of Ground whereupon a Pump stood and grants that he shall have the free use of the Pump during the term and Covenants that he should enjoy dimissa praemissa and assigns a Breach in that he suffered Antliam praedictam esse fractam totaliter spoliatam And to this the Defendant Demurs And it was said in Maintenance of the Action That the Defendant having granted the free use of the Pump was bound to do all things necessary to make his Grant effectual to the Plaintiff or else he broke his Covenant of Enjoying and if the Plaintiff should come to Repair it he would be a Trespasser And of this Opinion was Keeling But Twisden conceived That an Action of Covenant would not lye there being no express Covenant to Repair it Otherwise if he had taken away the Pump and here he might bring an Action upon the Case because he lost the use of it and they Two being only in Court it was Adjourned Postea Anonymus A Presentment was made in a Leet for Erecting of a Glass-House which was said to be ad magnum nocumentum per juratores Jurat ' pro Dom ' Rege Dom ' Manerii tenentibus It was said A Man ought not to be punished for erecting of any thing necessary to the exercise of his lawful Trade but it was Answered that this ought to be in convenient places where it may not be a Nusance For Twisden said He had known an Information Adjudged against one for Erecting of a Brew-House near Serjeants-Inn But the other Justices doubted and agreed that it was unlawful only to Erect such things near the King's Palace But this Presentment was clearly Ill because it was not ad commune nocumentum And it was said further That the Leet was the King's Court and therefore it ought not to be Jur ' pro Dom ' Rege Dom ' Manerii tenentibus But the Court held it Surplusage for tenentibus and good for the King and the Lord of the Mannor For Leets are granted to the Lords as derived out of the Tourn 2 Cro. 382. for the ease of the Resiants within its Iurisdiction More versus Lewis IN an Assumpsit the Plaintiff declares upon Two Promises One was That in Consideration that he had done him multum gratissimum servitium the Defendant promised to pay him Ten Pounds a year The Consideration of the other was That he had done him multa beneficia Vpon Non Assumpsit pleaded and found for the Plaintiff as to both the Promises and entire Damages given it was moved in Arrest of Judgment that neither of these Considerations were sufficient especially the last for there ought to have been some Service particularly expressed To which it was Answered That this being after a Verdict the Court must intend that the Plaintiff gave in Evidence something that he did which was Consideration sufficient otherwise the Jury would have give no Damages And a Case was cited in Hutton's Rep. 84. where the Plaintiff in an Assumpsit declared That in Consideration that she had served the Defendant and his Wife and done them loyal Service that he would give her 13 s 4 d And a Verdict being found for her she had Iudgment Sed nota In the Book nothing was said to be moved in Arrest of Judgment but the Insufficiency of the Consideration in respect that it was executed and laid to be done at the Request of the Defendant But the Court held clearly that nothing being particularly expressed in the Consideration of the Second Promise in this case it was meerly void and entire Damages being given the Plaintiff could not have his Judgment And thereupon Iudgment was Entred Quod querens nihil capiat per Billam Gregory versus Eads ERror to Reverse a Judgment given in the Court at Warwick in an Assumpsit where the Plaintiff declared of Three Promises whereof one was found for the Plaintiff and as to the other two that the Defendant Non Assumpsit and Iudgment was given for the Plaintiff for that which was found for him but no Iudgment was given as to the other that the Plaintiff should be amerced pro falso clamore or quod Defendens eat inde fine die And it was assigned for Error that this Judgment was defective and ought to be Reversed To which it was answered That the Judgment ought to stand for so much as was good Vid. con 2 Cro. 424. and 2 Cro. 343. was cited where in an Action for Words spoken at divers times the Jury found the Defendant guilty as to all and gave several Damages whereupon there was Judgment and a Writ of Error brought and assigned in that the Words spoken at one of the times were not Actionable Which being agreed the Court Resolved that Judgment should be reversed only quoad them and should stand for the residue for utile per inutile non vitiatur And Slocomb's Case 1 Cro. 319. where a Writ of Error was brought to Reverse a Judgment given in an Action for Words and assigned in that it was Entred Concessum fuit quod querens nihil capiat c. whereas it should have been Consideratum Yet because the Words were Insufficient the Court tho' they held the manner of the Entry erroneous ordered Judgment to be given Quod querens nihil capiat per Billam Et Adjornatur Postea Note It was said by Serjeant Maynard That after all the Evidence given in an Information the Kings Council may without the parties Consent withdraw a Juror and try it over again And so he said it was done by Hobart Attorney General 5 H. 7. and in the Exchequer by Noy in King Charles the First 's time Barkly versus Paine IN an Assumpsit in an Inferiour Court the Consideration was That the Plaintiff should solicit a Cause in Chancery The Court Reverst the Judgment for want of Jurisdiction It had also another fault for it was Defendens in misericordia capiatur Anonymus IT was moved to quash a Return of Rescous for that it was Vi armis in Ballivum meum affraiam fecerunt è custodia mea adtunc ibid ' rescusserunt and not Vi armis rescusserunt Sed non allocatur for by reason of adtunc ididem vi armis mentioned at first shall be applied to all Hanway versus Merrey THe Case was The Defendant had Covenanted to pay the Plaintiff a Sum of Money the 24th of June next whereupon the Plaintiff takes out a Latitat Teste 3 Maii Returnable the last day of Trinity Term following and Arrested the Defendant upon it Which being made appear to the Court they discharged the Arrest For tho' 't is allowed a man may take out a Latitat before the Money is due Yet the party must not be Arrested upon it before And this differs from an Original which if it bears Teste before the Money be due it is abateable but the Latitat is only to bring him in custodia that
Goods by Patent at least not before Conviction Neither were the words of the Patent very full to this purpose for they were only That they should forfeit such Ships and Goods and be imprisoned as by Law could be inflicted upon the Contemners of the Kings Authority 8 Co. 125. Noy 183. And the Court said the question was Whether the King could Prohibit the Importation of Foreign Goods for if he might the Importation of them would cause them to be forfeited And the Chief Justice said The Ship also in which they were shipped But no Forfeiture of English Goods could grow by Letters Patents And admitting all this for the Defendant yet it was said the Plea was naught First Because he justified by a Command from a Corporation and did not alledge it to be by Deed And it was agreed that a Corporation might employ one in ordinary Services without Deed as to be Butler 18 Ed. 4. 8. Br. Corp. 59. or the like But one could not appear in an Assize as a Bailiff to a Corporation without Deed Pl. Com. 797. 12 H. 7. 27. Neither can they Licence one to take their Trees without Deed nor send one to make a Claim to Lands 9 Ed. 4. 39. They cannot make themselves Disseisours by their assent without Deed or Command one to Enter for a Condition broken 7 H. 7. 9. Rolls Tit. Corp. 514. Again it was said The Plea was double for that the Patent Prohibits the Trading thither and also Importing from thence and 't is laid that he loaded Wines there and brought them hither so an offence respecting both Parts and one would have served But of these matters the Court would be advised Burwells Case UPon complaint to two Justices about a Bastard Child they by the 18 Eliz. order one Reynolds to keep the Child Vpon this Reynolds appeared at Sessions where they vacated the Order and referred it back again to the Justices who do nothing The next Sessions after Burwell is judged the reputed Father and ordered to pay so much a Week to the Parish until the Child was 12 year old This was removed into the Kings Bench by Certiorari And they resolved That the referring back again to the Justices by the Justices at the Sessions was not warranted and that the last Order was insufficient because it was that he should pay the Parish due time until the Child was 12 year old whereas the Father might take it away when he pleased but it ought to have béen that he should allow so long as it should be chargeable to the Parish wherefore they bound the Parties to appear at the next Sessions by Recognizance Anonymus A Man hath a Messuage and a Way to it through anothers Freehoold and 't is stopped then the House is aliened the Alienee can bring no Action for this Nusance before request If a Man lets a House reserving a Way thorough it to a Backhouse he cannot come thorough the House without request and that too at seasonable times Anonymus IF the Husband and Wife be Arrested in an Action that requires Special Bail and the Husband puts in Bail for himself he must put in Bail for his Wife also but if he lyes in Prison the Wife cannot be let out upon Common Bail But it is otherwise if the Husband absconds himself and cannot be Arrested Anonymus IF a Man brings Debt for Rent and upon his own shewing he demands more than is due and upon non debet pleaded the Jury find for him he may remit the overplus and have Judgment for the residue Note One was Committed for sending of a Note to a Juryman after a privy Verdict was given to know what Verdict they gave Parris's Case AN Information was brought against him for that he fraudulenter deceptivè procured one Ann Wigmore to give a Warrant of Attorney to confess a Judgment To this he pleaded Not guilty and upon the Tryal it was debated whether she might be admitted to give Evidence against the Defendant for if he were Convicted the Court said they should set aside the Judgment Nevertheless she was sworn by the Opinion of 3 Judges against Twisden This Suit being for the King Vpon his Tryal he was found Guilty and fined 100 Marks and ordered to come with a Paper on his Hat expressing the offence Note No Writ of Error to reverse a Judgment given in an Action qui tam c. lyes into the Exchequer-Chamber because the King is Party so also upon the Statute de Scandalis Magnactum 1 Cro. Lord Says Case Perill versus Shaw A Scire facias was brought against the Bail who pleade that before the Return a Capias was issued out against the Principal and that he was taken at D. and detained in Prison quousque postea he paid the Money The Plaintiff pleads non solvit Then the Defendant Demurrs And it was adjudged for the Plaintiff for the Defendants Plea was vitious because there is no place alledged where the Money was paid and it is not necessary to be intended to be paid where he was Imprisoned And though the Plaintiff did not Demurr but replied yet when there is a Demurrer the first fault is fatal Sir John Kerle versus Osgood AN Action was brought for these words spoken of him being Justice of the Peace He is a forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him it so to his Face After Verdict for the Plaintiff it was moved in Arrest of Judgment That these words were not actionable because forsworn doth not necessarily intend any judicial Perjury and there was no Communication of his Office One said of a Justice of Peace He is a Blood-sucker and seeks after Blood if one will give him a couple of Capons he will do any thing and held not actionable because there was nothing to make them relate to his Office Rolls 56 29. Nevertheless the Plaintiff had his Iudgment by the Opinion of all the Court for the calling of him forsworn Justice shews he intended Perjury relating to his Office to which an Oath is annexed Manwood brought an Action for calling of him A corrupt Judge 4 Co. Cases of Slander 1 Cro. for calling of an Attorney A cheating Attorney And Sir John Masham recovered for calling of him Half-eared Justice Vid. Rolls 53. pl. 4. and 4 Co. Stucleys Case And here the latter words viz. That he is not fit to sit upon a Bench Shews that he intended the Scandal in his Office and words shall not be taken in mitiori sensu so far as to draw them from the general Acceptation and sermo refert ad conditionem personae Twisden cited a Case where a Man brought an Action for saying He was a Debaucht Man and not fit to be a Justice of the Peace and not maintainable because spoken of the time past If it had been He is Debauched he said the Action would lie Hill versus Langley DEbt upon a Bond to perform an
Nonsuit him Dyer 76. b. for the Defendant could have no Scire facias into Ireland Leech versus Widsley IN an Action of Trespass for Chasing of his Sheep and Impounding of them and there detaining of them until he gave him 12 d per quod one of the Sheep died The Defendant pleads that J.S. was seised in Fee of the place Where and that the Sheep were there Damage feasant and that he by the Command of J. S. leniter chaceavit eas and Impounded them until he gave him satisfaction quae est eadem Transgressio The Plaintiff in his Replication entitles himself to Common there The Defendant Rejoyns and says that the place Where was parcel of a great Waste wherein the Plaintiff had Common appurtenant and that the Lord Inclosed the place Where and that the Plaintiff had tempore quo c. semper postea sufficient Common for all his Sheep levant and couchant To which the Plaintiff Demurs First For that the Bar was Insufficient for the Plaintiff chargeth him with detaining them until he paid him a Shilling and he pleads that he detained them until he gave him satisfaction sed non allocatur Vid. 3 Cro. 384. Hill and Prideaux's Case but here the Plaintiff hath waived that Advantage by pleading over Again He doth not answer to the killing of the Sheep sed non allocatur for he pleads leniter chaceavit so that if the Sheep did dye he is not answerable neither doth the Plaintiff declare of any extraordinary Chasing but alledges the dying of the Sheep only in aggravation of the Damages coming after the Per quod and that is not traversable As in an Action for Beating of his Servant per quod servitium amisit the loss of the Service cannot be traversed But that which was most insisted on was what he alledges in his Rejoynder viz. That the Plaintiff had Common sufficient left him for his Sheep levant and couchant upon the Tenements Whereas he ought to have said Sufficient ad tenementa praedicta For it may be the Ground was understocked Also 't is not set forth that he had free Egress and Regress the Words of the Statute of Merton are Tantam pasturam habeant quantum sufficit ad tenementa sua quod habeant liberum ingressum sed non allocatur for his Sheep levant and couchant is intended as many as the Land will maintain and if there were no Egress or Regress it ought to come on the other side So Judgment was given for the Defendant nisi causa Anonymus AN Infant Executor brings an Action It was said by Twisden That it had been Adjudged that he ought to sue by Guardian Ely versus Ward IN a Writ of Error to Reverse a Judgment given in the Court at Hull upon an Assumpsit the Plaintiff declared That it was Agreed between them at a place infra Jurisdictionem Curiae That upon Request c. and that he Requested him at a place infra Jurisdictionem Curiae It was assigned for Error That this Action ought not to have been brought in Hull because the Request was not appointed to be made within the Iurisdiction by Agreement Sed non allocatur As long as the Agreement and Request were made there tho' the Request might have been elsewhere Another Error was assigned in that the Precept to the Serjeant at Mace for Returning of the Jury was Probos legales homines qui null affinitat ' c. attingen ' whereas the Form of the Venire is attingunt Sed non allocatur For it was held to be as well Tho' Twisden said The Form of a Writ ought not to be altered into another Expression of the same signification Then the Entry was Ad quem diem venerunt the Plaintiff and Defendant Juratores and it should have been Veniunt sed his non obstantibus the Judgment was affirmed Anonymus IT was held That if the Sheriff Returns a Cepi Corpus upon a Capias altho' he hath not his Body in Court at the day of the Return yet no Action can be brought against him but he is to be amerced for it at the Common Law One so taken could not be Bailed but by a Homine Replegiando and now the Statute of the 23th of H. 6. obliges the Sheriff to take Bail however the Return is as at the Common Law Cepi Corpus Freeman versus Barnes TRin. 20 Car. 2. Rot. 554. Error to Reverse a Judgment given in Communi Banco in an Ejectment where upon Not Guilty pleaded the Jury found a Special Verdict to this effect Tenant in Fee makes a Lease for an hundred years in Trust for himself to wait upon the Inheritance the Lessee enters Cestuy que Trust enters and takes the Profits and makes several Leases all which being expired he makes a Lease for 54 years and for the corroborating of it Levies a Fine with Proclamations the Lessee enters 5 years pass And Tyrrel and Archer they being the only Judges in the Common Plea then gave Iudgment That the Fine should bar the Lessee for an hundred years Vpon which a Writ of Error was brought in this Court and Argued this Term by Levins for the Plaintiff in the Writ of Error and Finch Solicitor for the Defendant And for the Reversing of the Judgment Levins Argued That this Lease by the Cestuy que Trust and the Entry of his Lessee did not dispossess the former Lessee and then the Fine and Non-claim could not prejudice his Interest which was not put to a right For first the Cestuy que Trust was at least Tenant at Will So is Littleton Sect. 464. Cestuy que Use may enter and hold at the Will of his Feoffees then his Lease can be no Disseisin because the Inheritance was in himself 'T is true in some Cases a man may do an Act which shall divest his own Estate As if a Stranger disseises Tenant for Life to the use of him in the Reversion and he assents Co. Lit. 180. b. the Law shall not construe a Disseisin against the parties Intention Rolls 661. He that enters by colour of a void Lease is no Disseisor 1 Cro. 188. nor any one that enters by Consent 15 E. 4. 5. b. Neither shall the Interest of the Lessee be divested but at his Election for this Lease works in point of Contract and not so violently upon other mens Interests as Livery doth In Latche's Rep. 75. Sir Thomas Fisher's Case Tenant for years le ts at Will the Lessee makes a Lease for years this works no dispossession If a Copyholder makes a Lease for years without Licence the Entry of the Lessee is no Disseisin to the Lord and he may chuse whether he will take it as a Forfeiture Rolls 830. Lease for years upon Condition to be void upon Non-payment of Rent a demand is made the Lessor may make a new Lease of the Land the former Lessee being still in possession And Blunden and Baugh's Case was cited in 1 Cro.
went out upon such particular direction and recommendation 'T is some mitigation that they had such advice of Counsel otherwise I should not stick to fine them 100 l apiece We are bound to take care of the support of the Government I agree the Fines Keeling Chief Justice It is provided by 23 H. 8. cap. 5. that the Laws Acts c. to be made by the Commissioners of Sewers should stand good and effectual c. no longer than the Commission endured except they were Engrossed in Parchment and certified under their Seals into the Kings Court of Chancery and then the Kings Royal Assent to be had to the same c. But that was altered by this of 13 Eliz. whereby it is Enacted That their Laws c. should stand and continue in force without any such Certificate to be made thereof into the Chancery and then a little after in this Statute follows the Clause which hath been read and that refers wholly to Certificates or Returns to be made into the Chancery for the purpose aforementioned 'T is plain the Clause refers not to this Court for it speaks of returning their Comissions now their Commissions were never returnable into this Court this Court cannot be ousted of its Jurisdiction without special words here is the last Appeal the King himself sits here and that in person if the pleases and its Predecessors have so done and the King ought to have an account of what is done below in inferiour Jurisdictions 'T is for the avoiding of oppressions and other mischiefs To deny and oppose this and to set up uncontrolable Jurisdictions below tends manifestly to a Commonwealth and we ought and we shall take care that there be no such thing in ours days I know there is a great clamour so soon as an inferiour Jurisdiction is touched and t is thought we deal hardly with them But unless we will suffer this Court to be dissolved and the Prerogative of the King to be encroached upon we must oppose our selves to these Proceedings I have a great respect for these persons the Commissioners but 't is but usque ad aras When the Jurisdiction of the Crown the Justice of the Kingdom and the Duty of my place is concerned I ought not to spare my best Friends Some Presidents have been cited in this Case and many more might there are two memorable Records cited 1 Cro. concerning persons which contemned the Kings Writ and their Penalties I agree the Fines and hereby we do not go so high as our Predessours have gone Hundreds of years ago Nota This Proceeding and Sentence of the Court was upon Confession of the Commissioners the Court forthwith making an Entry and Record of their Confession In an Assize only where the Writ is Returnable into this Court it is apud Westmonaster ' but in all other cases where Writs are Returnable out of Chancery into this Court they are Returnable Ubicunque c. The King versus Jane D SHe was Indicted for Stealing of several things and pleading Not Guilty and a Jury sworn to try her the Witnesses not appearing were suspected to be tampered with by the Prisoner and the Jury were discharged and the Trial put off Vid. 1 Inst 227. b. Wise's Case AN Order of the Justices of the Peace for the maintenance of a Poor Woman was Confirmed tho' it appeared she was able of Body to work But the Justices of the Peace are Iudges of that Cousin's Case ERror to Reverse a Fine for Infancy Now 't was moved that the party being in Court she might be inspected and the Inspection Recorded and there was produced and read a Copy of the Register Book sworn to be a true one and several Affidavits of her Age. Curia Let the Inspection be now Recorded the Issue of her Infancy may be tryed at any time hereafter tho' she comes of Age. Nota A Prisoner in the Kings-Bench that lyes in the Common Side pays no Fees for his Lodging Anonymus IT was said by Twisden That if two submit to an Award this contains not a Reciprocal Promise to perform but there must be an Express Promise to ground an Action upon Nota A Fine which was set two or three Terms since was this Term set aside because of some surreptitious Practice and Misinformation to the Judge Auberie versus James ASsault Battery and Wounding The Defendant Iustified for that he being Master of a Ship commanded the Plaintiff to do some Service in the Ship which he refusing to do he moderate castigavit the Plaintiff prout ei bene licuit The Plaintiff maintains his Declaration absque hoc quod moderate castigavit and Issue was taken thereupon Negativum infinitum After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Issue was not well joyned for non moderate castigavit doth not necessarily imply that he did Beat him at all and so no direct Traverse to the Defendants Iustification which immoderate castigavit would have been But De injuria sua propria absque aliqua tali causa would have been the most formal Replication But the Justices held that it would serve as it was after a Verdict tho' the Statute at Oxford 16 Car. 2. the last and most aiding Act of Jeofails be * Which was a mistake expired and that de injuria sua propria not adding absque aliqua tali causa hath been held good after a Verdict Green versus Cubit ERror to Reverse a Judgment given in the Court at Norwich in Debt upon a Bond where the Plaintiff declared that the Defendant per scriptum suum Obligatorium at a certain place there became bound c. The Defendant pleaded that he was in Prison scriptum praedictum was obtained by Duress which was found against the Defendant and Judgment given accordingly The Errors assigned were first Because he declares of a Writing Obligatory and both not say sigillo Defendentis sigillat ' 3 Cro. 571. Declaration in Covenant was held Insufficient for the same cause Secondly There is no place where the Defendant alledgeth himself to be in Prison and being in an Inferiour Court it shall not have any aid of Intendment But the Court Over-ruled the first because the Plea of the Defendant confesses the Deed and the second because the Imprisonment must of necessity refer to the place where the Plaintiff declares the Bond to be made For the Defendant pleaded that he was then in Prison wherefore they affirmed the Judgment 3 Cro. 55. 2 Cro. 420. 3 Cro. 737. 19 H. 6. 15. 19. Baldway and Ouston DEbt upon a Bond the Condition was That the Defendant should pay such Costs as should be stated by two Arbitrators by them chosen He pleaded that none were Stated The Plaintiff Replied That the Defendant did not bring in his Bill To which it was Demurred For tho' if the Defendant were the cause that no Award was made it was as much a forfeiture of his Bond as not to perform
is a continuing Body and no Member thereof can be displaced at the will of the rest but it is otherwise in Case of such an Office as this the Cases cited agree if it had béen a Common Council Man as was returned at first And here they said it were fit a Scire facias went out of Chancery to Repeal these Letters Patents as unreasonable If they had béen to chuse a Town Clerk generally it had béen for his life or if to chuse one provided they might turn him out at their Will and Pleasure yet they could not have done so without Cause as Twisden said But here the Authority is absolute to chuse him Durante bene placito which it was said was not so much to be admired at for the Offices of Judicature in the Courts at Westminster are so determinable Foot versus Berkley Pas 19 Car. 2. Rot. 1618. In a Writ of Error to Reverse a Judgment given in an Ejectione firmae in C. Banco The Case upon a Special Verdict was this The Prior of Bodmin was seized in Fee and 29 H. 8. demised to John Monday and others for 96 years at the Rent of 60 l per annum The Possessions of the Priory afterwards came to the Crown and descended to Queen Eliz. Who in the 42 year of her Reign granted to John Monday for 30 years Habendum after the end of the former Term under the same yearly Rent The Inheritance was afterwards conveyed to divers in Trust for the late Queen Mother who in 14 Car. 1. demised to Francis Godolphin in this manner reciting that Queen Eliz. in the 32 year of her Reign whereas it was the 42 demised to J.M. and did not recite for what Term to Commence after the Expiration of the Term for 96 years granted by the Priour reserving 60 l Rent did Demise to the said Francis for 21 years to Commence after the end of the Term granted by the said recited Letters Patents of Queen Eliz. They find no Lease made in the 32 year of the Queen c. Now whether Godolphins Lease should begin from the making which if it should it is for some year expired or to expect while the Lease made in 42 Eliz. should determin was the sole Question And by the Opinion of the Court of Common-Pleas Tyrrel only to the contrary It was adjudged That the Lease should Commence presently upon the making And a Writ of Error being brought after divers Arguments at Bar it was this Term argued by the Court And resolved that the Iudgment should be affirmed They held that every Lease for years must have a certain beginning and a certain end either expressed or referred to something which they make it so And here it is referred to a Lease whereas there is not any such Lease therefore it is to begin presently as if it had been to Commence from an impossible date Co. Litt. 46. B. A Lease made from the 30 of February shall Commence presently and it is the same thing when to begin from the end of a Lease misrecited for it is no more than to refer it to nothing Br. Leases 62. 1 Cro. 220. Miller and Johns Case Dier 116. 2 Roll 55. 4 Rep. 53. Palmers Case Bendlowes Rep. 35. 1 Anderson 3. Leonard Mounts Case And whereas it was objected in this Case That the Date is not material and that there was enough expressed to ascertain what Lease the Parties intended and the Case in Hob. 129. was cited Where one made a Lease Habendum à festo purificationis and then reciting by his Deed that he had made a Lease to Commence à festo Annuntiationis granted the said Reversion The Court held this there a good Grant It was answered That the Lease here was tied up by such precise words to begin upon the Determination of the Lease granted by the said recited Letters Patents that this cannot be referred to a Lease which varies in the Date though agreeing in other Circumstances yet the certainty of the Term is not recited neither And though a Lease is good without a Date yet when a Lease is recited to be of one Date a Lease which bears another Date cannot be said to be the said recited Lease And the Case in Hobart is very different from this Case for in the Grant of the Reversion the misrecital of the particular Estate is not material in the case of a common person so long as he hath a Reversion in him But here on Term is recited to give a certainty of Commencement to another and if here be none such it must begin presently so that however the Grant is good also here either to pass the Reversion with Attornment or being by Indenture to take effect upon the forfeiture c. of the former Term Pl. Com. 433. Twisden said Walter Chief Baron reported this Case to be adjudged where one made a Lease to begin from the Nativity of our Lord last past It was resolved it should begin presently and not from Christmas for that was the feast of the Nativity and to take it from the Nativity the time would have béen effluxed many times over and that in the Kings Case such a Lease would be void But here if the Case were thus that A. had made a Lease to B. for 30 years to Commence from the 1st of March and then A. reciting the former Lease to be made the 1st of May for 30 years had made another Lease to Commence from the end of B's Lease the Lease should have Commenced after the former ended But it cannot be so in the Case in Question Because tied up to the said recited Deed. Another Objection was Because this being by Indenture the Parties should be estopped to say that there was no such Lease and this was much insisted on by Serjeant Maynard in his Argument for the Plaintiff To which it was answered That this being by Recital could work no Estopel Again the Question is not now between the Parties to the Lease and though they and their Assignees might be bound in pleading yet being in a Special Verdict the Court shall judge according to the Truth And so is Isham and Morrice's Case 1 Cro. 77. And Rawlins Case 4 Rep. is between the Parties themselves So they all resolved that Iudgment should be affirmed The King versus Bates ERror to Reverse a Judgment given in an Information at the Assizes in Norwich because the Information was Exhibited before Justice Moreton and Justice Rainsford and the Trial and Judgment was at the next Assizes before two other Judges And it was Objected by Pemberton That their Commission of Oyer and Terminer doth not empower them to determine any thing which was not Commenced before them and so is Bro. tit Commission 24. And in the 4th Inst my Lord Coke saith that the Statute of Edward the 6th extends only to Justices of Gaol-delivery sed non allocatur For the Court said the Statute extends to hath and so hath been the
principium inde One of the Lessees died before the Lease for Life determined whereupon the Lessor brings Covenant for the 3 l and sets forth this Matter in the Declaration To which the Defendant Demurred supposing that the 3 l was not to be paid unless the Death had hapned after the Term had commenced And the Court having heard it spoken to divers times by Counsel on both sides by the Opinion of Twisden Rainsford and Moreton Iudgment was given for the Defendant For all the other Reservations but this were expresly post principium termini and Clauses in Companies are to expound one another as it is said in the Earl of Clanrickard's Case in Hobart It is in the nature of a Rent and Reservation which it is not necessary that it should be Annual And in Randall and Scories Case 1 Cro. such a Duty was distrained for and it shall attend the Reversion Rolls 457. And he that hath but an interesse termini is not to pay the Rent reserved for there is no Term nor no Reversion until it commences If A. lets to B. for 10 years and B. redemises to A. for 6 years to commence in futuro in the mean time this works no suspension of either Rent or Condition The Intention of the Parties is to be taken That it should not be paid until then However Reservations are to be taken most strongly against the Reserver As Palmer and Prowses Case cited in Suffeild's Case 10 Co. is The Reversion of a Lease for years was granted for Life reserving certain Rent cum reversio acciderit a Distress was made for the Rent arrear ever since the Grant Resolved that it was good for no more than was incurred since it fell into possession Keeling Chief Justice held strongly to the contrary For he said the words were so express in this Case that they have left no place for Construction which other Clauses or the Intention of the Parties may direct when the Expression is doubtful He took it for a Sum in gross for Distrained for it could not be being reserved upon the Death of the Lessees or either of them which was also the limitation of their Lease And that Interpretations were not to be made against the plain sense of words He relied upon Edriches Case 5 Co. where the Judges said They would not make any Construction against the express Letter of the Statute yet there was much Equity in that Case to incline them to it And he said As well as a Fine is paid upon the taking of such Lease before it begins why may not something be paid also when their Interest determines And in some Countries they call such Payments A fair Leave Miller versus Ward TRespass for breaking of his Close on the 1st of August and putting in his Cattel The Defendant Iustifies for Common which he prescribes for in this manner viz. That two years together he used to have Common there after the Corn reaped and carried away until it was sown again and the Third year to have Common for the whole year and that that Year the Plaintiff declares for the Trespass was one of the years the Field was own quod post grana messa c. he put in his Cattle absque hoc that he put them in aliter vel alio modo The Plaintiff Demurs which it was Ruled he might for the Defendant doth not answer to the Time wherein the Trespass was alledged and the Traverse will not help it for aliter vel alio modo doth not refer to the time Anonymus AN Administrator brings Debt upon an Obligation The Defendant pleads payment to himself Vpon which it was found for the Defendant Coleman prayed that he might have Costs As where an Executor brings an Action sur Trover and Conversion in his own time and found against him it was Ruled in Atkyes Case 1 Cro. that he should pay Costs and hereof his own knowledge he had no cause of Action the Money being paid to himself But the Court Resolved That there ought to be no Costs in this Case for the Action of Trover in his own time might have been brought in his own Name so it was needless to name himself Executor or Administrator but the Action here is meerly in right of the Intestate Harvey versus James AFter Verdict at the Assizes the Clerk delivered the Postea to the Attorney by whose negligent keeping it came to be eaten with Rats But the Court Examining the Clerk of Assize it appeared that he had Entred the Jurors Names Verdict and Tales in his Book and according to that the Court suffered the Verdict to be entred on Record Anonymus IN an Action of Battery against Baron and Feme the Jury find the Feme only Guilty and not the Baron It was moved in Arrest of Judgment That this Verdict was against the Plaintiff for he ought in this Case to have joyned the Baron only for conformity and he declaring of a Battery by both the Baron being acquitted he hath failed of his Action and so is Yelverton 106. in Drury and Dennys Case But here the Court gave Iudgment for the Plaintiff and said that that in Yelvetron was a strange Opinion Anonymus A Certiorari was prayed to remove an Indictment of Manslaughter out of Wales which the Court at first doubted whether they might grant in regard it could not be tryed in an English Country But an Indictment might have béen found thereof in an English County and that might be tryed by 26 H. 8. cap. 6. vid. 1 Cro. Soutley and Prices Case and Chedleys Case But it was made appear to the Court That there was a great cause to suspect Partiality if the Tryal proceeded in Wales for the Party was Bailed already by the Justices of Peace there which Twisden said it was doubtful whether they had power to do for Manslaughter They awarded a Certiorari and took Order that the Prosecutor should be bound by Recognizance to prefer an Indictment in the next English Country Collect versus Padwell IN Debt upon a Bond to perform an Award which was That one should make a Lease to another before the 21 of October which was 2 or 3 Months after the Award and that the other upon the making of the Lease should pay him 50 l The Question was Whether notice in this Case ought to be given when he would make the Lease for otherwise it was said the other must have 50 l always about him or be in danger to break the Award And it was resolved by the Court That no notice was necessary Noell versus Nelson MIch 21. Car. 2. Rot. 745. Error to Reverse a Judgment given in the Common Pleas where the case was thus Nelson brings Debt against Noel as Executor of Sir Martyn Noel who pleads plene administravit The Plaintiff confesseth the Plea and prayeth Iudgment de bonis Testatoris quae in futoro ad manus Defendentis devenirint and upon a Suggestion of Assets afterwards he
warranted by the Writ so to do and if Iudgment be given after the Teste and before the Return of the Writ of Error the Record shall be removed but if Iudgment be entred after the Writ is returnable the Writ is only to be returned and that no Iudgment is yet given and here was an omission in the Plaintiff that he did not see that Iudgment was entred for after a Writ of Enquiry of Damages returned the Court is to give Iudgment at the prayer of either Party and not without Note If the Record vary from the Writ of Error yet the inferiour Court ought to remove it The King versus Ledgingham IN an Inormation against him for the King the Court took a privy Verdict and so it was said was the usual course at the Assizes But it cannot be so in case of Felony and Treason as is said in the 1 Inst 227. b. In cases of Life and Member if the Jury cannot agree before the Judges depart they are to be carried in Carts after them so they may give their Verdict out of the Country Polus versus Henstock IN Trespass for impounding of 11 Oxen. The Defendant Pleads That Sir H. Vernon was seized of a Close called the Cowes Lesowe in Fee and Let it to him for 99 years and that the Cattel came upon the Close and so justifies for Damage Feasant The Plaintiff Replies confessing Sir H. V's Estate and the Lease and saith that Sir H. V. was seized of another Close adjoyning called Browns Close and alledges a Custom in Peplow in which Town both the Closes are that all the Occupiers of the Cowes Lesowe had maintained a Fence against Bowmers and that the Cattel came upon the Land in default of the Fence c. and Issue taken upon the Custom and found for the Plaintiff It was moved in Arrest of Judgment First That this was in the nature of a Prescription and not of a Custom for a Custom cannot be laid in a Ville and applied to a particular place or Inhabitant therein unless in case of a Coppyholder where it is necessary in regard he cannot prescribe 4 Co. 113. Secondly If it had béen alledged by way of Prescription it should be laid in him that had the Inheritance And if it be objected that it is hard to drive a Stranger to discover that then it ought to be alledged quod omnes Tenentes but not as it is here omnes Occupatores 1 Cro. Baker and Breremans Case Thirdly By the Vnity this Duty of Fencing is extinguished and shall not revive though the Closes come after into several Hands In Dier 295. b. it is left a Quaere But in Popham 172 it is clearly held so where it is said things of necessity shall revive as a Way to Market or Church but not so of Easments 1 Cro. Baker and Breremans Case And of this Oppinion were the Court. Jones versus Powell THe Plaintiff declared that he was an Attorney and the Defendant to Scandalize him in his Profession said of him That he could not read a Declaration By reason of which many of his Clients left him And the Opinion of the Court inclined against the Plaintiff For the Allegation of Special Damages will not maintain the Action unless the words import some Slander which these did not unless brought in by some words precedent touching his knowledge in his Profession for the Declaration might be so written that he might not be able to read it without any Imputation of Ignorance Sard versus Ford. MIch 21. Car. 2. In an Action upon the Case the Plaintiff declared That he was seized of the Mannor of Newton Abbot and that he c. had kept a Market there every Wednesday and used to have the profits of Stallage c. That the Defendant had erected a new Market at a place 7 miles distant from the Plaintiffs held every Tuesday c. Jones excepted to this Declaration for that it could not be to the hindrance of the Plaintiff's Market which was 7 miles off and kept upon another day 22 H. 6. 14. 2 Rolls 140. It appears that an Action was brought against one that levied a Market not above 5 miles distant and upon the same day Curia contra The Writ of ad quod damnum doth not express the Market to be erected the same day and notwithstanding it will hinder recourse to the other Market Anonymus A Dean and Chapter made a Lease of Tythes for years the Lessée assigned over his Interest and afterwards the Dean and Chapter bring Debt against him for the Rent Who Pleads That the Plaintiffs accepted the Rent due since the Assignment from the Assignee to which the Plaintiffs Demurr Jones This is no Rent but a méer Sum in gross due upon the Contract therefore in the 5 Rep. in Jewells Case it appears that such a Rent cannot go to the Successor of a Bishop for the Successor of a Sole Corporation cannot Sue upon a Personal Contract to his Predecessour If the Reversion be granted over the Grantee cannot bring Debt 2 Rolls 447 451. 1 Inst 47. a. By the same Reason the Assignée of the Lease is not liable Again The Acceptance is not well pleaded for it is only Acceptaverunt Whereas a Corporation aggregate cannot accept but by Bayliff and an Acquittance must be given Saunders contra This is not a meer Sum in gross but in the nature of a Rent as is held in Valentine and Dentons Case 2 Cro. 111. If it were a sum in gross no Action could be brought until all the days of payment were incurred 1 Inst as upon a Bond to pay Money at several days Also the pleading of Acceptaverunt is good for it being such a Corporation as can accept necessary circumstances are ever implied as Livery in a Feoffment such a Corporation in an Assumpsit shall declare of a Promise made to them which yet must be by means of their Bayliff or Attorney The Court held this last Matter to be most doubtful And Twysden and Rainsford said it might be questioned whether after acceptance of the Assignée the Lessor might not resort to his Lessee for his Rent It is delivered in Walkers Case thus fuit dit not as a Resolution 3 Co. Et Adjurnatur Catterel versus Marshal ERror to Reverse a Judgment in an Assumpsit brought by Marshal in the Common-Pleas wherein he declared that he being sued in the Kings Bench retained Catterel for his Attorney who in Consideration of 30 s given him and that he would enter into a Bond with sufficient Penalty to save him harmless promised to get Bail filed for him and Avers that he did give him Bond with a great and sufficient Penalty c. The Defendant Pleads Non Assumpsit and found for the Plaintiff and he had his Iudgment Now it was assigned for Error that he did not express of what Penalty the Bond was that it might appear to the Court to be sufficient as if one avow for a
Pro praedicto anno which refers to the Year mentioned before which was next following the Lease and it might be said finito anno 18 for so it was ended then or at any time after And the Court said It would be clearly good after a Verdict But being upon a Demurrer they would Advise Anonymus AN Indictment for not performing an Order of the Justices of the Peace concerning a Bastard Child It was moved to quash it because it did not conclude contra pacem But it was held that ought not to be it being but for a Non feasans An Indictment of Forcible Entry was quashed because it alledged the party to be seized and possessed and so uncertain which Monnington versus William IN a Replevin the Defendant avowed for a Rent charge and set forth That the Plaintiff granted a Rent to J. S. in Fee who granted bargained and sold it una cum arreragiis to him and shewed the Indenture to be Inrolled within six Months virtute cujus and the Statute of Uses he was seized and for a years Rent since the Assignment avowed The Plaintiff replies and Traverses the Grant of J. S. prout and found for the Avowant and moved in Arrest of Judgment by Jones First That here is an impossible Issue which comprehends as well the Grant of the Arrears which cannot be as the Rent Secondly He Intities himself by Bargain and Sale and the Statute of Uses and doth not shew that it was in Consideration of Money and otherwise the Rent cannot pass without Atturnment 3 Cro. 166. But the Court gave Iudgment for the Avowant As to the first The pleading the Arrears to be granted is altogether void and does no harm in regard the Avowry is expresly for Rent Arrear after the Grant And for the second The Court held the pleading good after a Verdict and it shall be intended that Evidence was given of Money paid As a Grant of a Reversion pleaded without Attornment or a grant of a Rent and not expressed to be by Deed yet a Verdict will help those defects Huttons Rep. 54. Note Twisden said where a man in pleading sets forth his Title by a Conveyance in which are the words Give Grant Release Confirm Bargain Sell c. he must express to which of them he will use it Addams versus Guy ERror to Reverse a Judgment given in the Court at Bristol in Debt against the Defendant as Executor to J.S. who declared upon a Mutuasset of him so much because Debt lies not against an Executor upon a simple Contract Sed non allocatur He agreeing to the Action and suffering Iudgment to pass against him Secondly That he set forth that the Testator Mutuasset which properly signifies to lend and not to borrow and it ought to have been Mutuatus esset But the Court affirmed the Iudgment and held that either might be expounded to borrow Anonymus AN Administrator brought Trover and Conversion and declared That the Intestate at the time of his Death was possessed of divers Goods and that after his Death and before Administration committed they came to the Defendants hands who converted them Vpon Not guilty it was found for the Defendant and prayed that he might have Costs and the Court held that he ought to have them the Conversion being since the Death of the Intestate Sir Thomas Pettus Case IT was moved to quash an Indictment of Manslaughter against him for that it is said to be taken coram Coronatoribus Comitatus Civitatis Norwici at Bucthorp in the County of the City per Juramentum hominum de Civitate Norwici Whereas the Jury ought to have come from the County and City of Norwich for they shall not be intended to be coexistent especially in an Indictment As if the Caption of an Indictment be at Dale and the Jury come de Parochia de Dale it is good cause to quash it yet in an Action they should be intended the same So it is sufficient to put the County in the Margin of the Declaration in an Action but not so in an Indictment 1 Cro. Again By the Statute de Coronatoribus the Jury ought to come from the four next Vills Of the first Exception the Court doubted But to the second Twisden said it need not be returned upon the Indictment that the Jury came from the four next Vills But they would not quash the Indictment upon Motion for they said it was not their course to do so in Case of Manslaughter but ruled the Party to Plead to it tho' it was shewn he had been Tryed at the Assizes upon an Indictment of Murder for the same Killing and found Guilty of Manslaughter The King versus Clapham A Mandamus was prayed to the Lord President and Council of the Marches to admit Clapham to the Exercise of the Office of Deputy Secretary And it was returned quod tempore receptionis brevis non fuit constitutus Deputatus It was said That one which claimed to be Deputy his Authority being revocable could not pray a Mandamus But to that it was answered That the Mandamus was at the Suit of Mr. Win and it set forth how he had the Office of Secretary exercend ' per se vel sufficientem Deputatum suum and that they had refused this Clapham whom he had appointed his Deputy And it was resolved That the Mandamus was well awarded for he had no other remedy to have his Deputy admitted And whereas it was said being an Officer belonging to the Court they are to judge of his sufficiency and so have power to refuse him It was answered to and so resolved That then they ought to have returned that he was insufficient And it was also resolved by all the Court That the Return being that non fuit tempore receptionis brevis Deputatus constitutus was naught for if he were made his Deputy before the Return was true unless he made him his Deputy at the very instant of the Receipt of the Writ and Returns must be certain because there is nothing can be pleaded to them Anonymus AN Indictment for not performing an Order of the Justices for payment of a Poors Rate It was moved to quash it because it did not conclude Contra pacem Sed non allocatur because it was not for a Male Fesans but a Non Fesans Horsam versus Turget MIch 22 Car. 2. Rot. 687. Debt upon a Bond. The Defendant demands Oyer of the Condition which was to perform an Award and sets forth that there were divers Accounts c. betwéen J. S. Testator of the Plaintiff and the Defendant and they submitted all Controversies to the Award of such an one and that he awarded that the Plaintiff should deliver certain Goods of which the Testator died possessed to the Defendant and that the Defendant should pay unto the Plaintiff 320 l And then sets forth the custom of Foreign Attachments in London that if a Suit were commenced against the Executor of any person
