence and by his direction or consent But all devises of Lands c. shall be good until burnt cancell'd torn c. by the Testator c. or unless the same be altered by some other Will or Codicil in Writing or other Writing of the Devisor signed in the presence of three Witnesses declaring the same So that the Question will be whether a Will which revokes a former Will ought to be signed by the Testator in the presence of three Witnesses 'T is clear that a Will by which Lands are devised ought to be so signed and why should not a Will which revokes another Will have the same formality The Statute seems to be plain that it should for it saies that a Will shall not be revoked but by some Will or Codicil in writing or other writing of the Devisor signed by him in the presence of three or four Witnesses declaring the same which last Clause is an entire sentence in the disjunctive and appoints that the Writing which revokes a Will must be signed in the presence of three Witnesses c. Before the making of this Act it was sufficient that the Testator gave directions to make his Will tho' he did never see it when made which mischief is now remedied not in writing the Will but that the Party himself should sign it in the presence of three Witnesses and this not being so signed but only published by the Testator in their presence 't is therefore no good Revocation Iustice Street was of a contrary Opinion that this was a good Revocation That the words in the fifth Paragraph of this Statute which altered the Law were Viz. That all Devises of Lands c. shall be in Writing and signed by the Party so devising or by some other person in his presence and by his express Directions and shall be attested and subscribed in the presence of the Devisor by three or four credible Witnesses In which Paragraph there are two parts 1. The act of the Devisor which is to sign the Will but not a word that he shall subscribe his Name in the presence of three Witnesses 2. The act of the Witnesses viz. that they shall attest and subscribe the Will in the presence of the Devisor or else the Will to be void But the sixth Paragraph is penn'd after another manner as to the Revocation of a Will which must be by some Codicil in writing or other Writing declaring the same signed in the presence of three Witnesses Now here is a Writing declaring that it shall be revoked not expresly but by implication and though that Clause in the disjunctive which says that the revocation must be by some Writing of the Devisor signed in the presence of three Witnesses c. yet in the same Paragraph 't is said that it may be revoked by a Codicil or Will in Writing and therefore an exposition ought to be made upon the whole Paragraph that the intention of the Law may more fully appear Such a construction hath been made upon a whole Sentence Sid. 328. 1 Sand. 58. where part thereof was in the disjunctive as for instance viz. A Man was possessed of a Lease by disseisin who assigned it to another and covenanted that at the time of the assignment it was a good true and indefeasable Lease and that the Plaintiff should enjoy it without interruption of the Disseisor Or any claiming under him in this Case the Diffeisee re-entred and though the Covenant was in the disjunctive to defend the Assignee from the Disseisor or any claiming under him yet he having undertaken for quiet enjoyment and that it was an indefeasable Lease it was adjudged that an exposition ought to be made upon the whole Sentence and so the Plaintiff had Iudgment The Chief Iustice Herbert was of the same Opinion with Iustice Street Rex versus Grimes and Thompson THE Defendants were indicted for being Common Pawn-Brokers Two are indicted for a Confederacy one is acquitted and that is the acquittal of the other and that Grimes had unlawfully obtained Goods of the Countess of c. and that he together with one Thompson per confoederationem astutiam did detain the said Goods until the Countess had paid him 12 Guineas Thompson was acquitted and Grimes was found Guilty which must be of the first part of the Indictment only for it could not be per confoederationem with Thompsom and therefore it was moved in arrest of Iudgment that to obtain Goods unlawfully was only a private injury for which the party ought not to be indicted To which it was answered that a plain Fraud was laid in this Indictment which was sufficient to maintain it and that tho one was acquitted yet the Iury had found the other guilty of the whole But the Court were of Opinion that the acquittal of one is the acquittal of both upon this Indictment and therefore it was quash'd King versus Dilliston Hill 2 3 Jacobi Rot. 494. A Writ of Error was brought to reverse a Iudgment in Ejectment given in the common-Common-Pleas Infant not bound by a Custom for one Messuage and twenty Acres of Land held of the Manor of Swafling There was a special Verdict found the substance of which was viz. That the Land in question was Copy-hold held of the said Manor of Swafling in the County of Suffolk and that Henry Warner and Elizabeth his Wife in right of the said Elizabeth were seized thereof for Life Remainder to John Ballat in Fee That the Custom of the said Manor was that if any Customary Tenant doth surrender his Estate out of Court that such Surrender shall be presented at the next Court of the said Manor and publick Proclamation shall be made three Court days afterwards for the Party to whose use the Surrender was made to come and be admitted Tenant and if he refuseth then after three Proclamations made in each of the said Courts the Steward of the said Manor issueth forth a Precept to the Bailiff thereof to seise the Copyhold as forfeited They find that Henry Warner and his Wife and John Ballat made this Surrender out of Court to the use of Robert Freeman and his Heirs who died before the next Court and that John Freeman an Infant was his Son and Heir That after the said Surrender three Proclamations were made at three several Courts held for the said Manor but that the said John Freeman did not come to be admitted Tenant thereupon the Steward of the said Manor made a Precept to the Bayliff who seized the Lands in
question as forfeited to the Lady who entred and made a Lease to the Plaintiff upon whom the Defendant re-entred The single Question upon this special Verdict was whether this was a Forfeiture and so a good seisure to bind the right of an Infant It was argued for the Plaintiff in the Action that it was a good Seisure and a Forfeiture till the Infant should come of Age for as a Copyhold is established by Custom so likewise 't is Custom which obligeth the Infant to the Conditions thereof and therefore where one under Age hath an Estate upon a Condition to be performed by him 8 Co. 44. b. Whittingham 's Case Latch 199. Jones 157. and that Condition is broken during his Minority the Estate is lost for ever In this Case the Custom obligeth the Heir to be admitted that the Lord may be entituled to a Fine which if he should lose because his Tenant is an Infant then that priviledge of Infancy works a wrong which the Law will not permit 'T is true an Infant shall not be prejudiced by the Laches of another but shall be answerable for himself and therefore if he is Tenant of Lands and the Rent should be unpaid for two years and no Distress can be found a Cessavit lies against him and the Lord shall recover the Land because of the Non-performance which arises by his own default So if one under Age be a Keeper of a Gaol and suffer a Prisoner to escape out of Execution 2 Inst 382. an Action of Debt will lie against him upon the Statute of W. 2. It was agreed that such a Custom and Non-claim will not foreclose an Heir 8 Co. 100. Sir Rich. Letchford 's Case who is an Infant and beyond Sea at the time of his Ancestors Death though he is bound by the Custom to claim it at the next Court but that if he will come over and tender himself though after a Seisure he shall be admitted and so shall the person in this Case if after his Minority he offer himself to be admitted But it cannot be denied 2 Cro. 226. but that the Lord may seize when the Heir is beyond Sea till he return and tender himself to be admitted and by the same reason he may also seize in this case during the Minority A Temporary Forfeiture is no new thing in the Law Cro. Car. 7. for if a Feme Covert be a Copyholder and marrieth and her Husband makes a Lease for years without License of the Lord 't is a Forfeiture and shall bind her during the Coverture So the Law is Cro. El. 351. that the Lord may seize the Land till a Fine is paid for 't is a reasonable Custom so to do It hath been a good Custom for the Lord to assign a person to take the Profits of a Copyhold Estate descended to the Infant during his Minority without rendring an Accompt when he came of Age. 1 Leon. 266. 2 Leon. 239. So that all taht is to be done in this Case is to enforce the Infant to be admitted that the Lord may be entituled to a Fine The Inheritance is not bound but the Land is only seized quousque E contra It was argued that here is a general Seizure E contra which cannot extend to an Infant for he is not bound in a Writ of Right much less in an inferior Court after three Proclamations but if this had been a Temporary Seisure the Iury ought to have found it so which is not done There are many Authorities in the Books which affirm that an Infant is not obliged to be admitted during his Non-age 1 Leon. 100. 3 Leon. 221. or to tender the Fine in order to an Admittance that the Law was settled in this Point and therefore without any further Argument he prayed Iudgment for the Defendant Afterwards in Hillary-Term 1 Willielmi Mariae this Case was argued seriatim at the Bench three Iudges being of a contrary Opinion to the Chief Iustice for the affirming of the Iudgment Iustice Eyre premised two things 1. That he could not intend but that this Verdict had found an absolute Forfeiture the Iury having no way qualified it as to a certain time and therefore he would give a Iudgment upon the whole Record 2. He agreed that a Feoffment of an Infant was no Forfeiture at the Common Law and that as a particular Custom may bind an Infant for a time so it may barr him for ever but whether this Custom as 't is found in general words shall bind an Infant after three Proclamations is now the Question he not coming then to be admitted And he held that it shall not and that for these reasons 1. The Right of Infants is much favoured in the Law and their Laches shall not be prejudicial to them as to Entry or Claim upon a Presumption that they understand not their Right 1 Inst 380. 2 Inst 401. and therefore in a Cessavit per biennium which is a remedy given by the Statute of W. 2. and which extends to Infants Westm 2. c. 31. who have not the Land by descent for if a Cesser be in that Case the Infant shall have his Age because the Law intends that he doth not know what Arrerages to tender 'T is admitted that if an Infant doth not present to a Church within six Months or doth not appear within a year that his Right is bound but this is because the Law is more tender of the Church and the life of a Man than of the Priviledges of Infancy So if an Office of Parkship be given or descends to an Infant if the Condition in Law annexed to such an Office which is skill be not observed the Office is forfeited But that a Proclamation in a base Court should bind an Infant when he is not within the reason of the Custom is not agreeable either to Law or Reason 2. Cro. Jac. 80. Cro. El. 879. Noy 42. 