might be given in Evidence tho' upon Non est factum it could not The King versus Alway and Dixon ERror to Reverse a Judgment upon an Indictment because the Award of the Venire was Entred Praeceptum fuit Vicecomiti c. which is more like an Hystory of the Record than the Record it self for it ought to be Praeceptum est and so are the Presidents And for this Cause it was Reversed Waldron versus Ruscarit Hill ult Rot. 225. In an Ejectment a Special Verdict was found That one levied a Fine of all his Lands in Saint Inderion in Cornwal and that he had Lands in Portgwyn and that the Constables of Saint Inderion exercised their Authority in Portgwyn and that Porgwyn had a Tythingman And whether this Fine conveyed the Lands in Portgwyn was left to the Iudgment of the Court and Resolved that it did A Parish may contain ten Vills and if a Fine be levied of the Lands in the Parish this carries whatsoever is in any of those Vills So where there are divers Vills if the Constablewick of the one goes over all the rest that is the Superiour or Mother Vill and the Land which is in the other shall pass per nomen of all the Lands in that And tho' it be found that Portgwyn had a Tythingman Decenarius which prima facie is the same with a Constable and differed little in the Execution of that Office concerning Keeping the Peace Yet Hale said He was not the same Officer and 't is found that the Constables of St. Inderion have a superintendency over Portgwyn and therefore 't is but as an Hamlet of St. Inderion But if found that they had distinct Constables and could not interfere in their Authority it would be otherwise Owen 60. Note It was said by the Court That if there be a Conviction of a Forcible Entry upon the View of the Justices of the Peace no Writ of Error lyes upon it but it may be Examined upon a Certiorari The King versus Green al' THey were Indicted for refusing to take the Oath of Allegigiance contained in the Statute of 3 Jac. tendred to them at the Sessions of the Peace One appeared and the Entry was Nihil decit c. ideo remansit Dom ' Rex versus eundem indenfensus And the other were Convicted and Judgment given quod forisfaciant omnia bona catalla terr' tenementa Domino Regi extra protectionem Dom ' Regis ponantur committuntur quilibet eorum committitur Gaolae They brought Error And First It was moved that the Indictment was for refusing the Oath contained in the Statute of 3 Jac. in his Anglicanis Verbis Viz. I do truly and sincerely acknowledge c. that our Sovereign Lord King Charles the Second is Rightful King of this Realm c. Whereas the Statute is King James and the words of the Statute are That the Justices of the Peace shall demand of such persons there mentioned to take the Oath hereafter following So that 't is tyed up to that Oath in terminis and then it cannot be Administred after the Death of King James And the diversity of the Penning of this Act of 3 Jac. and the Act of 7 Jac. was observed in the last the words are Shall take and receive an Oath according to the Tenour and Effect of the Oath contained in 3 Jac which is as much as to say the same Oath in substance So the Act of 1 Eliz. cap. 1. is That the Oath shall be taken according to the Tenour and Effect hereafter following Therefore it was Objected that the Indictment might have been upon the Act of 7 Jac. but not upon 3 Jac. which it was conceived was tyed up to the Person of King James and therefore determined by his Death As if a Lease be made durante bene placito Regis nunc it doth end by the Dimise of that King that made it Otherwise if it be durante bene placito Regis Moor pl. 311. And though these Statutes for the Oath of Allegiance be General Laws and need not have been recited yet when an Indictment is grounded upon an Act therein mentioned which will not maintain it it shall not be made good upon any other General Act. Secondly Another Matter insisted upon for Error was in the Entry of the Nihil dicit which was Ideo remansit Dom ' Rex versus eundem indefensus whereas it ought to have been remanet and so the Record it self must express But as it is 't is but an History of the Record and therefore upon Indictments where the Award of the Venire is Praeceptum fuit 't is not good but should he Praeceptum est Thirdly An Exception was taken to the Venire which Commands the Sheriff to Return 12 probos legales homines qui nec Dom ' Regem nec aliquam partem aliqua affinitate attingunt whereas in the King's Cases his Kindred may be Returned and therein no Challenge to the Favour neither ought the Sheriff to be restrained from Returning them Fourthly The Judgment is Committuntur quilibet eorum committitur which is an Execution of the Judgment that should have been given and not the Judgment it self which ought to have been Committantur c. as 't is extra protectionem Domini Regis ponantur and not ponuntur Fifthly It was alledged that the Statute was mis-recited in two places 1. For See of Rome it is written Sea of Rome so instead of sedes Romana it is mare Romanum which makes it to be no Sense 2. The Words of the Statute are I do declare in my Conscience before God whereas the Indictment is I do declare c. in Conscience and leaves out my It was also Objected That the words of the Act being That such as refuse the Oath shall incur the danger and penalty of Praemunire mentioned in the Statute of 16 R. 2. which Enacts That Process shall be made against the Offenders therein mentioned by Praemunire facias in manner as 't is Ordained in other Statutes And it appears that no such Process was made upon this Indictment wherefore the Statute is not observed Curia The first Error was disallowed by all the Court and held clearly that the Judgment was well grounded upon the Statute of 3 Jac. For the naming of the King is but an instance of the thing as it stands at present and it might as well be objected that the Oath in the Statute is I A.B. do swear c. And tho' some Statutes say according to the Tenour and Effect and this is the Oath hereafter following it was held to be all one for according to the Tenour and Effect and according to the words are all one as where a Certiorari is to certifie Tenorem Recordi The second was held to be Error and that the Iudgment given upon the nihil dicit must be reversed for there were several Iudgments given viz. One upon that and another given
to Bernard to make his Wife a Joynture it shews that it was intended he should have but an Estate for Life which needed such a Power and not an Estate Tail for then he might have made a Joynture without it I Answer That Tenant in Tail cannot by virtue of such Estate make a Joynture without discontinuing or destroying his Estate Sed Judicium pro Quer ' There being Justice Twisden and Justice Rainsford against the Chief Justice Termino Sancti Hillarij Anno 24 25 Car. II. In Banco Regis Anonymus A Prohibition was prayed to the Ecclesiastical Court for that they Cited one out of the Diocess to Answer a Suit for a Legacy But it was denied because it was in the Court where the Probat of the Will was For tho' it were before Commissioners appointed for the Probat of Wills in the late Times yet now all their Proceedings in such cases are transmitted into the Prerogative Court And therefore Suits for the Legacies contained in such Wills ought to be in the Archbishop's Court for there the Executor must give account and be discharged c. Note When a man is in custodia Marescalli any man may Declare against him in a Personal Action and if he be bailed out he is still in custodia to this purpose viz. quoad Declarations brought in against him that Term For the Bail are as it were Delegated by the Court to have him in Prison Hob. Error is not well assigned That there was no Bail filed unless added That the Defendant was not in custodia Debt IN an Action of Debt upon a Sheriffs Bond the Case was this A man was Arrested upon a Latitat in placito Transgr ' ac etiam bille pro 40 l de debito And the Condition of the Bond given to the Sheriff was to appear at the Day of the Return of the Writ to answer to the Plaint in plito debito And it was urged that this made the Bond void by the Statute of 23 H. 6. for the Condition should have been to Appear at the Day to Answer in the Action upon which the Process went out and that was in this Case but an Action of Trespass and the adding the Ac etiam debiti c. is but to satisfie the late Act and for Direction to the Sheriff to what Value he shall require Bail And it was usual to Endorse the Cause of Action before the Statute upon the Latitats that the Sheriff might insist upon Bail accordingly So this is a material Variance from the Statute and not like some of these which are remembred in Beaufage's Case in the 10 Co. and Dyer 364. And to this the Court inclined And Hale Cited a Case between Button and Low adjudged Mich. 1649. An Attachment went out of Chancery to answer Coram nobis in Cancellaria ubicunque c. and the Sheriff took a Bond Conditioned to Appear Coram Rege in Cancellaria ubicunque c. apud Westmonasterium And for the addition of Westminster the Bond was held to be void Anonymus THe Court was moved for a Prohibition to the Archbishop's Court to stop their Proceedings in a Cause belonging to the Jurisdiction of Durham upon a Suggestion that the Dean and Chapter of Durham Sede vacante have Cognizance there as Guardians of the Spiritualties And the Court granted a Prohibition for the Right of Jurisdiction was tryed between the Archbishop and Dean and Chapter the last Term and found against the Archbishop and therefore he was concluded by the Verdict until the Record was reversed by Error or Attaint Thodie's Case THody and two others were Indicted for that Conspiratione inter eos habita they enticed J. S. to play and cheated him with False Dice Thody pleaded and was found Guilty the others not having pleaded It was moved that Judgment might not be Entred against him until the others came in for being laid by way of Conspiracy if the rest should chance to be acquitted no Judgment could be given against him And so is 14 H. 6. 25. Hale said If one be Acquitted in an Action of Conspiracy the other cannot be Guilty But where one is found Guilty and the other comes not in upon Process or if he dies hanging the Suit yet Judgment shall be upon the Verdict against the other And so is 18 E. 3. 1. and 24 E. 3. 34. Wild said The difference was where the Suit was upon Conspiracy wherein the Villanous Judgment was to be given and where the Conspiracy is laid only by way of Aggravation as in this Case Hale said It would be the same in an Action against two upon the Case for Conspiracy but not in such Actions where tho' there be a Charge of Conspiracy yet the Gift of the Action is upon another matter But the Court said They would give him two or three days for the bringing in of the other two and defer the Entry of the Judgment in the mean time Methyn versus the Hundred of Thistleworth THe Case was moved again by North Solicitor He urgrd for the Plaintiff That the Issue being Whether they took the Felon upon Fresh Suit It being not found that there was any actual Taking or that the Fresh Suit continued until Sir J. Ash found the Felon in the presence of Sir P. Warwick Also it was found that Sir J. Ash was a Justice of Peace and therefore it was his duty to Apprehend him To this it was Answered That the Statute of Winton upon which the Action is founded and not upon the 27 of Eliz. and therefore it is ill if it concludes contra formam Statutorum doth not say shall Take but shall Answer the Bodies of the Offenders which is Answer them to Justice And therefore if the Felon be taken upon another account and the Country finding him in Prison cause him to be Indicted this satisfies the Statute Goldsb 55. Again it was more decent for Sir John Ash being concerned as an Inhabitant of the Hundred to leave this Matter to the other Justice of the Peace for it has been known that Justices of the Peace have been Censured in the Star-Chamber for being too forward to interpose in their own business But if it were an omission of the Duty of his Office that could not be Objected to him as an Inhabitant having done enough to satisfie the Statute of Winton Wild said That the Defendant should have Demurred because the Issue is ill joyned viz. absque hoc that he took him super eadem recenti insecutione For if he were not immediately taken upon Fresh pursuit it were sufficient but the Verdict finding Fresh Suit was made it may be taken by Intendment which shall help out a Special Verdict that it was directed this way and continued until the finding of him in the presence of Sir P. Warwicke Et sic Judicium pro Def. Ante. Dacres versus Duncomb IN Trover after Imparlance the Defendant pleaded That the Plaintiff with two others brought Trover for the
required by the 32d of H. 8. And this course is usual in the Construction of Statutes made in pari materia Thirdly It would make a great Romage in Leases as he conceived if a Lease should be void when there was never so little of a former Lease unexpired Fourthly There is no Authority to the contrary In Hunt and Singleton's Case there was 10 years of the former Lease in being and upon that lay the weight of the Opinion And Crane and Taylor 's Case is concerning Covenants only and the Reason that it doth not extend to the 1st of Eliz. is because the 18th of Eliz. begins with Inferiour Ecclesiastical persons and therefore cannot include Bishops Termino Sancti Michaelis Anno 25 Car. II. In Banco Regis Anonymus PAyment is no good Plea to a Scire facias upon a Judgment But in a Scire facias against the Bail Hale said he might plead That the Principal paid the Money Hinchman versus Iles. IN a Replevin the Defendant avowed for Rent upon a Lease made to the Plaintiff at Will The Plaintiff Replies That the Defendant before the Distress taken made a Lease for years by virtue of which the Lessee Entred The Defendant Rejoyns and confesses the making of the Lease but says that there was a Special Agreement that the Lessee should not Enter until a time after and traverses the Entry The Plaintiff Surrejoyns and traverses the Agreement To which the Defendant Demurrs specially Hale There are here two things considerable First Whether the making of the Lease be a determination of the Will before Entry Secondly Whether there may be a Traverse upon a Traverse in this Case As to the first If the Lessor does any Act inconsistent with the Continuance of the Estate at Will it shall determine it from such time as the Tenant at Will takes notice of it tho' this may prove a mischievous Case in regard of the frequency of Conveyancing by Lease and Release An Outlawry of the Lessor shall not determine the Will until a Seizure nor an Extent upon him until the Liberate If the Lessor says The Lessee shall hold it no longer The Lessee as soon as he knows of the words he may take advantage of them as a determination of the Will As where he in Reversion upon a Lease grants the Reversion and brings Debt for the Rent 40 E. 3. 16. simile in Case de Waste The Lessee tho' before Attornment may plead in Bar that he hath granted away the Reversion But this Plea will amount to an Attornment As to the second Point Where a Traverse is not good without a Special Inducement there a Traverse may be to that Inducement As in Trespass where the Justification is local by virtue of his Office or the like and in Hobart in Digby and Fitzherbert's Case If the Lease were by Parol here the Collateral Agreement might be material As if a Lease were made at Midsummer for 21 years and it were agreed that the Lessee should Enter but at Michaelmass it would begin in point of Computation at Midsummer but in point of Interest not till Michaelmass Anonymus IN a Suit for Tythes the Defendant pleaded in the Spiritual Court That the Tythes belonged to another who was Rector and not the Plaintiff Which Plea being refused and Oath thereof made in this Court a Prohibition was granted Anonymus IN an Action upon the Case for Stopping of his Lights The Plaintiff Declared that he was possessed for divers years and did not say how many and that time out of mind the Light came in at the Windows Which was allowed a good form of alledging a Prescription Anonymus IN an Ejectment the Lessor of the Plaintiff had a Title to Enter for a Condition broken for Non-payment of Rent Lease Entry and Ouster was confessed and the Court was moved that in regard the Lessor having such a special Title and no Estate until Entry whether such an Entry should be supplied by the General Confession or that there should be an Actual Entry And it was held that it should be supplied by the General Confession But Hale said If A. Lets to B. and B. to C. to try the Title the Confession of the Lease Entry and Ouster extends only to the Lease made to C. and not to that to B. Anonymus IN Trespass against divers one dies pending the Action and notwithstanding the Venire and Distringas mentions all and the Verdict is against all If this Matter is surmized before Judgment so that the Judgment be against the Survivors 't is well enough Anonymus ERror to Reverse a Judgment given in the Burrow-Court of Shrewsbury in an Action upon the Case laid apud Villam Salopiae in Wardâ Wallicâ ejusdem Villae The Error assigned was First For that it appeared they awarded a Capias which an Inferiour Court cannot do in an Action upon the Case Vid. Stat. of 19 H. 7. tho' it was said to be usual for the Palace Court to do it Vid. Yelv. 1. But this was Over-ruled because the Defendant appeared which aids Miscontinuance of Process Secondly For that the Venire was awarded de vicineto Wardae And it was urged that a Jury ought not to come out of a Ward Hale It hath been sometimes so held but it has been since adjudged good Thirdly That in London the Venue usually comes out of the Ward but there the Custom makes it good here the Ward is intended lesser than the Vill. As Wild said a Case was not long since A Perjury was laid apud Whitehall in Parochia Sanctae Margarettae Westm ' the Venue came out of the Parish and held it to be Ill for Whitehall was intended to be a Vill and less than the Parish Wildman versus Norton IN a Repl the Defendant pleads in Bar Property to the Defendant and not to the Plaintiff Vpon which it was Demurred as supposing it amounted to the General Issue as in Trespass such a Plea doth 27 H. 8. 21. Hale This Matter may be pleaded in Abatement or in Bar. The General Issue in Repl is Non cepit and if the Issue be Non cepit Property cannot be given in Evidence But if the Defendant pleads Property in a Stranger then 't is proper to conclude in Abatement But the difficulty in this case is That the Defendant should regularly have claimed Property in the Country and then the Sheriff could not have delivered them but the Plaintiff must have brought his Writ de Proprietat ' proband ' But this Plea serves as an Avowry and the Defendant shall have a Return 39 H. 6. 35. Note It was said that if one Distrains for a Rent and before the Avowry the Estate upon which 't is reserved determines the Avowry shall be as if the Estate had continued for the Avowant is to have the Rent notwithstanding But if the Distress were for a Personal Service then the Defendant must have a Special Justification for he cannot have that Service in
excused yet 't is merely void as to the Party Et Ad jornatur Norton versus Harvey THe Case was an Executor being possessed of a Term let part of it reserving a Rent and died And the Question was whether his Executor should have the Rent or the Administrator de bonis non It was argued for the Executor that this Rent is meerly due by the Contract and not incident to the Reversion and the Administrator is in Paramount it being now as if the Testator had died Intestate and therefore before the Statute of this King such Administrators could not have had a Scire facias upon a Judgment obtained by the Executor tho' in the Case of Cleve and Vere 3 Cro. 450 457. 't is held that he may have a Liberate where the Executor had proceeded in the Execution of a Statute so far as an Extent for there the thing is executed and not meerly Executory as a Judgment If a Man that hath a Term in the right of his Wife le ts part of it reserving a Rent the Wife surviving shall not not have the Rent On the other side it was said that this case differed from that because the Reservation here is by him that had the whole Right executed in him Another objection against the Action was that here in the Declaration being in Covenant for Non payment of Rent there is not any demand alledged But that was answered because the Covenant was to pay such a Sum for the Rent expresly but if the Condition of a Bond be for performance of Covenants expressed in such a Lease one of which is for payment of Rent in that case the Bond will not be forfeit without a demand and of that Opinion were the Court and that the Executor should have the Rent but when recovered Hale said it should be Assets in his Hands And accordingly Iudgment was given for the Plaintiff Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Silly versus Silly DOwer of 300 Acres of Land 200 Acres of Pasture 100 Acres Meadow The Tenant pleaded Non Tenure The Jury found him Tenant as to 320 Acres of Land and as to the rest that he was not Tenant And the Iudgment was that the Demandant should recover the 320 Acres Error was assigned in this Court that the Verdict and Judgment were for more Acres of Land than were demanded But on the other side it was said Land was a general word and might include Meadow and Pasture Curia In a Grant Land will extend to Meadow Pasture c. but in Pleading it signifies Arable only and here in regard they are distinguished in the Count the Verdict and Judgment must be reversed for the whole Tho' Hale said antiently such Iudgment would have been reversed but for the surplusage Vid Post Batmore Vxor versus Graves TRover for a 100 Loads of Wood upon a Special Verdict the Case was this Copyhold Land was surrendred to the use of J. S. for years Remainder to the Brother of the Plaintiff's Wife who died before the Term expired and so was not admitted any otherwise than by the admission of the Tenant for years And it was resolved First That the admittance of him that had the Estate for years was an admittance for him in the Remainder 4 Co. 23. a. 3 Cro. 504. Fine sur Grant and render to A. for Life Remainder to B. Execution sued by A. serves for B. So an Attornment to Tenant for Life serves for him in Remainder and this brings no prejuduce to the Lord for a Fine is not due until after admittance and the Lord may Assess one Fine for the particular Estate and another Fine for the Remainder But Wild said he need not pay it until his Estate comes in Possession after a Surrender the Estate remains in the Surrender before admittance of the Cestuy que use yet where Borough English Land was Surrendred to the use of J. S. and his Heirs and he died before admittance It was held that the younger Son should have it Secondly It was resolved that the Possession of the Tenant for years was so the Possession of him in Remainder as to make a Possessio Fratris But then it was moved that the Conversion was laid after the Marriage and so the Feme ought not to have joyned with her Husband in the Action But the Court held that in regard the Trover was laid to be before the Marriage which was the inception of the cause of Action the Wife might be joyned as if one has the Custody of a Womans Goods and afterward Marries her she may joyn in Detinue with her Husband for in case of Bailment the Proprietor is to some purposes in Possession and to some out of Possession Hale said in this case the Husband might bring the Action alone or joyntly with his Wife And so Iudgment was given for the Plaintiff Anonymus IN Debt upon a Bond the Condition was to save the Obligee harmless from another Bond. The Defendant pleaded Non damnificatus The Plaintiff replies that the Money was not paid at the day and he devenit onerabilis and could not attend his business for fear of an Arrest The Defendant rejoyns that he tendred the Money at the day absque hoc that the Plaintiff devenit onerabilis to which it was Demurred and the Iudgment was given for the Plaintiff for the Money not being paid at the day the Counter Bond is forfeited Vid. 1 Cro. 672. 5 Co. and the Traverse in this case is naught The Mayor and Commonalty of London versus Dupester IN Debt for a Duty accruing to the City for Timber imported called Scavage The Declaration was that they were and had been a Corporation time out of mind and their Customs were confirmed by Act of Parliament Temps R. 2. c. The Defendant tendred his Law and Co. Entries 118. was cited where in Debt for an Amerciament in a Court Baron tho' the imposing of it was grounded upon a Prescription yet Wager of Law was admitted But notwithstanding in this case the Court overruled the Wager of Law for here the Duty it self is by Prescription and that confirmed by Act of Parlimant Debt for a Duty growing by a By-Law if the By-Law be Authorised by Letters Patents no Wager of Law lies So in Debt for Toll granted by Letters Patents 20 H. 7. Termino Sancti Michaelis Anno 26 Car. II. In Banco Regis Silly versus Silly THe Case was moved again And the Court said that the Demandant might have taken Judgment for the 300 Acres only habito nullo respectu to the rest and released all the Damages But this was not proper for an Amendment the Mistake being in the Verdict but if it could have been amended in the Common Bench the Court might here have made such Amendment Ante. Burfoot versus Peal A Scire facias was brought against the Bail who pleaded that the Principal paid the Debt ante diem impetrationis Brevis
Trover inter al' de uno Instrumento ferreo Anglicè an Iron Range After Verdict for the Plaintiff it was moved in Arrest of Judgment that Instrumentum ferreum was too uncertain and that a Range was the same with a Grate for which Crates was a proper Latin word Sed non allocatur For Crates is such a Grate as is before a Prison But a Fire Range was not in use in the Romans time and therefore Instrumentum ferreum is well enough with the Anglicè Twisden said Trover de septem libris has been held good without saying what they were Blackman's Case IT was assigned for Error that the Venire was to Summon probos legales homines instead of liberos and so a material Variance and alledged that many Judgments had been Reversed for it But the Court here being informed that the Presidents were generally probos instead of liberos would not allow the Exception The King versus Armstrong Harrison al' c. THey and others were Indicted for Conspiring to Charge one with the Keeping of a Bastard Child and thereby also to bring him to Disgrace After Verdict for the King it was moved in Arrest of Judgment that the bare Conspiring without Executing of it by some Overt act was not subject to Indictment according to the Poulterers Case in the 9 Co. And it doth not appear that he was actually Charged with the Keeping of a Child nay 't is alledged 't was but a pretended Child neither was he by Warrant brought before a Justice of Peace upon such an account but only that they went and affirmed it to the party himself intending to obtain Money from him that it might be no further disclosed Sed non allocatur For there was as much Overt act as the nature and design of this Conspiracy did admit in regard there was no Child really but only a Contrivance to Defame the Person and Cheat him of his Money which was a Crime of a very heinous nature Then it was alledged That this was tryed at the Old-Baily commonly called Justice-Hall in London and the Jury came de Warda de Faringdon extra London which appeared to be out of the Iurisdiction Sed non allocatur For the Name of the Ward is Faringdon extra to distinguish it from Faringdon infra but both are known to be in London Whereupon Judgment was Entred up against them and Armstrong which appeared to be the principal Offender was Fined 50 l and the other 30 l Burrough's Case HE and others were Indicted for that they being Church-wardens Overseers of the Poor and a Constable did contemptuously and voluntarily neglect to Execute diversa Praecepta Watranta directed to them by the Bayliffs of Ipswich being Justices of the Peace under their Hands and Seals c. It was moved to quash it for that the nature and tenour of the Warrants were not expressed in the Indictment For unless the parties know particularly what they are charged with they cannot tell how to make their Defence And for that Reason it was quashed by the Court. Note The Court never gives Costs for not Executing of a Writ of Enquiry of Damages tho' Notice be given Anonymus AN Indictment of Forcible Entry into certain Lands in the possession of J.S. was quashed for not shewing what Estate J.S. had and tho' the word Disseisivit were in the Court held that tho' that might be taken to imply a Freehold yet it was not sufficient Vid. Mo. 481. And another was quashed because it was said possessed pro termino But the Court held that if it had been pro termino annorum tho' not said for how many years it had been well Note A Bayliff caught one by the Hand whom he had a Warrant to Arrest as he held it out of a Window And the Court said that this was such a Taking of him that the Bayliff might justifie the breaking open of the House to Carry him away Kent versus Harpool AN Ejectment The Case came hither by a Writ of Error out of the Kings-Bench in Ireland and divers Points were in it which concerned the Act for Settlement of Lands in Ireland But the Case was as to the great Point at Common Law to this effect Father Tenant for Life Remainder to the Son for Life Remainder to first Son of that Son who was not born Remainder to the Heirs of the Body of the Father the Father died before the first Son was born and Whether the Descent of the Entail to the Son did prevent the Contingent Remainder was the Question It was Argued that it did not because the Inheritance came to the Son by Act in Law And the Opinion in Cordal's Case in the 1 Cro. 315. was cited the great Reason in Chudley's Case and other Cases wherein Contingent Remainders have been held to be destroyed was for the preventing of Perpetuities which would have been let in if Contingent Remainders had been preserved whatever Act had been done by those which had the Actual Estate But there is no such necessity of making the life Construction upon Acts in Law If Lessee for years makes the Lessor Executor the Term is not drowned But if the Executor that hath a Lease purchases the Inheritance the Term is gone because it is his own act but in the other Case the Law shall not work that which must be construed a Devastavit In Lewis Bowles's Case in the 11 Co. and Co. Litt. where there is an Estate for Life Remainder to the first Son Remainder in Fee to the Tenant for Life the Estates at first close and open again upon the Birth of the first Son which should take the Remainder And so it may be here But the Court seemed to be of Opinion that the Contingent Remainder was destroyed by the Descent of the Estate Tail And Rainsford Chief Justice relyed upon Wood and Ingersol's Case in the 2 Cro. 260. where a Devise was to the first Son for Life Remainder to the Son which should survive and there three Judges against one held that the descent of the Fee upon the first Son prevented the Contingent Remainder to the Survivor Et Adjornatur Note In Lewis Bowle's Case the Estates were united at the first upon making of the Conveyance Smith versus Tracy IN a Prohibition the Case was One died Intestate and whether his Brother of the Half-blood should come in for Distribution upon the new Statute of 22 23 Car. 2. cap. 10. was the Question It was Argued that the Half blood should have no share for the Words are The next of Kindred to the Dead person in equal Degree which the Half-blood is not The Words likewise are Those which legally represent their Stocks and that must be intended in an Act of Parliament such as the Common Law makes to be Representatives and not the Civil Law For then it would be that the Bastard eigne should come in for Distribution For their Rule is that subsequens matrimonium facit
versus Bowes IN an Ejectment upon a Special Verdict the Case appeared to be this Commissioners of Bankrupt had assigned by Indenture the Lands in question to the Lessor of the Plaintiff which Indenture was afterwards Enrolled But the Declaration was upon a Demise made after the Indenture and before the Enrolment and whether that Demise were sufficient to Entile the Lessor of the Plaintiff was the general question It was first insisted on that Enrollment of the Deed of Assignment tho' to pass Lands was not necessary 2 Co. 26. But that the Court overruled saying that Enrolment is not requisite upon an Assignment of Goods but of Lands it is But then it was said that after the Deed was Enrolled it shall relate to the Delivery and it was compared to a Bargain and Sale where by the Statute of H. 8. of Enrolments nothing passeth till the Deed be Enrolled but then it relates 2 Instit 675 Bargainee sells before Enrolment the subsequent Enrolment makes it good so if the Bargainee suffers a Recovery before Enrolment he is a good Tenant to the Praecipe by relation ibidem And this is confirmed by the common practice So if at Common Law a Recognizance be acknowledged before a Judge as any Judge of the Courts at Westminster may take a Recognizance and afterwards he causeth it to be Recorded it binds the Land from the time of the Caption Hob. 196. If Land be conveyed to the King by Deed Enrolled it binds from the time of the executing of the Deed altho' the Enrolment be sometime after Sanders contra Here the Commissioners are under a Power given to them by the Statute of Bankrupts and they must execute that Power in all Circumstances before it become effectual In the case of Enrolment of a Bargain and Sale the Deed it self passeth the use and the Statute of Enrolments obstructs the operation of it till Enrolment but when that is done it passeth by the Deed. Again here needs no relation to avoid the mischeif of mean Assignments from the Bankrupt because he is restrained from the time of his first Act of Bankruptcy And on the other side the mischeif would be very great if there should be a relation from the Enrolment in regard the Statute limits no time for the doing of it so that it may be seaven years after and if this should relate to punish Mesne Trespasses the inconvenience would be very great for such Trespassers are until the Enrolment exposed to the Actions of the Bankrupt As to the Case of the Recognizance the Caption is a judicial Act and the principal and so binds from the time And in the case of granting to the King by Deed enrolled the reason is because the King shall not receive any prejudice by the Laches of his Officer in neglecting to Enrol the Deed. But generally in Cases at Common Law there is no relation as in Case of Feoffment and Livery but stronger in Case of a Grant of Reversion where the Attornment is but the assent of the Tenant yet it shall not relate to the Grant It would be hard if a Relation should be admitted to make a Man liable to Trespass It has been much doubted whether a Bargainee before an actual Entry can maintain an Action of Trespass Curia The Case of Bellingham and Alsop altho' it was said to be reversed and the authority is stirred in Iseham and Morrices Case 3 Cro. Yet it has been since taken for good Law in the main point where Executors sell by an authority given by Will the Vendee is in the per from the Devisor but here in Post the and by the Statute It were very inconvenient to admit of Relation because no time prefixed for the Enrolment Sed Adjornatur Afterwards Judgment was given for the Defendant Anonymus UPon a Writ of Error out of an inferiour Court in an Action upon the Case upon an Agreement to Assign over a Term which the Defendant had in him for four years Vpon Non Assumpsit a Special Verdict was found that the Agreement was made but not put into Writing and they found the Clause in the Act of 29 Car. 2. of Frauds and Perjuries viz. No Action to be brought upon any Contract or Sale of Lands c. or any Interest in or concerning them c. Vpon which Special Verdict found it was adjudged for the Plaintiff and now Error was assigned in the Matin Law that this Contract was within the Act to be put in Writing But it was objected that the Statute extended only to Interests created de novo out of an Estate and not to an Assignment Curia contra And held the Case to be plain within the words of the Act and so the Judgment was reversed Anonymus IN Error to Reverse a Judgment given in an inferiour Court First Because 't is said Cur ' tent ' apud Guildhalld ' Burgi c. and not said that the Guildhal was within the Jurisdiction of the Court Sed non allocatur for that shall be intended Secondly The Damages given by the Jury were 3 l 19 s and Costs 6 d and so much for Costs de incremento adjud ' and nothing said of the 6 d Sed non allocatur because damna per Jurator ' assess ' includes all and the other is but miscomputation and the Costs awarded de incremento necessarily implies the 6 d Costs before included Vid. Ante Paschae 31 Car. 2. Anonymus IN an Action upon the Case the Plaintiff declared That the Defendant did take out a Latitat 21 Januarij 32 Regni ac etiam Billae c. whereas he owed him nothing Vpon Not guilty pleaded a Special Verdict was found that the Latitat was Teste 28 Novembris 32 Car. Regis but was really taken out 21 Januarij 32 Regis Et si pro Quaere c. Holt argued upon this that by Law it must be said to be taken out the 28 of November when the Teste is Yelv. 130. Debt upon a Bond bearing date the 30 of December The Defendant demands Oyer of the Condition which was to perform Covenants and says tho' it were dated the 30 of December yet it was deliberat ' primo die Feb ' and no breach since If the Plaintiff replies and agrees with the Defendant 't is a Departure because he had declared of a precedent Date which implies the Delivery But it is objected That the Jury are not estopped to find the Truth I answer Where the Parties impleading have agreed a Point certain the Jury is estopped to find the contrary Pemberton Chief Justice we know the course of the Court is to Teste Latitats taken out in Vacation of the Term preceding and the course of a Court is the Law of the Court He might have declared That the Defendant Sued out a Latitat the 21 of January Teste the 28 of November preceding and if he be not estopped to declare fo surely the Jury may find the whole matter And so Judgment was
and the Preferment of Her in Marriage and other good and valuable Considerations Give Grant Bargain and Sell Alien Enfeoff and Confirm unto the said Jane and her Heirs the said Lands And in the said Deed there was a Covenant that after due execution c. the said Jane should quietly enjoy and also a clause of warranty and the Iury found that there was no other Consideration than what was expressed in the Deed ut supra this Deed could not enure as a Bargain and Sale but it was adjudged that it should work as a Covenant to stand seised and Watts and Dix's Case was also cited Sty 188 204 where Rolls said if Lands are passed for Mony only the Deed ought to be enrolled but if for Mony and Natural Affection the Land will pass without Enrollment The Court here in the Principal Case inclined that this Grant would work as a Covenant to stand seised But Pollexfen Chief Justice was of Opinion that it ought to have been so pleaded and not to use the words concessit assign transposuit which is to plead it as a Grant at Common Law Powell and Ventris did conceive that it was pleaded sufficiently in regard it was said that by virtue of the Deed and Statute of Vses he became seised but leave was given by the Court to amend the Plea as the Defendant should see cause Bland versus Haselrig alios QUarto Jacobi Secundi the Case was an Assumpsit was brought against four who pleaded non Assumpsit infra sex annos and the Verdict was that one of the Defendants did assume infra sex annos and the other non assumpsit And it was moved that no Iudgment could be given against the Defendant upon whom the Verdict was found for this is an Indeb assump for Goods sold and 't is an intire contract and they must all be found to promise or else 't is against the Plaintiff Torts are in their nature several so one Defendant may be found guilty and the other not guilty but 't is not so in Actions grounded upon Contract Pollexfen Chief Justice Powel and Rokeby were of Opinion in this Case That the Plaintiff could not have Iudgment Ventris inclined to the contrary he admitted if an Indebitat ' assumpsit be brought against four and they plead non assumps and found that one of them assumed this is against the Plaintiff for he fails in his Action But in the case at Bar it may be taken that they did all promise at first and that one of them only renewed the promise within six years The plea of non assumpsit infra sex annos implies a promise at first and if one should renew his promise within six years 't is reason it should bind him and the Plaintiff must sue them all or else he will vary from the Original Contract But the Chief Justice seemed to be of an Opinion that if the promise were renewed within the six years yet if not upon a new Consideration it should not bind and if there were a new Consideration the Action will lie against him that promised alone Sed Quaere for the common Practice is upon a Plea of the Statute of Limitations to prove only a renewing the Promise without any further Consideration but a bare owning the Debt is not taken to be sufficient Quaere if the first Consideration upon repeating the Promise within six years be not enough to raise a new Cause of Action Iudgment was given for the Defendant Westby's Case WEstby brought an Action by Original and the Instructions to Cursitor for drawing of the Writ were Westby but the Writ was Westly and so all the Proceedings Afterwards the Court upon a motion ordered the Cursitor to attend who satisfied the Court that the Instructions were right and so they ordered the Original to be amended in Court and this without any application to the Chancery or Order from thence and they amended all the proceedings after Termino Paschae Anno 2 Willielmi Wariae In Communi Banco Ellis versus Yates IN an Action of Trespass the Writ was brought and so recited Quare clausum fregit herbam ibid ' crescent ' conculcavit consumpsit averia fugavit and the Declaration was Quare clausum herbam ibid ' crescent ' conculcavit consumpsit bidentes c. fugavit alia enormia c. Vpon Not guilty pleaded a Verdict was found for the Plaintiff It was moved in Arrest of Iudgment that fregit was omitted in the Declaration so one of the Trespasses contained in the Writ viz. the Clausum fregit was not mentioned in the Declaration and if the Writ contains more than is Declared for this is a Variance not aided by the Verdict 1 Cro. 329. Haselop and Chaplin where a Replevin was de averiis and declares only of an Horse and for that the Judgment was Reversed in a Writ of Error So where the Writ was Quare clausum fregit and the Declaration Quare clausum 1 Cro. 185. Edwards and Watkin Pollexfen Chief Justice and Rokeby were of that Opinion that Judgment should be arrested Ventris contra Powel being absent because the treading and consuming of the Grass necessarily implied a breach of the Close for there could not be an Entry without a Breach So the Declaration by necessary Intendment comprehended all that was in the Writ and to support the Verdict it was reasonable to intend no other breach of the Close than by a bare Entry But the other two said That there might be given in Evidence a breach of a Gate or Hedge and Damages might be given for that and then there was no ground for such Damage set forth in the Declaration And by the Opinion of the Chief Justice and Rokeby the Judgment was stayed Vid. Keilway 187. B. finding in a Verdict upon a Writ of Forcible Entry that the Defendant expulit disseisivit c. this implies it was Vi armis and yet that is the very point of the Action The Warden of the Fleet 's Case A Motion was made by the Warden of the Fleet for a Writ of Priviledge sitting the Parliament alledging that he was obliged to attend the House of Lords and therefore ought to be priviledged from Suits and divers Presidents were shewn where Writs of the like nature were granted to the Warden of the Fleet upon Motion one whereof was 2 Car. 1. and divers since that time some whereof appeared to be upon hearing of Counsel on both sides And the Court were at first inclined to grant him the like Writ but it being afterwards made appear to the Court that he was sued upon Escapes and the Court considering the great inconvenience that would ensue thereupon and being of Opinion that it was in their Discretion whether they would grant such Writ upon Motion or no. For they could not Iudicially take notice of this Priviledge of Parliament and therefore in case he had such Priviledge the Court said he might plead it
Wingate and Stanton the Bail of William Stanton 38 Wise 's Case 69 Wood v. Coat 195 Woodward v. Aston 296 Wortley the Lady v. Holt 31 Wright v. Johnson 64 Z ZOuch v. Clay 185 ADVERTISEMENT Note That the Author of these Reports has referr'd to Croke's Elizabeth as the first Part and Croke's Charles as the third Part of those Reports except in the first thirty Sheets of the First Volume in which thirty Sheets he referr'd to Croke's Charles of the first Edition as the first Part and Croke's Elizabeth as the third Part of those Reports TERMINO Sancti Michaelis Anno 20 Car. II. in Banco Regis Sparks c. versus Martyn JONES moved for a Prohibition to the Court of the Admiralty for that they Libelled against one for Rescuing of a Ship and taking away the Sails of it from one that was executing the Process of the Court against the said Ship and for that in the presence of the Iudge and face of the Court he Assaulted and Beat one and spake many opprobious Words against him Now seeing that these Matters were determinable at Law the Ship being infra corpus Comitatus and they could not adjudge Damages to the party or Fine or Imprison He prayed a Prohibition But the Court denied it absentibus Windham Moreton 1 Cro. 216. For they may punish one that resists the Process of their Court and may Fine and Imprison for a Contempt to their Court acteâ— in the face of it tho' they are no Court of Record but if they should proceed to give the party Damages they would grant a Prohibition quoad that And of that Opinion was Wyndham the Case being afterwards put to him by the Chief Justice But the parties afterwards put into their Suggestion That the original Cause upon which the Process was grounded was a Matter whereof the Court of Admiralty had no cognisance Wherefore a Prohibition was granted For then the Rescous could be no Contempt Sir John How versus Woolley an Attorney of the Court. IT was Moved That Woolley should put in special Bail being an Attorney at large and having dicontinued his Practice But the Court said Attorneys at Large have the same priviledge with the Clerks of the Court and are to appear de die in diem And they were not satisfied that he had discontinued his Practice Suffil's Case IT was Moved to quash the Return of a Rescous against Suffil and divers others who rescued a person taken upon Mesne Process because the Rescuers being particularly named 'tis said rescusserunt and not added quilibet corum rescussit And for that Case was cited in the 2 Cro. where the Sheriff returns an Exigent against divers quod non comperuerunt upon the Quinto exacti and doth not add nec aliquis corum comperuit and for that cause it was Reversed in a Writ of Error notwithstanding Twisden being only in Court held it to be well enough it being in the Affirmative Anonymus A Prohibition was prayed to the Ecclesiastical Court for that a Parson Libelled against one there for talking of him Knave and 't was granted it not appearing to relate to any thing concerning his Function And a Case was cited to be Adjudged 24 of the Queen the Suit being in the Ecclesiastical Court for these words viz. Sir Priest you are a Knave and a Prohibition was granted Note If a man be taken in Execution he cannot be bailed tho' he brings a Writ of Error Anonymous IN Debt upon a Lease for years the Defendant may plead Entry into part upon which follows Suspension and it doth not amount to the General Issue Heely versus Ward ERror to Reverse a Iudgment given in the Court at Hull where the Plaintiff in an Assumpsit did declare That at such a place infra Jurisdictionem Curiae the Defendant in consideration that the Plaintiff had assumed to pay him so much a yard promised to deliver him so many yards of Kersey and it was assigned for Error That the delivery is not laid to be at a place infra Jurisdictionem Curiae and indeed there is no place at all And of that Opinion was Twisden he being only in Court and cited a Case where in an Assumpsit in the Marshalsey upon a Promise to make a Lease of a House in Middle Row and after Iudgment it was held Erroneous because Middle Row was not laid to be infra Jurisdictionem Curiae The Bishop of Lincoln versus Smith THe Bishop of Lincoln sued in the Court holden before his Chancellor for a Pension to which he intituled himself by Prescription and a Prohibition was prayed for Smith the Defendant there for that being by Prescription that Court had no cognisance of it And for that my Lord Coke's Opinion was cited 2 Inst 491. especially he could not sue for it in his own Court But it was resolved by Keeling and Twisden the other Iustices being absent that Pensions tho' they were by Prescription might be sued for in that Court for having cognisance of the Principal that shall draw in the Accessory As if one Libel for a Modus decimandi if they allow it they may try it and Coke's Opinion they said was not warranted by the Books and Fitzh N.B. 524. is against it 2 Cro. 483. and the Court being held before the Chancellor and not the Bishop himself he might sue there Vide Hob. 87. Conusans of Pleas granted to be holden before the Steward of the Grantee licet the Grantee fuerit pars Anonymus AN Attachment was prayed against one who being arrested upon a Latitat gave a Warrant of Attorney to Confess a Judgment and presently after snatched it out of his hand to whom it was delivered and tore off the Seal And the Court seemed to incline in regard it was to Confess a Judgment in this Court that it was a Contempt upon which an Attachment might be granted Anonymus A Prohibition was prayed to stay a Suit in the Court Christian for Tythes upon the suggestion of a Modus which was alledged in this manner That the Proprietors and Occupiers of such a Mannor or any parcel thereof should pay a Groat to the Parson for Herbage Tythes The Court held his this could not be for if a man had but two or three Foot of Ground in the Mannor he should pay a Groat but it ought to have been laid That the Proprietors and Occupiers of such a Mannor for themselves and their Farmers had paid Four pence Twisleton versus Hobbs ACtion for these Words You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds The Iury found the Defendant Not Guilty as to the first Words and resolved the last Words were not Actionable if not being laid that he knew of the Forgery Sir Thomas Griesley's Case INformation against him for stopping the High-way the word was Obstupabat It was proved in Evidence that he plowed it up and Resolved it did well maintain the Information Anonymus IN Debt If