1 Rol. Abr. 568. All Customs are to be taken strictly when they go to the destruction of an Estate and therefore a Custom was that if a Copyholder in Fee surrender out of Court and the Surrendree doth not come in after three Proclamations the Lord shall seize it A Copyholder in Fee surrendred to another for Life the Remainder over in Fee if the Tenant for Life will not come in he in the Remainder shall not be barred for the Custom shall be intended to extend only to those in possession But the Infant in this Case is not within the Letter of the Custom for 't is found that the Surrender was made to one Freeman who died before the next Court-day and that John Freeman the Infant was his Son and Heir so they have found a Title in him for the word Heir is not here a word of Purchase but of Limitation 3. Jones 157. Noy 92. Infants are not bound by other Customs like this as a Custom that every Copyholder
forty years past Hob. 66. nor Burials or Baptism whereupon a Prohibition was denied Anonymus A Gentleman was convicted upon his own Confession for High Treason in the Rebellion of the Duke of Monmouth and executed Attainder for Treason reversed and it was moved that his Attainder might be reversed The Iudges were attended with Books and the Exceptions taken were viz. 1. There was no Arraignment or demanding of Iudgment Co. Ent. 358. 2. There was Process of Ven. Fac. which ought not to be in Treason but a Capias 3. Because after the Confession the Judgment followed and it doth not appear that the Party was asked what he could say why Sentence of Death should not pass upon him for possibly he might have pleaded a Pardon For these Reasons the Attainder was reversed Mr. Parkinson's Case IT was moved for a Mandamus to reffore him to a Fellowship of Lincoln Colledge in Oxford being a Member of a Lay Corporation and having a Freehold in it Mandamus denied for restoring of a person to a Fellowship 1 Mod. 82. 1 Sid. 71. Sid. 29. The like Mandamus had been granted to restore Dr. Goddard to the place of one of the Fellows of the Colledge of Physitians in London which is a Lay Corporation But it was denied by the Court for the Visitor is the proper Iudge and when a Man takes a Fellowship he submits to the Rules of the Colledge and to the private Laws of the Founder It was denyed by my Lord Hales in Dr. Robert'ss Case because in all Lay Corporations the Founder and his Heirs are Visitors and in all Ecclesiastical Corporations the Bishop of the Diocess is the proper Visitor who is Fidei Commissarius and from whose Sentence there is no Appeal to this Court especially in the case of a Fellowship of a Colledge which is a thing of private design and not at all concerning the publick Anonymus Hill 3 4 Jacobi Rot. 1018. A.B. nuper de Parochia Sancti Jacobi Westm ' in Comitatu Midd. Generosus attachiatus fuit per corpus suum ad respondend ' C. D. Viduae quae fuit uxor J. D. Generosi de morte praed J. quondam viri sui unde eum appellat Et sunt pleg ' de pros ' J. B. nuper de Parochia Sancti Jacobi Westm in Comitatu Midd. Gen ' Johannes Doe de eadem Gen ' unde eadem Elizabetha per E. F. Attornatum suum juxta formam Statut. in hujusmodi casu edit provis instanter appellat praed A. B. de eo quod ubi praed J. D. fuit in pace Dei dicti Domini Regis nunc apud Parochiam Sancti Jacobi infra Libertatem Westm in Comitatu Middlesex decimo die J. Anno Regni Domini Jacobi nuper Regis Angliae tertio hora prima post meridiem ejusdem diei ibidem scilicet apud Parochiam Sancti Jacobi infra Libertatem Westm in Com. Midd. venit praed A. B. felonice ac ut felo dicti Domini Regis nunc volutarie ex malicia sua praecogitat insidiis praemeditatis contra pacem dicti Domini Regis nunc hora nona post meridiem ejusdem diei in super praefat J.D. adtunc vi armis c. apud Parochiam Sancti Jacobi infra Libertatem Westm praedict in Comitatu praedicto insultum fecit praedict A.B. adtunc ibidem cum quodam gladio Anglice a Rapier ad valenciam quinque solidorum quod ipse idem A. B. in manu sua dextra adtunc ibidem scilicet praedicto decimo die J. Anno tertio supradicto apud Parochiam Sancti Jacobi infra Libertatem Westm praedict in Com. Midd. praed habuit tenuit ipse praedict J. D. in super sinistram partem ventris ipsius J. D. prope umbilicum Anglice the Navel ipsius J. D. adtunc ibidem felonice voluntarie ex malitia sua praecogitata percussit pupugit dedit eidem J. D. adtunc ibidem in super praedictam sinistram partem ventris ipsius J. D. prope dictum umbilicum ipsius J. D. cum gladio praedicto unam plagam mortalem longitud dimid unius pollicis profunditat sex pollicium de qua quidem plaga mortali idem J. D. a praedicto decimo die J. Anno tertio supradicto apud praedictam Parochiam Sancti Jacobi infra Libertatem Westm in Comitatu Midd. praedict languebat languidus vixit adtunc scilicet decimo sexto die Junii Anno tertio supradicto apud Parochiam Sancti Jacobi infra Libertatem Westm in Comitatu Midd. praedict ipse idem J. D. de plaga mortali praedicta obiit sic praefat A. B. praedictum J. D. apud Parochiam Sancti Jacobi infra Libertatem Westm praedict in Comitatu Midd. praedict modo forma praedict voluntarie ex malitia sua praecogitata interfecit murdravit contra pacem dicti Domini Regis nunc Coron ' Digitates suas quam cito idem A. B. Feloniam Murdrum praedict fecisset ipse idem A. B. fugit dictaque C. D. ipsum recenter insecut fuit de Villa in Villam usque ad quatuor Villas propinquior ' ulterius quousque c. Et si praedictus A. B. Feloniam Murdrum praedict ei in forma praed imposit velit dedicere praefat C. D. hoc parata est versus eum probare prout Curia c. The Defendant having prayed Iudgment de Brevi originali pleaded Quod ipse A. B. per Breve illud appellat ' existit per nomen A. B. nuper de Parochia Sancti Jacobi Westm in Comitatu Midd. Generosi ubi revera in facto infra Comitatum Midd. praedict est quaedam Parochia vocat cognit per nomen Parochiae Sancti Jacobi infra Libertatem Westm sed in eodem Comitatu Midd. non habetur nec die impetrationis Brevis originalis appelli praedict seu unquam habebatur aliqua Parochia sive locus cognit ' nuncupat ' per nomen Parochiae Sancti Jacobi Westm tanrum prout praed C. D. per breve suum superius supponit Et hoc ipse idem A. B. parat ' est verificare unde petit Judicium de Brevi illo Et quod praed Breve cassetur The Plaintiff demurred and the Appellee joyned in Demurrer An Appeal of Murder was brought against A. B. The Defendant pleaded in Abatement to an Appeal of Murder and did not plead over to the Felony of the Parish of St. James Westminster in the County of Middlesex Gent. for that he on the 10th day of June in the third year of King James did run the deceased into the left part of his Belly with a Rapier and that he died of that wound three days afterwards The Defendant demands Oyer of the Return and pleads that there is a Parish known by the name of the Parish of St. James within the Liberty of Westminster but no such
afterwards suffered If so then the contingent Remainders to the first and other Sons is destroyed 2. If the Estate was not vested in the Surrendree till his actual assent such assent shall not relate though after the execution of the Deed so as to pass the Estate at the very time it was sealed and delivered Iudgment being given in the common-Common-Pleas by the Opinion of three Iustices against Iustice Ventris that the contingent Remainder was not destroied by this Surrender because it was not good without the acceptance and till the actual assent of the Surrendree this Writ of Error was now brought upon that Iudgment This Case depended several Terms and those who argued to maintain the Iudgment insisted that here was neither a mutual agreement between the Parties or acceptance or entry of the Surrendree which must be in every Surrender these being solemn acts in such Cases required to the alteration of Possessions and to prevent Frauds That the Law hath a greater regard to the transmutation of Possessions than to the alteration of Personal things and therefore more Ceremonies are made requisite to that than to transfer a Chattel from one to another In all Feoffments there must be Livery and Seisin Quaere For if Tenant for Life surrender to him in Reversion the Surrendree hath a Freehold in Law before Entry Co. Lit. 266. b. 1 Inst 266. b. so in Partitions and in Exchanges which are Conveyances at the Common Law no Estate is changed until an actual Entry though in the Deed it self such Entry is fully expressed Here the Surrendree is a Purchaser of the Estate and yet did not know any thing of it than which nothing can be more absurd 'T is admitted that every Gift and Grant enures to the benefit of the Donee and Grantee but not where the assent of the Parties is required to compleat the act Assent and Dis-assent are acts of the Mind now 't is impertinent to say that a Man gave his Assent to a thing which he never heard A Lease for years is not good without Entry nor a Surrender without Acceptance Lane 4. 3 Cro. 43. 'T is no new thing to compare a Surrender to a resignation of a Benefice 2 Cro. 198. Dyer 294. Br. Abr. tit Bar 81. Yelv. 61. Sid. 387. now if an Incumbent should resign to the Ordinary and the Patron should afterwards present to that Living such presentation is void if the Ordinary had not accepted the resignation the reason is because a resignation doth not pass the Freehold to the Bishop but puts it only in Abeyance till his acceptance and 't is not an Objection to say that this is grounded upon an Ecclesiastical Right and not at the Common Law or that a Formedon will not lie of a Rectory for tho' 't is of Ecclesiastical Right yet 't is of Temporal Cognizance and shall be tried at Law The president in Rastal may be objected where the surviving Lessee for years brought an Action of Covenant against the Lessor for disturbing of him in his possession Rast Ent. tit Covenant 136. b. Owen 97. Dyer 28. Rast Enttit Debt 183 176. b. 177. a. Br. Sur. 39. Cro. Car. 101. Fitz. Abr. tit Bar 262. Co. Ent. 335. and the Lessor pleaded a Surrender to himself without an acceptance but the Plaintiff in that Case said nothing of a Surrender In the same Book a Surrender was pleaded ad quam quidem sursum redditionem the Plaintiff agreavit so in Fitzherbert 's Abridgment issue was joyned upon the acceptance which shews 't is a material point No inconvenience can be objected that an Assent is made a Legal Ceremony to a Surrender for 't is not inconvenient even in the Case of an Infant who by reason of his non-age is not capable to take such a Conveyance because he cannot give his assent but he may take the Land by way of Feoffment or Grant or any