the Defendant wage his Law the Oath of the Eleven which are Sworn de credulitate may be dispensed with by the Plaintiffs assent Vid. Mag. Charta c. 28. Note It was Adjudged in the King's Bench 19 Car. II. That if a Prisoner escape by the permission of the Sheriff yet he may be taken by the party at whose Suit he was condemned for it may be the Sheriff is Insufficient and it is no reason that his own Act should damnifie the Plaintiff Vide Hob. 202. Termino Sancti Hillarij Anno 20 21 Car. II. In Banco Regis Barnes versus Bruddel ACtion for these Words alledged to be spoken of the Plaintiff viz. She was with Child by J. S. whereof she Miscarried and concludes That by reason thereof she was so brought into her Fathers displeasure that he turned her out of Doors and that she was brought within the Penalty of the Statute of 18 Eliz. And in Maintenance of this Action a Case was cited out of Roll's 1st Part 35. inter Meadows Boyneham an Action was brought for calling of one Whore Per quod consortium amisit Vicin ' suorum and held it would lye And in Anne Davie's Case 4 Co. 17. it is held That since the Statute of the 18 Eliz. cap. 3. to say One had a Bastard would bear an Action But notwithstanding the Opinion of the Court was That such an Action would not lye unless a special Damage had been alledged as to say She had lost her Marriage as in Anne Davies's Case and the Reason upon the Statute alledged in the Case was said by Twisden to be of my Lord Coke's putting in for Iustice Jones affirmed to him there was nothing said thereof in the Case Anonymus IF a Tradesman contract Debts and after gives over Trading he may be afterwards a Bankrupt within the Statute in respect of the Debts contracted before And so it was said to be Ruled in Sir Job Harvies Case Anonymus A Warren may pay Tythes by Custom So of Doves in a Dove-house or Fish in a River Note It was said by Twisden That if a Libel be in the Ecclesiastical Court for a thing whereof they have cognisance altho' the party intitles himself to it by Custom no Prohibition lies Anonymus A Prohibition was prayed for that they Cited him to answer Articles in the Ecclesiastical Court and did not deliver a Copy of the Articles and it was granted quousque they should deliver the Copy But the Prohibition which was taken out was absolute which the Court being informed of they did not think fit to grant a Consultation but to discharge that Prohibition by a Supersedeas Whereupon they proceeded and Excommunicated the party for default of Answering Who again moved the Court for a Prohibition and one was granted with a Mandamus in it to absolve him if it were for not Answering before they gave him a Copy of the Articles Bains Biggersdale ERror to Reverse a Judgment in an Action of Debt upon a Bond in Rippon Court because it was entred upon the Record Assid ' damna ultra misas custagia ad 10 l and doth not say Occasione detentionis debiti or Occasione praedicta and the Iudgment was Quod recuperet damna praedicta and doth not say Per Juratores assessa Yet notwithstanding the Judgment was affirmed Billingham Vavasor ERror to Reverse a Judgment in Debt in the Court of York Assigned First In the Variance between the Count and Plaint for the Plaint was Entred Ad hanc Curiam venit queritur de Placito deb ' super demand ' 14 l and the Count was for 12 l but it was Answered That the certainty of the Sum needed not to be expressed in the Plaint and so Surplusage But otherwise it is of a Variance between the Original and the Count for the Writ must comprehend the certainty of the Debt and 2 Cro. 311. was cited where Debt was brought in the Common Bench for 40 s and after the Return of the Pluries Capias the Entry was Quod Querens obtulit se in plito deb ' 40 l and assigned for Error and disallowed But to that it was said That that was but a Misprision in the Entry of a Continuance which had a former Record to warrant it And here tho' the certainty of the Sum need not to have been expressed Vid. 3 Cro. 619. yet when it is the Plaint must not vary from it Et adjornatur Bourne versus Mason al' IN an Assumpsit the Plaintiff declares That whereas one Parrie was indebted to the Plaintiff and Defendants in two several Sums of Mony and that a Stranger was indebted in another Sum to Parrie that there being a Communication between them the Defendants in Consideration that Parrie would permit them to sue in his Name the Stranger for the Sum due to him they promised they would pay the Sum which Parrie owed to the Plaintiff and alledged that Parrie permitted them to Sue and that they Recovered After Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff could not bring this Action for he was a Stranger to the Consideration But in maintenance thereof a Judgment was cited in 1658. between Sprat and Agar Vid. 3 Cro. 619. in the Kings-Bench where one promised to the Father in Consideration that he would give his Daughter in Marriage with his Son he would settle so much Land After the Marriage the Son brought the Action and it was Adjudged maintainable And another Case was cited of a Promise to a Physician That if he did such a Cure he would give such a Sum of Mony to himself and another to his Daughter and it was Resolved the Daughter might bring an Assumpsit Which Cases the Court Agreed For in the one Case the parties that brought the Assumpsit did the Meritorious act tho' the Promise was made to another and in the other Case the nearness of the relation gives the Daughter the benefit of the consideration performed by her Father but here the Plaintiff did nothing of trouble to himself or benefit to the Defendant but is a mere Stranger to the Consideration wherefore it was adjudged quod nihil capiat per billam Herbert versus Merit A Prohibition was prayed to the Ecclesiastical Court for that the Defendant Libelled against the Plaintiff there for calling of her Impudent Whore which was said to be only a word of Passion and the later Opinions have been that unless some Act of Fornication were expressed that Prohibitions should be granted But the Court denied it in this case it being an offence of a Spiritual Cognizance and Eaton and Ailoffes Case 1 Cro. 78. and Pewes Case 329 were cited The Sheriff may Sell Goods he takes in Execution by a Fieri facias at any Rates if the Defendant denies to pay the Money Nota No Action of Debt lies against the Sheriff when the Party escapes who is taken upon a
existens liberum tenementum ipsius Janae manu forti ingressi sunt c. Exception was taken to it because it was not adtunc existens liberum tenementum ipsius Janae To which it was Answered That altho' in an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with Force because upon the finding of it a Restitution is to be awarded and where 't is generally existens liberum tenementum it may be referred as well to the time of the Indictment as to the Entry yet here 't is not material because no Restitution is to be awarded but the Malefactors being convicted by the View of the Iustices are to be Fined and Imprisoned And the President in Mr. Dalton's Book of Justice of the Peace fo 356. makes no mention of whose Freehold at all But however here existens liberum tenementum shall be referred to the Complainant tho' there be not adtunc and of that Opinion were the Court But Twisden was of Opinion that it was not necessary to be alledged in this Case at all Postea Sir Andrew Henley versus Dr. Burstall IN an Action upon the Case the Plaintiff declared That he being a Justice of Peace the Defendant had Indicted him for rescuing of a Vagabond out of the Constables hands who brought him before him so that the Law could not be executed against him It was said To Indict a man for such a Crime in the Execution of his Office was Actionable and it has been often Resolved That an Action would lye for Indicting a man of Barretry and in the Book of Assize 13. for Indicting one for Trespass And to this the Court did incline but they would further Advise Postea The King versus Ring ERror to Reverse a Judgment in an Indictment of Forgery against Ring upon the Statute of 5 Eliz. cap. 4. for that he Scienter subdole falsò fabricavit quoddam falsum factum scriptum Indentatum Barganiae venditionis which was said to be Inrolled per quod Harrison Keymer Henry Keymer did sell to J.S. such Lands and then sets forth the Indenture verbatim quod postea praedict ' Ring praedict ' Chartam esse falsam contrafactam vi armis pronunciavit publicavit and this was ea intentione ad perturbandum statum titulum interesse of Harrison and Henry Keymer and their Heirs The first Error assigned was That the Indictment was for Forging of a Deed of Bargain and Sale and the Indentures set forth were a Lease and Release Also it did not appear in what Court it was Inrolled and it must be Inrolled at one of the Four Courts at Westminster or before the Justices of the Peace at the Sessions to be a Bargain and Sale and whereas the Indictment is for Forgery of a Deed per quod Harrison and Henry Keymer did sell only one of them was party to the Deed set forth And it ought to have been in quo continetur that they did sell and not They did sell whereas the Deed was Forged which as was said is oppositum in objecto And where it is that Sciens praedictam Chartam esse falsam vi Armis pronunciavit publicavit it was said it ought to have been Vi armis praedictam Chartam pronunciavit publicavit And for this Vauxes Case in 4 Co. was cited where it is Nich. nesciens praedictum potum cum veneno fore intoxicatum sed fidem adhibens dictae persuasioni dicti W. recepit bibit and because it was not praedictum venenum recepit bibit it was held insufficient for Indictments must have precise certainty fo 44. Another Exception was That this Forgery was said to be ea intentione ad perturbandum statum titulum interesse of them and their Heirs and it did not appear that they had a Freehold and the punishment inflicted by the Statute is more severe when the Forgery is to disturb the Freehold than when it only concerns a Chattel Also it ought to appear in whom the Freehold was at the time of the Forgery as an Indictment of Forcible Entry upon the Statute of 8 H. 6. must express in whom the Freehold was at the time of the Force Et Adjornatur Anonymus UPon Process against one the Sheriff returned a Non est inventus and an Affidavit was made That the Defendant was one of the Sheriffs Bailiffs and the Sheriff was amerced Anonymus IN Trover and Conversion against Baron and Feme the Plaintiff declared Quod ad usum proprium converterunt which was naught because it must only be ad usum of the Husband and yet it may be converterunt if she were present yet whatever she doth is the act of her Husband 1 Cro. Sir Andrew Henley and Dr. Burstall THe Case was move◠again and spoken to in Arrest of Judgment That no Action would lye for proceeding against a man by Indictment and it would discourage all legal Prosecutions of Offences and 4 Co. 14 b. was cited where it is resolved That no Action lies for Exhibiting of Articles to a Justice of the Peace against one tho' the matter he false nor for preferring a Scandalous Bill in the Star Chamber concerning things whereof the Court had Iurisdiction But an Action upon the Case or Conspiracy lies where Life or Member are brought in jeopardy by a malicious Indictment But notwithstanding the Court Resolved That the Plaintiff should have Judgment Tho' 't was further alledged That there was no Issue joyned for in the Pleading and Ioyning of the Issue the Defendants Christian Name was mistaken but the Court would amend that it being rightly named before in the Record Ante. The King and Serjent AN Indictment of Forcible Entry and Detainer was preferred against Serjent and the Iury found as to the Detainer with Force Billa vera but as to the Entry Ignoramus And it was moved to quash this Indictment because they ought to have found all or none and of that Opinion was the Court Ante. Rumsey and Rawson THe Case was moved again by Mr. Solicitor That the Plaintiff having Intituled the Parson to Common for 200 Sheep levant and couchant and that these Beasts were levant and couchant and that he put them in by the Licence of the Parson He ought to have shewn That the Licence was by Deed being to take a Profit in alieno solo and the Statute which gives remedy after Verdict when he doth not say Hic in Curia prolat ' doth not aid this And 't is necessary to plead a thing by Deed whose nature requires it But to this it was Answered by Jones 2 Cro. 424 That a Parol Licence was sufficient in this Case being only to take the Profit unica vice there passing no Estate in it And the Plantiff had Iudgment Pomfret versus Ricroft IN Covenant the Plaintiff declares That the Defendant demised unto him a certain Messuage excepting a piece
the Plaintiff may declare against him by Bill and after that the proceedings upon the Latitat cease Note By the Custom of London Hob. 86. 2 Cro. 667. the Debtor may be Arrested before the Money is due to make him find Sureties It was also moved That the Defendant might have Costs being put to the charge of motions to be discharged but the Court would grant none it being but for taking out of the Process of the Court. Stones Case THe Case being moved again The Court absente Moreton dubitante Rainsford granted a Writ of Priviledge altho ' he were obliged by his Tenure to be the Lords Reeve for the Priviledge is presumed more Antient than the Creation of the Tenure or at least shall be preferred in as much as it concerns the Administration of Iustice And Keeling said An Attorney could not be amerced for not doing Suit to his Lords Court at such time as his attendance is required at Westminster Ante. Sir Robert Cotton versus Daintry IN Trover and Conversion for Goods and Money assigned by Commissioners of Bankrupt upon Not guilty pleaded the Quemon of Fact before the Jury was Whether Sir A. B. whose the Goods were was a Bankrupt The Plaintiff proved That he had Silk and other Merchandise in his Warehouse to a very great value and that upon the Credit of them he took up divers Sums of Money and afterwards sold them but could not prove that they were brought in after the Debts contracted or that he had Exported any thing at any time after or a good while before To this the Court delivered their Opinions That the selling of such Merchandise if they were but the Effects of his former Trading for he had béen a Turkey Merchant which he could not put off immediately upon his ceasing to Trade could not make him a Trader for the Statute only extends to those that Live by Buying and Selling. It was also proved That he had a 16th part in a Coalship which at present Traded to Newcastle but brought no present profit to the Owners she being much in Debt for Repairs It was said to be resolved in one Crashaws Case That the having a part in a Ship did not make a man a Trader but that was a Merchant Ship which the Owners let out to Fraight but the Owners Fraighted this Ship themselves and were to have an account of profit and loss and that if an Owner refused to Fraight he was Compellable But in regard it could not be proved that Sir A. B. had Fraighted or that he had received any account of profit Keeling and Twisden were of Opinion that it did not make him a Trader Rainsford and Moreton doubted Wherefore it was offered the Plaintiffs Councel to have found it Specially but they declined it and the Jury found a general Verdict for the Plaintiff The day after motion was made for a new Tryal Affidavit being made that the Foreman of the Jury was Brother in Law to one of the Creditors of Sir A. B. The Court was also informed that the Plaintiff after the Verdict had paid the Jury 4 l a man whereas the Rule of Court is that they coming but out of Hartfordshire should have but 20 s a man Moreton and Rainsford held neither of these Reasons sufficient For the first it was their own Laches that they did not challenge upon it For the other they thought the breach of the Rules of Court ought to be punished but did not think fit to set aside the Verdict for it Twisden for the last treason held a new Tryal was to be granted and that it was fit to be made an Example to other Juries For if the Parties may give what they will it is to be presumed the ability of one or other will much incline the Jury to find for him from whom they may expect the greatest reward Keeling held both reasons sufficient for a new Tryal which could not be in regard the Court was divided whereupon Iudgment was entred for the Plaintiff and Execution taken out and a Writ of Error was brought which was sealed about an hour before Execution executed Whereupon it was moved That the Sheriff might bring the Money into the Court for that the Writ of Error was a Supersedeas for though the Sheriff shall not be in Contempt if he makes Execution after the Writ if no Supersedeas be Sued out for that he had no notice yet the Writ of Error immediately upon the sealing forecloses the Court so that the Execution made after is to be undone of which Opinion was the Court and Ordered the Money to be brought in and not delivered to the Plaintiff Mr. Justice Moreton's Case HE brought Debt as Executor upon the 2d of Edw. 6. for not setting forth of Tythes due to the Testator Vpon non debet pleaded and a Verdict for him it was moved in Arrest of Judgment That this being a forfeiture given by the Statute for a Tort done to the Testator it could not be brought by the Executor To which it was answered That this Action was maintainable within the equity of the Statute of the 4th of Edw. 3. that gives the Executor Trespass de bonis asportatis in vita testatoris So an Ejectione firmae lies upon an Ejectment done to the Testator and Trover and Conversion where the Conversion was in the time of the Testator 1 Cro. adjudged that an Executor may bring an Action upon the Case against the Sheriff for an Escape upon Mesne Process suffered in his Testators life time And the Court were clear of Opinion for the Plaintiff and said it had béen formerly resolved so in the Exchequer Chamber The Lady Wortley versus Holt. A Writ of Error was brought to Reverse a Judgment given in Dower in the Common-Pleas which being affirmed in this Court a Writ of Error was brought returnable in Parliament which was discontinued by the Prorogation of the Parliament Another Writ of Error was brought Teste the last day of the Session of Parliament viz. 1 March Returnable 19 November the day to which it was Prorogued The Court resolved That though the first Writ of Error was not discontinued by any Act of the Party yet this second should be no Superseas First It was doubted whether this Writ of Error bearing Teste the last day of the Session was not determined by the Prorogation And it was held clearly That A Writ of Error returnable ad proximum Parliamentum could not be good But here the Parliament was Prorogued to a day certain But however all the Court held That in regard of the length of time in the Return it should be no Supersedeas And Twisden cited a Case between Limmerie and Limmerie where a Writ of Error was brought Teste 28 Nov. Returnable 28 Nov. proxime sequent ' in Parliament ' and resolved to be no Supersedeas 2 Cro. 341. by reason of the length of the Return Anonymus AN Information was exhibited against A.
if it were Repaired be it by any Body the Plaintiff hath no Damage nor cause of Action But Twisden doubted and afterwards the parties waived their Demurrer and went to Issue Anonymus AN Information was brought upon the Statute of Usury for taking the 30th of May in the 20th year of the King 42 s pro deferendo 25 l for three Quarters of a year viz. from the 30th of August Anno 19. Vpon Not Guilty pleaded it was found for the King and moved in Arrest of Judgment that this was not within the Statute which extends only where there is an Usurious Contract in the beginning and there it makes the Security void Or if there be an Agreement after the Money lent for Forbearance upon Consideration of paying more than the Statute allows for Interest which is punishable in an Indictment or Information but the Money is not lost But in this case the time of Forbearance was past and the party might give what he pleased in recompence for it there being no precedent Agreement to enforce him to it Sed non allocatur For the Court said They would expound the Statute strictly and if liberty were allowed in this case the Brokers might oppress the People exceedingly by detaining the Pawn unless the party would give them what they would please to demand for the time after failure of payment Wingate and Stanton the Bail of William Stanton IT was Resolved That where a Scire facias goes against the Bail in this Court an two Nichils are Returned and Judgment is had thereupon no Writ of Error can be brought in the Exchequer Chamber but in the Parliament only Also after such a Return it cannot be Assigned for Error that there was no Capias awarded against the Principal But in that case the Bail is relievable only by Audita querela But if the Sheriff Returns a Scire feci they may plead it Fitz. N.B. 104. I. Nota A man cannot Release a Debt by his Will The King versus Saunders SAunders was Convicted before two Justices upon the Statute of 32 H. 8. cap. 6. for carrying of a Gun Which being removed by Certiorari was quashed because it was coram nobis Justiciariis Domini Regis ad pacem suam conservand ' wanting the word assignatis Anonymus AN Indictment was quashed because it was Justiciarii ad pacem conservand ' assign ' and not ad pacem Domini Regis neither would ad pacem publicam serve And for another Reason because it was ad Sessionem in Com' tent ' and not pro Com' But if it were ad Sessionem in a Borough Incorporated it were good tho' it were not pro Burgo Maleverer and Redshaw DEbt upon a Sheriffs Bond The Defendant pleads that there was an Attachment issued out of Chancery against him Returnable Octab ' Sanctae Trin ' and the Condition of this Bond was that he should appear Crast Sanctae Trin. and so he pleads the Statute of 23 H. 6. against it for that it was taken for Easiamento favore The Plaintiff Replies That the Writ was Returnable Crastino Sanctae Trin. And Traverses That the Bond was taken for ease and favour To which the Defendant demurs Vid. 11 Co. 10. a. supposing that he should have Traversed that the Writ was Returnable Octab. Sanctae Trin. which is the Matter of the Defendants Bar and the other is but the consequence or Conclusion Et Adjornatur Gregory versus Eades ERror to Reverse a Judgment given in an Inferiour Court where an Assumpsit was brought and the Plaintiff declared upon three several Promises and the Jury found two for him and the other non Assumpsit And Judgment was given for the two that he should recover but no Judgment for the third that he should be amerced pro falso clamore or that the Defendant eat inde sine die And for this Cause Error was assigned But Powys Argued for the Defendant in the Writ of Error that the Judgment should be affirmed as to the Two Promises for which it was perfect and cited Miles and Jacob's Case in Hob. 6. and 2 Cro. 343. where an Action was brought for Words declared to be spoken at several times and several Damages given and Judgment and a Writ of Error brought and assigned for Error that the Words spoken at one of the times were not Actionable which tho' they were not yet the Judgment was Reversed quoad them only But the Court said That it was not like this Case for here the Judgment was altogether Imperfect and so were inclined to Reverse it but gave further time Ante. Anonymus IN Replevin the Defendant avows for Rent Arrear Vpon non concessit pleaded the Jury find for the Avowant The New Statute says That the Defendant may pray that the Jury should enquire what Rent is arrear and that he shall have Judgment for so much as they find Now the Court was moved that this might be supplied by a Writ of Enquiry as if they omit to enquire of the Four Points in a Quare Impedit it may be so supplied 10 Co. Cheney's Case But the Court held this could not be so for the Defendant loseth the advantage of it by not praying of it As where a Tales is granted if it be not Entred ad requisitionem Querentis or Defendentis it is not good wherefore he was bid to take his Judgment quod returnum habeat averiorum at the Common Law Anonymus FOur Executors two of them are under Age quaere Whether they shall all sue by Attorney Note An Infant may bring an Action against his Guardian which pleads any thing to his prejudice Not so of an Attorney Wells versus Wells IN an Assumpsit the Plaintiff declares as Administratix to her Husband who in his Life-time agreed with the Defendant That they should be Partners in making of Bricks for J. S. and after his Death the Defendant promised the Plaintiff in Consideration That she had promised him to relinquish her Interest in the Partnership that he would pay her so much Money as her Husband had been out about the Brick And upon non Assumpsit pleaded it was found for the Plaintiff It was moved in Arrest of Judgment that here was no Consideration for the Plaintiff had no interest in the Partnership which being joynt must survive to the Defendant and she ought to have shewn how she relinquished her Interest But the Court held it a good Consideration for it may be there were Covenants that there should be no Survivorship and the Court will intend after a Verdict that there were which tho' they do not sever the joynt Interest in Law yet they give Remedy in Equity which to debar her self of is a good Consideration and being laid by way of Reciprocal Promise there needs no averment of performance Termino Sancti Michaelis Anno 21 Car. II. In Banco Regis William Bate's Case A Prohibition was prayed to the Commissary of the Archdeacon of Richmond to stay a Suit
Award After nullum fecere Arbitrium pleaded The Plaintiff replies and sets forth That they submitted to the Award of 4 so that they made it by the 16th of Nov. and signified it under the Hands and Seals of two of them and then alledges the Award under two of their Seals to which the Defendant demurred conceiving the Award to be void because the submission was to four But the Court gave Iudgment for the Plaintiff according to the Cases in 2 Cro. 276. and 400. Anonymus IN an Indictment for the using of a Trade contrary to the Statute of 5 Eliz. It was said That to keep a Shop within a Country Village was not within the Statute and it were very inconvenient that the Inhabitants must go to some great Town upon every occasion And it was also Juratores dicunt super Sacramentum suum and not adtunc ibidem jurati If a Statute appoints an Indictment to be taken at the Quarter Sessions the Caption must be Entred ad Quaterial ' Session ' c. for ad General ' Session ' pacis will not serve Jackson versus Gabree JAckson took out a Capias ad satisfaciend ' against Gabree and his Wife the Gaoler lets the Husband escape The Court was moved that the Wife might be discharged alledging that the Husband took no care of her but let her lie there in a very necessitous Condition They were doubtful what to do in it at the first motion but did afterwards resolve That unless the Plaintiff would get the Husband taken again as he might do they would discharge the Wife and they said the Escape of the Husband was the Escape of the Wife Anonymus AN Infant brought an Assumpsit by his Guardian and declared That whereas the Defendant entred into his Close and cut his Grass that in consideration that he would permit him to make it Hay and carry it away he promised to give him six pounds for it and he also declared for six pounds Debt more that he ought him Vpon this Declaration the Defendant demurred supposing it to be no Consideration for the Infant was not bound by his permission but might Sue him notwithstanding and then the promise to pay six pounds Debt was not good because not declared how indebted But the Court gave Iudgment for the Plaintiff Sir Henry Frederick Thynne versus Sir James Thynne PAsch 13 Car. 2. B.R. Rot. 448. Vpon a Special Issue directed out of Chancery the Case was thus One was seized in Tayl of the Mannor of B. and of two Closes which in reality were not part but reputed part thereof and suffered a Recovery only of the Mannor with the Appurtenances and whether the Recovery was a Bar as to the two Closes was the Question And in the 16 year of this King it was resolved by all the Court and Hide Chief Justice delivered the Opinion of the Court That the Lands reputed parcel of the Mannor should pass by reason of the Deed of Covenants to lead the uses which explained the intent Dier 223. 1 Cro. Sir George Symond's Case Hob. 177. Dier 376. Long 5 to E. 4. 303. 6 Co. Sir Moyle Fynch's Case Modern Rep. 250. Termino Sancti Hillarij Anno 21 22 Car. II. In Banco Regis Wilbraham versus Snow IN an Action of Trover the Plaintiff declares That he was Owner and possessed of certain Goods and sets them forth particularly and that they came to the Defendants Hands who converted them c. The Defendant pleaded Not guilty and the Jury find this Special Verdict That the Plaintiff was Sheriff and that he took the Goods into his Possession by force of a Fieri facias and that the Defendant who was also Defendant in the Execution took them away And then they demand the Iudgment of the Court if the Plaintiff could maintain this Action It was said that he might Because he was answerable over to the Plaintiff in the Execution at whose Suit he took them and could not return that they were taken away And if he returns that he hath taken Goods sufficient and after looses them he is bound to answer the value as returned A Bailée of Goods shall bring Trespass quare bona sua cepit And Rolls 5. a Carrier from whom Goods are taken may bring Trover But it was argued on the other side That the property is in the Defendant notwithstanding the seizure Dier 99. a. and Yelverton 44. And the Sheriff had but an Authority in Law to Sell as Commissioners of Bankrupt have of the Estate of the Bankrupt per 13 Eliz. 7. or Executors upon a Devise that they shall Sell Land c. but Trespass he might bring because of the Possession but Trover cannot be maintained without property But the Court held that the Action was maintainable And that the reason was the same as in the Case of the Carrier and also held that the Defendants Property ceased by the Seisure And also that if a Man becomes a Bankrupt after that the Commissioners have granted over his Goods he cannot meddle with them 1 Cro. 106. So by the Opinion of Keeling Rainsford and Moreton haesitante Twisden Iudgment was given for the Plaintiff Gavell and his Wife versus Burket AN Action was brought for these Words spoken of the Wife You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen and Declared of a Special Damage The Jury gave a Special Verdict and found the Words spoken but not the Damage as the Plaintiff had Declared Now whether the Words were Actionable of themselves was the Question And it was Agreed that no Action would lye for calling one Bawd or Pimp 1 Cro. 286 Dimock's Case Rolls 44. pl. 10. But to say one keeps a Bawdy-house it will lye 27 H. 8. 14. an Indictment lies for Keeping of a Bawdy-House because it is a Common Nusance but here the subsequent words expound in what sense the former words should be taken that is To bring Gentlewomen to Gentlemen for Bawdry which is as much as keeping a Bawdy-house and 1 Cro. was cited where Judgment was given for these words Thou keepest a House worse than a Bawdy-house and keepest a Whore in thy House And in 3 H. 7. it is said that Constables ought to apprehend Bawds But the Court inclined that the Action would not lye for a Bawd was not punishable in our Law unless for Keeping of a Bawdy-House it being a Crime of Ecclesiastical Conusans Sed Adjornatur Thomlinson versus Hunter TRespass Quare clausum fregit arbores succidit ad valentiam decem librarum 5 Co. Player's Case To which the Defendant Demurred generally The Plaintiff prayed Judgment for Breaking of his Close but as to the other the Declaration was Insufficient because not expressed what kind of Trees Anonymus A Writ of Error was brought upon a Judgment given in Ireland It was held that a Day ought to be given by Rule of Court to the Plaintiff to assign his Errors or else to
Berwick is part of Scotland and bound by our Acts of Parliament because Conquered in Edward the Fourth's time But the course is to name it expresly because 't is out of the Realm and not like to Wales where the Trials in such Cases shall be out of the prochein County 19 Hen. 6.12 for that is a Member of England Vid. 7 Co. Calvin's Case But two Presidents being shewn where the Trials were as it is here and one of them affirmed in a Writ of Error also the Case in Rolls tit Trial 597. A Writ of Error was brought to Reverse a Judgment given in Ireland and an Error in Fact was assigned and tryed in a County next to Ireland The Court Ruled the Venire to be well awarded Twisden said The Reason why an Ejectment would not lye of Lands in Jamaica or any of the Kings foreign Territories was Because the Courts here could not command them to do Execution there for they have no Sheriffs This Case having remained two or three Terms since the Postea was Returned and no Continuances Entred one of the Plaintiffs died and it was doubted whether Judgment could be now Entred And the Secondary said That they did Enter up Judgments two Terms after the Day in Bank as at the Day in Bank without any Continuances And of this Matter the Court would be Advised Postea Anonymus IF one upon Complaint to two Justices 1 Cro. Prigeon's Case be Ordered to keep a Bastard Child and this upon an Appeal to the Sessions is revoked that Person is absolutely discharged and unless a Father can be found the Court said the Justices of Peace must keep it themselves The Earl of Peterborough versus Sir John Mordant IN an Action upon the Statute de Scandalis Magnatum for speaking these Words of the Plaintiff I do not know but my Lord of Peterborough sent Gybbs to take my Purse After Judgment by Default and a Writ of Enquiry of Damages returned it was moved in Arrest of Judgment that no Action would lye for these Words First He doth not positively charge him with it Again The Words do not import a Felonious taking Hob. 326. Mason's Case I charge him with Felony for taking Money out of the Pocket of H. Stacie adjudged not Actionable And in 1 Cro. 312. Thou didst set upon me and take my Purse go before a Justice and I will charge you with Felony It was held there that no Action would lye But the Court gave Iudgment for the Plaintiff As to the first it was held as much as a direct Affirmation for otherwise one might slander another and by such a slight Evasion escape an Action Twisden said He knew these Words adjudged Actionable He hides himself for Debt and for ought I know is a Bankrupt And for the Words the Court said Three was difference between an Action grounded upon the Statute de Scandalis Magnatum and a Common Action of Slander The Chief Justice said The Words in the one case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of such Great Persons may be preserved More 55. The Earl of Leicester had Judgment for these words My Lord of Leicester is a Cruel Man an Oppressor and an Enemy to Reformation Leon. 33. The Lord Abergavenny sued for these words My Lord Abergavenny sent for us and put some of us into the Stocks some to the Coal-house and some to the Prison in his House called Little Ease And Recovered Vide Crompton's Jurisdiction of Courts 13. and Leonard 336. Anonymus AN Indictment was Compertum fuit per Sacramentum duodecim proborum legalium hominum c. and quashed because it was not jurat ' onerat ' And the Clerk of the Crown-Office Informed the Court that that was always the Course also it must be Adtunc ibidem jurat ' where the Caption is recited to be taken Williams versus Gwyn ERror to Reverse a Judgment given in Dower in the Grand Sessions in Wales It appeared by the Record that the Tenant appeared upon the Summons Returned and Day was given over adtunc venit per Attornatum nihil dicit in barram Whereupon Consideratum est quod tertia pars terr' tenemen ' capiatur in man ' Domini Regis and Day was given ad audiend ' Judicium at which Day Iudgment was given quod recuperet It was Assigned for Error that the Court here had awarded a Petit Cape and yet the Defendant appeared whereas they should have given Iudgment upon the Nient dedire for a Petit Cape is always upon default after appearance and only to answer the Default The Grand Cape is before appearance to answer the Default and the Demand Vet. N. B. 97. So it was said the Court had erred in Judgment and tho' it were in advantage of the Tenant by the delay yet not being by his Prier as an Essoign granted where none ought to be is not Error but the act of the Court as if they should Enter a Misericordia for a Capiatur it were Erroneous But the Court answered That the reason of that was Because it is parcel of the Judgment and the King should lose his Fine But this was only the awarding of Process more than should be and in advantage of the Tenant wherefore they resolved that they could not Reverse it for Error And Twisden said Admitting it were Erroneous they might then give Iudgment in this Court Anonymus A Prohibition was prayed to the Arches for Libelling against one there for calling Whore and Baud because they were but words of Heat also the Party lived in the Diocess of London so against 23 H. 8. to Cite him there But the Court would not grant it for though formerly there hath been divers Opinions touching these words yet Twisden said ever since 8 Car. the Law hath been taken that they may punish such words pro reformatione morum And for the other it appeared Sentence was given and that it was too late to pray a Prohibition when it appears they have Iurisdiction of the Cause as the Superiour Court and he that would have the benefit of the Statute against citing out of the Diocess must come before Sentence 1 Cro. Anonymus FInch Solicitor moved for a Prohibition to the Ecclesiastical Court to stay a Suit for Tythes of Hopps commenced there by the Vicar upon a Suggestion that they had paid for all Tythe Hopps so much an Acre to the Parson time out of mind But it was denied for there could be no such Composition time out of mind Hopps not being known in England until Queen Elizabeths time for then they were first brought out of Holland though Beer is mentioned in a Statute in Henry the Fourth's time But it was said by the Court That perhaps the Vicaridge was Endowed time out of mind of the small Tythes of which nature Hopps were Then the prescription of paying of Modus to
it would be yet here there was a precedent act of the Plaintiffs necessary viz. To choose an Arbitrator which he ought to have shewn before any Fault could be assigned in the Defendant in not bringing in of his Bill And to this the Court did not incline Sed Adjornatur Nota It was said Tho' every Innkeeper may detain an Horse until he is paid for his Meat yet he cannot sell him for that was good only by the Custom of London Anonymus A Custom was alledged in the City of Norwich That in regard they maintained a Common Key for the Unlading of such Goods as were brought up the River in Vessels to the said City that every Vessel passing through the same River by the said Key should pay a certain Sum. It was held a void Custom as to those Vessels which did not unlade at the said Key nor any other place in the City there being no benefit redounding to them from the Maintenance of the Key they only passing by and were bound for another place and therefore could have no Imposition upon them But if they had Received their Fraight at the said Key it might extend to them And Coleman said The last Session of Parliament there was Complaint made against the Governour of Gravesend who would have prescribed to have Two shillings and Six pence of every Boat that passed by the Fort there And it was held to be Vnreasonable Anonymus TRover and Conversion for a pair of Curtains and Vallence was held Insufficient for the uncertainty of what was meant by a Pair in this case Bernard versus Bernard ERror to Reverse a Judgment in the Court of Hull upon an Assumpsit where the Plaintiff declared upon two Promises the first was upon an Indebitatus infra Jurisdictionem Curiae for Money lent The Error assigned was That the Loan did not appear to be within the Jurisdiction but upon view of the Record it was adtunc ibidem The other Promise was That there being Communication between the Plaintiff and Defendant concerning a House which was said to be at Hull-Bridge which the Plaintiff sold him the Money being unpaid and the Defendant unable in Consideration that the Plaintiff would release to him the said Debt he Promised to deliver him up the Possession of the House by a certain Day Then he Avers That tho' he Released him yet the Defendant had not delivered him up the Possession licet saepius requisitus It was assigned for Error That the House was not expressed to be within the Jurisdiction for the performance of the Promise must be as well within the Jurisdiction as the Promise it self But it is not material tho' there be other foreign Circumstances in the Case as Assumpsit upon a Promise to Re-deliver an Horse at Hull which the Plaintiff lent the Defendant at Hull to Ride to Beverly This that Court had Conusans of tho' Beverly was out of the Jurisdiction And tho' the House were alledged to be at Hull-bridge that shall be intended a Vill by it self and no part of Hull And of that Opinion was Twisden but Keeling otherwise Another Error was assigned That there was no Request laid which ought to have been being a Collateral thing viz To deliver up Possession of an House Sed non allocatur For being to be done at a time certain there was no need of Request but if no time had been set he would have had time during his Life unless hastned by Request Another Error assigned was That the Style of Court was Placita coram Majore c. virture Literarum Patentium H. 6. yet the issuing out Process and filing Bail was Entred secund ' consuetud ' Cur ' And for this 1 Cro. 143. Long and Nethercote's Case was cited where the same Matter was held to be Error for the Court being Erected within time of Memory could have no Custom to warrant their proceedings Sed non allocatur For it is according to Law and the just Course of their Court. But Twisden said If it had been secund ' consuerud ' Cur ' de temps d'ont memorie ne court it had been Ist Girling versus Alders IN a Prohibition to the Court of the Honour of Eye the Case was One Contracted with another for divers parcels of Malt the Money to be paid for each parcel being under Forty Shillings and he levied divers Plaints thereupon in the said Court Wherefore the Court here granted a Prohibition because tho' they be several Contracts yet forasmuch as the Plaintiff might have joyned them all in one Action he ought so to have done and Sued here and not put the Defendant to an unnecessary Vexation no more than he can split an entire Debt into divers to give the Inferious Court Jurisdiction in fraudem Legis Heskett versus Lee. PAsch 21 Car. 2. Rot. 408. Error to Reverse a Common Recovery had in the County Palatine of Lancaster against an Infant The first Error was assigned in a Variance between the Writ and the Count the Writ was of Lands in Bikerstaffe and the Count was Bickerstaffe 5 Rep. 46. Isfeild for Iffeild but there the Court suffered it to be amended being the default of the Clerk Sed non allocatur quia idem sonant Another Error was assigned in the Entry of the Admission of the Guardian Which was thus Concess ' est per Cur ' quod Johannes Molineaux Armig ' sequarur pro Thoma Heskett Armig ' ut Guardian ' praedict ' Thomae in plito terrae versus Lee Whereas it was said it should have been ad comparendum defendendum and this is ad sequendum which is a Form proper only for the Demandant and so is the 2d Cor. 641. And the Reason why Infants are bound by Recoveries when Guardians are assigned them is Because if they suffer any Wrong they have an Action against the Guardian in whose default it was Whereas if the Infant should bring an Action in this Case and declare against Molineux That he was admitted as Guardian to defend for him if Issue were taken upon it by this Record the Tryal would be against him Again It is sequatur pro Thoma ut Guardians and ut is but similitudinary Another Error was assigned in the Entry of the Appearance which was praedict ' Thomas Heskett per praed ' Johannem Molineux qui specialiter admissus est per Cur ' ad sequend ' pro praedict ' Tho' venit in propria persona defendit jus suum Where it was said It must be taken that the Tenant appeared in Person and not the Guardian and a Recovery suffered by an Infant where he appears by Attorney or in proper Person is Erroneous Rolls 731. But notwithstanding these Errors the Court affirmed the Recovery For the Admission of the Guardian ad sequend ' is proper enough for it signifies no more than to follow the Cause And in many Cases the Tenant or Defendant doth Prosecute as in Voucher praying Tales carrying down Trials by Proviso
c. and in Replevin the Avowant is Actor and in Suffering of a Recovery the Tenant is the main Agent being to his use in no other be declared And it was an Error assigned in the Lord Newport and Mildmay's Case as appeareth by the Record yet it seems it was taken to be so plain as not fit to be insisted on Wherefore there is nothing of it in the Report of the Case 1 Cro. 224. yet there was all endeavour imaginable used to Reverse that Recovery and divers other Presidents there are of the same manner of Entry And if it can appear to the Court that there was a Guardian admitted the Form of the Entry shall not be so severely Examined as in the 4 Rep. 53. where there was no Entry of any Admission of the Guardian by the Court at all yet it appearing quod venit per Guardianum the Court would not Reverse the Judgment for Error And for the Book of the 2 Cro. 641. there were other Reasons which Reversed the Judgment and the Admission ad prosequendum was not mentioned until the Court upon the other Matters had Resolved the Reversal And the Books there cited do not at all prove it to be Error And ad sequend ' ur Guardianum is not at all amiss for Ut many times notes an Identity Seisitus ut de feodo makes Conusans ut Ballivus c. And for the Entry of the Appearance it may be taken that the Guardian came in proper Person and so it ought to be But if propria persona refers to the Infant he must have Reversed the Recovery during his Nonage And so Twisden saith it hath been resolved in this Court lately Vid. Roll's 1st Part 171 and 2d Part. 573. Anonymus SCroggs the King's Serjeant moved to have at Trial at Bar in an Indictment of Perjury and for some further Time urging that it was the King's Case The Chief Justice said The King was no otherwise concerned in it than in maintenance of the Common Justice of the Realm It was usually the Subjects Interest and His Prosecution and therefore must not deviate from the Course in Civil Causes and not to be resembled with Causes wherein the King is concerned in point of Interest Anonymus A Prohibition was prayed to stay a Suit for Tythes of Wood. The Plaintiff suggested That he had a House in the Parish and that the Wood was cut for Fuel burnt in his House But the Court said that this would not serve unless it were expressed that the House was for maintenance of Husbandry by reason of which the Parson had Uberiores Decimas Barrett versus Milward al. A Scire facias was awarded against the Defendants upon a Recognizance which they entred into as Bail for a Plaintiff in a Writ of Error that he should prosecute it with effect or pay the Money if the Judgment were affirmed They plead That he did prosecute it with effect and that the Judgment was not yet affirmed The Plaintiff Replied Protestando that they did not Prosecute with effect Pro placito that the Judgment was affirmed by the Justices of the Common Bench and Barons of the Coif Et hoc paratus est verificare per Recordum To which the Defendants Demurred generally Because it was not alledged That there were Six Justices and Barons present when the Judgment was affirmed For 27 Eliz. c. 8. which gives them Authority requires that there should be Six at the least Sed non allocatur For the Defendant should then have pleaded Nul tiel Record ' for if there were not Six their Proceedings were coram non Judice Nota If a Certiorari be not Returned so that an Alias be awarded the Return must be as upon the first Writ and the other must be Returned quod ante adventum istius brevis the Matter was certified Gybbons versus North. IN an Assumpsit the Plaintiff Declared That whereas at the Defendants Request he was bound with him in a Bond of 200 l he in Consideratione inde promised to save him harmless and obliged himself his Heirs and Executors in 200 l to the performance of it and the Money not being paid the Defendant did not save him harmless But per debitum legis processum he was forced to pay the Money The Defendant Demurred because he did not alledge That he did not pay him 200 l For obliging of himself in the penalty of 200 l to save him harmless He hath election either to save him harmless or pay 200 l But the Court gave Judgment for the Plaintiff for there is no Election in this case being no more than an ordinary Promise to Save harmless And this Action is brought upon the Plaintiffs Dampnification which is a Breach and he doth not demand the 200 l Also a Verbal Contract cannot create a Penalty to oblige the Heir Jordan versus Forett ERror to Reverse a Judgment given against an Executor in Debt in the Common Pleas where the Executor pleaded divers Judgments formerly obtained against him and the last he pleads thus That one Eliz. H. in eadem Curia implacitasset c. and Recovered in Trinity Term but expresses not in what Year and there upon a general Demurrer Iudgment was given for the Plaintiff and it was assigned for Error That this Incertainty in respect of Time was good at least upon a general Demurrer But the Court affirmed the Judgment For if such Pleading should be allowed it would be very inconvenient to the Plaintiff and very difficult to find out the Record and then how should he plead that it was kept on foot by Fraud or such like But if it had been ascertained when the Plea commenced tho' no time alledged when the Judgment was obtained yet that would have been good for the Continuances would have directed to the finding of it Twisden said That the Course in this Court was a in Scire facias upon a Judgment to say quod cum recuperasset without alledging any Time But in the Common Pleas they set forth the Term. Putt versus Vincent IN Debt for 3900 l the Plaintiff declared upon Articles of Agreement wherein Putt Covenanted to Convey certain Lands to one Nosworthy and there are also certain Covenants from Nosworthy to the Plaintiff and from the Defendant Vincent who after Imparlance pleads that Nosworthy sealed the Deed and is still alive To which the Plaintiff Demurred And it was alledged by Jones That this being after Imparlance could not be pleaded it being only in Abatement and that he Commences his Plea Actio non as if it were a Plea in Bar. And the Court inclined that it was insufficient for both Causes But then it was said It appears by the Deed to which Nosworthy was a party that the Plaintiff could not sue the Defendant alone and so of his own shewing he could not have Iudgment But it was answered That it did not appear that Nosworthy ever Sealed the Deed. Et Adjournatur Postra Gifford versus