Conveyance of like nature without his Assent By the very definition of a Surrender Co. Lit. 337. b. Bro. tit Surrender pl. 45. Dyer 110. b. Fitz. 39. it plainly appears that there must be an assent to it for 't is nothing else but a yielding up of an Estate to him who hath the immediate Reversion or Remainder wherein the Estate for Life or Years may drown by mutual Agreement between the Parties 'T is true an Agreement is not necessary in Devises nor in any other Conveyances which are directed by particular Statutes or by Custom but 't is absolutely necessary in a Surrender which is a Conveyance at the Common Law 't is such an essential Circumstance that the Deed it self is void without it 't is as necessary as an Attornment to the Grant of a Reversion or an Entry to a Deed of Exchange which are both likewise Conveyances at the Common Law There are various Circumstances in the Books which declare what acts shall amount to an Acceptance or Agreement Cro. Eliz. 488. Owen 97. 31 Ass pl. 26. but it was never yet doubted but that an acceptance was necessary to a Surrender So in the Entries Fitz. tit Debt 149. 9 E 3.7 b. contra Rast Ent. 136. a Surrender is sometimes pleaded without an Acceptance but 't is always that the Surrendree by vertue of the Surrender expulit ejecit the Plaintiff which amounts to an Agreement The Law is so careful in these Conveyances Kelwway 194 195. Dyer 358. pl. 48. that it will not presume an assent without some act done if therefore a Deed cannot operate as a Surrender without an acceptance then in this Case no such shall be presumed because the Iury have found it expresly otherwise then by the birth of Charles Leach the contingent Remainder is vested in him which arising before the Assent of the Surrendree makes such assent afterwards void for there can be no intermediate Estate Besides if an Assent should not be necessary to a Surrender this inconvenience would follow viz. if a Purchaser should take in several Mortgages and Extents and keep them all on foot in a third persons name which is usual to prevent mean incumbrances and the Mortgagor should afterwards Surrender his Estate without the assent of the Purchaser if this should be held a good Conveyance in Law it would be of very mischievous consequence 2. If the Estate is not immediately transferred to the Surrendree at the sealing of the Deed without the assent of the Surrenderor it shall not pass afterwards when he gives his consent and that by way of Relation for if that should be allowed then the Surrenderor might have kept the Deed in his Pocket as well fifty as five years after the execution thereof which would be so prejudicial that no Man could be assured of his Title 'T is true when a Bargain and Sale is made of Land 2 Inst 675. 3 Co. 36. such a day c. and two days afterwards the Bargainor enters into a Recognizance then the Deed is inrolled within
and Title set forth but no Iudgment was then given Boson versus Sandford THE Plaintiff declared that the Defendant and seven other persons were Proprietors of a Vessel Where there are several Proprietors of a Vessel and Goods are dampnified by carriage the Action must be brought against them all in which they used to carry Goods for a reasonable hire from Port to Port. That he had loaded the said Vessel with Boards which were agreed to be safely transported from London to Topsam and that the Defendant by neglect suffered them to be dampnified c. Vpon Not-Guilty pleaded a special Verdict was found the substance whereof was viz. That the Plaintiff did load the Ship with Boards of which Ship the Defendant and seven other persons were Proprietors that the said Ship did usually carry Goods for hire that the Plaintiff delivered the Goods to Daniel Hull who was Master of the Vessel and that they were loaded therein but that none of the Proprietors were present That there was no actual Contract between the Plaintiff and the Proprietors or any Negligence in them but the Boards were dampnified by the neglect of the said Master c. The Questions upon this special Verdict were two 1. Whether this Action would lie against the Defendant alone as one of the Proprietors or whether it must be brought against them all 2. If the Action ought to be brought against them all then Not-Guilty was not a proper Plea because the Defendant ought to have pleaded in Abatement that the rest of the Owners super se susceperunt simul cum the Defendant absque hoc quod he super se suscepit tantum It was argued for the Plaintiff that the Action may be well brought against any single person of the Proprietors because 't is grounded upon a Tort as well as upon a Contract which in this Case is only an Inducement to the Action and therefore the Plaintiff hath liberty to bring it either the one way or the other for 't is both joint and several So it is in Trover where a Man declares that he was possessed of such Goods that the Defendant found them and promised to deliver them but converted them to his own use the Contract is but Iuducement for the cause of Action arises upon the Conversion This is a remedy given by the construction of the Law and if so it must be certain and effectual to all intents and therefore it hath been ruled in an Action brought against a common Carrier upon the Assumpsit in Law Sid. 244. and likewise upon the Tort that the Declaration was ill and though the Plaintiff had a Verdict yet the Iudgment was arrested because he had declared both ways Agreeable to this was that Iudgment which was given upon the Statute of 2 Ed. Hutt 121 122. 