TRin. 20 Car. 2. Rot. 719. A Custom that Lands should descend always to the Heirs Males viz To the Males in the Collateral Line excluding Females in the Lineal was held good Which it was said was allowed anciently in the Marches of Scotland in order to the Defence of the Realm which was there most to be looked to tho' it is said in Davis's Reports That the Custom of Gavelkind which was pretended in Ireland and Wales to divide only between Males was naught But the former Custom was adjudged good in this Court Hill 18 Car. 2. Rot. 718. Foot versus Berkly BErkly had Iudgment in an Ejectment in Communi Banco and Execution of his Damages and Costs Foot brings Error and the Judgment is affirmed Whereupon Berkly prays his Costs for his delay and charges but could not have them For no Costs were in such case at the Common Law and the Statute of 3 H. 7. cap. 10. gives them only where Error is brought in delay of Execution so 19 H. 7. cap. 20. And here tho' he had not Execution of the Term yet he had it of his Costs If one hath Iudgment in a Formedon in Remainder and before Execution the Tenant brings Error the Judgment is affirmed yet he shall pay no Costs because none were recoverable at first 1 Cro. Ante. Weyman versus Smith A Prohibition was prayed to the Mayor and Court of Bristol Suggesting that a Plaint was Entred there for 66 l and that the Cause of Action arose in London and not in Bristol and so out of their Iurisdiction Note An Affidavit was also made thereof and this is upon Westm cap. 35. and so is F.N.B. 45. Vnless the party pleading in Bar or Imparling admits the Iurisdiction of the Court 2 Inst Tarlour and Rous versus Parner AN Account brought by the Plaintiffs as Churchwardens against the Defendant the former Churchwarden for a Bell c. The Defendant pleads That it lacked mending and that by the Assent of the Parishioners it was delivered to a Bell Founder who kept it until he should be paid To which the Plaintiff Demurred For this Plea is no bar of the Account but a good Discharge before Auditors But it was said on the other side That the Matter pleaded shewed that the Defendant was never Accountable therefore it might be in Bar. The contrary whereof is Adjudged in the same Case in terminis 1 Rolls 121. between Methold and Wyn and so was the Opinion of the Court here But then it was alledged that the Declaration was not good for there were two Plaintiffs and yet it is quod reddat ei compotum and it is de bonis Ecclesiae whereas it should have been bonis Parochianorum For the first the Court said that it should be amended for it was the default of the Clerk But the other was doubtful For the Presidents were affirmed to be both ways but they rather inclined that the Declaration was not good for that cause Anonymus AN Indictment of Forcible Entry in unum Messuagium vel domum Mansional ' quaere if not uncertain and other Lands and Tenements tent ' ad voluntat ' Dom ' secundum consuetudinem Manerii and doth not express what Estate For which the Court held it ought to be quashed for the Statutes 8 H. 6. and R. 2. extend only to Freeholds and the Statute in King James's time to Leases for years and Copyholds And here tho' he saith at the Will of the Lord according to the Custom of the Mannor yet 't is not sufficient because he saith not by Copy of Court Roll. And it was Adjudged in 1653 in this Court that none of the Statutes extended to Tenants at Will Martyn versus Delboe IN an Assumpsit the Plaintiff Declared That he was a Merchant and the Defendant being also a Merchant was Indebted to him in 1300 l And a Communication being had between them of this Debt the Defenant promised him in Consideration thereof That he should have Share to the Value of his said Debt in a Ship of the Defendants which was then bound for the Barbadoes and that upon the Return of the Ship he would give him a true Account and pay him his proportion And sets forth That the Ship did go the said Voyage and returned to London and that after the Defendant with some other Owners had made an account of the Merchandize returned in the said Ship which amounted to 9000 l and that the Plaintiffs Share thereof came to 1700 l which he had demanded of the Defendant and he refused to pay it c. To this the Defendant pleads the Statue of Limitations and the Plaintiff Demurred Alledging that this Action was grounded upon Merchants Accounts which were excepted out of the Statute Tho' if an Action be brought for a Debt upon an Account stated between Merchants the Statute is pleadable as was Adjudged in this Court last Hillary Term between Webber and Perit yet here there being no Account ever stated between the Plaintiff and Defendant it is directly within the Statute And of that Opinion were Keeling and Rainsford But Twisden inclined otherwise because the Plaintiff declares upon an Account stated and tho' between Strangers yet he bringing his Action upon it admits it Et Adjornatur Nota Every Parish of Common Right ought to Repair the High-ways and no Agreement with any person whatever can take off this Charge which the Law lays upon them Crispe and Jackson versus The Mayor and Commonalty of Berwick IN Covenant after Verdict for the Plaintiff it was moved in Arrest of Judgment that there was a Mis-Trial the Venire being awarded to an adjoyning County Which the Court after Hearing of Arguments in it Ruled it to be well enough but one of the Plaintiffs died before the Court had delivered their Opinions It is prayed notwithstanding that Judgment might be Entred there be no default in the Plaintiffs but a delay which came by the act of the Court and that it was within the Statute of this King That the death of the Party between Verdict and Judgment should not abate the Action and that it was in the discretion of the Court whether they would take notice of the Death in this case for the Defendant hath no Day in Court to plead there being no Continuances entred after the Return of the Postea 1 Leon. 187. Isley's Case Latches Rep. 92. And the Court were of Opinion that Judgment ought to be Entred and there being no Continuances it may be as if immediately upon the Return of the Postea Ante. Lion versus Carew THe Case was A Lease was made to two for 99 years if three Lives should so long live and this to commence after the end of a Lease for Life Reddend ' a certain yearly Rent and two Work-days in Harvest post principium inde reddend ' inde 3 l nom ' Harriotte post mortem of the Lessees or either of them and reddend ' two Capons at Christmass post
had a Scire facias against Noell and Iudgment thereupon Noell brings a Writ of Error and assigned it in this that the Plaintiff confessing the Plea of fully Administred ought to have béen barred And it was argued by Wynnington for the Plaintiff and Sympson for the Defendant Wynnington Where an Executor pleads falsely or deceitfully Iudgment is to be given against him as upon â—he unques Administer come Executor Iudgment shall be de bonis propriis But where he Pleads truly it is the Reason the Plaintiff should be barred and the Plaintiff confessing his Plea It is as strong as if found by a Jury or rather more for Verdicts may be false and therefore Attaints are provided and such express confession as here is is much stronger than an implied Confession sur Demurrer Indeed if upon plene Administravit Assetts are found for part of the Debt Iudgment shall be for the whole 8 Rep. 134. Shipley's Case Because the Plea was false But if an Executor should be liable to be Sued and have Iudgment given against him when he had fully administred it would put a great inconvenience upon him as to be put to charge to defend the Suit and to be in Misericordia And whereas it was objected That if the Plaintiff should be barred in such Case he would yet have no advantage by Commencing his Suit of having his Debt paid before other Debts in pari gradu he answered this inconvenience is not to be matched with that that the Executor should be liable to besides the Law will ever favour the Executor for if an Executor be Sued and the Plaintiff Nonsuit he shall have Costs but an Executor Plaintiff shall pay no Costs upon a Nonsuit 3 Cro. 503. vid. Hob. 83. Lawneys Case Also a Man may be presumed to know whether an Executor hath Assetts or no for he may consult the Inventory And for the Cases that might be objected as that of the Warrantia Chartoe against an Heir who Pleads Riens per descent or that the Plaintiff is not impleaded the Plaintiff may pray Iudgment presently F. N. B. 134. He Answered 't is true the Writ may be brought quia timet for he may be after impleaded in an Action wherein he cannot Vouch yet if he be after impleaded in a Praecipe he must Vouch and this is a line real and the Heir merely in loco patris whereas when an Executor hath fully Administred the Executorship is as it were determined And for the Case where Debt is brought against the Heir who Pleads riens per descent the Plaintiff may pray Iudgment presently to have Execution of Assetts as shall afterwards descend he said he knew no particular Authority where it was so done but if it be so as it is said in Shipleys Case yet not to be resembled to this Case for the Heir is charged as for his own Debt and the Action is in the Debet Detinet Com. 443. and if the Heir Pleads riens per discent and found against him the Iudgment is general not so so of an Executor so where the Iudgment is sur nihil dicit Moor 522. Dier 81. 344. 2 Rolls 67. Tit. Heir so where he confesses the Action but if an Executor after pleading Plene Administravit confess the Action the Iudgment shall be de bonis Testatoris Hob. 178. And for the Opinion in Shipleys Case 8 Rep. which is according to the Iudgment here he said it was obiter but he relied upon Cro. Dorchester and Webbs Case where that Opinion is denied and said there that all the Presidents are that the Plaintiff is in such case to be barred Rastals Entries 323 324. Sympson contra The nature of the Plea is to be considered it both not deny the Cause of Action but goes only to take away the present effect of it remoto impedimento resurgit Actio vel Executio 34 H. 6. 23. Prisot saith If an Executor Pleads ne unques Executor and found against him Iudgment is to be de bonis propriis But otherwise If he Pleads Plene Administravit for then be doth not put the Party from his Action for ever He said the Case of the Action of Debt against the Heir was the same for he is bound only by reason of the Land descended 1 Rolls 929. If an Executor Pleads Plene Administravit and the Plaintiff takes Issue and found against him he is to be barred for he as the Book saith hath waived his advantage he cited also the Book of the Office of Executors 3 Cro. 887. supposed to be written by Doderidge lib. 7. cap. 15. and relied pricipally upon Shipleys Case 8 Co. 134. which is cited and allowed in Hob. 199. And upon a President in this Court Trin. 13 Jac. Rot. 1104. between Perryman and Westwood where Iudgment was just as in this Case and Mich. after Rot. 206. Vpon Suggestion of Assets a Scire facias was taken out and Issue taken and tried at Guild-hall before my Lord Coke where Assetts were found for part and Iudgment to Recover so much and the residue if Assetts should come after which as to the latter Iudgment was somewhat further than the principal Case Keeling Rainsford and Moreton Held clearly that Iudgment ought to be affirmed chiefly for the great inconvenience it would be to one that had Commenced an Action and yet his Debt should have no preference before others of the same sort and many times the Testator leaves a great Estate in Bonds and Specialties which yet are no Assetts until the Money is paid Whereas the Case of the Heir is much stronger in regard of the improbability of his having Assetts in futoro In 16 H. 7. 10. it is said if an Executor Pleads Plene Administravit it is but a Temporal bar A Rent is granted in Fee provided that it shall cease during the minority of the Heir the Wife brings Dower the Heir being under Age she shall have Iudgment sed cesset Executio Vid. Hutton 128. the case reported without any such Opinion Twisden stuck much to the Authority of Dorchester and Webbs Case but at length consented that Iudgment should be affirmed Note The Iudgment was in Misericordia and the Court doubted at first whether it were not Erroneous for that Cause but it appeared that the Executor did not come in primo die wherefore notwithstanding they affirmed the Iudgment Ante. Termino Sancti Michaelis Anno 22 Car. II. In Banco Regis Prydyerd versus Thomas A Writ of Error was brought upon two Judgments given in an inferiour Court and they returned two Records betwéen the same Parties but it seems not those which the Plaintiff intended and this was complained of to the Court and it appeared that those which the Plaintiff brought his Writ of Error upon were not determined for Writs of Enquiry of Damages were returned but no Judgments entred Curia If there be divers Records betwéen the same Parties the inferiour Court may remove which they please they being
distress upon a Copyholder for a reasonable Fine the value of the Land must be set forth and the certainty of the Fine that the Court may judge of it Austin and Gervases Case Hob. 69 77. In Consideration that he should give him Bond for 10 l the Defendant promised c. and pleads that he offered him Bond for the said sum c. and upon Issue Non Assumpsit it was found for the Plaintiff But he could not have Iudgment because the sum wherein he offered to become bound was not exprest so that it might appear to the Court to be sufficient Jones contra This differs from the Case in Hob. for there the sum being certain for which the Bond was to be given the Court may well judge what Penalty will secure it But it is not so in this Case for it doth not appear to what value the damnification may be so there is nothing as in the other Case whereunto to Proportion the Penalty of the Bond. The Court held that it would not have been good upon a Demurrer but being after a Verdict and the Statute of Jeofails made at Oxford which Twisden stiled an omnipotent Act they gave Iudgment for the Plaintiff Lord Birons Case THe Lord Biron was Plaintiff in an Action and upon a Non-Suit five pounds Costs were taxed against him and he brought another Action for the same matter which was said to be meerly for vexation and that he refused to pay the Costs neither could he be compelled being a Peer and in Parliament time Wherefore the Court gave day to shew Cause why this Action should not stay until he had paid the Costs in the former Anonymus IF a Writ of Error be brought in the Exchequer Chamber and that being discontinued another is brought in Parliament this second Writ is a Supersedeas But if a Writ of Error be brought in Parliament and that abates and the Plaintiff brings a second this is no Supersedeas because it is in the same Court Prior versus Shears IN a Writ of Error to Reverse a Judgment given in the Palace Court in an Assumpsit where the Plaintiff declared sur indebitatus pro Naulo and upon Non Assumpsit c. had Judgment It was assigned for Error That it was not ascertained how the Defendant was indebted and that Fraight was usually contracted for by Charter party and if so the general Indebitatus would not lie for a Debt by Specialty Notwithstanding the Judgment was affirmed for for ought appears there was not any Deed in the Case and it shall not be intended and it is no more than the Common Action pro mercimoniis habitis venditis Note It was further objected That this appears to be for Marriners Wages for Sailing to some Foreign parts which must needs be out of the Jurisdiction of the Marshalsea and though the Argréement were made within it yet the thing being to be done elsewhere they could not hold Plea As if a Carrier should agree within the Limits of the Court to carry Goods from thence to York no Action could be brought there upon it which was agréed But the Court said here It doth not appear they were to Sail to any place out of the Jurisdiction and they have laid all the Matter to be infra Jurisdictionem Curiae And therefore the Judgment was Affirmed Hayman versus Trewant TRin. 22 Car. 2. Rot. 710. In an Action upon the Case for that the Defendant bargained with him such a day and year for the Corn growing upon such Ground affirming it to be his own whereas he knew it to be the Corn of J. S. and postea adtunc ibid. fraudulenter vendidit Warrant ' c. The Defendant pleads That the Plaintiff had another such Action depending for the same Cause and demands Iudgment of the Writ The Plaintiff Replies that that Action was commenced for another Cause and not for the same absque hoc that it was for the same Cause To which the Defendant Demurs specially because the Plaintiff having denied what the Defendant affirmed ought not to have added a Traverse but to have concluded to the Country As the Case of Harris and Phillips 3 Cro. 755. was Adjudged Where in an Audita Querela to avoid the Execution of a Recognizance the Plaintiff sets forth that it was defeazanced upon payment of divers Sums of Money at certain days and that he was at the place appointed and tendred the Money and that the Defendant was not there to receive it The Defendant pleaded Protestando that the Plaintiff was not there to pay it and that he was there ready to receive it absque hoc that the Plaintiff was ready to pay it Which being specially Demurred to the Court held the Plea naught and that there being an express Affirmative and Negative there should have been no Traverse for so they may traverse one upon another in infinitum Notwithstanding the Traverse was here held good which was allowed for putting the Matter more singly in Issue And it appears that Phillips's Case was Adjudged upon another matter For that the Plea in Bar was not entred as the Defendant's Plea but was entred thus Pro placito Bush a Stranger dicit Yelv. 38. Then it was moved That as the Plaintiff hath declared here it appears that the Warranty was subsequent to the Bargain For it is said that he bargained for the Corn knowing it to be the Corn of J.S. postea adtunc ibidem vendidit which is repugnant Sed non allocatur for where it is said first That he bargained that shall intended a Communication only and the Consummation of it after when the Warranty was given which is also said to be adtunc ibidem So alledged well enough Foxwith versus Tremaine TRin. 21 Car. 2. Rot. 1512. Five Executors bring an Action sur Indebitat ' Assumps The Defendant pleads in Abatement That two of them are under the Age of 17. and that they appeared by Attorney And to this the Plaintiffs Demur They who Argued for the Defendant made two Questions 1. Whether they ought all to joyn in the Action And it was said they ought not for one under Age cannot prove the Will And in Smyth and Smyth's Case Yelv. 130. it is Resolved they must be all Named so that their Interest may be reserved unto them but are not to be made parties to the Action And for this the Case between Hatton and Mascue which was Adjudged in the Exchequer Chamber was cited Where in a Scire facias it was set forth That A. being the Executor of B. made his Will thus I Devise all my Personal Estate to my two Daughters and my Wife whom I make my Executrix And that they had Declared in the Ecclesiastical Court that this made them all three Executrixes and that the Will was proved and that the Wife brought this Scire facias to have Execution of a Judgment obtained by A. the Testator And the Defendant Demurred because not
brought in all their Names and it was Resolved in the Kings-Bench that the Action was well brought and affirmed upon a Writ of Error in the Exchequer Chamber But if in the Case at Bar they ought to joyn they must appear by Guardian It having depended divers Terms It was now Resolved by Rainsford and Moreton that the Action was well brought and they relyed upon the Case in Yelverton and they said the Case of Hatton and Mascue was no Authority against it for there they were named and where some are of Age no Administration durante minori aetate is to be granted They held also that the appearance ought to be by Attorney because they joyn with others and so in auter droit and so is 3 Cro. 377. the Countess of Rutland's Case and 541. Resolved that an Infant Administrator shall sue by Attorney See 1 Roll. 288 and 2 Cro. 420 421. Cotton and Westcote's Case The difference is taken where an Infant Executor is Defendant and where Plaintiff and Judgment given for him in which last Case only the appearance by Attorney is said to be good Twisden contra An Infant cannot in any wise sue or defend by Attorney First Because he cannot make an Attorney Secondly If it should be allowed he might be amerced pro falso clamore and no way to avoid it but by bringing a Writ of Error Thirdly He might be injured by the Attorney's Plea and could not remedy himself as he may against his Guardian as if in Debt the Defendant should plead a Release and the Attorney confess it And he cited a Case in this Court Mich. 1649. between Colt and Sherwood Where an Administrator brought an Action and it appeared by the Record that he was above 17 yet it was Ruled he ought to sue by Guardian For tho' by the Civil Law he was of Age to undertake the Administration yet the manner of his Suing was to be determined by our Law and that could not be by Attorney until the age of 21. Another Case be cited between Peyton and Dorce adjudged in the Court upon a Writ of Error out of the Petit Bag where Peyton sued as Administrator and the Entry was Quod queritur and did not express whether per Attornat ' Guardianum or how and had Judgment and Error was brought in this Court and these Four Points were Resolved First That a Writ of Error did lye out of the Petit Bag into this Court upon an Error in Fact Secondly That the Entry being General it should be taken that the appearance was in propria persona Thirdly That the Plaintiff being an Infant tho' an Administrator could not sue or appear but by Guardian or Prochein amy Fourthly That the Statute of Jeofails did not aid this Case which expresses only the Defendant's appearing by Attorney As to the other Point He inclined that the Action brought by them all was well enough But he acknowledged that much might be urged against the Case of Hatton and Mascue for the naming of them could signifie nothing not being made parties to the Action But he was not so much swayed by that Authority because he held that the Cause did not come well into the Exchequer Chamber being a Scire facias upon which he said no Writ of Error lay thither tho' upon a Judgment no more than upon a Recognizance and said They did joyn here as it were for Conformity As if a Feme Infant be made Executrix and Marries the Administration durante minori aetate ceases tho' she be under 17 and she and her Husband shall Sue The Chief Justice was absent being Sick and so the Plaintiff had Judgment by the Opinion of Rainsford and Moreton Ward versus Rich. WArd brought an Action against Hatton Rich de uxore abducta and keeping of her from him usque such a day which was sometime after the exhibiting of the Bill and concluded contra formam Staturi After Verdict for the Plaintiff it was moved in Arrest of Judgment and the Declaration was held good notwithstanding the impertinent Conclusion of contra formam Statuti there being no Statute in the Case Secondly The Court Resolved that Judgment should be stayed for the Jury shall be intended to give Damages for the whole time mentioned in the Declaration As in Trespass with a Continuando to a day after the Writ brought the Plaintiff shall not have Judgment after Verdict which gives Damages by Intendment for the whole time declared for And Twisden said These two Cases were Resolved A Tradesman brought an Action in an Inferiour Court for slandering of him in his Trade by which he lost his Custom within the Iurisdiction of that Court alibi and it was held maintainable notwithstanding the alibi The other was an Action brought upon the Sale of several things for divers Sums of Money quae quidem pecuniarum summae attingunt ad 10 l whereas rightly computed they came but to 9 l The Jury gave Damages less than 9 l and it was held good But if the Verdict had been for 10 l it had been naught The King versus Ledgingham AN Information was brought against Ledgingham for that he being a man of an unquiet Spirit communis perturbator oppressor vicinorum tenentium had taken excessive Distresses of divers of his Tenants After Verdict for the King at the Assizes it was said That no Judgment could be given upon this Information which was said to be defective both in matter and form It hath been often Ruled that Communis oppressor or such like General words without particularizing Offences was insufficient in an Indictment or Information unless the word Communis Barrectator which is of known signification in Law and comprehends divers Crimes and Twisden said is as much as Common Knave 9 Ass 2. Communis latro not good Vid. Roll. 79. Moor 451. neither can an Information be exhibited for taking of excessive Distresses for that was not punishable until the Statute of Marlebridge cap. 4. which saith that he that so Distrains shall be amerced whereas upon an Information he must of necessity be fined 2 Inst 107. Again It ought to have been expressed upon what Tenants the Distresses were taken with their Names otherwise it is too incertain One was Indicted for that he serving upon such a Grand Enquest did reveal the Secrets of the King and himself It was Resolved to be ill because not expressed what Secrets Moor 451. and of this Opinion was the Court in omnibus Ante. Pierson versus Ridge IN Replevin the Defendant made Conusans as Bayliff to a Lord of a Mannor who had a Court Leet by Prescription and laid a Custom for such a Township to send one to be sworn Constable there which not being done a Fine was set and this Distress taken for it Vpon which it was Demurred because no Custom was alledged to warrant the Distress For tho' of common Right a Distress may be taken for a Fine in a Court Leet that
is where it is imposed for such things as are of common Right incident to its Jurisdiction as for Contempts or the like Yet where Custom only enables them to set a Fine it cannot be Distrained for without Custom also 11 Co. Godfrey's Case And to this Opinion did the Court incline Sed Adjornatur Anonymus TWo Actions of Account were removed into this Court by Habeas Corpus and Special Bail put in And it was moved that the Bail might be discharged and Common Bail filed because in an Account Special Bail is not to be put in But it was said the Plaintiff had declared in one in an Action upon the Case and so prayed that the Bail might stand quoad that But it was Ruled That the Bail should be discharged and if the Plaintiff would have Special Bail he must Arrest the Defendant again in an Action upon the Case Doctor Lee's Case DOctor Lee having Lands within the Level was made an Expenditor by the Commissioners of Sewers whereupon he prayed his Writ of Priviledge in this Court and it was granted For the Register is Vir militans Deo non implicetur saecularibus negotiis and the ancient Law is Quod Clerici non ponantur in Officia F.N.B. Clergy-men are not to serve in the Wars Jemey versus Norris ERror to Reverse a Judgment in an Assumpsit upon a Quantum meruit for divers things sold It was assigned for Error that the Declaration amongst the rest was for unum par Chirothecarum and did not express what sort of Gloves they were which are of much different prices according to the different Leather they are made of And Playter's Case 5 Co. was cited where Trespass for taking of his Fishes was held not good because not ascertainedb of what kind Sed non allocatur Another of the things declared for was una parcella fili which as it was said was utterly uncertain and that was held to be naught Tho' it was said an Action was brought for taking away unum cumulum Foeni Anglicè a Rick of Hay and not alledged how much it contained yet held good But in Webb and Washburn's Case an Action was brought for a pair of Hangings and it was Adjudged against the Plaintiff for the Incertainty Jones contra and cited a Case in this Court 24 Car. 1. Green and Green in Trover for six parcels of Lead and notwithstanding the Incertainty the Plaintiff had Judgment So in Trover for a Trunk de diversis Vestimentis and did not say what Garments and yet held good But admitting it should not be good in Trover yet it is well in this Action 'T is the Common course to declare sur Indebitatus pro mercimoniis and never express what they are And the Court were of Opinion that the Plaintiff was to have Judgment for it is an Action much of the same nature with an Indebitatus And Twisden said Where the Promise is to pay Quantum meruit he knew not why the Plaintiff might not declare upon an Indebitatus in a certain Sum and that he might prove the value upon the Evidence and if such a Case came to be tried before him he would have a Special Verdict found in it The Court said Such an uncertain Declaration would hardly be good in Trover or Replevin and held the Case of the six Parcels to be strange and for the Trunk that an Action lies for that the things contained in it were alledged but as matter of aggravation of Damages Vid. the Case of Taylour and Wells ante Trover de decem paribus velorum tegularum Anglicè Ten pair of Curtains and Vallance Wilson versus Armorer IN Debt against the Heir and Reins per discent pleaded the Case upon Special Verdict was thus The Ancestor made a Feoffment of a Mannor to divers uses excepting two Closes for the Life of the Feoffor only and whether those two Closes did discend was the Point referred to the Iudgment of the Court. And it was Adjudged That they did discend either for that the Exception was good tho' the latter part of the Sentence viz. for the Life of the Feoffor only was void and therefore to be rejected or if the whole Exception were void because one intire Sentence Yet they all agreed that there was no Vse limited of those two Closes which were intended to be excepted for the Vse was limited of the Mannor exceptis praeexceptis which excluded the two Acres For altho' there were not sufficient words to except them yet there was enough to declare the intention of the Feoffor to be so Anonymus AN Indictment for Erecting of a Cottage for Habitation contra Statut ' 31 Eliz. cap. 7. was quashed because it was not said that any had inhabited in it for 't is no Offence before per Rainsford Moreton caeteris absentibus Termino Sancti Hillarij Anno 22 23 Car. II. In Banco Regis Robson's Case A Prohibition was prayed to a Suit for Tythes by the Parson upon a Suggestion of a Modus paid to the Vicar and that the Vicaridge had time out of mind been Endowed Coleman moved for a Consultation because the Endowment of the Vicaridge was not proved by two Witnesses within six Months according to the Statute But it was denyed for that part of the Suggestion is not to be proved by Witnesses but only the payment of the Modus And it was said If the Suggestion consisted of two parts it was sufficient to produce one Witness to the one and another to the other Dacon's Case DAcon was presented in the Court Leet for refusing the Office of Constable and Fined It was moved to quash it because it expressed the Court to be held infra unum mensem Sancti Michael ' viz. 12 November and so the Day shewn above a Month after Michaelmas And it is necessary to set down the precise Day for it may else be upon a Sunday and yet within a Month after Michaelmas and for this cause the Court held that it must be quashed Error AN Outlawry was Reversed for that the Proclamations were Returned to be ad comitat ' meum tent ' apud such a place in Com' praedict ' and not said pro Comitatu For anciently one Sheriff had two or three Counties and might hold the Court in one County for another Calthorpe versus .... IN Debt for Rent the Plaintiff declared that he let the Defendant such Land anno 16 of the King quamdiu ambabus partibus placeret and that anno 16 the Defendant entred and occupied it pro uno anno tunc proximê sequent ' and because the Rent was behind pro praedict ' anno finit ' 18 he brought the Action Vpon which it was Demurred Because the Rent is demanded for the Year ending 18 and it is not shewn that the Defendant enjoyed the Land longer than anno 17. And in Debt for Rent upon a Lease at Will Occupation of the Tenant must be averred To which it was Answered That it is said
the Iudgment of the Court yet now the Verdict hath aided these defects Pellow versus Kingsford IN an Action of Debt sur l'Estatute 2 E. 6. for not setting out of Tythes After Verdict for the Plaintiff it was moved in Arrest of Judgment Vid. 2 Cro. 68. Yelv. 63. That the Lands out of which the Tythes were demanded were shewn in the Declaration to lie in two Parishes so that the Plaintiff ought to have made several Titles and also have shewn how the Tythes should have béen set out upon the Land viz. how much in one Parish and how much in the other But it was held to be well enough for this Action is but in the nature of Trespass and to punish the Tort in not performing the Statute Anonymus IN an Information upon the Statute of Usury After Verdict at the Assizes for the King it was moved in Arrest of Judgment That the Venire was not well awarded for it was entred ideo ven ' inde jur ' whereas it should have béen praeceptum est Vicecomiti c. The Court commanded to search Presidents and were informed that they were generally so Anonymus A Prohibition was prayed on the behalf of a Churchwarden to the Ecclesiastical Court for that they tendred him an Oath upon these Articles following First Whether any Person within his Parish hath Encroached upon the Church-yard Secondly Whether any Person within his Parish were an Adulterer or Filthy Talker Sower of Sedition Faction or Discord amongst their Neighbours Thirdly Whether there were any which did not resort to their Parish Church receive the Sacraments c. It was said to the first of these That it concerned Matter of Freehold But this was Overruled for they may take notice of Encroachments upon the Church yard And to the second Sowing of Sedition amongst Neighbours is inquitable in the Leet and the Bishops Court hath nothing to do with it Besides This Oath would oblige him to charge himself Criminally for it is whether any person within the Parish c. so that himself is included And as to the Sowing of Discord The Court held it did not belong to them But they held That the general words would not extend to the Churchwarden himself but intended to relate only to the rest of the Parish But upon examination of the matter it appeared That the Oath tendred was only in general words Viz. To make Presentations according to the Kings Ecclesiastical Law And these Articles were offered only by way of direction quasi a charge Wherefore the Court denied the Prohibition Anonymus IN Replevin of Beasts taken at D. the Defendant pleads in Abatement that they were taken in another place absque hoc that they were taken at D. Et pro Return ' habend ' he Avows for Rent reserved upon a Lease The Plaintiff replies and Traverses the Lease which should not be for though the Defendant when he pleads such a Plea in Abatement must also Avow to have a Return yet the Plaintiff cannot answer to it 1 Cro. 896. but must take Issue upon the other Matter Sir William Smith versus Wheeler IN Error upon a Judgment in the Common Pleas in Ejectment for the Rectory of Hadnam in the County of Bucks where the Jury found as to a third part of the Rectory the Defendant Not guilty And to the other two parts a Special Verdict to this effect That Simon Maine was possessed of the two parts of the Rectory for 80 years and in the year 1643 made by Indenture an Assignment of them to Crook and Bleak upon these Trusts following viz. In trust for himself for Life and after his Decease for the payment of his Debts and for the raising of several Sums to be paid to divers of his Kindred Proviso That if he shall at the time of his Death leave a Child or his Wife Enseint then that it shall be to such Trust and Use as he shall limit and appoint by his Will and if he made no such appointment then to be in Trust for such his Issue Provided further That if Simon Maine should be minded or willing at any time to make void the Present Indenture or to Frustrate any Use or Trust therein or create any new or to dispose the Estate to any other person or any other way and such his purpose shall declare by Writing under his Hand and Seal before Witness c. that then and thenceforth the Trusts therein c. or so many of them c. should be void c. Then they find that in 1644 he had Issue a Son and that he took the profits thereof during his Life and made several Leases of the Premises That the Assignees had no notice of this Trust during his Life and that after his Death one of them assented and the other dissented to it They find that in 1648 he committed Treason and was thereof Attainted They find the Act of 12 Car. nunc cap. 30. Whereby it is Enacted That all Mannors Lands c. Leases for years c. which he or any to his use or in trust for him had 25. Mar. 1646. or a◠any time since shall stand and be forfeited c. and also all Rights and Conditions c. They find that the said Simon Maine died in 1661 and that the King made a Grant to Sir William Smith the Plaintiff It was adjudged for Wheele◠in the Common Pleas Pas 20 Car. 2. by Tinel and Archer who were then the only Judges in the Court and Sir William Smith brought a Writ of Error in this Court and after divers Arguments at the Bar the Iudgment was affirmed this Term by the Opinion of the whole Court Moreton I shall say nothing to the marks of Fraud found in the Verdict for tho' at first the Counsel of the Plaintiff insisted that the Court ought thereupon to adjudge the Settlement fraudulent yet it hath been since by them declined wherefore I shall wave that The matter is whether there be any thing forfeited longer than the Life of Maine It hath béen objected That in regard Simon Maine had a power of altering the Trusts and disposing of them otherwise that this should amount to an implied Trust in him of the whole Term but that cannot be for after his Decease the Trust is expresly limited to others 'T is true he had a power of disposing but that was to be executed at Election and by such Circumstances as were individually privy to himself For it was to be done by his Will according to the first Proviso And by the second to be done by Writing under his Hand and Seal so not like to Englefields Case in the 7 Co. 1.1 b. where the power of Revocation was to be executed by the tender of a Ring which any one might do as well as the party himself But indeed this is the same case with the D. of Norfolks cited in the same Report and the Statute of the 33 H. 8. of Forfeiture
poena c. of if so then it is no Offence by the Act. To which it was Answered that if the Body of the Act were That all persons which should resort to such place which were not Summoned or Subpoena'd thither should forfeit c. then 't is true it must be averred But that matter comes in a Proviso of the Act viz. That it shall not extend of such Cases and therefore if there were any such thing the Defendant is to plead it Wherefore the Court ordered Judgment to be Entred for the Plaintiff Ante. Anonymus IN an Action of Trover and Conversion After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Action was commenced in Hillary Term and the Conversion alledged to be the 3d of February in the same Term and the Bill filed relates to the first day of the Term so before the Cause of Action But it was Resolved by the Court that if the Bail were Entred after the 3d Day of February it is well enough for it is that which gives this Court Iurisdiction So an Ejectment may be brought upon a Lease made in the same Term So the Statute of Limitations may be pleaded to an Action if the time be elapsed before the Day wherein the Bail is filed though not before the 1st Day of the Term wherein the Action is brought For the Action shall not be said to be depending until the Bail is filed And upon Search it was found that the Bail was filed the last Day of the Term. Putt versus Nosworthy IN Debt the Plaintiff declared upon certain Articles whereby the Plaintiff Covenanted to convey certain Lands to the Defendant and in Consideration thereof the Defendant Covenanted to pay a certain Sum to the Plaintiff After a General Imparlance the Defendant prayed Oyer of the Deed whereby it appeared that the Defendant and one Vincent Covenanted that he or Vincent should pay the said Sum. And he avers that Vincent sealed and delivered the Deed and demands Judgment of the Bill si actionem poterit habere versus eum solummodo To this the Plaintiff Demurred which was Entred thus Et dicit quod ab actione praedicta praecludi non debet quia materia insufficiens c. And the Defendant joyns Quod materia praeallegat ' sufficiens c. praedict ' le Plaintiff ab actione praedict ' praecludere Jones moved for the Plaintiff that the Defendant's Plea being in Abatement could not be admitted after an Imparlance and that a peremptory Judgment ought to be here given because he had concluded in Bar as well as Abatement For he doth not only demand Judgment of the Bill but saith actionem habere non debet and the Demurrer is joyned as upon a Plea in Bar. And it was agreed that if a man concludes a Plea in Abatement as in Bar if it be against him that pleads it Judgment peremptory is to be given But here the Conclusion is not actionem habere non debet but 't is added versus eum cum solummodo So if a man begins a Plea in Abatement actio non c. Judgment peremptory ought to be thereupon given But then it was said That although it were too late to urge this Matter in Abatement yet it appeared upon the Deed shewn that the Plaintiffs Declaration was insufficient For it being If the Defendant or one Vincent should pay and the Plaintiff alledging that the Defendant had not paid is not enough to intitle him to his Action albeit that Vincent were no Covenantee or had ever Sealed and Delivered To which it was Answered and so Resolved by the Court that it appeared by the frame of the Deed that Vincent was as well party as the Defendant and it is too late now to averr that he did Seal and Deliver so it shall be taken that he did not and then it remains the sole Covenant of the Defendant And though the words are That the Defendant or Vincent shall pay that is no more than the Law would have implied if Vincent had Sealed And the Chief Justice cited one Cartwright's Case in Debt for Rent where the Indenture of Lease was a Demise from Cartwright and another Ioyntenant with him reserving a certain Rent to them both but the other never Sealed Cartwright brought Debt and declared of a Demise of the Moiety and Reservation of the Moiety of the Rent And upon Nil deber the Matter aforesaid was Specially found And it was moved First That the Lease being by Indenture whether the whole Rent were not well reserved to Cartwright as by Estoppel or whether it were not good to him as to a Stranger for one Moiety or whether it should not be good to him as an intire thing which was reserved to him as well as the other But the Court Resolved that it was good only for a Moiety as he had declared For there being an Expectation of the others Sealing which never was done the Deed as to one Moiety of the Land and the Rent reserved had no effect And where one Declares against one upon a Deed whereby it appears that another was bound with him it shall not be intended that the other Sealed unless averred on the Defendants Side Otherwise where the Declaration is upon Matter of Record And it was held by the Court That if the Declaration were defective in this yet it was but in Matter of Form For he saith that the Defendant did not pay sed adhuc injuste detinet which is an Averment tho' unformal that the Money is not yet paid neither by the one nor other And so it hath been held where in Debt against an Executor it is averred that the Executor did not pay it adhuc injuste detinet and not averred that the Testator had not in his life time that after a Verdict this is aided And they held that a Judgment ought to be given quod respondeat ouster for the joyning Demurrer as upon a Plea in Bar is not material besides the Fault begun on the Plaintiffs part Tailour versus Fitzgerald ERror upon a Judgment given in the King's Bench in Ireland in Ejectment where the Plaintiff declared that J. S. demised to him per quoddam Scriptum Obligatorium c. habend ' Ã die datus Indenturae praedict ' And upon Not guilty pleaded it was found for the Plaintiff and he had his Iudgment It was assigned for Error that there was no time when this Lease should commence for it was Habend ' after the Date of the aforesaid Indenture and there was none before it being Scriptum Obligatorium and not Indenturam But the Court Resolved that the Writing shall be intended an Indenture and tho' called Scriptum Obligatorium which is improper yet it may be said every Deed obligeth or if it shall not be intended Indented then the Lease shall commence presently as if it had been Habend ' from the 40th of September Crossing versus Scudamore IN Trespass Quare clausum fregit the
it may be for half a year upon the same reason it may be for ever An interest of this nature might have commenced by grant 18 E. 3. the Lord granted to the Tenant that he would not improve tho' it may be such a Grant were not good at this day The Court were agreed in this point in the Case between Porter and North brought here about three years since the principal doubt in that Case was whether the Freeholders and Copyholders could in pleading alledge a Joint Prescription for the Sole Pasture and for the mischief alledged that this might be obtained from every Lord that had not of a great many years used his Common Hale said It would not be sufficient to prove an Vsage for the sole Pasture to shew that the Tenants had only fed it unless it were proved also that the Lord had been opposed in putting in his Cattle and the Cattle Impounded from time to time To the Second Objection They held that Levancy was not material in this case because the sole Feeding is claimed So where Common for a certain number of Beasts is claimed 't is possible between the Tenants there may be some proportioning of it that one may not eat up all from the rest but 't is not material to the Owner of the Soyl. And Twisden said it was Resolved in this Court between Stonell and Masselden that want of averment of Levancy and Couchancy was aided by a Verdict Thirdly Tho' the Licence is not shewn to be by Deed they Resolved it was well enough 'T is true if the Licence were to make Title against the party which gave it there would be greater question For 't is nothing to the Plaintiff who it appears had not Damage at the most it is but a Mispleading aided by 32 H. 8. And the Plaintiff waved this matter and took Issue upon the Custom which is the material Point Vid. 2 Cro. 377. and it is found against him There might have been more colour upon a Demurrer Ante. Anonymus A Prohibition was granted to a Suit for Fees in the Ecclesiastical Court by an Apparitor upon a Suggestion that there were no such Fees due by Custom For that it tryable at Law and not by a Decinaria or Vicenaria praescriptio which is allowed in their Courts But they may Sue there for their due and customary Fees Brell versus Richards ERror upon a Judgment in the Common Pleas in an Ejectment against Eight Defendants and the Writ was Ad grave dampnum ipsorum the Judgment was only against Three and the other Five were acquitted The Error was assigned in the Nonage of the Three It was moved Whether the Writ of Error was well brought or whether the Judgment should reversed in toto The Court Resolved that the Writ was good Hob. 70. Yelv. 209. tho' it might be also ad damnum only of those Convicted But being only in the nature of a Commission whereby the King commands the Errors to be examined this matter is not material And Twisden said that the constant Practice is for all to joyn And they all held That the Judgment ought to be Reversed against all Sir Anthony Bateman's Case UPon a Trial at Bar the Question was Whether he were a Bankrupt or no It was proved that he was a Turky Merchant and Traded in the Year 1656 but it was not proved that he had afterwards Imported or Exported any thing but having the Effects of his former Trade by him to a great Value he shewed them to several and obtained the Loan of divers Sums of Money upon the Credit of them The Court held that this brought him within the Statute for such Debts as he Contracted after 1656 otherwise the Mischief would be great for Men cannot take notice when another withdraws his Trade or when he Commands his Factors beyond Sea to Deal no further for him but they seeing great quantities of Goods and Merchandize in his hands are apt to Trust him Wherefore 't is fit that they should be Relieved by the Statute Anonymus AN Administrator brought a Writ of Error upon a Judgment given in an Ejectment against the Intestate It was held that he should pay no Costs tho' the Judgment were affirmed and the Writ brought in dilatione Executionis The Bishop of Exeter versus Starr IN Debt upon a Bond the Condition recited That whereas the Obligor was Excommunicated for not coming to Church and that the now Plaintiff at his Instance and Request had absolved him That if he should obey all the lawful Commands of the Church that then c. The Defendant Demurred supposing the Condition to be against Law and so the Bond void Hale said If a man were Excommunicated there was a Writ De cautione admittenda and sometimes they took an Oath of the party Ad parendum omnibus Ecclesiae mandatis licitis honestis and that was called Cautio juratoris and sometimes Cautio pignoratitia was given 1 Bulstr 122. He said also It was held 8 Car. in Com. Banco that where the Ecclesiastical Court took a Bond of an Administrator to make distribution of what remained of the Intestates Estate after Debts and Legacies satisfied or to dispose so much to Pious uses that the Bond was void for they presumed the party in such cases to be under a kind of Coertion Et Adjornatur Isaac versus Ledgingham IN a Replevin the Defendant avowed for Suit of Court The Plaintiff Replies and confesseth himself Tenant of the Mannor and saith That there are very many Tenants of the Mannor and that there is a Custom That if those Copy-holders which live remote from the Mannor pay Eight pence to the Steward of the Court for the Lord and 1 d to himself for the Entring of it that they should be excused of doing their Suit for One year after the said payment and alledgeth That he lives 10 Miles from the Mannor and that he tendred the 8 d and 1 d and both were refused To this the Avowant Demurred First The Custom is unreasonable for by means of it no Court can be kept if so be all the Tenants live remote Secondly The Plaintiff hath not brought himself within the Custom for that is to be discharged upon payment and not upon tender and refusal And the Construction of Customs is always strict to the Words and not with that latitude as is used in Contracts Hale 'T is Custom gives the Suit and consequently may qualifie it The Doubt arises because the Plaintiff hath not alledged that there are any Tenants live near or within the Mannor or whether that ought to be shewn on the other side if it be not so because the Intendment is strong that there are Therefore a By-Law in a Mannor binds the Tenants without notice because they are supposed to be within the Mannor For the other matter they all held that Tender and Refusal was as much as Payment And Twisden said It was Resolved 8 Co.