3. for not setting out of Tythes in an Action of Debt brought against two Tenants in Common it happened that one of them set out the Tythes and the other carried them away and because the Action was brought against both it was held to be ill for it lies only against him which did the wrong 2. If the Action ought to be brought against all then the Defendant should have taken advantage of it by pleading and to have shewed who were the Proprietors with himself for 't is impossible for the Plaintiff to know who they are and for this reason the Plea is not good E contra E contra The Plaintiff ought to have brought his Action either against the Master alone or all the Proprietors 't is true if this had been only an Action of a simple Trespass he might have brought it against all or one but this sounds not only in a Wrong but 't is in Breach of a Covenant or Duty and so ought to be commenced against all of them as common Carriers Now the great reason why all are liable to an Action is because they all have a reward for the Hire of the Vessel and it seems very unreasonable that one should bear the burthen and the rest run away with the profit The principal Case in Hutton is an Authority directly to this purpose though it was otherwise quoted by the Plaintiffs Council it was Debt upon the Statute of Ed. 6. brought against one Lessee for not setting out of Tythes and it appeared upon the Evidence that two were jointly possessed of the Term and for that reason it was held that the Action would not lie against one alone 2. The Defendant ought not to have pleaded in Abatement that the rest of the Proprietors super se susceperunt simul cum the Defendant c. because such a Plea would not have been good here for he shall never be compelled to plead in Abatement either in Debt or Contract but in one single Case and that is where two are bound jointly and one is sued he may plead in Abatement 5 Co. 119. but cannot say Non est factum for the Bond is his Deed since each of them have sealed it Afterwards in Hillary-Term the Defendant had Iudgment Judicium that the Action ought to be brought against all the Partowners because they have all an equal benefit and the ground of the Action is upon a Trust reposed in all and every Trust supposeth a Contract 2 Cro. 202. Palm 523. and in all Cases grounded upon Contracts the Parties who are Privies must be joyned in the Action The Master of the Ship is no more than a Servant to the Owners he hath no Property either general or special but the Power he hath is given by the Civil Law There are many Cases where the act of the Servant shall charge the Master as for instance viz. King Ed. 6. sold a quantity of Lead to Renagre Dyer 161. and appointed the Lord North who was then Chancellor of his Court of Augmentations to take Bond for payment of the Mony The Lord North appointed one Benger who was his Clerk to take the Bond which was done who delivered it to the Lord and he delivered it back again to his Clerk in order to send it to the Clerk of the Court of Augmentations Benger suppressed this Bond and it was the Opinion of all the Iudges of England that the Lord North was chargeable to the King because the possession of the Bond by his Servant and by his Order was his own possession So where an Officer of the Customs made a Deputy Dyer 238. b. who concealed the Duties and the Master being ignorant of the Concealment certified the Customs of that part of the Revenue into the Exchequer upon Oath he was adjudged to be answerable for this Concealment of his Servant So where the Lessor was bound that the Lessee should quietly enjoy and it was found that his Servant by his command 4 Leon. 123. and he being present entred this was held to be a Breach of the Condition for the Master was the principal Trespasser Therefore though
An Administrator pleaded a Judgment in Bar to an Action of Debt for 100 l. brought against him and that he had not Assets praeterquam bona non attingen to 5 l. but did not shew the certain value of the Goods and yet held good ibid. 3. A Judgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond 115 4. A Possession where 't is only an Inducement to a Plea and not Substance the Defendant may justifie upon such a possession against a Wrong-doer 132 5. Where a special Justification is to an Action of Assault and false Imprisonment the cause of Commitment must be set forth in the Plea 160 6. Where the defence consists in matter of Law the Defendant may plead specially but when 't is Fact he must plead the geneal Issue 166 7. Where special matter which might be given in Evidence at the Trial and which amounts to no more than the general Issue may be pleaded ibid. 8. When a Man is brought into Court by Capias he ought to plead instanter because he hath given delay to the Court 215 9. So where he appears upon Recognizance or in propria persona or is in Custody for any Misdemeanour he ought to plead instanter ibid. 10. In Covenant to pay so much Mony to the Plaintiff or his Assigns as should be drawn upon the Defendant by Bill of Exchange he pleaded that the Plaintiff secundum legem mercatoriam did assign the Mony to be paid c. it ought to have been secundum consuetudinem mercatoriam 226 227 11. If an Action is brought against an Inn-keeper or Common Carrier the Declaration must be secundum legem consuetudinem Angliae 227 12. In Trespass the Plaintiff prescribed as to the Freehold and alledged a Custom in the Copyholders to have solam separalem pasturam c. whether he could make a joynt Title in the same Declaration by