76. 1 Inst 203. 1 Rolls 129. 9 Co. 79. where an Award was made that A. should pay B. 10 l and that B. super receptionem decem librarum should Release That he was bound to release it if the Money were offered tho' he should refuse it Wherefore they gave Judgment for the Plaintiff Sir John Goriton and Harvey versus Lithby PAsch 22 Car. 2. Rot. 331. In an Action upon the Case the Plaintiffs declared that there were Four ancient Mills within a Mannor And that J.C. was seised in Fee of Two of the Mills and J. H. of the other Two and laid a Prescription in each That they had kept the Mills in Repair and found Grinders to the intent that the Tenants of the Mannor might Grind at them and that Time out of mind the Tenants had Ground omne frumentum to be spent in their Houses at the Mills of J. C. or at the Mills of J. H. And for that the Defendant spent Corn which was ground at neither of the Mills they brought this Action To this Declaration the Defendant Demurred First For that they joyn in the Action and so the one shall recover Damages for not Grinding at the others Mill which is no loss to him Secondly The Prescription is for Grinding all the Corn to be spent in the Houses of the Tenants which is unreasonable for a great deal of Corn is used which is not proper to Grind. So it was said to be Adjudged between Aylett and Charlesworth 1654. in B.R. that the Prescription ought to be laid for all Corn triturandum consumendum in their Houses And this last Exception was held to be material by all the Court. But they conceived the Action might be brought by both for otherwise there could be no remedy upon the Prescription For singly they could not bring it because Grinding at any of the Mills would excuse the Defendant But Hale said the Declaration was naught because it is That the Defendant ought to Grind at the Mills of J. C. or J. H. which is true if either of them hath an ancient Mill altho' the other hath no pretence or right upon the Prescription And therefore it ought to have been laid thus That such Corn c. as was not Ground at the Mills of J C. ought to be Ground at the Mills of J. H. and then have Averted That the Defendants Corn was Ground at neither of them It was Adjudged for the Defendant Skinner versus Webb Scire facias THe Case was this A Judgment was recovered in this Court in an Action upon the Case upon a Bill of Exchange and a Scire facias was brought Quare execution ' c. and a Judgment upon that upon which a Writ of Error was brought in the Exchequer Chamber and the Judgment was affirmed after which the Defendant died and a Scire facias reciting the Judgment and Affirmance of it in the Exchequer Chamber was brought against the Administrator and Judgment had upon that and the Administrator brought Error upon the Judgment in the last Scire facias The Court were moved not to allow this Writ of Error or at least not to supersede Execution by reason of its being a second Writ of Error And the Court held that this Writ of Error did not lye into the Exchequer Chamber tho' it hath been Resolved that such Writ of Error lies in the Exchequer Chamber by the Statute of the 27th of Eliz. upon a Judgment in a Scire facias recovered upon a Judgment in an Action brought by Bill in this Court because 't is in Execution of the Judgment and is as it were a piece of the first Action Otherwise of a Judgment in a Scire facias upon a Recognizance or the like Now this Scire facias is brought upon a Judgment affirmed in the Exchequer Chamber which therefore is priviledged from any other Writ of Error to be brought upon it there So that this Writ of Error can be brought only upon the Judgment given in the Scire facias and therefore it doth not lye into the Exchequer Chamber Jacob Hall's Case COmplaint was made to the Lord Chief Justice by divers of the Inhabitants about Charing Cross that Jacob Hall was erecting of a great Booth in the Street there intending to shew his Feats of Activity and Dancing upon the Ropes there to their great Annoyance by reason of the Crown of idle and naughty People that would be drawn thither and their Apprentices inveigled from their Shops Vpon this the Chief Justice appointed him to be sent for into the Court and that an Indictment should be presented to the Grand Jury of this matter and withal the Court warned him that he should proceed no further But he being dismissed they were presently after informed that be caused his Workmen to go on Whereupon they Commanded the Marshal to fetch him into Court And being brought in and demanded How he durst go on in contempt of the Court He with great Impudence affirmed That he had the King's Warrant for it and Promise to bear him harmless Then they requited of him a Recognizance of 300 l that he should cease further Building which he obstinately refused and was Committed And the Court caused a Record to be made of this Nusans as upon their own view it being in their way to Westminster and awarded a Writ thereupon to the Sheriff of Middlesex Commanding him to prostrate the Building And the Court said Things of this nature ought not to be placed amongst Peoples Habitations and that it was a Nusans to the King 's Royal Palace besides that it straitned the Way and was insufferable in that respect The King versus Wright AN Indictment was against him for suffering of two persons to escape qui commissi fuerunt by the Justices of the Peace for an Offence against the Statute of 8 H. 6. of Forcible Entry After Verdict for the Plaintiff and Judgment a Writ of Error was brought and assigned for Error That it was not expressed how the Commitment was whether upon View of the Justices or Verdict upon an Indictment so that it doth not appear that they were legally Committed nothing of the Proceedings being set forth and 't is not so much as said debito aut legitimo modo commissi fuerunt If a man be Indicted of Perjury in his Oath sworn before a Master in Chancery it must be shewn that the Master had an Authority to take an Oath And the Court doubted at first and commanded the Clerk of the Crown to search Presidents and he found that they were most debito modo commissi but some without that Clause And the Court held it being but inducement to the Offence whereupon this Indictment is that it was well enough alledged and after the Verdict they must intend the Commitment was legal Vide Crompton's Justice of the Peace 252. a. and 255. there are two Presidents like this Note It was said by Hale that upon non Assumpsit Infancy
business to enquire of the Condition of her whom he will make his Wife Then the next thing to be considered is the Infancy of the Defendant and that is nothing in this Case Porter who was the probablest person to give notice is found to be an Infant too Conditions in Fact bind Infants Again the Condition here relates to an Act which she is capable of doing The Statute of Merton which Enacts Non currant usurae c. whereby Infants are exempted from Penalties yet in another Chapter gives the Forfeiture of the said double value to the Lord where his Ward Marries without his consent 'T is a restraint laid upon her in a matter proper for her Condition and with respect to her Condition that being and Infant she might advise with her Friends about her Marriage The Cases which have been objected do not come to this Case as the Opinion in Sanders and Carwells Case which might be good Law if it could be known what that case was for the words might either explicitly or implicitly require notice as if they were if he refused to pay c. or it may be no time might be set for payment for in Molineux Case there Rents were granted and after a Devise for the payment of them which naturally lie in demand Secondly There it concerned the younger Children to give notice for the Rents were not only to be paid to them but upon failer of payment the Land was Devised to them So that was a Concurrence of concern in them as to the performance of the Condition and the Estate they should acquire by the Breach Whereas the Plaintiff in this Case is not concerned in the performance of the Condition Thirdly The penning of the Condition were quite differs for 't is upon default of payment which implies notice must be first had In Frances Case there would have been no need of notice if the Devise had not béen to the Heir which is the only thing wherein it differs materially from this Case In Alfords Case the debate was occasioned by the special penning for it was thus that if thorough Obliviousness the Trusts should not happen to be performed Now there could be no Oblivion of that they never knew therefore there is some Opinion there that the Mayor and Citizens of L. ought to have had a precedent notice yet the Judgment is contrary for they could not have been barred by the Fine and Non-claim if notice had been necessary to the Commencement of their Title and 't is not found whether those to whom the Estate was devised before had notice so that this cause proves rather that there needs no notice in this case than otherwise Wherefore the Plaintiff must have his Judgment When my Lord Chief Justice had concluded Rainsford said he had spoken with Justice Moreton who declared to him that he was of the same Opinion Fitzgerald versus Marshall ERror of a Judgment given in the Kings Bench in Ireland in affirmance of a Judgment removed thither by Error out of the Common Pleas in Ireland By the Record it appeared that the Writ of Error to the Common Bench was directed Rob. Booth Militi Socijs suis quia in Recordo processu ac in redditione Judicij loquelae quae suit coram vobis Socijs vestris And the Judgment certified appeared to be in an Action commenced in the time of Sir R. Smith who died and Sir R. Booth made Chief Justice in his place before Judgment given And the Court here were of Opinion that the Record was not well removed into the Kings Bench there by that Writ which commanded them to remove Recordum loquelae coram R. Booth whereas the loquela commenced before R. Smith and the Titling of the Record is in such case placita coram R. Smith c. tho' some of the Continuances might be entred coram R. Booth and the Judgment given in his time and for this Cause the Judgment given in affirmance in the Kings Bench there was reversed Sir Samuel Sterling versus Turner ERror of a Judgment in the Common Bench in an Action upon the Case where the Plaintiff declared upon the Custom of London of Electing of two Men in the Office of Bridge-masters every year by the Citizens assembled in a Common Hall and a Custom that if two be Competitors he that is chosen by the greatest number of Votes is duely Elected and that if one in such case desire the Polls to be numbred the Mayor ought to grant the Poll. And shews that there was a Common Hall assembled the 18 of October 22. Regis nunc Sterling being Mayor and that then the Plaintiff and one Allet stood as Competitors to be chosen to that Office and avers that he had the greatest number of Voices and that he affirmed then and there that he had the greatest number which the other denying he requested the Mayor that according to the Custom they might go to the Poll and the Defendant not minding the Execution of his Office but violating the Law and Custom of the City then and there did maliciously refuse the numbering of the Polls but immediately made Proclamation and dismissed the Court by which he lost the Fees and Profits of the Place which he averred belonged unto it Vpon Not guilty pleaded and Verdict for the Plaintiff after it had béen several times argued in Arrest of Judgment that this Action did not lie it was adjudged for the Plaintiff by Tyrrel Archer and Wyld Vaughan dissenting And now Error was brought and assigned in the matter of Law and argued for that it was incertain whether the Plaintiff should have been Elected and that he could not bring an Action for a possibility of damage and this was no more not being decided who had the greatest number of Voices But the Court were clear of Opinion that the Judgment should be affirmed for the Defendant deprived the Plaintiff of the means whereby it should appear whether he had the greatest number of Electors or no. And Hale said it was a very good President and so it was adjudged by both Courts One D. of Bedfordshire Esquire was indicted of High Treason for coyning a great number of counterfeit pieces of Guinnies of Gold 23 Regis nunc and being Arraigned at the Bar he pleaded the Kings Pardon which was of all Treasons and of this in particluar but did not mention that he stood indicted Twisden said that my Lord Keeling was of Opinion that such a Pardon was not good But Hale said it might be well enough in this case but in case of Murther it is necessary to recite it because of the Statute of 27 E. 3. 2. vid. 10 E. 3. 2. 14 E. 3. 15. and so it was allowed The Lady Chesters Case A Prohibition was prayed to the Prerogative Court of Canterbury Sir Henry Wood having devised the Guardianship of his Daughter by his Will in VVriting according to the Act of this King to the Lady Chester his
a Hoyman Common Carrier or Inholder 'T is objected That the Master is but a Servant to the Owners Answer The Law takes notice of him as no more than a Servant 'T is known that he may impawn the Ship if occasion be and sell bona peritura 2 Cro. 330. Hob. 11. He is rather an Officer than a Servant In an Escape the Gaoler may be charged tho' the Sheriff is also liable for respondeat superior But the Turnkey cannot be sued for he is but a meer Servant By the Civil Law the Master or Owner is chargeable at the Election of the Merchant 'T is further objected That he receives Wages from the Owners Answer In effect the Merchant pays him for he pays the Owners fraight so that 't is but handed over by them to the Master if the Fraight be lost the Wages are lost too for the rule is Fraight is the mother of Wages Therefore tho' the Declaration is that the Master received Wages of the Merchant and the verdict is That the Owners pay it 't is no material variance Objection 'T is found that there were the usual number of Men to guard the Ship Answer True for the Ship but not with reference to the Goods for the number ought to be more or less as the Port is dangerous and the Goods of value 33 H. 6. 1. If Rebels break a Gaol so that the Prisoners escape the Gaoler is liable but it is otherwise of Enemies so the Master is not chargable where the Ship is spoiled by Pirates And if a Carrier be robbed by an Hundred men he is never the more excused Ante. Cox versus Mathews THe Case was moved again And Hale said that if a Man Builds a House upon his own ground he that hath the Contiguous ground may Build upon it also tho' he doth thereby stop the Lights of the other House for cujus est solum ejus est usque ad coelum Poph. 170. and this holds unless there be Custom to the contrary as in London But in an Action for stopping of his Light a Man need not declare of an antient House for if a Man should Build an House up-his own ground and then grant the House to A. and grants certain Lands adjoyning to B.B. could not Build to the stopping of A's Lights in that Case 1 Cro. Sands and Trefuses 415. But the Case at Bar is without question for he declares That the Defendant fixed Boards to the Windows of the Plaintiff's House Anonymus UPon a motion to set aside an Inquisition taken before the Coroner super visum corporis certified into this Court that J.S. killed himself and was Non compos mentis Hale said such an Inquisition that finds a Man Felo de se is Traversable but no Traverse can be taken to make a Man Felo de se but fugam fecit is never Traversable Clue versus Baily IN Replevin the Defendant made Conusans as Bailiff to J. S. who demised the place where under certain Rent c. The Plaintiff Traverses the Demise and concluded hoc paratus est verificare To which the Defendant demurred generally And the Court were in doubt whether this ill conclusion of the Plea were not helped upon a general Demurrer Hale It were well the Causes of Demurrer were always assigned Specially and not to say only incertum dubium caret forma c. The old way was when Pleadings were drawn at the Bar to make the exception immediately and the other Party might mend if he pleased or might Demurr if he durst venture it And tho' now they are put in Paper yet such a Course should be observed for Demurrers were not designed to catch Men This not concluding to the Country seems to be but matter of Form and the Demurrer should have been quia non bene concludit Here the Defendant pleads that J. S. demised the Land for Life and without expressing the place of the Demise because of necessity it must be upon the Land Blake versus .... ERror of a Judgment in Replevin in the Mannor Court of Hexam in Northumberland where the Defendant avowed for Damage fesant The Plaintiff replied that J. S. was seized of the Mannor of Tallowfield in D. and that time out of mind he had Common c. in the place where and shewed himself to be Tenant and justified the putting in of his Beasts for Common and the Prescription being traversed it was found for the Avowant The Errors assigned were First In the Venire which was quia nec the Plaintiff nec Defendant aliqua affinitate attingunt instead of qui nec Hale said it was aided by the Statute of 8 H. 6. that helps Error in Process But Twisden said that Statute did not extend to inferiour Courts Another Error insisted on was that the Avowant did not shew that the Mannor of Tallowfield was infra Jurisdictionem Curiae But the Venire was extra vill ' Manerium de Tallowfield infra Jurisdictionem Curiae But the Court held that that was not sufficient to intimate that it was within the Jurisdiction but must have been shewn in pleading And Hale said seeing the Plaintiff had omitted to do it the Avowant might in his Rejoynder have alledged Tallowfield to have béen within the Jurisdiction as where one pleads a Plea without a place the other is not bound to Demurr but for his expedition may shew the place in his Replication Then VVild said this seems to be aided by the Statute of 21 Jac. which Enacteth That if the Jury comes out of any one of the places it sufficeth and here the Jury came as well out of the Vill where the Beasts were taken shewn to be within the Jurisdiction as the Mannor of Tallowfield Hale That will not serve in this Case for the Court could not Award a Venire to a place out of the Jurisdiction nor Jurors could not be returned out of such a place to try a Cause there Another Error assigned was that the Award of the Venire was praeceptum est per seneschallum and not said in eadem Curia To which it was answered That being on the same day upon which the Court was said to be held it must be intended so VVild held the Judgment ought to be reversed for the last Cause Twisden Principally for the first for he held that the Statute of the 8 H. 6. Aided not Process in inferiour Courts therefore where in the Award of the Venire it has been per quos rei veritas melius Scire poterit instead of Sciri the Judgment has been reversed Hale said that it ought to be Sciri for so it is in the Register and in the Statute of Eliz. that sets the Estate of Jurors at 4 l per ann But for the second Error he held that the Judgment ought to be reversed Whaley versus Tancred TRin. 23 Car. 2. Rot. 1513. In an Ejectment the Case was this Lessee for years makes a Feoffment and levies a Fine
c. be indicted for not repairing of a Way within their Precinct they cannot plead Not guilty and give in Evidence that another by Prescription or Tenure ought to repair it for they are chargeable de communi Jure and if they would discharge themselves by laying it elsewhere it must be pleaded Error ERror to Reverse a Judgment in Debt upon a Bond given in Norwich Court where by the Custom the plea of the Defendant was quod non dedicit factum sed petit quod inquiratur de debito First It was moved to be Error for that the Venire was XII Men c. in figures Sed non allocatur for being in these letters XII and not in the figures 12. it was well enough Secondly It was ad triandum exi tum whereas there was no Issue joyned wherefore it ought to have been ad inquirend ' de debito c. Sed non allocatur for the Presidents are as the Case is here Thirdly The Condition of the Bond was to pay at Alborough and that ought to have been shewn to be within the Jurisdiction of the Court Sed non allocatur for the Plea here is not payment secund ' formam Conditionis but the Jury is to inquire by the custom of all manner of payments and discharges Fourthly In the Record it was continued over to several Courts and in the Court where the Judgment is given 't is said in Curia praedicta and so incertain which but notwithstanding these matters the Iudgment was affirmed Anonymus THe Case upon Evidence at a Tryal in Ejectment was this a Dean and Chapter having a right to certain Land but being out of Possession Sealed a Lease with a Letter of Attorney to deliver it upon the Land which was done accordingly and held to be a good Lease for tho' the putting the Seal of a Corporation aggregate to a Deed carries with it a delivery yet the Letter of Attorney to deliver it upon the Land shall suspend the operation of it while then Tenant for Life being in Debt to defraud his Creditors commits a Forfeiture to the end that he in Reversion may enter who is made privy to the contrivance The Opinion of Hale was that the Creditors should avoid this as well as any fraudulent Conveyance Anonymus IN an Ejectment upon a Tryal at Bar for Lands in antient Demesne there was shewn a Recovery in the Court of antient Demesne to cut off an Entail which had been suffered a long time since and the Possession had gone accordingly But there was now objected against it First That no sufficient Evidence of it appeared because the Recovery it self nor a Copy of it was shewn for in truth it was lost But the Court did admit other proof of it to be sufficient and said if a Record be lost it may be proved to a Jury by Testimony as the Decree in H. 8. time for Tythe in London is lost yet it hath been often allowed that there was one Secondly It appeared that a part of the Land was leased for Life and the Recovery with a single Voucher was suffered by him in Reversion and so no Tenant to the Praecipe for those Lands But in regard the Possession had followed it for so long time the Court said they would presume a Surrender as in an Appropriation of great Antiquity there has been presumed a Licence tho' none appeared Thirdly It was objected That the Tenant in Tail which suffered the Recovery having first accepted of a Fine sur Conusans de droit come ceo his Estate Tail was changed for he was estopped during his Life to say that he had any other Estate than Fee then he being made Tenant to the Praecipe the Recovery was not of the Estate Tail and so should not bind But the Court held clearly that the acceptance of this Fine made no alteration of his Estate If Tenant for Life accepts such a Fine 't is a Forfeiture because he admits the Reversion to be in a Stranger but it does not change his Estate so where two Joynt-tenants in Fee accept a Fine which is to the Heirs of one of them yet they continue Joynt-tenants in Fee as they were before Fourthly The Writ of Right Close did express the Land to lie in such a Mannor and a Praecipe that demands Land ought to mention the Vill in which they lie for a Praecipe of Land in Parochia or in Manerio is not good But this exception was disallowed by the Court for Hale said the Writ of Right Close is directed Ballivis Manerij c. quod plenum rectum teneant of the Land within the Precinct of the Mannor and it is not to be resembled to another Praecipe But if a Praecipe be faulty in that Point unless exception be taken to it in Abatement it cannot be assigned for Error but if it were Erroneous the Recovery would bind until reversed Note After Judgment quod computet tho' it be not the final Judgment yet no motion is to be admitted in Arrest of Judgment and after such Judgment a Scire facias lies against the Executor of the Defendant Note In an Action of Debt against the Lessee he may plead nil debet and give the expulsion in Evidence Anonymus IN an Assumpsit the consideration appeared to be that the Defendant promised to pay a Sum of Money which he owed this is no good consideration tho' after a Verdict unless it appeared that the Debt was become remediless by the Statute of Limitations but payment of a Debt without Suit is a good consideration Anonymus A Justice of the Peace brought an Action of Slander for that the Defendant said He was not worth a Groat and that he was gone to the Dogs and upon motion in Arrest of Judgment notwithstanding that it was urged to maintain it that the Statute of H. 6. requires that a Justice of Peace should have 40 l a year And therefore in regard an Estate was necessary to his Office that the Action would lie yet the Judgment was stayed for such words will not bear an Action unless the person of whom they are spoken lives by buying and selling Anonymus IT was returned upon Elegit that the Sheriff had delivered medietatem Terrar ' Tenementorum in extent and after the Filing and Entry of it upon the Record the Plaintiff moved to quash it because it was insufficient for the Sheriff ought upon such Execution to deliver the Possession by Metes and Bounds Wild held that it being entred upon the Record there was no avoiding of it but by Writ of Error But Hale held that in regard it appeared by the Record to be void it might be quashed as if upon an Ejectment to recover Possession upon such a return it appears upon the Evidence that there was more than the half the Land delivered this shall be avoided So if a Fieri facias be not warranted by the Judgment upon which it is awarded tho' the Sheriff shall be
Discretion tion of the Court to grant Restitution even after a Traverse put in yet now since the Statute of Eliz. where such Plea is tendred the Court cannot grant a Restitution tho' they would in this Case if by Law they might for the party that made this Entry had lost the Land just before by Verdict in an Ejectment and by this means the effect of it should be disappointed Note The Indictment wanted Vi armis for it was pacifice intravit sine Judicio disseisivit à possessione expulit amovit But on the other side it was said First That the Entry being pacifice it was not the course to lay it Vi armis Secondly That 37 H. 8. cap. 8. supplied the defect of Vi armis in an Indictment But as to the latter the Court were of Opinion that the Statute supplied only the lack of the words gladiis baculis cultellis as are mentioned in the Statute Vid. the Stat. Anonymus A Suit for a Pension may be in Ecclesiastical Court tho' by Prescription but if it be denied to be time out of mind then a Prohibition is to go so that the Prescription may be tried at Law as in a Modus decimandi mutatis mutandis It was said by the Court that two might joyn in a Prohibition tho' the Gravamen was several but they must sever in their Declarations upon the Attachment Termino Sancti Hillarij Anno 26 27 Car. II. In Banco Regis Anonymus IN Error the Writ was Teste the 30th of November last and Retornable in Parliament the 13th of April next the Day to which the Parliament was Prorogued The Defendants Counsel desired the Rule of the Court for the taking out of Execution supposing this Writ of Error was no Supersedeas and alledged that the late Rule made in the House of Lords did not extend to their Case for that was That all Causes there depending should not be discontinued by the intervening of a Prorogation but this Case will not be there depending before the Return of the Writ In 3 H. 7. 19. the Court of Kings-Bench would not allow a Writ of Error into the Parliament until some Error was shewn to them in the Record lest it should be brought on purpose to delay Execution In Bulstrode's Reports a Writ of Error Returnable the second Return of the Term was held to be no Supersedeas because it seemed an affected delay that it was not made Returnable the first Return Hale It has been taken that a Prorogation determined a Cause depending in Parliament by a Writ of Error but the Lords have lately Declared otherwise But that comes not to this Case the Writ not being Returned A Writ of Error Returnable ad proximum Parliamentum is not good but otherwise if they are summoned or prorogued to a Day certain If the Day of the Session had been a Year hence it would be hard a Writ of Error should stay Execution and the same Reason where the whole Term intervenes A Writ of Error did bear Teste 10 Nov. and was Returnable 1 Nov. proximè futur ' and the Record was sent into the Exchequer Chambet and a Mittimus Endorsed upon the Roll here And it was Resolved that Execution might be taken out because of the long Return Secondly That tho' there were Mittimus upon the Roll yet the Record remained here until the Return of the Writ to all purposes And the Opinion of the Court was that the Writ of Error was no Supersedeas But they would make no Rule in it because they said it was not Iudicially before them but the party might take out Execution if he thought fit And then if the other Side moved for a Supersedeas they should then Resolve the Point Note Hale said in an Assumpsit for Money upon the Sale of Goods upon non Assumpsit the Defendant might give in Evidence an Eviction of the Goods to mitigate the Damage and in all Assumpsits tho' upon certain Contracts the Jury may give less Damages than the Debt amounts unto as he said was done in a Case where a man promised to give a Straw for every Nail in every Horses Shoe doubling every time and they gave in Damage but the Value of the Horse tho' as the Bargain was made it would have come to above 100 l Lomax versus Armorer A Writ of Error was brought to Reverse a Judgment in Dower given in the Court of Newcastle The Error assigned was because the Proceeding was by Plaint and no Special Custom certified to maintain it As in London and Oxford they have Assizes of Fresh Force by Plaint The Court held it to be Erroneous for this Cause but would not determine whether it might not be good upon a Special Custom 1 Rolls 793. Pl. 11. Anonymus A Mandamus was granted to the Archdeacon of Norwich to Swear a Churchwarden upon surmize of a Custom That the Parishioners are to choose the Churchwardens and that the Archdeacon refused him notwithstanding that he was Elected according to the Custom The Archdeacon Return'd that non sibi constat that there is any such Custom which Form is not allowable for it ought to be positive whereupon an Action might be grounded and that by the Canon the Parson is to choose one c. The Court said that Custom would prevail against the Canon and a Churchwarden is a Lay Officer and his Power enlarged by sundry Acts of Parliament and that it has been Resolved that he may Execute his Office before he is Sworn tho' it is convenient he should be Sworn and if the Plaintiff here were Sworn by a Mandate from this Court they advised him to take heed of disturbing him Noy Rep. 139. Anonymus AN Assumpsit was brought against an Executor for that the Testator being Indebted to the Plaintiff he did ad requisitionem of the Defendant come to Account with him upon which there appeared to be so much due to the Plaintiff which he promised to pay After Verdict the Judgment was de bonis propriis and it was moved that it ought to have been de bonis testatoris For the Accounting with him is little more than telling him what is due and this might make an Executor afraid of Reckoning with any of his Testators Creditors The Court said that the Accounting upon the Defendants Request which was more than the Plaintiff was bound to have done was a Consideration and after a Verdict they must intend an express Promise But Hale said If upon the Evidence it had appeared that there was no Intention to alter the Nature of the Debt as in case an Executor should say stay a while until the Testators Estate was come in and I will pay you he should direct the Jury to find against the Plaintiff that would in such case charge an Executor in his own Right Termino Paschae Anno 27 Car. II. In Banco Regis NOte In an Indebitat ' Assumpsit a man Promises in Consideration that
disposition of them in case of such necessity pendente lite And the Court granted the Prohibition quoad that Allegation only Tothil versus Ingram IN Replevin the Defendant avowed for an Herriot and Arrears of Rent upon a Lease In Bar of this Avowry as to to the Herriot the Plaintiff pleaded That in a former Replevin brought by him against J.S. the said J. S. made Conuzance as Bailiff to the Defendant for the same Herriot and was barred And to the rest he pleaded a Release of all demands made unto him by the Avowant before this Rent accrued and to this the Avowant demurred First For that he doth not shew that he which made Conisans was Bailiff to the now Avowant for he might make Conisans without his Privity and if so it could be no bar to him now As to the Release it was said that a Rent incident to a Reversion would not be barred by such Release And so it was adjudged in this Court in Hen and Hampsons Case in the year 1662 by Foster Chief Justice Windham and Maller against the Opinion of Twisden who now said that that Resolution was contrary to Littl ' Sect ' 510. who saith that a Release of all demands will extinguish a Rent-service And it was said that in Hancocks and Fields Case 2 Cro. 170. it is adjudged that such Release will extinguish a Rent reserved upon a Lease tho' not a Covenant before it be broken To which it was answered That in Witton and Byes Case 2 Cro. 486. It is resolved that if a Lessee Assigns over his Term reserving a Rent it will be extinguished by releasing of all demands But Houghton makes a difference between such a Rent and a Rent incident to a Reversion For the first Point the Court held that if the Bailiff had no Authority to make Conisans it ought to be shewn on the Avowants part for otherwise it shall be intended and this may be Traversed by the Avowant here tho' the Plaintiff in Replevin when Conizans is made cannot Traverse the being Bailiff But for the second Point Adjornatur Sir Walter Plomer versus Sir Jeremy Whitchcot THe Court were this Term to give their Opinions in the grand Point viz. Whether Sir Jeremy Whitchcot Warden of the Fleet were liable for Escapes suffered by Duckenfeild his Lessee Duckenfeild being insufficient But the whole Court observing an imperfection in the Verdict which found that Duckenfeild was insufficient when put in and at the time of his Escape but it was not found that he was so at the time of the Action brought Hereupon they declared that they were all agreed that Sir Jeremy Whitchcot was liable if the said matter had béen found but that they could not give Iudgment upon the Verdict as it was found whereupon the Parties were permitted to take a Venire de novo but they rather chose to have a Nil capiat c. entred and so bring a Writ of Error for their Counsel were very strong that that matter should be intended in a Special Verdict and their Declaration did alledge him to be insufficient at the time of the Action brought But Sir Jeremy Whitchot soon after died and so the Writ of Error did not proceed Ent versus Withers IN Debt against on Executor suggesting a Devastavit and to charge him in his own right The Defendant pleaded a frivolous Plea to which it was demurred but then exception was taken to the Declaration that it did not set forth any Judgment obtained before against the Executor de bonis testatoris without which this Action would not lie in this manner Vid. Wheatly and Lane Hill 20 21. Car. 2. in Sanders And of that Opinion were the Court but Serjeant Pemberton desiring to argue it saying there was no difference in reason between the Cases Adjornatur Anonymus THe Court said that in case of an Indictment and Issue joyned the Party could not carry it down to Try it by Proviso for it lay not against the King Astree versus Ballard THe case was The Plaintiff had recovered against two in Trover and now brought a Scire facias against the Bail who pleaded that he had taken one of the Principals in Execution before the Scire facias taken out 1 Ro. 897. If one hath Execution against the Principal he cannot afterwards proceed against the Bail nec ê contra but Paschae 28. of this King it was resolved in the Case of Orlibary and Norris where the Bail was taken first in Execution and afterwards the Principal that they should be both detained until satisfaction contrary to 1 Ro. 897. So that it appears that the Plaintiff shall not be concluded by his Election to proceed against the one first But here the difficulty is that the Bail by the Plaintiffs act is disabled to bring in both their Bodies according to the Condition of their Recognizance he having taken one of them himself Et Adjornatur Smith versus Tracy IN a Prohibition the case was Eliz. Smith died Intestate leaving two Brothers one of the whole Blood and the other of the half Blood And in the Ecclesiastail Court they would admit the half Blood to come in for distribution with the whole Blood upon the Act of 22 and 23 Car. 2. cap. 10. Vpon which a Prohibition was granted to which there was a Demurrer And the question came upon these words in the Act viz. That distribution is to be made to the next of Kin of the Intestate who are in equal degree and such as legally represent them For the Plaintiff it was said that Statutes were to be expounded by the reason of the Common Law which took no consideration of the half Blood insomuch that an Estate should rather escheat then descend to the half Blood Then the words of the Act are such as legally represent them which they both do the common Auncestor but not one another in this case Consideration is to be had of the intent of the Interstate which must be supposed to prefer the Brother of the whole Blood Dier 372. Isteds Case where the Executor dies Intestate the Residuary Legatee of the first Testator shall have Administration and not the next of Kin because that is suitable to the intent On the contrary it was argued that altho' the half Blood be rejected in descents yet it is regarded in other Cases 3 Co. in Ratcliffs Case the half Blood may be Guardian in Soccage Vid. 2 Ro. 303. and Stile 's Rep. 74 75. for granting of Administrations to the half Blood there cannot be two degrees made of the whole Blood and the half Blood neither does out Law make any distinction but when it wholly excludes them Curia The intent of this Act was to give the Ecclesiastical Court the Jurisdiction in this matter and to provide for the distribution of Intestates Estates which they had a long time attempted and contested but were still prohibited but now this Act permits them to proceed and it were fit we
should be informed what their course is and has been and therefore let us hear the Civilians as to this point Post The King and Marlow THe Defendant being a Printer was indicted for his second Offence for Printing of a Seditious Book contrary to the Act of 14 Car. 2. cap. 33. and being found Guilty at the Sessions of the Old Baily the Iudgment was given That he should be for ever disabled to exercise the Art or Mistery of Printing and pay 20 l Fine and to stand in the Pillory And a Writ of Error was brought and Errors were assigned in the Judgment as varying from the words of the Act. For First The Act is That he should be disabled to exercise the Art and Mistery of Printing or Founding of Letters And the Judgment is only to disable him from Printing Secondly The Act is That he shall receive such further punishment by Fine Imprisonment or other Corporal Punishment And the Judgment is both for a Fine and Corporal Punishment when it ought not to be for both Curia The first is as it should be for Printing and Founding of Letters are two distinct Trades and the words are to be taken respectively to such Trade as the Defendant is of Again 't is a Rule that a Man shall not Assign an Error in that which is for his advantage But the second was held an Error for that the Act did not intend a Fine and Corporal Punishment both and therefore the Judgment was reversed Termino Sancti Michaelis Anno 29 Car. II. In Banco Regis Davis versus Price IN Error upon a Judgment in the Common Bench in an Action of Trover where Iudgment was given by default The Error was assigned in the Declaration which was de decem Juvencis Anglice Bullocks and Heifers and not said how many of one and of the other But it was answered that the Latin word being proper and of known signification the Anglice was void according to Osborns Case 10 Co. But the Court reversed the Judgment and cited the Case before in this Court Trover de viginti ovibus matricibus agnis And it was resolved to be naught for not ascertaining the number of each But Twisden said there was a Trover brought de Viginti averiis ivz. Bobus agnis c. and Viginti was applied to each Species and held well It was offered in this case to distinguish it from the case de Ovibus matricibus agnis that there the Latin was of two sorts Sed non allocatur for the words here being Equivocal it was all one Dutton versus Pool AN Assumpsit the Plaintiff declared That his Wives Father being seized of certain Lands now descended to the Defendant and about to cut a Thousand pounds worth of Timber off from the said Lands to raise a Portion for his said Daughter the Defendant promised to the Father in Consideration that he would forbear to fell the Timber that he would pay the said Daughter 1000 l After Verdict upon Non Assumpsit for the Plaintiff it was moved in Arrest of Judgment that the Father ought to have brought this Action and not the Husband and Wife and there was a case shewn to be adjudged in the Common Bench Hillary 23 and 24 Car. 2. Rot. 1538. between Pine and Norris where the Son promised the Father that in Consideration that he would Surrender a Copyhold to him that he would pay a certain Sum to his Sister for which she brought the Action and then held that it would lie for none but the Father for where the Party to whom the Promise is to be performed is not concerned in the meritorious cause of it he cannot bring the Action But if a Promise were to a Man that if his Daughter should Marry his Son he would give her 1000 l there because the Daughter does the Act which is the Consideration she may bring the Action On the contrary the Case was cited 1 Rolls 32. Starkey and Miln where in Consideration of certain Goods sold the Promise was to pay part of the Money to another there that other might bring the Action And it differs from the case where Money is delivered to A. to pay over to B. B. may bring Debt Yelv. 24. If the Father had in the Case at Bar cut the Trees And the Son had said Let me have the Trees and I will pay the Daughter so much that had been the same with the Case before cited 1 Roll. and it doth not seem to differ as it is 1 Cro. 163. Rookwook Case where the Father being about to charge the Land with a Rent of 4 l per Annum to his Younger Sons the Eldest promised that if he would forbear to charge the Land he would pay the 4 l per Annum and the Sons upon this brought the Assumpsit and recovered Sed vide librum that Promise is said expresly to be made to the Sons who were present Vid. 1 Cro. 619.652 Levett and Haws Case where the Promise was made to a Man in Consideration that he had agreed that his Son should Mary his Daughter and to settle such a Joynture upon her that he would give the Son 200 l with her and for this the Father brought the Action and held well brought tho' the Court seemed to incline that the Son might also have brought it And the Court here inclined for the Plaintiffs Sed Adjornatur Post Saunders versus Williams IN an Action upon the Case the Plaintiff Declared that he was seised in Fee of one Acre and possessed for a certain number of years in another Acre and had a Common in Black-acre for Beasts levant and couchant thereupon and that the Defendant put his Beasts in the place and disturbed him The Defendant pleaded a Title of Common to himself also there Vpon which Issue was joyned and found for the Plaintiff and it was now moved in Arrest of Judgment that the Plaintiff had made no Title to the Common by Prescription or otherwise Sed non allocatur The Defendant being a Wrong-doer And the same Matter was Adjudged in the Court between St. John and Moody St. Mich. 27 Car. 2. quod vide ante and in the 2 Cro. 43.122 3 Cro. 500. Robinson versus Woolly THe Case was this Term Argued again And Holt Argued That the Induction tho' executed by the Archdeacon after the New Bishop was Consecrated was sufficient The Bishop is only to Admit and Institute and to send a Mandate to the Archdeacon to Induct who is to do it de communi Jure and therefore if the Bishop hath Admitted and Instituted and made a Mandate for Induction 't is a sufficient Excuse for him in a Quare impedit 11 H. 4. 9. for the Bishop is meerly a Spiritual Officer A Prebendary is to be Inducted by the Dean and Chapter Pl. Com. 529. But 't is Objected That the Archdeacon does not Induct ex Officio â—ut a Mandate from the Bishop is requisite scilicet First The
the Suit against one alone ought not to be as in an Assize for a Rent-charge all the Ter-Tenants are to be named and here the party has an Election to Sue a Writ of Annuity and if so be must have named all that had been chargeable Curia 'T is true in our Law it were a good Plea in Abatement but perhaps their Law and Course is otherwise And here they have Jurisdiction and may proceed according to their own Rules or if not you may have an Appeal Whereupon a Prohibition was denied Anonymus IN an Habeas Corpus and Certiorari for the Body of J. S. who had been Imprisoned for not paying of a Fine of 20 l set at the Quarter Sessions The Return was that he being Constable and demanded by the Court to Present an High-way which was sworn before him by Two Witnesses to be out of Repair said in Contempt of the Court That he would not Present it For which and certain other contemptuous words the Fine was set The Counsel for the Prisoner moved that it might be Filed Which was done The Court were of Opinion that the Fine was not well set for Constables are to Present upon their own Knowledge and the Two Witnesses should have been carried to the Grand Jury for the Constable was not obliged to Present upon their Testimony This Court is to judge of their Fines whether without Cause or to mitigate them when excessively imposed and for the Contemptuous Words the Return is ill because not expressed what On the other side it was prayed that the Return might be amended for he had spoken Opprobious Words but that could not be admitted after the Filing And so the party was discharged Anonymus IT was moved to quash an Order of Sessions for the Keeping of a Bastard Child First That it doth not appear that the Child was born within the Parish Secondly 'T is to allow so much Weekly until the Child is Eight years of Age whereas the Statute gives power to make a Weekly allowance while the Child shall be chargeable Thirdly The Order was at Eight years old to pay 5 l for the Binding of it out But the Court would not quash it for they said it was implied by saying it would be chargeable to the Parish that it was born there and 't was apparent it would continue Chargeable for so long as they appointed the Allowance and they might Order 5 l to be paid in the end Sed Quaere For a Sum in gross ought not to be set but a Weekly allowance And the Court said they must shew that respect to Justices of the Peace who served the Country at their own charge as not too nicely to examine their Orders Anonymus ERror upon a Judgment by Nihil dicit given in the Common Pleas where the Action was for Words which in the Declaration were laid thus That the Defendant said Quidam J. S. which was the Plaintiffs Name innuendo the Plaintiff was c. The Error assigned was that there was no Averment that these Words were spoke of the Plaintiff for there might be more of the name But Holt for the Defendant said the Innuendo would help that fault and he cited the Case of Rebotham and Venlecke in the 3 Cro. 378. where the Plaintiff Declared that he had made an Oath before a Judge upon certain Articles exhibited for the Good Behaviour and the Defendant to Scandalize him said He made a false Oath Innuendo the said Oath before the Judge where it was held that the Innuendo was sufficient to ascertain what Oath was meant But the Court Reversed the Judgment in this Case and said that not saying in the Declaration that the Words were spoken of the Plaintiff it was not sufficient to bring that in by an Innuendo which ought to have been Averred and it is the worse because 't is said quidam J.S. which imports another person than the Plaintiff Anonymus ERror to Reverse a Judgment given in the Kings-Bench in Ireland in a Prohibition where the Issue was Whether he had Prosecuted in the Court Christian after the Prohibition and it was found for the Plaintiff and Damages assessed to 100 l and 6 d pro misis custagiis And now the Error was assigned in the Judgment given which was That the Plaintiff should recover damna praedicta per Juratores assess ad 100 l nec non pro misis custagiis de incremento per Cur ' adjudicat ' 20 l omitting the 6 d Costs given by the Jury On the other side it was said That damna praedicta in the Judgment included all and the saying 100 l was but a Miscomputation Et Adjornatur Postea Hill 33 34 Car. 2. How versus Whitfield A Fine of certain Lands to the use of J. S. for Life and after to his Executors and Assigns for 80 years with Power to the Lessee and his Assigns to lett Leases for 21 years reserving the ancient Rent After several mean Assignments the Assignee of an Executor of an Assignee made a Lease for 21 years which in the Special Verdict was found to be made of the said Lands inter alia reserving proinde six shillings per annum and found that six shillings was the ancient yearly Rent for the Land The Court seemed to be of opinion that an Assignee after so many Removes might execute this Power for it was coupled with an Interest and annexed to the Estate tho' to be construed strictly but in regard the Lease was made of the Land inter alia reserving proinde c. in case the Reservation should be taken to be for the whole Land then it was not the ancient Rent reserved for this and upon that they doubted Et Adjornatur Postea Anonymus AN Indictment was quashed for want of Addition For the Court said no Process ought to go out thereupon because the party cannot be Outlawed Anonymus IN an Habeas Corpus the Return was that the party was taken upon an Excom ' Cap ' It was moved that the party might be discharged because upon Search it appeared that the Writ had not been Enrolled in this Court for so it ought to be by the Statute of the 5th of the Queen tho' the Writ issues out of Chancery The Court doubted whether they could Discharge him upon a Motion or that he should be driven to plead this Matter And it was said the Course had been both ways Vid. Parker's Case 3 Cro. 553. But the party was afterwards Discharged ut opinor Herne versus Brown A Prohibition was prayed to a Suit in the Ecclesiastical Court The Libel sets out That a Tax had been made for the Repairs of a Church where the Defendant inhabited and was to make him pay his proportion To which they required his Answer viz. Whether he had paid c. The Suggestion was that the party had tendred his Answer but the Court had refused it because it was not upon Oath and that the Ecclesiastical Court
cannot tender an Oath to the party sued nisi in causis Matrimonialibus Testamentariis But the Court after hearing divers Arguments denied the Prohibition for they said It was no more than the Chancery did to make Defendants answer upon Oath in such like Cases Termino Sanctae Trinitatis Anno 31 Car. II. In Banco Regis How versus Whitfield ante in ult ' Term. IN Repl the Plaintiff declares of the taking of his Cattle in a Close containing five Acres The Defendant avows and sets forth a Fine to the use of A. in Tail which discended to him Virtute cujus he was seised in Dominico ut de feodo talliato c. The Plaintiff Replies that the Fine was first to the use of J. S. for Life the Remainder to his Executors Administrators and Assigns for 80 years with Power to him and his Assigns to lett the five Acres in Possession or Reversion for 21 years determinable upon three Lives reserving the ancient Rent and that J. S. Devised this Term to J. N. and died his Executors assented and after it came to the Executors of J. N. who assigned it and that the Assignee made a Lease of the said five Acres inter alia reserving proinde the Rent of 6 s per annum and avers that the ancient Rent was 6 s per annum The Avowant Rejoyns setting forth his former Title And the Plaintiff Demurrs It was Objected First That the Plaintiff ought to have traversed the Seisin in Tail alledged by the Avowant seeing in his Replication he sets forth and intitles himself under an Estate inconsistent with it To this it was Answered and the Court agreed that there ought to be no Traverse for the Avowant doth not say it was his Freehold or that he was Seised in Tail but only under a Virtute cujus c. And the Plaintiff in his Replication sets forth a Title consistent with all that the Avowant alledges and so confesses and avoids and all depends upon the execution of the Power And for that Secondly It was Objected That he which made this Lease was not Assignee of J. S. for Executors were not within the Power and consequently not their Assignee This is a Power collateral to the Estate and shall not run with the Land for then Assignees of Commissioners of Bankrupcy the Vendee of the Term by the Sheriff upon an Execution c. should execute this Power It is like Covenants annexed to Leases which the Assignee could not take advantage of till 32 H. 8. Again Here appears to be no good Reservation for the Lease is of the five Acres inter al' reserving proinde so that the Rent issues out of other Lands as well as the five Acres and therefore cannot be said to be the ancient Rent reserved upon that The Court were all of Opinion that the Assignee in this case might execute the Power and conceived that Assignees might include Assignees in Law Vid. Mo. 855. as well as Fact but however the Tenant for Life devising this Term the Devisee was an Assignee and the Power in the greatest strictness of acceptation was in him and consequently must go to his Executors and by the same Reason to their Assignee As to the Reserving the Rent proinde the Court said it might be intended that the inter al' might comprehend nothing but such things out of which a Rent could not be reserved and then the six Shillings was reserved only for the five Acres However the proinde might reasonably be referred only to the five Acres and not to the inter al and that a distinct Reservation of Six shillings might be for five Acres And so Judgment was given for the Plaintiff Ante. Steed versus Berrier ERror upon a Judgment given in the Court of Common Pleas upon a Special Verdict the Case was to this effect J.S. made his Will in Writing and devised Lands to his Son J.S. and his Heirs and in the same Will gave a Legacy of 100 l to his Grandson The Son died afterwards in his Life time after whose decease J. S. the Grandfather made a Codicil wherein he gave away part of the Lands devised as aforesaid to a Stranger and afterwards declared by Parol that his Intention was that his Grandson J. S. should have the Lands which his Son J. S. should have had The Question upon this Special Verdict was Whether this were sufficient to carry the Lands to the Grandson And Judgment was given in the Common Pleas by three Judges against one that it was Whereupon a Writ of Error was brought in this Court Finch Solicitor Argued that this Will was sufficient to carry it to the Grandson He agreed Brett and Ridgen's Case in Pl. Com. that a Devise to a man and his Heirs who dies in the Life of the Devisor a new Publication will not be enough to make the Heir take by the Will because named in the Will by way of Limitation of the Estate and not Designation of the Person that should take But in Fuller's Case in the 1 Cro. 423. and in Mo. 2. where the Devise was to his Son Richard and the Heirs of his Body which Richard afterwards died in his Life time and then the Devisor said My Will is That the Sons of Richard my Son deceased shall have the Land devised to their Father as they should have had if their Father had lived and died after me There Popham and Fenner held that this new Publication would carry the Land to Richard's Son Gawdy and Clench contra But our Case is much stronger for there Heirs of the Body were used only for Limitation but in the Will here where the words are I Devise to my Son J. with this new Publication the Grandson J. may take because a Grandson is a Son and when a Will is new Published it is all one as if it were wrote at the time of such Publication Beckford and Parncot's Case in the 1 Cro. 493. Mo. 404. Devise of all his Lands and after the Will the Devisor purchaseth other Lands and then publishes it again it will carry the new purchased Lands Dyer 149. Trevanian's Case Cestuy que use before the 27th of H. 8. Devised the Lands a new Publication will pass the Lands executed in him by the Statute The Opinion of the Court inclined to Reverse the Judgment they held it to be the same with Fuller's Case in the 1 Cro. that no Parol averment can carry Lands to one person when the words of the Will plainly intended them to another They agreed If a man having no Son but a Grandson deviseth his Lands to his Son the Grandson may take But here is an opposition contained in the new Publication viz. Those Lands which my Son J. should have had my meaning is my Grandson J. shall have And in the Will it self there is a Legacy devised to the Grandson by that Name so where they are so distinguished 't is impossible to take the Grandson to be
Usage in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess 225 234 Blasphemy Blasphemous Words not only an Offence to God and Religion but a Crime against the Laws State and Government and Christianity is parcel of the Laws of England 293 Bond. See Obligation What Bond a Gaoler may not take of his Prisoner 237 The Condition of a Bond or Covenant may in part be against the Common Law and stand good in the other part ibid. C. Certiorari PRisoners cannot be removed by Certiorari from a Country Gaol till the Indictment be found below 63 Lies to remove an Indictment of Manslaughter out of Wales to be Tryed in the next English County 93 So of Murder 146 Challenge What is good Cause and where Cause shall be shewn 309 Where the Kings Council shall shew Cause ibid Chancery Tryals directed out of Chancery the Course 66 Answer in a Court of Equity Evidence at Law against the Defendant 212 Churchwardens Bring Account against their Predecessor for a Bell whether it shall be said to be de bonis Ecclesiae or de bonis Parochianorum 89 Whether they may refuse to take the Oath to present and how to proceed 114. 127 General VVords to present Offenders do not extend to the Church-warden himself but relate only to the rest of the Parish 127 May make Rates themselves if the Parishioners are Summoned and refuse to meet 367 Common See Pasture Where Common is claimed for Beasts Levant and Couchant on certain Land no other Beasts ought to be put on the Common but those of the Tenant of the Land to which it is appendant or those which he takes to compester his Land 18 A Man cannot prescribe for Common by a Prescripeion that is unreasonable 21 Common apurtenent for Beasts Levant and Couchant how pleaded 54 Common in another Mans Soyl how to be claimed 383 A Commoner cannot prescribe to exclude his Lord 394 The Comencement of Commons 395 In a Title of Common for Beasts Levant and Couchant the Levancy and Couchancy is not Traversable 385. Nor material among Commoners 397 Condition What Words make a Condition what a Limitation and what Conditional Limitation 202 203 Conspiracy If one be acquitted in an Action of Conspiracy the other cannot be guilty but where one is found guilty and the other comes not in upon Process or Dyes yet Judgment shall be against the other 238 Indictment lies for Conspiring to charge with a Bastard Child and thereby also to bring him to disgrace 305 Constable See Attorney Tenant in Antient Demesne not excused from serving Constable 344 Contingency See Grant Remainder Conveyance Contingent Estates what and how destroyed 215 334 Whether a Descent in Tayl prevents a Contingent Remainder 306 Contract A Verbal Contract cannot create a Penalty to oblige the Heir 76 Conveyance The Modern VVays of Conveyancing to prevent the disappointing Contingent Estates 189 VVhere a Conveyance is good before Inrolment and where not 360 Difference between a Conveyance at Common Law and a Conveyance to Uses 373 378 Copyhold See Pasture Admittance of Tenant for years is an Admittance of him in the Remainder 260 VVether Copyholder for Life in Reversion after an Estate for Life in being can Surrender to a Lord Disseizor 359 Coroner VVhere a Melius Inquirendum shall be granted after a Coroners Inquisition super visum Corporis 182 A Coroners Inquisition that finds a person Felo de se non Compos may be Traversed 278. And quasht 352 Corporation VVhat they can do without a Deed and what not 47 48 Costs See Assault and Battery Treble Costs in an Action on the Stat. 8 H. 6. of Forcible Entry 22 Costs where payable in a VVrit of Error 88 VVhere payable by an Executor 92. and Administrator 110 116 If an Executor be sued and the Plaintiff Non-suit he shall have Costs but an Executor Plaintiff shall pay no Costs upon a Non-suit 94 Costs and Damages not to be given in an Action Popular 133 Costs de Incremento 337 362 Covenant VVhat Collateral matters shall be implied upon a Covenant 26 44 45 Thô a Covenant be made only to a Man his Heirs and Assigns yet if a Breach be in his Life time his Executors may bring the Action for Damages 176 VVhere a Covenant shall bind notwithstanding a subsequent Act of Parliament 175 176 Covenant with an Intended VVife whether discharged by subsequent Marriage 344 Courts See Jurisdiction Inferiour Courts cannot make a Continuance ad Proximam Curiam but always to a Day certain 181 Customs See Prescription To maintain a Common Key for the unlading of Goods and therefore every Vessel passing by the said Key to pay a certain Sum a void Custom as to those Vessels which did not unlade at the said Key 71 A Custom that Lands shall descend always to the Heirs Males tho' of the Collateral Line Good 88 D. Damages See Costs NOne but the Courts at Westminster can increase Damages upon View 353 Date See Lease Demurrer The old way of Demurring at the the Bar 240 Devastavit See Executor Return Devise Whether a Termor may Devise in Remainder and limit a Possibility upon a Possibility 79 To Dr. V. during his Exile from his Country what Estate passes 325 Divers parcels of Lands being devised whether these words the said Lands pass all the parcels or only the last mentioned 368 A Devise of Lands to two equally to be divided makes them Tenents in Common 376 Discents The various Kinds of Discents or Hereditary Successions and the Rules whereby they are to be governed 414 The Discent from a Brother to a Brother thô it be a Collateral Discent yet it is an immediate Discent 423. And therefore two Brothers Born in England shall Inherit one the other tho' the Father be an Alien 429. Secus in Cases of Attainder 416 417 If the Son purchase and have no Kindred on his Fathers side but an Alien his Estate shall discend to the Heir on the part of his Mother 426 Distress Whether in Distress for Rent Horses may be severed from a Cart 36 An Information lies not against a Landlord for taking excessive Distress of his Tenents 104 Hindring the Carrying off a Distress a provocation to make killing no more than Homicide 216 Dower The regular proceedings therein 60 Whether a Suit for Dower may be commenced by Plaint in an Inferiour Court without special Custom 267 E. Ecclesiastical Persons PRivilidges from Offices 105 Death of a Parson c. doth not make such a Non-residence as shall avoid a Lease 245 What Leases they may make and what not 245 246 Clergy Men are liable to all publick charges imposed by Act of Parliament in particular for reparation of the Highways 273 Of the Induction of Clerks by whom to be made 309 319 Election Where a thing depends upon Election what course is to be observed 271 Entry Where in Ejectment actual Entry is necessary 332 Error See Executors To reverse a Judgment
in an Inferiour Court for want of infra Jurisdictionem Curiae 2 For variance between the Count and Plaint 6 But it lies not for some Omissions 5 A Writ of Error is a Supersedeas to an Execution 30. Yet the Judgment remains a Record 34 Exception 353 355 A Writ of Error returnable ad proximum Parliamentum not good Secus if to the day of Prorogation 31 266 No Writ of Error lies upon a Conviction before a Justice of Peace 33 In a Writ of Error if the Defendant dies the Writ is not abated Secus if the Plaintiff dies 34 Lies not to reverse a Judgment in a Qui tam nor upon the Statute de Scandalis Magnatis 49 What Records to be returned upon a Writ of Error 96 97 Where it lies upon a Judgment in a Scire facias and where not 168 Error in fact not assignable in the Exchequer Chamber 207 A Writ of Error that bears Teste before the Judgment good to remove the Record if Judgment be given before the Return 255 Escape See Baron and Feme VVhere a Prisoner Escapes by permission of the Sheriff he may be taken again by the Party Plaintiff 4 Debt against the Sheriff for a Voluntary Escape the Sheriff pleads that he took him again upon fresh Suit Good 211 217 Against the VVarden of the Fleet 269 The Lessor of the Custody of a Prison answerable for an Escape where his Lessee is insufficient 314 Escrow See Pleading Evidence See Statutes The party suffering admitted to give Evidence for the King to detect a Fraud 49 Exception See Feoffment Excommunication In Excommunication ipso facto no necessity of any Sentence of Excommunication 146 Excommunication pleaded to an Action per Literas testamentarias Good 222 How discharged where the Capias is not inroled according to the Statute 338 Execution Upon an Elegit the Sheriff ought to deliver Possession by Metes and Bounds or otherwise it may be quasht 259 Executor See Abatement Costs Return Of Infant Executors where to Sue by Guardian 40 54. VVhere by Attorney 40 102 103 If a Man names himself in an Action Executor or Administrator and it appears the Cause of Action was in his own right it shall be well enough and the calling himself Executor is but surplusage 119 VVhere the Executors promise in relation to the Testators Debt shall make the Debt his own 120 268 VVhere Interest is due for a Debt partly in the Testators life time and partly since and one Action brought and Judgment given for the whole this is manifestly Erroneous 199 VVhere chargeable in the Debet detinet and where in the detinet only 271 321 355 Cannot assume the Executorship for part and refuse for part 271 Debt doth not lie against the Executor of an Executor upon a Surmise of a Devastavit of the first Executor 292 Of the Executors renouncing 303 cannot refuse after Oath 335 Of Executor de son tort 349 VVhat Acts an Executor may do before Probat 370 Exposition of Words Obstrupabat 4 Or 62 148 Pair of Curtains and Vallence 71 106 Ad sequendum 74 Vt 73 74 Aliter vel alio modo 92 Mutuasset and mutuatus esset 109 Aromatarij 142 Centena 211 Issue 229 Land 260 Crates 304 Gubernatio Regimen 324 Exilium 326 Vestura terrae 393 Extinguishment Where two Closes are in the same Possession the Duty of Fencing is Extinguished and shall not Revive thô the Closes come after into several hands 97 F. False Latine DE sex bovibus instead of bobus no sufficient Cause to Arrest Judgment 17 Feoffment A Man makes a Feoffment of a Mannor excepting two Closes for the Life of the Feoffor only The two Closes descend to the Heir 106 Fine The Delivery of a Declaration in Ejectment upon the Lands is no Entry or Claim to avoid a Fine 42. So where an Action is brought and discontinued 45 A Fine cannot bar any Interest which was divested at the time of the Fine 56 Whether a Fine and Non-Claim bars the Interest of a Lessee in Trust 80 No Bar to a Mortgage 82 A Parish may contain many Vills and if a Fine may be levied of Lands in the Parish it carries whatsoever is in any of those Vills 170 Lessee for years makes a Feoffment and levies a Fine the Lessor shall have five years to Claim after the Term expired 241 Forcible Entry In an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with force because upon the finding a Restitution is to be awarded 23 Foreign Attachment See London Of Foreign Attachments by Custom how to be pleaded 236 G. Gaming See Statutes Guardian See Baron and Feme Executor Grant See Hundred GRant without Consideration hinders not the arising of a Contingent use 189 In Prescriptions or Usage time beyond Memory the Law presumes a Grant at first and the Grant lost 387. And therefore nothing can be prescribed for that cannot at this day be raised by Grant ibid. Of the Kings Grant 408 409 A Grant to a Town to be a County and no Grant of having a Sheriff void 407 H. Habeas Corpus See Statutes THo' the Return be Filed yet the Court may remand the Prisoner to the same Prison and not to the Marshalsey 330 346 Whether it lies to remove a Prisoner in Ireland 357 Half Blood The Sister of the Half Blood shall come in for distribution upon the Stat. 22 23 Car. 2. chap. 10. 316 317 323 Half Blood no Impediment to Administration 424 Harriot Where a Lease is made to commence on the Determination of another if the new Lessee dyes before his Term Commences whether a Harriot shall be due 91 Heir An implied Estate of Land shall not pass in a Will for an Heir shall not be defeated but upon a necessary Implication 323 376 A Man cannot by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser 372 379 Yet Heirs of the Body of his second Wife having a Son by the first is a good name of Purchase 381 Hospital Mastership of a Hospital not grantable in Reversion 151 Hundred A Hundred what it is and the Bayliff of a Hundred 403 The Grant of a Hundred good notwithstanding the Statutes 2 E. 3. 12. 14 E. 3. 9. 410 412. I. Imprisonment Where an Offence is Fineable if the Fine be tenderd there ought to be no Imprisonment 116 Indictment Where a Statute makes an Offence at Common Law more penal yet the Conclusion of the Indictment is not contra formam Statuti 13 A Man cannot be Indicted for saying of a Justice of Peace he understands not the Statutes of Excise but may be bound to Good Behoviour 10 16 Indictment of Forgery upon the Stat. 5 El. 4. where good and where not 23 24 Strictness of words not required in in an Order of Sessions thô it ought in an Indictment 37 For Manslaughter not quasht upon Motion 110.