virtue of a prescription and Custom 250 13. If the Plea is double the Plaintiff ought to demurr 251 14. The Condition of a Bond was to acquit discharge and save harmless Non damnificatus generally is not a good Plea without shewing how acquitted and discharged 252 15. Mutuatus for 400 l. the Defendant pleaded an Attainder of Treason in Abatement the Plaintiff replied that after the Attainder and before the Action he was pardoned c. and concludes unde petit Judicium dampna sua for this cause Replication was held ill 281 Pledges See Replevin Replevin in an inferior Court by Pleint removed in B. R. the Plaintiff was nonsuited and a Sci. Fac. brought against his Pledges and held good 58 2. There are no Pledges of Returno Habend ' at the Common Law the Sheriff was not obliged to take Pledges in a Replevin by Plaint 75 Poor A Man had 5 l. to remove out of one Parish into another who gave Bond to repay it if he returned within forty days he stayed there so long and it was held a good Settlement 67 2. A Note in writing must now be left pursuant to the Statute to make a Settlement 247 Possession 'T is sufficient to maintain an Action against a Wrong-doer 48 Prerogative Whether a Lease was made pursuant to a Power in a Proviso to make Leases for three Lives or 21 years or for any Term upon three Lives the Lease made was for 99 years determinable upon three Lives 268 269 Power In granting of Letters Patents of the sole printing exclusive of all others 76 129 2. Where no individual person can claim a Right or Property it must be vested in the King by Law 76 3. Whether the King hath a Prerogative to restrain Trade to a particular number of Men in particular places 127 4. He may command his Subjects to return out of a Foreign Nation ibid. 5. He may regulate Trade by Letters Patents Prescription See Common 2. Pleading 12. For a way he may set forth his Estate without shewing how he came by it 52 2. Where it cannot be by a Que Estate to have Retorna Brevium 200 3. Where it may be to hold Pleas Leets and Hundreds without matter of Record 201 4. For all the Tenants of a Mannor to fowl in a Free Warren this Prescription is not too large it might not be good upon a Demurrer but 't is otherwise after a Verdict 246 5. For a Profit apprender in alieno solo the Tenants of a Mannor may prescribe by a Que estate exclusive of the Lord ibid. 6. There must be a certain and permanent Interest abiding in some person to maintain a Prescription and therefore it will not lie ratione commorantiae 290 7. To have Common sans numbre is good but ad libitum suum which is almost the same thing is void ibid. 8. It may be joyned with a Custom in the same Declaration 251 9. Where 't is laid in a discharge as to be exempted from Toll or for an easment as for a Way to a Church not only a particular person but the Inhabitants of a whole Vill may prescribe but where it relates to the Profit or Interest in the Land it self 't is not so 292 Presentment In a Court Leet which concerns the person and not the Freehold whether traversable 137 138 Privity of Contract See Local Action 4. Action against an Administratrix of a Term for Rent incurred after the Assignment of the Lease the Privity of Contract of the Intestate was not determined by his death but Administratrix shall be charged with his Contracts as long as she hath Assets 326 'T is not gone either by an Assignment of the Term or death of the Lessor neither is it transferred to the Assignee by the Statute of H. 8. for that Statute only annexeth such Covenants which concern the Land with the Reversion 337 338 Proof See Prohibition Prohibition Not to be granted because a Temporal Loss may ensue 67 2. Where some words are actionable at Law and some punishable in the Spiritual Court a Prohibition shall be granted for otherwise it would be a double vexation 74 3. Libel causa jactationis maritagii the Suggestion for a Prohibition was that he was indicted at the Old Bayly for marrying two Wives that he was convicted in a Court of that Offence which had a proper Jurisdiction c. and a Prohibition was granted 164 4. A person lived in one Diocess and occupied Lands in another where he was taxed towards the finding of Bells for that Church for which a Suit was commenced in the Bishop's Court where the Lands were and he suggested the Statute of H. 8. that no Man shall be cited out of his Diocess except for some Spiritual Cause neglected to be done there and a Prohibition was granted for this was not a Spiritual Cause neglected to be done because Church Ornaments are a personal Charge upon the Inhabitants and not upon the Land Owners who dwell else where but the repairing of the Church is a real Charge upon
it self 81 83 2. The Testator had two Sons and four Daughters he devised a House to his eldest Son and if he die then he devised his Estate to his four Daughters and if all his Sons and Daughters died without Issue then to A. and her Heirs this is not an Estate Tail in the Daughters by Implication 105 3. Where a Devise is to several persons by express Limitation and a Proviso if all die without Issue of their Bodies the Remainder over this is no cross Remainder or an Estate by Implication because 't is a Devise to them severally by express Limitations 106 4. Devise to his eldest Son and if he die without Heirs Males but doth not say of his Body then to his other Son c. 