Place assigned from whence the Venue should have come 348 350 No likelyhood of an Indifferent Tryal cause to change the Venue 365 Verdict See Assumpsit What Errors and Omissions are ayded after Verdict 34 100 108 109 114 126 Where a Special Verdict refers one Special Point to the Judgment of the Court all other matters shall be intended 118 After Verdict the Court shall admit any Intendment to make the Case good 123 Want of an averment of Levancy and Couchancy aided by a Verdict 165 Vse See Trust What Words and Considerations shall raise a Use 138 140 141 The use of a Fine or Recovery may be declared by a subsequent Deed 368 In Cases of Uses the Intention of the Parties ought to be pursued 373 374 378 Vsury The Statute against Usury expounded strictly in regard of Broakers 38 No Action of Debt lies for the Interest of Mony but it is to be recovered by Assumpsit in Damages 198 W. Wager of Law WHere admitted and where not 261 Indictment of Perjury will not lie upon an Oath in waging Law 296 Way High way and Private-way the Diversity and who shall repair 189 256 Whether an Indictment lies for stopping a Common Foot-way to a Church 208 Action on the Case for obstructing his way to his Wood 274 Wills A man cannot release a Debt by Will 39 Wills concerning the Guardianship of a Child and not to be proved in the Ecclesiastical Court but they may there prove a Will of Lands 207 Where Suits for Legacies given by Wills ought to be 233 The Effect of a Republication and Paroll Declaration 341 342 Witness See Evidence Statutes A Council Attorney or Sollicitor ought not to be examined against his Clyent because obliged to keep his Secrets 197 A Pardon of Felony though after burning in the Hand restores a man to be a Witness not so of Perjury 349 Whether a Freeman of a City may be a VVitness for that City 351 Writs A Fault in a Mean Process is aided by Appearance but if an Original should bear date on a Sunday the Appearance of the Party would not help it 7 Sr Peyton Ventris Kn t. Late one of the Justices of the Court of Com̄on Pleas. I Royly pinx H White sculp THE SECOND PART OF THE REPORTS OF Sir Peyton Ventris Kt. LATE One of the Iustices OF THE COMMON-PLEAS CONTAINING Select CASES Adjudged in the COURT of Common-Pleas in the Reigns of K. CHARLES II. and K. JAMES II. and in the Three first years of the Reign of His now Majesty K. WILLIAM and the late Q. MARY while he was a JUDGE in the said COURT With the Special PLEADINGS to the same ALSO Several CASES and PLEADINGS thereupon in the Exchequer-Chamber upon Writs of ERROR from the Kings-Bench Together with many remarkable and curious Cases in the Court of Chancery Whereto are added Three exact TABLES One of the Cases the other of the Principal Matters and the third of the Pleadings With the Allowance and Approbation of the LORD KEEPER and all the JUDGES LONDON Printed by the Assigns of Richard and Edward Atkyns Esquires for Charles Harper at the Flower-de-Luce and Iacob Tonson at the Judges-Head both over against St. Dunstan's Church in Fleetstreet MDCXCVI MVNIFICENTIA REGIA 1715 GEORGIVS D. G. MAG BR FR. ET HIB REX F. D. I. P. Sc. THE NAMES OF THE CASES IN THE SECOND PART A ADAMS v. Cross 181 Alleson v. Marsh ibid. Anonymus's 35 39 45 46 47 48 58 73 117 154 171 172 173 174 180 194 195 196 214 215 216 218 262 346 347 349 351 353 358 359 361 362 363 365 B BAiles v. Wenman 74 Barney v. Tyson 359 Bathurst 's Case 40 Baynton v. Bobbet 67 Bealy v. Sampson 90 93 Beaumont v. Weldon 155 Beversham 's Sir William Case 345 Biddulph v. Dashwood 261 Bird v. Blosse 361 Blake v. Clattie 73 Bland v. Haselrig al' 151 Blisse v. Frost 63 67 Blois Charles al' v. Dame Jane Blois and Jane Blois Infants 347 Bockenham v. Thacker 69 71 74 Bond v. Moyle 106 Bonham v. Newcomb 364 Bowyer v. Milner 57 Bracton v. Lister 84 Bright v. Addy 195 Broadhurst v. Richardson al' 349 Brown v. Rands 156 Buckler v. Millerd 107 Burchet v. Durdant 311 Bush v. Buckingham 80 83 Butler 's Sir Oliver Case 344 C CAge v. Russel 352 Carr v. Donne 189 193 Chamberlain v. Cooke 75 78 Chapman v. Flexman 286 291 Chase v. Sir James Etheridge 130 Clarke v. Peppin 97 99 Clarke v. Tucket 182 Clobberie 's Case 342 Coghill v. Freelove 209 Collet v. Collet 355 Colley v. Helyar 135 Cornwallis 's the Lord Case 38 Cooke v. Romney 173 Cramlington v. Evans and Percival 296 307 Craw v. Ramsey 1 D DAwney v. Vesey 249 Dawson v. The Sheriffs of London 84 89 Dennis v. Mazey 210 212 Dickman v. Allen 136 138 Dighton Christopher v. Bernard Greenvil 321 Dod v. Dawson 143 Dodwell the Case of and The University of Oxford 33 Dowse v. Cale 117 126 Draper Sir Thomas v. Dr. Crowther 362 E ELlis v. Yates 153 Every v. Carter 254 259 F FAgg v. Roberts al' 195 Fleet 's The Warden of the Case 154 Fowkes v. Joyce 50 G GAwden v. Draper 217 George v. Butcher 140 Godfrey v. Ward 185 Gower 's Sir Thomas Case 90 Goylmer v. Paddiston 353 Grove v. Dr. Elliot Chancellor of Sarum 41 Guldeford Major probi homines de v. Clarke 243 247 H HAnson Judith v. Liversedge 239 242 Harding 's Patrick Case 315 Harris v. Parker 249 253 270 Harrison Tho. Ux ' v. Dr. Barwell 9 Haslewood v. Mansfield 196 Haymer Vid. v. Haymer 343 Highway v. Derby 174 Hocket Ux ' v. Stegold ux ' 29 Hodges v. Waddington 360 Holland v. Lancaster 131 134 Hollis 's my Lord Case 345 Humphreys v. Bethily 198 222 K KEmp v. Cory al' 224 227 283 Killigrew v. Sawyer 79 King of Grays-Inn v. Sir Edw. Lake 28 L LAde v. Baker and Marsh 145 149 Lade v. Barker 260 266 Lawson v. Haddock 234 237 Lechmere al' v. Toplady al' 156 169 Leigh v. Ward 72 Lexington the Lord v. Clarke and his Wife 223 Littleton 's Sir Thomas Case 351 Lundy 's Colonel Case 314 M. MArks v. Nottingham 196 Marsh v. Lee 337 Mason v. Watkins 109 Massingham v. Durrant 49 Morgan v. Hunt 213 Morley v. Polhill al' 51 56 Mountague the Earl of v. The Lord Preston 170 N NEwport v. Godfrey 184 Noell v. Robinson 358 Norwood v. Woodly 193 O ONslowe 's Case 37 Otwaie 's Sir John Case 31 Oxford 's the City of Case 106 P PAge v. Kirke 36 Pawlet 's the Lord Case 366 Perrot 's Herbert Case 30 Pheasant Peter v. Anne Pheasant The Lord Mayor of London and Sir Thomas Player Chamberlain of London c. 340 Pinager v. Gale 100 Pretious v. Robinson 173 Prynne v. Sloughter 101 104 Pyne v. Woolland 176 179 R RAgget William Vx ' v. William Clarke 364 Rashly v. Williams 59 61 Reeve 's Sir Robert Case 363
notice of any Title found for a Stranger Wherefore they held notwithstanding these Omissions in the Verdict that Judgment might be given for the Plaintiff And Tyrrell was of Opinion in the Principal Matter for the Plaintiff In his Argument he considered of divers kinds of Allegiance natural and acquired which was either local or legal As when a man is Sworn in the Leet Denizated by the Kings Letters Patents obtained by Conquest or Naturalized which Naturalization must be by Act of Parliament and cannot be limited 2 Cro. 539. 1 Inst 129. who is to all purposes a Natural born Subject An Indictment of Treason against such an one is contra naturalem ligeantiam Neither can it be confined to Place for 't is due to the Natural and not to the Politick person of the King Mo. 790. And the Plea of infra ligeantiam Regni sui Angliae was rejected in Calvin's Case in Co. and said to be never heard of before Idem est nasci idem naturalizari And he Argued That in regard Ireland hath the like Court of Parliament that England hath it hath also the same Power and conceived that the English Laws were introduced by Parliament in King John's time For in the Charter 11 H. 3. it is recited that Johannes quondam Rex Angliae duxit secum in Hiberniam Viros discretos legis peritos quorum Communi Concilio ad instantiam Hibernentium statuit c. ex diuturnitate temporis omnia praesumuntur solenniter esse acta In the 4 Inst 357. it appears that Parliaments were holden there before 17 E. 3. 2 R. 3. 12. Hibernia habet Parliamentum facium Leges And in 4 Inst 452. it is said they may Naturalize an Alien and if they do so he is all one with an Irish man born As one that purchaseth his Freedom in a Corporation hath all Immunities as amply as he that is born a Member of it Neither doth it follow from hence that an Act of Parliament in Ireland could bind England it is the Law of England Cooperating with the Act that gives the Naturalization an effect here The Act is but remotio Impedimenti As if one were Attainted by the Parliament there he should forfeit his Lands here and if that Act were Repealed he should be restored to them again yet neither Act were oligative to England The Act of Ireland is causa remota or sine qua non the Law of England is causa proxima and this of Naturalization was one of the Wonders of the Powers and Priviledges of Parliament As Legitimation of a Bastard and the like The other three Justices were of a contrary Opinion and Argued to this effect that Ireland was a Conquered Kingdom the Conquest compleated if not begun in K. Henry the Second's time in whose time there is no Record of any Establishment and being a Christian Kingdom they remained Governed by their own Laws until King John Anno 12 Regni sui by Charter for so they conceived it to be and not by Parliament for it appears that the Nobles were sworn which is not usual in Acts of Parliament neither is it Teste Rege in Parliamento introduced the English Laws yet it hath ever remained a distinct Kingdom viz. from the bringing in the Laws by King John M. Paris Hist 230. and Calvin's Case in 7 Co. 22 23. the Conquest brought it infra Dominium Regis sed non infra Regnum Angliae Oruke committed Treason in Ireland and it was held tryable by Commission by 33 H. 8. as a Treason out of the Realm 20 H 6. 8. the Judges here are not bound to take notice of the Laws of Ireland Fitzh tit Voucher 239. A man in Ireland cannot be Vouched Anders 262 263. 2 Inst 2. it is said Magna Charta nor the Statute Laws here did not extend to Ireland until Poinings Law 10 H. 7. tho' in truth it appears to be before by 8 E. 4. cap. 10. neither are they obliged by any Statute since unless named Dier 303. It is said of Lands holden in Capite in England and Ireland that there ought to be several Liverties and by several Seals 11 Ed. 4. 7. When the King went into Ireland it was held to be a Voyage Royal. And Wyld said Two Kingdoms could not be united but by Act of Parliament and there ought to be reciprocal Acts and so is my Lord Coke 4 Inst cap. Scotland But this the Chief Iustice said in his Argument was not requisite in case of a Conquered Nation which hereby had lost its Original Right of holding Parliaments but he agreed in case of Kingdoms independent one upon the other He said he had a Charter whereby Gascoigne Guyan and Callice were united to England in Ed. the 3ds time and recited to be by mutual pact upon a Peace concluded that Wales was fully conquered in Ed. 1st time whereupon they all submitted de alto basso to the King and it appears he abrogates some Laws makes some new and continues others and Wales was united and consolidated with England in H. 8 time by Act of Parliament here but there was no Act on their part neither is Ireland only a distinct Kingdom but also subordinate A Law enacted here to extend to all the Kings Dominions shall bind Ireland Writs of Error have been always brought here to reverse Iudgments in Ireland and they naturally lie as the Chief Iustice said into all subordinate Kingdoms Fitz. tit Ass 562. A Writ of Error to reverse a Iudgment given in an Assize in the County of Glamorgan and 21 H. 7. 31. B. it is said many Writs of Error have been brought to reverse Iudgments given in Callice tho' it was alledged the Civil Law there was in use So the Romans allowed Appeals out of every Province subordinate unto them as appears by the Case of St. Paul in the Acts and 't is against Nature that the Inferiour should have any influence upon the Superiour suppose a Bill of Naturalization were brought into Parliament here and rejected and after it should pass in Ireland should it have the same effect as if it had passed here If this might have been what needed the endeavours in the beginning of King James's Reign to obtain an Act for the Naturalization of all Scots and the Union of both Kingdoms when an Act in Ireland would have been as effectual and procured with much greater facility Neither is the Parliament of Ireland equal to that of England for that might be aliened by an Act of Parliament as Gascoigne and Guyan were by mutual Consent tho' the King cannot do it alone therefore King John's Grant to the Pope was held absolutely void but Ireland could not be transferred from the Sovereignty of England by any Act there for they cannot discharge themselves of their Subordination to England H. 3. granted to Ed. 1. Terrem Hibernicam and it was held to be void 40 Ed. 3. 4 Inst 357. And if they should make an Act
ipse paratus est verificare Quam quidem materiam praedicta Priscilla non dedic ' nec ad eam aliqualit ' respondit set verificacon ' illam admittere omnino recusavit ut prius per ' Judic ' quod praed ' Priscilla ab accone sua praed ' versus eum habend ' praecludatur c. Et quia Justic ' hic se advisare volunt de super pÌ„missis praed ' priusquam Judic ' inde reddant dies dat' est partibus praed ' hic usque à die Sancti Michaelis in tres Septimanas de audiendo inde Judicio suo eo quod idem Justic ' hic nondum inde c. Priscilla Web Widow versus Moore THe Plaintiff Declared in an Action upon the Case upon Five several Promises one whereof was upon a Quantum meruit for finding Meat and Drink for the Defendant at his Request The Defendant pleaded in Bar an Outlawry of the Plaintiff in this manner viz. Quod quidam S.C. al' scilicet Termino Sanctae Trinitat ' anno regni nuper Regis Jacobi secundi tertio implacitavit pÌ„d ' Priscillam in Cur ' dicti nuper Regis de Banco hic de placito trangres praedict ' quae Priscilla pro eo quod non venit in praedict ' Cur ' de B. praed ' praefat ' S. C. inde responsur ' secundum legem consuetud ' hujus regni Angl ' in Exigendo posita fuit ad utlagand ' in Com' Wiltes ' ea ratione postea scilicet quinto decimo die Maij anno regni dicti nuper Regis quarto in Com' Wiltes ' praed ' debito juris modo ad Sectam praed ' S. C. waviata fuit adhuc waviata existit prout per recordum processum inde eadem Cur ' dicti nuper de Banco praed retornat ' modo residens plen ' liquet Quae quidem Utlagaria adhuc in suis robore effectu remanet minime reversat ' seu annihilat ' hoc parat ' est verificare per Recordum illud unde pet ' Judicium si action ' c. And to this Plea the Plaintiff Demurred 1. For the Outlawry could not be pleaded in Bar to an Assumpsit upon a Quantum meruit for there is no certainty of Debt appearing till the thing comes to be valued and so cannot be forfeited It was doubted Whether Debt upon a Simple Contract was forfeited till 4 Co. Slade's Case But it was Resolved by the Court in this Case that the Outlawry was a good Plea in Bar for the Consideration created a Debt tho' that Debt was not reduced to a certain Sum. Markham and Pitt in 3 Leon. 205. Outlawry pleaded in Bar to Trover where it lies all in Damages But this Action arose upon a property of Goods which would have been forfeited 3 Leon. 197. where the King had granted all Forfeitures that accrued to him by the Outlawry of J. S. and the Grantee brought an Action But an Exception was taken to the pleading of the Outlawry for it ought to have been set forth that the Plaintiff did not appear upon the Exigent and upon that waviata fuit debito juris modo is too general Fitzherb Account 91. Traverse 31. Stamford 148. And of this the Court doubted and appointed to search Presidents of the Pleading Et Adjornatur Kempe versus Cory al' Quod vide ante ultimo Termino THe Case was now moved again and as to the Matter in Law it was held clear that where A. is seised of a Third part in Common and B. of the other two parts in Common with A. and A. let his Third part reserving Rent and B. puts in his Cattle or a Stranger by his License that such Cattle are not Distrainable for the Rent But the Doubt was because the Avowry was in loco in quo ut in super praedict ' tertiam partem c. Whether the Plaintiff should not have traversed the Taking in tertia parte tantum Vide the Case of Newman and Moor in Hob. 80. 103. And note there that the Traverse was held unnecessary And the Court held clearly that it would have been impertinent to make a Traverse in this Case for the Matter in the Avowry was confessed and avoided CASES Adjudged upon Writs of ERROR IN THE Exchequer Chamber Termino Sancti Michaelis Anno 1 W. M. BY Pollexfen Chief Justice Powell Justices Rokeby Justices Ventris Justices Atkyns Chief Baron Nevill Barons Lechmore Barons Turton Barons Willows versus Lydcot VPon a Writ of Error upon a Iudgment in Ejectment in B.R. which was brought for a Messuage in St. Martins in the Fields Vpon the General Issue pleaded and a Special Verdict found the Point was to this effect William Shelton was seised in Fee of the said Messuage and of dvers other Messuages situate in the said Parish of St. Martin and other Parishes and made his Will in Writing and thereby Devised his Houses in the other Parishes to divers Charitable Vses and then devised to one Edward Harris and Mary his Wife the Messuage in question for their Lives and then in the following Clause the better to enable his Wsfe to pay his Legacies he devised all his Messuages Lands Tenements and Hereditaments whatsoever within the Kingdom of England not above disposed of to have and to hold to her and her Assigns for ever and made her Executrix And the Verdict was found That Edward Harris and Mary his Wife were dead and that the Testator left sufficient to his Wife to pay his Legacies without the Reversion of the said Messuages devised to Harris and his Wife That the Lessor of the Plaintiff was Heir at Law to the Testator and that the Defendants claimed from Anne Wife of the Testator c. si super totam materiam c. And Judgment was given in the Kings Bench for the Plaintiff And upon a Writ of Error brought in the Exchequer-Chamber it was this Term Argued before the Justices and Barons and by the Opinion of them all the Judgment was Reversed For they held that there were words in the Devise to the Testators Wife that would carry the Reversion of this House as an Hereditament undisâ—oâ—d of Vide the Case of Whâ—eler and Walroon in Allen's Rep. 28. one having a Mannor and other Lands in Somerset-shire Devised the Mannor to A. for Six years and part of the other Lands to B. in Fee and then comes this Clause and the rest of my Lands in Somersetshire or elsewhere I give to my Brother and it was adjudged by the word Rest the Reversion of the Mannor passed as well as the Lands not Devised before A Case about 20 years ago was cited by the Counsel for the Defendant in the Writ of Error between Bowyer and Milbanke in a Borough where a Nuncupative Will would pass Lands by the Custom a man upon his Death-Bed being asked about his Will said I Give All to my Mother and repeated the
praedict ' that upon the 24th of November aforesaid a Writ of Extendi facias was awarded to the Sheriffs of London against the said Calvert for the said Debt of 5000 l commanding him to Enquire per Sacramentum proborum legalium hominum c. what Goods Chattels Debts Specialties Sums of Money c. the said Calvert then had and to extend and seise them into the Kings hands in whole hands soever they then were that the King might be thereout satisfied of the said Debt juxta formam Statuti pro hujusmodi deb ' dicti domini Regis recuperand ' Which Writ was Returnable the 26th of the said November and upon the 24th was delivered to the then Sheriffs of London who upon the 25th day of the said November by virtue of the said Writ took an Inquisition per Sacramentum c. by which it was found that the said Defendant Cramlington upon the 24th of the said November was indebted to the said Calvert in 500 l for Money received by him to the use of the said Calvert and that the Defendant made a Bill of Exchange dated the 10th of the said November directed to the said Ryder to pay to the said Price to the use of the said Calvert the Sum of 500 l and that the same was due to the said Calvert at the time of the Inquisition taken and that the said Sheriffs did thereupon seise the Debt and Bill of Exchange into the Kings hands secundum exigentiam brevis praedict ' and Returned the said Writ and Inquisition c. into the Exchequer prout per Recordum c. plenius apparet by virtue of which the King became lawfully entituled to the said 500 l and Bill of Exchange aforesaid And the Defendant further saith That afterwards scilicet the 9th of December Anno primo c. a Writ of Extendi facias was awarded out of the said Court of Exchequer against the said Defendant Cramlington for the said 500 l and thereupon be paid the said 500 l upon the 15th day of January Anno primo supradictio to the use of the King in plena exoneratione satisfactione praedict ' ult ' mentionat ' brevis de extendi fac ' praedict ' Billae excambij summae quingent ' librarum per Inquisitionem praed ' sic ut praefertur compertum c. and concludes with Averments viz. That he the Defendant Cramlington is the same so named with him in the Extent and that the 500 l the Bill of Exchange c. in the Inquisition found are the same with them mentioned in the Declaration c. and so demands Iudgment of the Action To this Plea the Plaintiffs Demurred And after divers Arguments Judgment was given in the Kings-Bench for the Plaintiffs in Easter Term in the first year of King William and Queen Mary And now it came to be Argued upon a Writ of Error in the Exchequer Chamber First It was alledged for Error that the Custom is laid so general viz. not only to extend to Merchants but all others so that it must be at the Common Law if to be allowed at all Sed non allocatur For in the Case of Sarsfield and Witherly lately Adjudged it was Resolved That a person not being a Merchant drawing a Bill of Exchange was bound according to the Vsage of it amongst Merchants and in Declarations upon Bills of Exchange the whole Matter is to be set forth specially Secondly There was as appears by the Bill of Exchange 25 Day given for the payment of it after the Date of the Bill whereas here the Request and Refusal is upon the 25th day after the Date Sed non allocatur For as the Bill is set forth it is to pay the Money ad viginti quinque dies post datum and this can't be if not paid at the Five and twentieth day Thirdly The Matter chiefly insisted upon for Error was That the 500 l was appointed to be paid to Price for the use of the Calvert so the right and interest of the Money was in Calvert by whomsoever it should be received and then it might well be seised for the Debt which Calvert did owe to the King But the Court held that the Seisure for the King ought not to have been in this case 1. For that tho' it were to be paid for Calvert's use yet this was but a Trust and the Right of the Money was in Price As if Goods be given to A. to the use of B. the property of the Goods is in A. Otherwise if Money be delivered to A. to pay to B. there the Right of the Money is in B. and he may bring an Action of Debt 2. Here the Bill is Endorsed over to be paid to the Plaintiffs before any Seisure or the Writ of Extent was issued forth and the Custom is expresly laid that an Endorsment might be as in the Case here which Custom is confessed and that determines the Right and Interest in the Money of him that makes the Endorsment and puts it in the Plaintiffs Wherefore the Judgment was affirmed Termino Sanctae Trinitatis Anno 2 W. M. In Scaccario Burchett versus Durdant IN a Writ of Error upon a Iudgment in an Ejectment in the Kings-Bench where the Plaintiff Mary Durdant declared upon the Demise of William Durdant of two Messuages 100 Acres of Land c. in Chobham in the County of Surrey Vpon Not guilty the Jury gave a Special Verdict That Henry Wicks was seised in Fee of the Premisses and by his Will in writing dated the 6th of June 1657. be Devised in the words following Viz. I give to my Cousin John Higden and his Heirs during the Life only of Robert Durdant my Kinsman all those my Messuages c. in Chobham in the County of Surrey upon this Trust and Confidence That he the said John Higden and his Heirs shall permit and suffer the said Robert Durdant during his Life to have and receive the Rents and Profits thereof which shall yearly grow due and payable he the said Robert committing no Waste And from and after the Decease of Robert Durdant then do I give the said Lands and Premisses in Chobham unto the Heirs Males of the Body of him the said Robert Durdant now living and to such other Heirs Male and Female as he shall hereafter happen to have of his Body and for want of such Heirs then to the use and behoof of my Cousin Gideon Durdant and the Heirs of his Body and for want of such Heirs the same to be and remain to the right Heirs of me the said Henry Wicks They find that Wicks died the 2d of December 14 Car. 2. seised as aforesaid and that John Higden entred and was seised prout lex postulat and by Deed bearing date the 1st of Jan. 14 Car. 2. reciting the said Will and that the said Robert Durdant and Gideon Durdant had Contracted with the said John Higden for the sale of the said
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
B. for causing to be framed printed and published a Scandalous Libel Entituled c. thereby scandilizing of one C. D. Vpon Not guilty pleaded It appeared upon the Evidence that after the discovery of the Libel there were Warrants from the Lord Arlington Principal Secretary of State to search the Lodgings of the Defendant who was suspected to be the contriver of it where were found two of these Libels printed The Opinion of the Court was That this was no Crime within the Information though he gave no account how they came there 5 Co. 125. B. and the having of a Libel and not delivering of it to a Magistrate was only punishable in the Sarchamber unless the Party maliciously published it Anonymus Hob. 192 300 301. IF the Jury upon an Issue joyned in a Prohibition upon a Modus Decimandi find a different Modus yet the Defendant shall not have a Consultation for it appears he ought not to Sue for Tythes in Specie there being a Modus found Termino Sanctae Trinitatis Anno 21 Car. II. In Banco Regis Jurado versus Gregory THe Case was this There was a Contract of Malaga concerning the Lading of a Ship and for breach of this which was laid to upon be the Sea viz. That he would not receive 40 Butts of Wine into the Ship according to the Agreement there was a Libel in a Foreign Admiralty and Sentence that the Wine should be received into the Ship which being refused another Libel was commenced in the Admiralty here in England Reciting the former Sentence and charging the Defendant with the breach of it and a Prohibition was prayed because it appears the Contract was made upon the Land Vid. Latch 234. Against which it was objected by Finch Solicitor that where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here because all the Courts of Admiralty in Europe are governed by the Civil Law and are to be assistant one to another though the matter were not Originally determinable in our Court of Admiralty and for this he cited a Judgment 5 Jac. Rolls Tit. Courts Sect admiralty And this the Court agreed But here was no compleat Sentence in the Foreign Admiralty but only an Award that the Wine should be received and now for breach thereof he Sues here which is in the nature of an Original Suit and to have Execution of the Sentence and this ought not to be though the breach were at Sea it being of a Contract made upon the Land wherefore they granted a Prohibition The King Grants bona catalla felonum the Grantée shall not have Felons Debts nor bona catalla Felonum de se Anonymus A Conviction was certified of one for carrying of a Gun not being qualified according to the Statute where the words in the Statute are Upon due Examination and proof before a Justice of the Peace The Court resolved That that was not intended by Jury but by Witnesses and no Writ of Error lies upon such Conviction And an Exception was taken because it was before such an one Iustice of the Peace without adding Nec non ad diversas Felonias Transgressiones c. audiend assign ' And the Court agreed so it ought to be in Returns upon Certiorari's to remove Indictments taken at Sessions But otherwise of Convictions of this nature for 't is known to the Court that the Statute gives them Authority in this Case The King versus Benson IN an Information against him for Extortion an Issue was joyned the day the Jury were returned and the King sent a Writing under his Sign manual to Sir Thomas Fanshaw Clerk of the Crown to enter a Cesser of Prosecution And Palmer Attorney General affirmed that the King might stay proceedings yet notwithstanding the Court proceeded to swear the Jury and said they were not to delay for the great or little Seal whereupon the Attorney entred a Noli prosequi Anonymus TRover against Baron and Feme and laid quod ad usum proprium converterunt and it was alledged proprium might be applied only to the Husband so also if it had been ad usum suum But the Court held neither had been good so it was prayed that Judgment might be entred quod Querens nihil capiat per billam For if it had been quod Defendens eat inde sine die the Plaintiff could not have brought an Action de novo Note A man is Outlawed in Middlesex A Capias utlagatum may be sued out against him into any other County without a Testatum Anonymus IN Trespass the Defendant justifies by reason of Common in the place where for Cattel Levant and Couchant upon his Land and doth not aver the Beasts were Levant and Couchant This is aided after a Verdict A Judgment in Debt is had in the Kings Bench and a Writ of Error is brought it still remains a Record of the Kings Bench and an Action of Debt may be brought upon the Judgment In a Writ of Error if the Defendant dyed the Writ is not abated Otherwise if the Plaintiff die And the Secondary informed the Court of a Case betwéen Sir H. Thyn and Corie where a Scire facias ad audiend Errores went against the Executors when the Defendant in the Writ of Error dyed Note The Exchequer Chamber doth not award a Scire facias ad audiend Errores but notice is given to the Parties concerned Skirr and Sikes IN Trespass upon the Stat. of 8 H. 6. the Plaintiff had Iudgment It was moved whether a Writ of Error would lie of this into the Exchequer Chamber For though Trespass be one of the seven Cases where the Statute gives it yet it might intend Common Trespasses only and not where the Action is founded upon a Statute as Actio de Scandalis Magnatum is not within the Statute And the Court would advise Cabell and Vaughan 5 Co. Whelphdales Case He cannot plead non est factum IN an Action of Debt upon a Bond against one and it appears another was joyntly bound with him wherefore the Defendant Demurrs But it was adjuged for the Plaintiff for the Defendant cannot Demurr in such case unless the other Obligor be averred to be living and also that he sealed and delivered the Bond 3 Cro. 494 544. Ascue and Hollingworth's Case 28 H. 6. 3. And if one be bound to two one Obligee cannot Sue unless he Averrs the other is dead In B.R. 1651 1068. Levit Staneforth Perries Case IN an Information of Forgery against him there was a Mis-trial And it was moved That this was aided by the Statute of 21 Jac. the general Purview whereof is extended to any Action Suit Bill or Plaint Then there is a Proviso which excepts Indictments and Informations upon Penal Statutes and this being an Information at Common Law was not within the Proviso and it may be taken within the word Suit for it is Secta Domini Regis But the Court held it not
be good Now this being the way of Operation there is no reason why he may not Devise it to one after the death of two as well as after the death of one This would be so in Grants were it not that a certainty is required in them 1 Cro. 155. which is not required in Devises Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Freeman versus Barnes EError to Reverse a Judgment in an Ejectione firmae in the Common Pleas the Case upon a Special Verdict was thus The Marquess of Winchester being seised in Fee of the Lands in Question the 8 of July 9 Jac. Lets them to Sir An. Maynee for 100 years in Trust for the Marquess and his Heirs and to wait upon the Inheritance The Lessee enters afterwards the Marquess enters and Lets it to the Lord Darcy for 7 years and then Le ts to the Spanish Embassador for 7 years which Leases being expired Sir A.M. Demises to Freeman for a Term yet unexpired this Demise is not found to be upon the Land Afterwards the Lord Marquess Demises to Germin for 54 years upon Consideration of Money and Reserves a Rent and Covenants to Levy a Fine for the assurance of the Term which was afterwards done with Proclamation Germin enters and five years passed without any Claim made which Lease by mean Assignment came to Wicherly the Lessor of the Defendant who was Plaintiff in the Common Pleas and there had Iudgment The only Question upon this Special Verdict was Whether the Fine and Non Claim should barr the interest of Sir A. M. the Lessee in Trust This Case having béen argued thrée several times at the Bar The Court did this Term deliver their Opinons and did all agrée that the Iudgment ought to be affirmed It was considered quid operatur by the entry of the Marquess and they all except Moreton held that Prima facie he was Tenant at Will as Littleton Sect. 463. is where the Feoffor enters upon the Feoffée to his use but that the Entry of Germin his Lessée did ouft Freeman the Assignee of Sir A.M. which Assignment though not found to be upon the Land 2 Cro. 660. was good as the Chief Justice held because the two former Leases made by the Marquess were expired so he became Tenant at Will again but them he making of another Lease and the Lessee entring this must work an ouster and so the Fine would bar the Right For they agreed that a Fine regularly shall not work upon an Interest which is not divested though in some Cases it doth as upon the Interest of a Term according to Safins Case 5 Co. which yet cannot be divested but though the first Entry make but a Tenancy at Will yet taking upon him to make Leases that is enough to declare his intent to dispossess his Lessee in Trust Besides he reserves a Rent and Covenants for quiet Enjoyment and to make further assurance which could not stand with the Interest of the Lessee in Trust And for the Cases that were objected as Blunden and Baughs 1 Cro. 220. Where it is adjudged That the Entry of the Lessée for years of Tenant at Will should be no disseisin nolens volens to him that had the Freehold for there was no intention of the Parties to make it so and here the Law shall rather give the Election to him which had the Inheritance to make it a devësting than the Lessee or rather as the Chief Justice said the Law construes such Acts to amount to a divesting or not divesting as is most agreeable to the intention of the Parties and the right of the thing which distinguishes it also from the Case of Powsley and Blackman cited in Blunden and Baughs Case where the Mortgageor held at the Will of the Motrgageē and let for years the Lessee entred and held notwithstanding that the Mortgagee might Devest So Sir Tho. Fishes Case in Latches Rep. Where Tenant for years Le ts at Will and the Lessée makes a Lease for years and then the remainder is granted over This Grant is held to be good which whether by the remainder there be understood the interest of the Lessee or the Fee-simple yet it is no more than my Lord Nottinghams Case and not like the Case in Question For there the Lessee held the interest in his own Right and here but in Trust and for the Case in Noyes Reports 23. Twisden said he wholly rejected that Authority for it was but an Abridgment of Cases by Serjeant Size who when he was a Student borrowed Noyes Reports and abridged them for his own use The Case was this Tenant in Fée makes a Lease for years then Levies a Fine before Entry of the Lessee It is held there though five years pass the Lessée is not barred which is directly against the Resolution of Saffins Case and for Authority in this Case they relied upon the Case of Isham and Morris in 1 Cro. 781. Where upon Evidence it was resolved by the Justices That if the cesty quo Trust of a Lease for years Purchaseth the Inheritance and Occupies the Land and Levies a Fine that this after five years shall bar the Term which is not so strong as this Case because there were no Leases made and Entry thereupon and the Trust must pass inclusively by the Fine as is resolved in divers Books especially in this Case where it is to wait upon the Inheritance which though it arises but out of a Term yet it shall follow the Land and go to the Heir And for the inconveniences which were objected That if any Man purchased Land by Fine that he could not keep on Foot Mortgages and Leases which it is often convenient to do The Chief Justice declared his Opinion That in that Case the Fine should not bar there not being any intention of the Parties to that purpose And as to the other that where the Mortgageor continuing in Possession Levies a Fine this should bar the Mortgagee he denied that also and grounded himself upon Fermours Case in 3 Cro. And Twisden agreed Dighton's Case HE brought a Mandamus to be restored to his place of Town Clerk of Stratford super Avon The Corporation returned Letters Patents whereby they were empowered to chuse one into the Office of Town Clerk Durante bene placito and that they removed him from his Office Jones prayed that he might be restored notwithstanding because no Cause of his removal was returned nor that they had ever Summoned him whereas if they had he might peradventure have shewed such Reasons as would have moved them to have continued him and he cited Warrens Case 2 Cro. 540. who was restored to his Aldermanship where the Return was as here But the Court held that they could not in this Case although they confessed they knew the Merits of the Person help him And the Chief Justice said The Case of the Alderman differed for he is a part of the Corporation which
any Debt which was due to the Testator tempore mortis suae might be attached and then sets forth according to the common form how this 320 l was attached c. and Avers that there were no other Controversies Differences or Matters between the Plaintiff and Defendant but what concerned the Testator of the Plaintiff and him as his Executor only The Plaintiff replies That the Defendant had not paid the 320 l according to the Award c. upon which the Defendant Demurred And whether this Money were Attachable as a Debt due to the Testator tempore mortis suae was the Question It was argued by Winnington That it was For it appears by the Averment that it was awarded to be paid meerly upon the Testators account and it is but as it were a reducing the Testators Debt to a certainty for an Award being no Record or Specialty will not alter the nature of the Debt and that clearly it should be Assets in the Executors Hands and the Custom of London was to have a liberal Construction Pemberton contra It doth not appear That there was any Debt due to the Testator There might be Covenants or other Matter between them which shall be rather intended than Debt as strongest against the Plaintiff if there were the nature of the Debt is altered for an Award may be pleaded in Bar to an Action brought upon the Original Debt Also this must have béen sued for in the Debet and Detinet and not in the Detinet only so it is not a reducing the Debt to a certainty as where an account is made upon Debts by simple contracts or where an Executor gives time for payment of a Bond due to the Testator this is still Attachable 1 Rolls 551. He denied it to be Assets If it were the Administrator de bonis non might sue for it after the Executors death which clearly he could not do and the Executor was chargeable only in proportion to the Debt extinguished and not according to the Sum Awarded or at least it could not be Assets before recovered if it were Assets it did not follow it should be Attachable for if an Executor Recovers in Trespass for taking away the Testators Goods the Damages shall be Assets yet they are not Attachable So Damages recovered upon Covenant made to the Testator He said it would be very inconvenient that this Money should be attached for the Executor was liable to a Devastavit upon this matter and yet should have no remedy for the Sum Awarded Again It would be Attachable in two respects both as the Executors Debt for so clearly it is and as the Testators Debt and the Bond for performance would be Attachable for the Executors Debt and the Sum Awarded for the Testators He said all Customs ought to be taken strictly and this was clearly out of the words as being no Debt due to the Testator tempore mortis suae And here it is pleaded That it was Commanded by the Court to the Officer to Attach the Defendant by a Debt due to the Testator at the time of his Death so no Authority to Attach this Debt and if it were by Law Attachable the Command ought to have béen Special The Court were all of Opinion That this was not Attachable as the Testators Debt for then the Administrator de bonis non might Sue for it And they held it to be like the Cases where the Executor takes Bond for a Debt due to his Testator or where he sells the Goods the Money for which they are sold cannot be Attached and here the Award is made of this Sum in Consideration of conveying to the Defendant the Goods of the Testator and releasing of his Debts which séems to be all one with the other Cases And so they gave Iudgment for the Plaintiff Termino Paschae Anno 23 Car. II. In Banco Regis Error A Judgment out of an inferiour Court was reversed because being by default the enquiry of Damages was only by two Jurors and Custom alledged to Warrant it And it was resolved by the Court That there cannot be less then twelve though the Writ of Enquiry saith only per Sacramentum proborum legalium hominum and not duodecim as in a Venire Note There were divers Recognizances take before the Lord Chief Justice Keeling who died before his Hand was set to them It was moved by Coleman that they might be Filed But the Court said a Certiorari must go to his Executors to certifie them and doubted whether they were compleat Records If a Warrant of Attorney be given after the continuance day to enter up a Judgment as of the Term preceding this may be well enough if it be dated within the Term but it cannot be so if such a Warrant be given to confess a Judgment generally and dated after the Term. Anonymus A Prohibition was prayed by one who being a Churchwarden was tendred an Oath by the Court Christian to present according to the Bishops Articles which he refusing to take was Excommunicated Now for that some of the Articles were to present Filthy Talkers Revilers and Common Sowers of Sedition amongst Neighbours which were general Terms and might be understood to comprehend things out of their Iurisdiction the Court conceived a Prohibition ought to go as to them But he should have first pleaded there quod non tenetur respondere as to those matters and upon their refusal to have prayed a Prohibition Elpicke versus Action AN Action of Trover was brought de diversis vestimentis And held not to be good because not expressed what kind of Garments But 7 Jac. Emery's Case where Trover was brought for a Library of Books and held to be good without expressing what they were because to set down the particular Books would make the Record too prolix Vid. 3 Cro. 164. and Pl. Com. where a man pleaded that he was chosen Knight of the Shire per majorem numerum and held to be good Barnard versus Michel IN an Action of Debt the Plaintiff declared upon a Deed comprehending divers Covenants for the performance of which the Defendant obliged himself in the penalty of 40 l and sets forth that the Defendant had broke the Covenants The Defendant pleaded non est factum and it was found for the Plaintiff And it was moved in Arrest of Judgment That though the Issue was found for the Plaintiff yet he having assigned no Breach no Cause of Action appeared upon the Record so he could have no Judgment For if the Declaration be insufficient let the Defendant plead what he will yet Iudgment shall not be given against him Indeed if the Action had béen brought upon a Bond Conditioned for the performance of Covenants and non est factum had béen pleaded no Breach needed to have been assigned for then the Declaration is only upon the Bond without mentioning any thing of the Condition But here the Breach of the Covenant is as it were a Condition precedent to
a Suit And to stay a caussess Suit can be no Consideration 1 Cro. 804. Yelv. 84.184 as the Case of Smith and Johns 2 Cro. 257. where one having married an Executrix after her decease promised J. S. that if he would forbear a Suit against him for a Legacy he would pay it It was held to be a void Promise being in no wise liable to be sued after the Death of his Wife And the Opinion of my Lord Coke 9 Rep. 94. in Bane's Case is That an Executor shall not be charged with such Promise unless he hath Assets But the Court Resolved for the Plaintiff For it is not material whether the Defendants had Assets or no at the time of the Promise for by the Promise they caused the Plaintiff to desist who peradventure at that time was prepared to prove Assets and relying upon such Promise might be much to his prejudice if he could not afterwards recover upon it But the Chief Justice said If it had appeard upon the Declaraton that there were no Assets the Plaintiff by shewing that would have destroyed his Action Vere versus Smith IN Debt upon an Obligation The Condition recited that the Defendant served the Plaintiff as a Brewer's Clerk and that if he performed such Covenants c. The Defendant pleads performavit omnia The Plaintiff Replies That one of the Covenants was to give the Plaintiff a true Account of all such Moneys as the Defendant should receive c. whensoever he should be thereunto requested and alledged that 30 l came to his hands and that he requested him to give an account of it which he refused to do The Defendant Rejoyns confessing the Receipt of the said Money but saith That before Request made by the Plaintiff he laid it up in the Plaintiffs Warehouse and that certain Malefactors to the Defendant unknown stole it away hoc paratus est verificare And to this the Plaintiff Demurs generally And Jones Argued That the matter contained in the Rejoynder was a Departure from the Bar for it doth not amount to an Account but rather an Excuse or Discharge of himself why he should not account Again He ought not to have averred his Plea but to have concluded to the Country For the Plaintiff in his Replication having alledged That he gave no Account and the Defendant in his Rejoynder setting forth That he did give an Account there is an Issue joyned wherefore it ought to have been concluded de hoc ponit se super Patriam But these Matters were Over-ruled For as to the first the Court held it no Departure but a Fortification of the Bar for shewing that he was Robbed is a giving an Account And as to the second the Conclusion is proper because the Defendant alledges New Matter and therefore ought to give the Plaintiff liberty to come in with a Surrejoynder and answer to it for he doth not only say that he gave an Account but sets forth the Special Matter how Wherefore the Court gave Judgment for the Defendant Note A Clerk of the Court must appear de die in diem to any Matters against him on the Crown side as well as on the Plea-side Reynell versus Heale AN Information was brought upon the New Statute against Conventicles for that the Defendant being a Justice of the Peace in Devonshire and Complaint being made to him by Reynell of a Conventicle he refused to go to the place to suppress it and sets forth three Omissions of that kind and that the Statute Enacts That a Justice of Peace for every such neglect of doing his Duty shall forfeit 100 l the one Moiety to the King the other to the Informer unde actio accrevit for 100 l to the King and himself The Defendant pleads non debet the said 100 l to the Informer nec aliquam inde parcellam de hoc ponit se super Patriam praedict ' Reynell similiter And upon this Issue Verdict was given for the Informer Jones moved in Arrest of Judgment That he conceived there were no words in the Act to oblige the Justice of the Peace upon such Information to go in person to the Place where such Meeting is and 't is not said here that he refused to grant a Warrant or the like But he did not much insist upon that but moved that the Issue was not well joyned for it is only between the Informer and the Defendant and so the Plea is quod non debet to the Informer and no mention of the King whereas the Action is qui tam and the Act gives the Moiety of the Penalty to the King The Court said nothing to the first matter but held clearly that the Issue was misjoyned and said that a Repleader ought to be awarded Polexfin and Ashford versus Crispin HIll 22 23 Car. 2. Rot. 225. The Plaintiff brought Trespass Quare pisces suos cepit in separali Piscaria Vpon Not Guilty pleaded and Verdict for the Plaintiffs it was moved in Arrest of Judgment that the Plaintiffs ought not to have called them Pisces suos unless they had been in a Trunk or Pond For there is no more property in Fishes in a Several Piscary than in a Free Piscary In an Action for taking of Conies in a Warren 5 Co. 34. b. F.N.B. 192 193. 2 Cro. 195. he shall not say Cuniculos suos and this is such a default as the Verdict shall not aid Sed non allocatur For the Chief Justice said it might be intended a Stew Pond which is a mans Several Piscary and after a Verdict the Court shall admit any Intendment to make the Case good And Twisden cited a Case which was in Trespass Quare Phasianos suos cepit and the Plaintiff had Judgment after Verdict for it shall be intended they were dead Pheasants And the Case of Child and Greenhill 3 Cro. 553. is the same with this But the Court held that it had been good upon a Demurrer by reason of the local Property And so is the Register Hoskins versus Robbins IN Replevin the Defendant avowed for Damage feasant The Plaintiff Replies and saith That the place Where is parcel of the Waste of such a Mannor within which Mannor there are Copyholds demisable time out of mind and that the Copy-holders have had time out of mind the sole Feeding of the said Waste and that J. S. being a Copyholder of the said Mannor Licensed him to put in his Cattel The Defendant traverses the Prescription and it was found for the Plaintiff Levins moved in Arrest of Judgment that Prescription to have the sole Feeding 1 Cro. 434. 2 Cro. 256. whereby the Lord shall be excluded from all the benefit of his Soyl is not allowable and the Lord cannot in this case ever make any profit of the Mines for he may not Dig. 'T is true a Prescription may be to have the sole Feeding from such a Day for there the Owner hath his time also