't is an Estate Tail in the eldest 123 Tenant in Common A Devise to hold by equal parts makes a Tenancy in Common so that there can be no Survivorship in such case 210 Tenant at Will Cestuy que Trust by Deed is Tenant at Will to the Trustees 149 2. Where a Grant by Tenant at Will though void amounts to a determination of his Will 150 3. Whether Tenant at Will can grant over his Estate ibid. 4. What Act shall amount to the determination of his Will ibid. 5. Any thing is sufficient to make an Estate at Will 196 6. Tenant in Fee made a Lease for 100 years in Trust to attend the Inheritance and continued still in Possession he is Tenant at Will to the Lessee for 100 years and if he make any Lease and levy a Fine Sur Cognizance c. the first Lease is displaced and turned to a Right and the Fine barrs it 196 Trade See Grants 2. Prerogative 3 5. Indictment 12. Information 7. Confinement of Staple to certain places was the first regulation of Trade and from thence came Markets 127 2. The King is sole Judge where Fairs or Markets ought to be kept ibid. 3. Custom to restrain a Man from using of a Trade in a particular place is good 128 4. A Man may restrain himself by Promise or Obligation not to use a Trade in a particular place ibid. 5. Regulation of Trade is the chief end of Incorporations ibid. 6. Such incorporate Bodies have an inherent power to judge what persons are fit to use Trades within their Jurisdictions ibid. 7. Whether Grants of the King prohibiting Trade are void 131 8. Cannot be restrained by any By-Law 159 9. At the Common Law any Man might exercise any Trade he please 312 10. Petty-Chapmen are not within the Statute of 5 Eliz. 315 11. Journymen who work for hire are not within the Statute but the Master who sets them to work and pays their Wages is punishable 316 317 12. Subject hath not power absolutely to trade without the King's Licence 127 Travers See Ieofails 3. Presentment Replication Cannot be to a Return of a Writ of Restitution 6 2. He who traverseth the King's Title must shew a Title in himself 146 3. After a Travers 't is not good pleading to conclude to the Country 203 4. Not concluding with a Travers is but matter of form 't is aided by the Statute of Ieofails upon a Demurrer 319 5. Want of a Travers seldom makes a Plea ill in substance but an ill Travers often makes it so 320 6. It must be taken where the thing traversed is issuable 320 Treason See Outlawry Attainder of Treason reversed because on arraignment or demanding Judgment and because there was Process of Ve. fa. instead of a Capias and likewise for that it did not appear that the Party was asked what he had to say why Sentence c. 265 Trespass For breaking and entring a Free Fishery and taking the Fish ipsius querentis not good for he had not such a Property as to call the Fish his own 97 2. In Trespass Quare vi armis clausum fregit to his Damage of 20 s. an Action lyeth let the Damage be never so little 275 Trial See Appeal 2 3. Election 1. Where the Trial and conviction of a Criminal is had he must be executed in that County and not elsewhere unless in Middlesex by prerogative of B. R. which sits in that County 124 2. Where the Court refused to grant a new Tryal in a Case where excessive Damages are given 101 Trover and Conversion Judgment in Trespass is no Bar to an Action of Trover for the same Goods 1 2. They are different Actions in their very nature 2 3. It lies upon a demand and denial but Trespass doth not ibid. 4. Trover pro diversis aliis bonis hath been held good 70 5. 'T is a good Plea in Trover to say that Damages were recovered against another Person for the same Goods and the Defendant in execution though the mony is not paid 86 6. Whether it lies for taking a Ship after a Sentence in the Admiraly for taking the said Ship 194 7. Brought by two and after Verdict one died whether Judgment shall be arrested 249 V. Variance See Appeal 1. Apportionment 2. BEtween the Original in Trespass and the Declaration that being certified three Terms past and no Continuances for that reason not good 136 2. Between Original and the Declaration not aided by the Statutes of Jeofailes ibid. 3. Sci. fa. to have execution of a Judgment obtained in the Court of Oliver late Protector of England and the Dominions and Territories thereunto belonging and in reciting the Judgment it was said to be obtained before Oliver late Protector of England and the Dominions c. but left out Territories this was held to be good in substance for the Judicature is still the same 227 Venire Facias The Court would not order the Plaintiff to file a Ve. fa. 246 Verdict See Assumpsit 2. Action for a Tort 5. Amendment 1.6 Common 3. Evidence 6. Prescription 4. Reservation 1. Robbery 1. Surrender 3. The true reason why it helps a defective Declaration 162 2. A Promise to pay quantum rationabiliter valerent instead of valebant at the time of the promise good after Verdict 190 3. It cannot be diminished neither can any thing be added to it 205 4. An Hundred was sued for a Robbery and tho' it did not appear that the Fact in the Declaration mentioned was done in the Hundred or that the Robbery was in the High-way or done in the day-time yet good after a Verdict 258 5. The Defendant sold Cattle affirming 'em to be his own ubi revera they were not but 't is not said that he affirmed them to be his own sciens the same to be the Goods of another or that he sold them fraudulenter vel deceptive yet good after Verdict 261 Vicaridge 'T is not sufficient to alledge Seisin in Fee of a Rectory and that he ought to present to the Vicaridge but he must say that he is Impropriator or that he was seised in Fee of a Rectory impropriate 295 Visitor No Appeal lies from his Sentence for he is Fidei