Again He alledges a Custom of Dimising Copyholds and doth not say for what Estate neither doth he name any Copyholders Also he should have averred that the Beasts were levant and couchant One prescribed to have omnes Spinas yet laid them to be spent in a certain House And the Verdict shall not help the Defect as this Case is but if the Copyholder had pleaded so himself it should For after a Verdict it is intended they were levant and couchant but that cannot be in case of a Stranger Iustifying by Licence He took another Exception also That a Licence was pleaded here and not shewn to be by Deed as it appears it ought to be 2 Cro. 575. As to the first it was Answered That this Prescription did not take all the Profit from the Owner of the Soyl for there might be Trees and Bushes growing and if any one should Dig the Soyl and discover Mines the Lord should recover Damage in respect of the Mines Such an Interest as this might commence by Grant and therefore lies in Prescription The same Objection might be made against the sole Feeding for some part of the Year for the property of the Soyl remains in the Lord at that time also when the Profit is divided from him and it may be as well allowed for a longer as a shorter time this is no more than the Herbage or Vesture of the Land And Prescription to dig Turves cuts as deep into the Profits and yet that may be in one and the Soyl in another As to the second It is not needful to shew for what Estates the Copyholds have been demised for it is not laid by way of Prescription in them for then it would be material to shew that they had such Estates as might supports a Prescription but as a Custom in the Mannor and to have named them would have made a Repugnancy viz. that such particular Copyholders had the sole Feeding time out of mind 3 Cro. 311. Yelv. 187. Neither is it needful to alledge that the Beasts were levant and couchant in regard that he claims the sole Feeding which may therefore be with what Beasts he pleaseth And it is not needful that the Licence should in this case be by Deed for it passeth no Interest and serves but for an Excuse of Trespass and 't is for no certain time but only pro hac vice The Opinion of the Court inclined for the Plaintiff Sed Adjornatur Vide postea The Duke of Richmond versus Wise IN an Ejectment the parties had a Trial at Bar and a Verdict for the Plaintiff The Court were moved to set aside this Verdict upon an Affidavit made of these Misdemeanors in the Jury viz. That they had Bottles of Wine brought them before they had given their Verdict which were put in a Bill together with Wine and other things which were eat and drank by the Servants of the Jury and the Tipstaves that attended them at the Tavern where they were consulting their Verdict That this Bill after the Verdict given was paid by the Plaintiffs Solicitor and that after they had given up their Privy Verdict they were Treated at the Tavern by the Plaintiffs Solicitor before their affirmance of it in Court Counsel being heard on both Sides as to these matters the Court delivered their Opinions seriatim that the Verdict should stand They said they were not upon a discretionary setting aside of the Verdict as when the Jury goes against Evidence but whether these miscarriages shall avoid it in point of Law They all agreed That if the Jury eat or drank at the charge of the party for whom they find the Verdict it disannuls their Verdict but here it doth not appear that the Wine they drank was had by the order of the Plaintiff or any Agent for him 'T is true in regard his Sollicitor paid for it afterwards it doth induce a presumption that he bespoke it but that again is extenuated by its being put into a Bill with other things that were allowable and if the Verdict should be quashed for this Cause it must be entred upon the Roll 1 Cro. 616. that it was for drinking at the Plaintiffs charge and it is not proved that this Wine was provided by him And as to the other matter That they received a Treat from the Plaintiff after their Privy Verdict given and before it was given up in Court that shall not avoid their Verdict But if the Defendant had treated them and they had changed their Verdict as they might have done in Court it should then have been void Co. Lit. 227. b. It after the Jury be agréed on their Verdict which the Chief Justice said must be intended such an Agréement as hath the signature of the Court put upon it viz. A Privy Verdict They eat and drink at the charge of him for whom they do pass it It shall not avoid the Verdict and if it should The Court said most Verdicts given at the Assizes would be void for there 't is usual for the Jury to receive a Collation after their Privy Verdict given from him for whom they find But such practice ought not to be and if any of the Parties their Attorneys or Sollicitors speak any thing to the Jury before they are agreed relating to the Cause viz. That it is a clear Cause or I hope you will find for such an one or the like and they find accordingly it shall avoid the Verdict but if words of Salutation or the like pass between them as was endeavoured to be proved in this Case they shall not Also if after they depart from the Bar any matter of Evidence be given them as Depositions or the like tho' the Jury swear they never looked on them yet that shall quash their Verdict But they all held in this Case that tho' there was great matter of Suspition yet there was not matter of clear proof as there ought to be sufficient to disannul this Verdict but they said it was a great Misdemeanour in the Jury for which they ought to be fined and that the Plaintiffs Sollicitor had carried himself with much blame and indiscretion and the two Tipstaves which attended the Jury for that they were not more careful but connived at these matters were fined the one 40 shillings who appeared to be most in fault and the other 20 shillings Barnard versus Michell HIll 22. 23 Car. 2. Rot. 865. The Case was moved again and by the Opinion of all the Court Iudgment was given for the Plaintiff being after a Verdict For though the pleading that he brake all the Covenants would not have béen good upon a Demurrer as they said for two Reasons First For that it would have been double in regard that the breach of any one of them would have intituled the Plaintiff to the penalty Secondly For that some of the Covenants were such as he ought to have assigned a special breach upon that it might have been in
King by general words of all Land c. Conditions c. 3 Co. 2. a. b. much less could it pass from the King if it could pass at all by general words but I rest upon this First That it is a Power or kind of Trust to revoke but no Condition Secondly At least not such a Condition as is given to the King Thirdly If it were it ought to have béen executed by the same means as it should have béen by S. M. In Englefields Case there was no pretence to have more than to execute the Condition it ought here to have béen executed in the Life of S. M. and so it appears to be done in Englefields Case and Harding and Warners Case for I caused the Cases to be searched This is like the Case of the Statutes of 15 R. 2. cap. 5. 1 R. 3. cap. 1. 19 H. 7. cap. 15. these Statutes give the same advantage to Lords c. where persons have Uses in Lands respectively as if they had the very Lands but the Lord's c. cannot thereby claim any greater Interest than the cestuy que Uses had respectively in the Uses Now in this Case The Body of the Act and the Proviso fetch back and save the Trusts for all but S.M. As to the Execution for the Kings Debts it differs for the Process for they ever did and do run de terris de quibus illi aut aliquis ad eorum usum c. 'T is true in Sir Charles Hattons Case it was resolved That the Kings Debr should be executed upon Land wherein he had a power of Revocation Vid. Chirtons Case 11 Co. 92. And so Iudgment was affirmed per toram Curiam Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Anonymus IN Debt upon a Bond. After Verdict for the Plaintiff the Judgment was entred quod recuperet the Sum pro misis custag ' instead of pro debito praed ' But this was ordered to be amended as the default of the Clerk tho' in another Term The Court having power over their own Entries and Judgments Anonymus IN an Account it was held by the Court that if a man delivers Money to his Bayliff or Factor to lay out for him in Commodities he cannot bring an Assumpsit but only his Action of Account For the Chief Justice said that he knew such an Action once brought and the Jury that were to try the Cause informed him That if they should Examine all the Accounts which were between the Plaintiff and Defendant it would take up three or four days time So that it hath been always holden that in such case he should be driven to his proper Remedy which is an Action of Account and it may be the Factor hath laid out more Mony that he received Eaton versus Barker IN an Action upon the Statute of 17 Car. nunc for residing in a place where he had formerly kept a Conventicle and demands the 40 l penalty After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Costs or Damages given For it was said that where a Statute gave a certain Penalty if this be not paid upon demand he that sues for it shall recover his Costs and Damages as North and Wingate's Case in the 3 Cro. 559. is But the Court held that they ought not to be given in Actions Popular whether the Forfeiture be certain or not but where a certain Penalty is given to the party grieved there he shall recover his Costs and Damages 10 Co. 116. Vide postea Polexphen versus Polexphen IN a Prohibition the Case was that Henry Polexphen died Intestate Andrew his Brother gets Letters of Administration in the Inferiour Diocess One who pretended to be the Wife of H. surmizing Bona notabilia procured Administration from the Prerogative Court Andrew appeals to the Delegates and dies Henry his Son and Heir comes in and gets the Administration committed in the Prerogative Court Repealed and hath Letters granted to himself Vpon this the Wife prayed a Prohibition supposing that the Delegates could not proceed after the death of Andrew but that their Commission was determined For their Authority is by that to proceed in a Case between such parties one of which is dead To which it was Answered That the Commission is to hear and determine the Cause And both in the Civil and Ecclesiastical Law the Suit shall continue after the death of either party for those which shall be concerned as appears by the Bishop of Carlisle's Case in 2 Cro. 483. and in the 1st Leonard 117 and 178. it is said That if one party dies ante litis conrestationem then it shall abate but if after it is otherwise And there are a number of Presidents of this nature both in the Arches and Admiralty Courts c. And in this very Case Henry Polexphen having obtained Administration de bonis non of his Vncle Andrew in the Country the now Plaintiff got it set aside by the Delegates because granted while an Appeal was depending and that upon full debate before them who would yet now suggest that the Appeal was determined by the death of Andrew The Court were of Opinion that no Prohibition was to be granted and that the Delegates Authority to proceed in that case continued notwithstanding the death of Andrew For the Commission is to proceed in causis Administration c. una cum suis incidentibus vel annexis qualitercunque c. Summariè juxta Juris exigentiam So that the Ecclesiastical Law is appointed to be their Rule by the course of which a Suit doth not abate by the death of the parties And Hale said The Appeal is to the King in Chancery and it is by reason of his Original Jurisdiction and thereupon he grants a Commission to hear it Now if he could hear it in Person none could object but that he might determine the Cause after the death of the parties and by the same Reason they may to whom he hath delegated his Authority But the Attorney General coming in and desiring to be heard in it for the Plaintiff the Court gave further time Eaton versus Barker THe Case was now moved again upon the Statute for coming to a place where he had formerly Preached in a Conventicle And Exception was taken to the Declaration For that it was not averred that the Defendant was in Holy Orders For the words of the Statute are That if any one that hath been Parson Vicar Lecturer c. or within Holy Orders and have taken upon them to Preach c. But to this it was Answered that there is another Clause in the Act That all such persons as shall take upon them to Preach c. which is general and extends to all men whether in Orders or no which have been Preachers And of that Opinion were the Court. It was also Objected That there was no Averment That the Defendant was not there upon Summons Sub
against the rest which therefore was not affected by the Error The fourth was overruled for where the Party is present the Iudgment is always quod committitur as appeared by the Presidents Fifthly the Variances from the Statute were not held to be material for in Old writings 't is written Sea of Rome and declaring in Conscience and in my Conscience are the same The sixth Error was also disallowed for the words of the Statute are shall incur the danger and penalty of Praemunire mentioned in 16 R. 2. which doth not necessarily bind up to the Process Vid. 16 R. 2. 5. which makes this very clear but means that such Iudgment and Forfeiture shall be and it appearing that the Parties were present there was no need of any Process But as to the third Exception which was taken to the Venire they said they would be advised until the next Term and they told the Prisoners who were Quakers and had brought a Paper which they said contained their acknowledgment of the Kings Authority and Profession to submit to his Government and that they had no exception to the matter contained in the Oath but to the Circumstance only and that they durst not take an Oath in any Cause which they prayed might be read but it could not be permitted that their best course were to supplicate his Majesty in the mean time for his Gracious Pardon Radly and Delbow versus Eglesfield and Whital IN an Action sur 13 R. 2. cap. 5. 2. H. 4. cap. 11. for suing the Plaintiff in the Admiralty for a Ship called the Malmoise pretending she was taken piratice whereas the Plaintiff bought her infra corpus Com. It seems there was a Sentence of Adjudication of her to be lawful Prize in Scotland in April 1667. as having carried bellicos apparatus i.e. Contraband Goods in the late Dutch War and the Plaintiff bought her here under that Title The Libel was That the Ship belonged to the Defendants and about January 1665 was laden with Masts c. and had Letters of safe conduct from the Duke of York to protect her from Concussion c. and that certain Scottish Privateers did practise to take the said Ship and after the Defendants took her and being requested refused to deliver her and that ratione lucri cessantis damni emergentis they suffred so much loss c. The Defendants pleaded Not guilty to this Action and upon the Tryal would not examin any Witnesses but prayed the Opinion of the Court who said there was good Cause upon the Libel which now they must take to be true in the first instance for the Admiralty to proceed In 43 Eliz. it was resolved 1 Cro. 685. Yelv. 125. Sty 418. If Goods are taken by Pirates on the Sea tho' they are sold afterwards at Land yet the Admiralty had Conusans thereof for that which is incident to the original matter shall not take away the Iurisdiction and that is Law tho' there were another Resolution in Bingleys Case 1 Rolls 531 Hob. 78. 3 Jac. 7 Ed. 4. 14. and 22. Ed. 4. If Goods are taken by an Enemy and retaken by an Englishman the property is changed Otherwise if by Pirates And if in this Case the taking were not Piraticè it ought to have béen alledged on the other side Had the Sentence in Scotland béen pleaded in the Admiralty the Court would have given deference to it as if a Man had a Judgment in Communi Banco and should begin a Suit for the same in Banco Regis This might be made a good Plea to the Suit but not to the Iurisdiction for for ought appeared this might have been the first Prosecution and no Proceedings might have béen in Scotland This came to be tryed at the Nisi prius before Hales who was of the Opinion ut supra then But because it was a cause of weight he ordered it to be tryed at the Bar. And because 't was for his satisfaction and for a full Resolution the Jury was paid between the Parties Note A Proctour sworn a Witness said when this Cause was in the Admiralty there was a provisionate Decree as they call it or primum Decretum which is a Decree of the Possession of the Ship and upon that an Appeal to the Delegates but my Lord Keeper being informed that no Appeal to them lay upon it because it was but an interlocutory Decree upon hearing of Counsel he superseded the Commission When a Ship is so seized upon security given 't is the course of the Admiralty to suffer her to be hired out Watkins versus Edwards PAsch 22 Car. 2. Rot. 408. An Action of Covenant was brought by an Infant per Guardianum suum for that he being bound Apprentice to the Defendant by Indenture c. the Defendant did not keep 5 Eliz. c. 4. maintain educate and teach him to his Trade of a Draper as he ought but turned him away The Defendant pleads That he was a Citizen and Freeman of Bristol and that at the General Sessions of the Peace there there was an Order made that he should be discharged of the Plaintiff for his disorderly living and beating of his Master and Mistress and that this Order was Enrolled by the Clerk of the Peace as it ought to be c. To this the Plaintiff Demurrs The First question was Whether the Statute extends to all Apprentices or only such as are imposed upon their Master by the Justicies and compellable to serve And Hale and Moreton inclined That it did not extend to all Apprentices Twisden and Rainford contrary Secondly Whether they had power to discharge the Master of his Apprentice as they might è Converso Hale conceived they could not But cause the Servant to have due Correction in case the Master complained of him Twisden Rainsford and Moreton Contra. Hankworthy's Case For he may be so incorrigible that the Master cannot keep him without standing in continual fear and in Mich. 21 and Hill 2. 22 Regis nunc upon the removal of an Order of Sessions from York it was resolved That the Master might be eased of his Apprenetice by the Sessions upon just cause And Twisden said Shelton Clerk of the Peace for Middlesex informed him that such Orders are frequently made Thirdly The great question was whether the Defendant ought not to have applied himself to one Justice first as the Statute directs that he he might if he could have settled the business and if not then to go to the Sessions and not to go thither per saltum as upon the Statute of the 18 Eliz. cap. 3. The Sessions cannot make an Order for keeping of a Bastard but upon an Appeal from the two Justices which are first to make an Order Hale This case differs for the 18 Eliz. gives the first Men power to make an Order which shall bind the Parties until it is avoided by Appeal but this Statute of 5 Eliz. gives no Iurisdiction to
clear of having practiced with him And upon the tryal of this Information it did appear that he had charged them falsly and so found Guilty Another Matter was moved That the Indictment alledged the Perjury to be committed in Middlesex whereas it appeared by the Affidavit produced that it was taken at Justice Twisden's Chamber in the Inner Temple wherefore it ought to have been tryed in London where the Oath was taken and tho' the Affidavit were Filed in Court that would not help it But the Court agreed if it had been in an Indictment it had been a good Objection for there the Offence is local but otherwise they said it had been held in an Information And Twisden said That if a Recognizance were taken at a Judges Chamber in London and after Filed in Court the Scire facias upon it shall go first into Middlesex However the Court offered to have this Matter found Specially but there being no Counsel for Maynard and this Matter stirred only per amicum Curiae it went off Austin's Case IN an Indictment for Erecting of Posts and Rails in an High-way it was held necessary to prove that the party Indicted did set them up for a Continuation of them for not suffering them to be removed would not serve Hale If there be no Special Matter to fix it upon others the Parish where the High-way is ought to Repair it of Common Right Sed Quaere Why not the County as in the Case of Common Bridges 2 Inst 701. Vide postea Butcher versus Cowper IN an Indebitat ' Assumpsit the Defendant pleads in Abatement that the Promise was for carrying the Goods of the Defendant to a certain place and if there were any such Contract it was made with the Plaintiff and a Stranger Vpon which it was Demurred because to plead If there were any such Contract is not good and more like an Affidavit to change a Venue than Pleading and he ought to have averred that the Stranger was alive Besides the Defendant had taken an Imparlance and therefore could not plead in Abatement Wherefore it was Adjudged for the Plaintiff Smith versus Butterfield IN Trespass Quare clausum fregit bona asportavit the Defendant pleaded Not guilty to the breaking of the Close and Iustifies the taking of the Goods at a time varying from that alledged in the Declaration and concludes Quae est eadem transgressio upon which it was Demurred because he did not traverse the Time before and after and it was Adjudged for the Plaintiff Toll versus Dawson IN Debt upon a Bond Conditioned to perform an Award The Defendant pleaded Nullum fecerunt arbitrium The Plaintiff Replies and sets forth the Award which did express the Bond of Submission to be Dated the 7th of February whereas it was dated the 10th of February and for that Misrecital the Defendant Demurred But the Court held clearly that it did not hurt the Award and so if the Submission had been of divers particular matters yet if they had medled only with the things submitted it had been well enough Proctor versus Newton IN Debt upon a Bond the Defendant demanded Oyer of the Condition which was to perform Covenants in an Indenture which recited that the Defendant had sold to the Plaintiff a certain House and there was a Covenant that the Plaintiff pacifice gauderet domum praedict ' absque legali interruptione disturbantia sive impedimento of the Defendant or any claiming from or under him Vpon this Covenant the Plaintiff assigned the Breach thus That J.S. habens jus titulum virtute concessionis from J. N. ante tempus confectionis of the Bargain and Sale to him did enter and expel him Vpon which it was Demurred because not shewn that J.S. had a lawful Title and therefore not well applied to the Condition which is so expresly penned 2 Cro. 315. Hale Habens jus implies it was a lawful Eviction Twisden doubted because it may be J. N. Dissessed the Defendant before the Bargain and Sale and made a Lease to J. S. Et Adjornatur Freeman versus Boddington ERror of a Judgment in an Assumpsit against Baron and Feme Hill 21 22. Rot. 126. in Com. Banco The Error assigned was That the Feme was an Infant and appeared by Attorney whereas the Court ought to have admitted her per Guardianum But if the Wife be of Age then the Baron makes an Attorney for her and himself and the Entry is per Attornatum of the Baron and Feme and not the Baron only And for this Cause the Judgment was Reversed And Hale said that the Baron could not disavow the Guardian made by the Court for his Feme Lewyn versus Forth THe Case was Magdalen Colledge in Oxford being seised of an House and a Mill demised it to Lewyn for 31 years Covenant Lewyn Let the Mill to J.S. for five years and after demised the House and Mill to Forth by Indenture for 31 years Forth Covenanted to Repair the Premisses durante termino praedict ' 31 annorum J. S. refused to attorn and whether Forth were bound to Repair the Mill was the Question because it was alledged that the Covenant was to Repair during the Term and nothing in the Mill passed during the five years for want of Attornment But it was Resolved that he was bound to Repair For Hale said Tho' the Lease did not commence in point of Interest yet it did in point of Computation and this Covenant was to Repair during the 31 years Zouch versus Clay TRin. ult Rot. 787. In Debt upon a Bond the Defendant pleaded Mo. 619. That at the time that he sealed and delivered the Bond there was a Space left wherein afterwards the Name of J.S. was put in who also sealed and delivered it supposing that the adding another Obligor bound joyntly and severally with him 1 Cro. 627. was an Alteration material to avoid the Bond Mo. 547. and relyed upon Pigot's Case in the 11 Co. But the Court held that the Bond remained the same as to him and he could not take advantage of this matter and 't is the common practice of Sheriffs to make their Bonds for Appearance in this manner Sands versus Rudd IN Debt upon a Bond Conditioned to give Security by a certain Day as the Chamberlain of London shall approve The Defendant pleaded that there was no Chamberlain of London at the Day Vpon which it was Demurred and Adjudged for the Defendant Parsons versus Perus HIll ult Rot. 1051. In an Ejectment upon a Special Verdict the Case appeared to be thus Two Women were Joynt-tenants in Fee one of them made a Charter of Feoffment to J. S. and Livery within the View and after before it was Executed married him And it was Objected that this was not a good Feoffment None will deny but that the Death of either party makes a Livery within View if not executed by Entry ineffectual And in Mo. 85. Dyer 5. If
there be not an Entry immediately a Livery within the View is not good and in this case by the Marriage he becomes seised in the Right of his Wife and cannot by his own Act divest himself of that Estate or work a prejudice to his Wife by putting the Estate out of her Which makes it differ from the Case of the 38 E. 3. 11. b. Where a man made Livery of the within View to a Woman and before she Entred married her and claimed the Estate in Right of his Wife there held to be a good Feoffment For in that case there is no Alteration of the Estate consequent upon the Intermarriage Neither is it like the Case of 2. R. 2. quoted in Forse and Hemling's Case in the 4 Co. Where a Woman grants a Reversion to a Man and they Intermarry before Attornment For there the Grant is to be perfected by the Act of a Stranger which in reason should be more available to a man than his own Act. But it was Resolved by all the Court that this Livery was well Executed after the Marriage For an Interest passeth by the Livery in View which cannot be countermanded The effectual part of it viz. Go Enter and take possession was before the Marriage tho' the Estate is not in the Feme while Entry She hath done all on her part to be done and hath put it meerly in the Foffor's power and when he Enters it hath a strong retrospect to the Livery and shall be pleaded as a Feoffment when she was sole If two Women Exchange Lands and one marries before Entry this shall not defeat the Exchange The Cases of 2 R. 2. and 38 Ed. 3. are as strong Emerson versus Emerson TRin. ult Rot. 1389. Error of a Judgment in the Common Pleas in an Action of Trespass by the Plaintiff as Executor upon the Statute of 4 E. 3. De bonis asportatis in vita Testatoris The Plaintiff declared that the Defendant blada crescentia upon the Freehold of the Testator messuit defalcavit cepit asportavit Vpon Not Guilty pleaded a Verdict and Judgment was for the Plaintiff and assigned for Error That no Action lay for Cutting of the Corn for that is a Trespass done to the Freehold of the Testator for which the Statute gives the Executor no Action and while the Corn stands 't is to many purposes parcel of the Freehold So that if a man cuts Corn and carries it away presently tho' with a Felonious intent 't is no Felony Otherwise if he let it lye after 't is Cut and at another time comes and steals it So that it appears for parcel of the Trespass no Action lyes then entire Damages being given as well for the Cutting as Carrying away the Corn the Judgment is Erroneous But all the Court were of another Opinion 9 Co. 78. for 't is but one entire Trespass the Declaration only describes the manner of Taking it away Indeed if it had been quare clausum fregit blada asportavit it had been naught or if he had Cut the Corn and let it lye no Action would have lain for the Executor So if the Grass of the Testator be Cut and carryed away at the same time because the Grass is part of the Freehold but Corn growing is a Chattel The Statute of 4 Ed. 3. hath been always Expounded largely Mr. Amhurst's Case of Grays-Inn SErjeant Maynard moved for a Mandatory Writ to the Mayor and Court of Aldermen of London upon the Statute of 13 Car. 2. c. 11. to give Judgment according to the late Act of 22 nunc Regis The Case was That the Act appoints a Market to be on certain Ground set out in Newgate-Market and in all such cases for the satisfaction of the Owners of the Ground if the City cannot agree with them for it it Impowers the Mayor and Aldermen to Empannel a Jury who shall Assess and Adjudge what satisfaction and recompence shall be given to the Owners and says That the Verdict of such Jury on that behalf to be taken and the Judgment of the said Mayor and Court of Aldermen thereupon and the Payment of the Money so awarded or adjudged c. shall be binding and conclusive to and against the Owners c. Now there was Fifteen thousand Foot of Amhurst's Ground taken away for this purpose and a Jury had been Empannelled and had assessed and awarded him Two shillings a Foot but the Mayor and Court of Aldermen refused to give Sentence or Judgment thereupon This says he is a Ministerial thing and this Court will interpose when any Officers will not do Iustice or will out-go their Authority For there is the same Reason to command to do Justice as to prohibit Injustice A Bishop of Exon had Fallen-out with a Town in Cornwal and denyed them Chrisme and a Mandamus went hence to command him to give it them Mr. Noy brought in a Copy of it Sir William Jones This somewhat resembles a Procedendo ad Judicium this is stronger than the Case of commanding a Bishop to grant Administration there this Court commands them to observe a Statute tho' it be in a Matter this Court has no Cognizance of We can't have an Action on the Case Hale If they don't make you Satisfaction your Interest is not bound Maynard But that is taken away by the same Act Pag. 143. 4. We are Lessee to â—he Dean and Chapter of St. Pauls Hale 'T is not Enacted That they shall give Judgment but that is implyed I never knew a Writ commanding to grant Administration tho' the Opinion has been so Sir William Jones That was done in Sir G. Sandy's Case after great Debate Then a Rule was made to shew Cause why a Writ should not go Afterwards the Court granted a Writ but willed them to consider well of the Form and to whom to direct it Loyd versus Brooking TRin. ult 1046. The Case was Tenant for Life Remainder to his first Son in Tail Remainder to J. S. for Life Remainder to his first Son in Tail c. Tenant for Life after the Birth of his first Son accepts a Fine from J. S. to certain uses and then makes a Feoffment after which the Son of J. S. is Born and whether his Contingent Remainder were destroyed or should vest in him was the Question And it was Resolved by the whole Court upon the first Opening that the Contingent Remainder was not destroyed the acceptance of the Fine displaced nothing the Feoffment divested all the Estates but the Right left in the first Son in Remainder supported the Contingent Remainders My Lord Coke's Case 2 Rolls 796 797 is stronger He Covenanted to stand seised to the use of himself for Life Remainder to his Wife for life Remainder to his Daughter for Life when born Remainder to her first Son in Tail And minding to disturb the arising of the Contingent Estates attempted it by these two Means First He grants the Reversion and in the
Grant recites the former Settlement which Grant was without Consideration And Secondly makes a Feoffment And it was Resolved that the Grant should not hinder the arising of the Contingent Use because the Grantee had Notice and was therefore subject to the Covenant to stand seized by the Grantor and that the Feoffment should not destroy the Contingent Estate because the right of Remainder for Life in the Daughter upon which she might have entred for the Forfeiture did support it tho' indeed the Remainder for Life in the Wife would not for the Feoffment by the Husband tolls her Right during the Coverture cui contradicere non potest upon which reason is Biggot and Smiths Case adjudged 3 Cro. Now this is stronger than the Case at Bar because the Settlement was by way of use but here Act executed The Case of my Lord Cooke was adjudged by Roll in Banco Regis and after by Glyn. It hath béen the most common way of Conveyancing to prevent the disappointing Contingent Estates to make Feoffments c. to the use of the Husband c. for Life Remainder to the use of the Feoffees for the Life of the Husband and so on to Contingent Remainders and the more modern ways have béen to make the first Estate but for years but in both Cases he which hath the first Estate cannot destroy the Remainders It hath been a question Whether a right of Action would support a Contingent Estate but never doubted but that a right of Entry would Vid. Archers Case 1 Co. Katherin Austins Case AN Indictment was found against her that she vi armis a certain part of the Kings High-way leading from Shorditch Church to Stoke Newington thorough Hogsdon postibus repagulis inclusit c. Vpon a Tryal at Bar the principal question was Whether the place where the obstruction was were an High way Hale said If a way lead to a Market and were a way for all Travellers and did communicate with a great Road c. it is an High-way but if it lead only to a Church to a Private House or Village or to Fields there 't is a Private way But 't is a matter of Fact and much depends upon Common Reputation If it be a publick way of Common right the Parish is to repair it unless a particular person be obliged by Prescription or Custom Private ways are to be repaired by the Village or Hamlet or sometimes by a particular person In the Case at Bar it was found no High-way Ante. Castilian versus Platt ERror of Judgment in Communi Banco in Scire facias against three Executors the Error assigned was that one was an Infant Hale No doubt a Scire facias lies against him and seeing this case is that he did not appear Iudgment was well given against him Symon Morse versus Willam Sluce MIchael ' ult Rot. 421. An Action upon the Case was brought by the Plaintiff against the Defendant and he declared that whereas according to the Law and Custom of England Masters and Governours of Ships which go from London beyond Sea and take upon them to carry Goods beyond Sea are bound to keep safely day and night the same Goods without loss or substraction ita quod pro defectu of them they may not come to any damage and whereas the 15 of May last the Defendant was Master of a certain Ship called the William and John then riding at the Port of London and the Plaintiff had caused to be laden on Board her three Trunks and therein 400 pair of Silk Stockings and 174 pound of Silk by him to be transported for a reasonable reward of Fraight to be paid and he then and there did receive them and ought to have transported them c. but he did so negligently keep them that in default of sufficient care and custody of him and his Servants 17 May the same were totally lost out of the said Ship Vpon Not guilty pleaded a Special Verdict was found viz. That the Ship lay in the River of Thames in the Port of London in the Parish of Stepney in the County of Middlesex prout c. That the Goods were delivered by the Plaintiff on Board the Ship prout c. to be transported to Cadiz in Spain That the Goods being on Board there were a sufficient number of Men for to look after and attend her left in her That in the night came 11 persons on pretence of pressing of Seamen for the Kings service and by force seized on these Men which were 4 or 5 found to be sufficient as before and took the Goods That the Master was to have Wages from the Owners and the Mariners from the Master The She was of the Burden of 150 Tunn c. So the question was upon a Tryal at Bar whether the Master were chargeable upon this matter It was insisted on for the Plaintiff that he who took Goods to carry them for profit ought to keep them at his peril To which it was answered That there was no negligence appeared in the Master By the Civil Law if Goods were taken by Pirates the Master shall not answer for them and this is not the Case of a Carrier for tho' here the Goods are received at Land yet they are to be transported and being one intire Contract they shall not be under one Law in the Port and another at Sea the Master is not liable in case of Fire or Sinking the Ship Owen 57. every one knows the Ship is liable to inevitable accidents and there is no Case of this nature in experience And Serjeant Maynard added that this differed from the case of a Carrier for that he is paid by the Owner of the Goods but here the Master is Servant to the Owner of the Ship and he pays him and not the Merchant The Court inclined strongly for the Defendant there being not the least negligence in him but it was appointed to be Argued but since I 've heard it was compounded It was agreed on all hands that the Master should have answered in case there had been any default in him or his Mariners Anonymus UPon a motion for Restitution after the Reversal of an Outlawry Hale said that he must plead the Reversal to the seisure in Scaccario Puckle versus Moor. MIchael ult Rot. 461. A Promise was made seven years since to pay Money within three Months after The Defendant pleaded Non Assumpsit infra sex annos ante exhibitionem Bille whereas it should have béen causa Actonis non accrevit infra sex annos tho' in this case it appears within the Declaration that the time of payment was not within six years before yet because the Defendant had not pleaded it he cannot have advantage of it Goff versus Loyd MIchael ult Rot. 268. Trespass quare domum fregit and took away so many Nails c. The Defendant pleads Specially and sets forth the two Acts for Hearth-Money 14 Car. nunc cap. 10. and 16
Car. nunc cap. 3. in pursuance of which he distrained the said Nails for the Duty due by those Acts out of a Smiths Forge c. The Plaintiff demurred So the sole question was whether a Smiths Forge were within the Acts it being once argued the last Term the Court now gave their Opinion Moreton I think a Smiths Forge ought to pay 't is a great part of the Kings Revenue almost in every Village there is one we should explain the Act liberally for the King Rainsford of the same Opinion 't is within the words scilicet an Hearth whereon Fire is used and within the meaning for there is an exception of things not so properly Fire hearths as this viz. Private Ovens Where the Act excepts Blowing Houses I take it is meant Glass houses and the Houses at Ironworks by Stamps I think is meant Presses Calenders for Cloaths by the very words Houses that are not Dwelling Houses are charged The objection that it is his Trade is answered by the instance of Cooks Chandlers Common Ovens Hearths of Tripewomen who boil Neats Feet Twisden of the same Opinion the words are general yet I would not extend it to every Hearth that has a Fire upon it as Stils and Alembicks for so we might extend it to a Chaffing dish of Coals but we must take it for a Rule to extend it to those things which are most general A Smiths Forge is of such use that 't is found almost in every Village therefore 't was reckoned a great piece of hardship and slavery upon the Children of Israel that they were not permitted a thing so useful amongst them The exceptions enumerate particulars therefore it excludes whatever is not expressed Hale I would fain know how the fact is Do Silver Smiths c. pay It were too narrow to extend it only to Common Chimneys and too great a latitude to extend it to every place where Fire is where a Man can but warm his Hands I suppose Boylers in Cooks Chimneys and the Fireplaces of Worstead Combers do not pay Common Ovens should have paid tho' there were no exception of Private Ovens for they never are or can be without a Chimney This is matter of fact I have not enquired into and I would be loath to deliver an Opinion without much inquiry but 't is very probable that they are Firehearths and not excepted but it appears plainly upon the Record that 't is a Firehearth and by the general Demurrer 't is admitted Note There was a Special Rule that no advantage should be taken of the Pleading by either side But Hale said he did not know how they were bound by that Rule Termino Paschae Anno 24 Car. II. In Banco Regis Monk versus Morris and Clayton THe Plaintiff after he had obtained Iudgment in Debt became Bankrupt and the Defendants brought a Writ of Error The Judgment was affirmed in the Exchequer Chamber and the Record sent back Then a Commission of Bankrupts is sued out and the Commissioners Assign this Judgment The Plaintiff Sues out Execution and the Money is levied by the Sheriff and brought into Court The Assignee moves that it may not be delivered to the Plaintiff surmising that the Judgment was assigned to him ut Ante. The Court said they might have brought a Special Sicre facias which they having delayed and that it would be hard to stay the Money in Court upon a bare surmise and for ought appeared it was the Plaintiff's due But however because it might be hazardous to deliver it to him they consented to detain it so that the Assignee forthwith took out a Scire facias against the Defendant in order to try the Bankrupcy or otherwise that it should be delivered to the Plaintiff Sir Ralph Bovyes Case IN an Ejectment upon a Tryal at Bar the Case appeared to be this Sir William Drake was seized in Fee of the Lands in question and 19 Car. 1. infeoffed Sir William Spring and five others to such uses as he should declare by his Will in Writing or by his Deed subscribed by three Witnesses In August 20 Car. 1. by his Deed ut supra he limits the use of the said Lands to his Brother Francis Drake for 90 years and declares That the Feoffees should be seized to their own use in Trust for the said Francis Drake and his Heirs with a power to Francis Drake to alter and limit the Trust as he should think fit In the same Month there is a Treaty of Marriage between F.D. and the Daughter of Sir William Spring and it was agreed by certain Articles between F.D. and Sir W. S. c. reciting that he should receive 2500 l with his intended Wife which Money was proved to be paid that F. D. should convey the Lands in question to himself and his Wife and the Heirs Males of their two Bodies c. for the Joynture of the Wife The Marriage afterwards in 20 Car. takes effect and soon after the same year F.D. by Indenture between him Sir W.S. and another reciting the Articles of Marriage Assigns his Term of 90 years to Sir W. S. and the other in Trust to himself for Life the remainder to his Wife for Life and after to the Heirs Males of their two Bodies and by the same Deed limits the Trust of the Inheritance of the Lands in the same manner Afterwards in 23 Car. 1. he in consideration of 6000 l proved to be paid Grants out of the said Lands a Rent of 400 l per annum to Sir Ralph Bovy and his Heirs with power to enter into the Land in case the Rent was not paid and to retain it until satisfaction Afterwards F. D. and his Wife dye the Rent was Arrear Sir R. Bovy enters Sir Will. Spring and the other Trustees Assign the term of 90 years to Sir Will. Drake Heir Male of F.D. and his Wife the Lessor of the Plaintiff In this case these Points were agreed by the Court. First That when Sir W. D. enfeoffed divers to such Uses as he should declare by his Will or Writing that if he had in pursuance of that Feoffment limited the Uses by his Will that the Will had been but Declaratory tho' if he had made a Feoffment to the Use of his Will it had been otherwise according to Sir Ed. Cleeres Case 6 Co. And Hale said my Lord Co. made a Feoffment provided that he might dispose by his Will to the use of the Feoffee and his Heirs and resolved in that case he might declare the Use by his Will which should arise out of the Feoffment Secondly That this Settlement being in pursuance of Articles made precedent to the Marriage had not the least colour of fraud whereby a Purchaser might avoid it and if there had been but a Verbal Agreement for such a Settlement it would have served the turn And the Court said if there had been no precedent Agreement so that it had been a voluntary Conveyance tho' every such
appearing that B. had made this Discovery to him of which he was now about to give Evidencee before such time as he had Retained him the Court were of Opinion that he might be Sworn Otherwise if he had been retained his Solicitor before The same Law of an Attorney or Counsel Sir Samuel Jones versus the Countess of Manchester IN an Ejectment upon a Trial at the Bar the Evidences which as the Plaintiff pretended would have made out his Title and would have avoided the Settlement in Joynture which the Countess of Manchester claimed were locked up in a Box which was in the Custody of a Stranger who before the Trial delivered the Key to the Earl of Bedford Brother to the Countess of Manchester and Trustee for her who being present in Court and requested to deliver the Key that the Box might be opened which was brought into Court He said being a Trustee in the behalf of his Sister He conceived he was not obliged to shew forth any Writings that might impeach her Estate and if he should it would be a breach of the Trust reposed in him which he held sacred and inviolable The Court told him That they could not compel him to deliver the Key But Hales said It were more advisable for him to do it For he held tho' it is against the Duty of a Counsellor or Solicitor c. to discover the Evidence which he which retains him acquaints him with yet a Trustee may and ought to produce Writings c. But they could not Rule him to do it here and the Earl declaring his Resolution not to do it the Plaintiffs Counsel desired leave of the Court to break open the Box. The Court said that they would make no Order in it nor would determine how far the Title to the Writings drew in the property of the Box or whether the delivering the Key to the E. did not amount to a Pledge of the Box. Serjeant Maynard said It was the course of the Chancery when a Bill was Exhibited against a Joyntress to discover Writings not to compel her to do it till such time as the Plaintiff agrees to confirm her Joynture And he knew a Bill of Discovery brought against a Purchasor upon a valuable Consideration and the Court would not compel him to Answer tho' it was proved there was a Deed and a real Settlement Vpon opening the Evidence in the Case at Bar these Points were stirred and Resolved by the Court That where a man makes a Feoffment c. to Uses with power of Revocation when he hath executed that Power he cannot limit New Uses but if it had been with a Power to revoke and limit New then he might revoke and limit New with a power of Revocation annexed to those New which if he doth afterwards revoke he may again limit New Uses according to the first Power and so in infinitum But always the New Uses must correspond to those Circumstances c. which the first Power appoints for that is the Foundation 2 Rolls 262. Beckett's Case The Plaintiff being at a loss for his Writings was Nonsuit Seaman versus Dee AN Indebitat ' Assumpsit as Executor of S. was brought against the Defendant by the Plaintiff as an Attorney of this Court by Original The Defendant pleads four Judgments against him One in an Action of Debt upon which the Question was for Money borrowed by the Testator upon Interest which Debt with the Interest at the time of the Action brought amounted to such a Sum which was recovered against him And pleads three Judgments besides ultra quae he had not to satisfie The Plaintiff Demurs and after being divers times spoken to the Court Resolved for the Plaintiff First For that Hale said No Action of Debt lies for the Interest of Money tho' he which borrows it Promises to pay after the rate of 6 l per Cent. for it but it is to be recovered by Assumpsit in Damages So where by Deed the party Covenants or Binds himself to pay the Principal with Interest the Interest is not to be included with the Principal in an Action of Debt but shall be turned into Damages which the Jury is to measure to what the Interest amounts to which is allowed to be done tho' indeed the Statutes which permit the taking of Interest say That Usury is damned and forbidden by the Law of God And tho' it was Objected That the Judgment is but Erroneous and the Executor liable while Reversed and it cannot be said it was the Executor's fault to suffer it For an Executor may plead a Judgment against him in Debt upon a simple Contract tho' it could not have been recovered if he had pleaded to the Action or without his voluntary Consent To that Hale said That Debt upon a Simple Contract lies against an Executor if he please nay it hath been Adjudged that an Executor may retain for a Debt but to him from the Testator upon a Simple Contract But in this Case no Action lies by the Law nor any admission of the Executor can make it good Secondly It appears that part of the Interest accrued after the Testator's death which is the Executors proper Debt being his own default to suffer the Interest to run on Then the Action being brought both for that which is due in the Testator's time and for that which grew due since is manifestly Erroneous and there is nothing in the Defendants Plea to take away the Intendment that he had Assets to satisfie at the Testator's death To the Objection That the Plaintiff once had abated his Writ for that he declares by Priviledge as an Attorney of the Court. It was Answered That the alledging of his Profession and Priviledge in the Declaration was Surplusage and an impertinent Flourish and that being rejected the Declaration is sufficient upon the Writ and an Attorney is at election to Sue either by Original or by Priviledge Wherefore the Rule was that the Plaintiff should have his Judgment The Lady Anne Fry's Case IN an Ejectment by Williams Lessee of George Porter Esquire against the Lady Anne Fry The Case appeared to be this upon a Special Verdict That Mountjoy Earl of Newport was seised of an House called Newport-House in the County of Middlesex and had three Sons who are yet living and had two Daughters Isabel married to the Earl of Banbury by whom she had Issue Anne the Defendant and Anne married to Porter by whom she had Issue George Porter Lessor of the Plaintiff and made his Will in this manner I give and bequeath to my Dear Wife the Lady Anne Countess of Newport all that my House called Newport House and all other my Lands c. in the County of Middlesex for her Life and after her Death I give and bequeath the Premisses to my Grandchild Anne Knolles viz. the Defendant and the Heirs of her Body Provided always and upon Condition that she Marries with the Consent of my said Wife and
Sister the Dutchess of Cleaveland to whose Son this Daughter being about 8 years old was contracted pretending that Sir Henry VVood by word revoked this disposition of the Guardianship Sued in the Prerogative Court to have this nuncupative Codicil proved and the Court granted a Prohibition for they are not to prove a VVill concerning the Guardianship of a Child which is a thing conusable here and to be judged whether it be devised pursuant to the Statute And Hale said that they may prove a VVill which contains Goods and Lands tho' formerly a Prohibition used to go quoad the Lands Vid. 1 Cro. Netter and Percivalls Case Prior versus .... ERror was brought of a Judgment in this Court into the Exchequer Chamber and Error in fact was then assigned and the Court being there of Opinion that Error in fact could not be assigned there they affirmed the Judgment upon which the Record with the Affirmation was remitted hither and a Writ of Error was brought here coram vobis residen ' as is usual for Error in fact It was pray'd that upon putting in not Bail this new Writ of Error might be a Supersedeas to the Execution But the Court held that this Writ was not to be allowed in this case for the Judgment given in this Court being affirmed in the Exchequer Chamber transit in rem judicatam there and a Writ of Error cannot be brought here upon a Judgment there and 't is always the course in Writs of Error to recite all the proceedings that have been in the matter as if a Judgment be removed hither by Error out of the Common Pleas and here affirmed and then brought into Parliament the last Writ must recite both the Judgment in Communi Banco and the Affirmation here And whereas this Writ goes by the Judgment into the Exchequer Chamber and mentions only the Judgment here it must therefore be quashed And it is the course if a Writ of Error be brought here upon Error in fact of a Judgment here that the Writ should be allowed in Court And the Court said they would allow none in this Case Throwers Case HE was indicted at the Sessions of the Peace at Ipswich for Stopping communem viam pedestrem ad Ecclesiam de Witby It was removed hither by Certiorari and the Court were moved to quash it for it was objected That an Indictent would not lye for a Nusans in a Church-path but Suit might be in the Ecclesiastical Court. Besides the Damage is private and concerns only the Parishioners Where there is a foot way to a Common every Commoner may bring his Action if it be stoped but in such case there can be no Indictment Hale said if this were alledged to be communis via pedestris ad Ecclesiam pro parochianis the Indictment would not be good for then the Nusans would extend no further than the Parishioners for which they have their particular Suits but for ought appears this is a common foot way and the Church is only the Terminus ad quem and it may lead further the Church being expressed only to ascertain it and 't is laid ad commune nocumentum wherefore the Rule was that he should Plead to it The Lady Prettymans Case A Judgment was had in a Scire facias brought against her upon a former Judgment upon two Nihils returned And the Court was moved to set it aside for that it was alledged that before the Scire facias brought she was married to Sir John Pretty-man and that it was brought against her as sole by contrivance between the Plaintiff and her Husband to oppress her and lay her up in Prison and it was shewn that the Plaintiff knew of the Marriage for he being an Attorney had prosecuted an other Action before the return of the Scire facias against her and her Husband and that she could not help her self by Error or Audita Querela because her Husband would Release The Court said they might set aside the Judgment for the misdemeanour of the Plaintiff but because they were informed that this Marriage was under debate in the Ecclesiastical Court and near to a Sentence they suspended making any Rule in this while that was determined Twisden said he had a Case from my Lord Keeling where a Feme Covert Infant levied a Fine and her Friends got a VVrit of Error in her Husbands and her name that the Court would not suffer the Husband to Release But Hale said he could not see how that could be avoided but he had known that in such case the Court would not permit the Husband to disavow the Guardian which they admitted for the VVife How 's Case HE was indicted of an Assault Battery and VVounding of Thomas Masters Esquire and Found Guilty at the Assizes in Gloucestershire Now the Attorney General moved the Court to set a Fine and such an one as might be exemplary according to the demerit of the Fact for he shewed that a great part of the Gentry of Gloucester amongst which were How and Masters being assembled at Circencester about the Election of a Burgess for that Town How without any provocation struck Masters on the Cheek with the end of his Cane which had an Iron pike at it and that if Masters had not governed himself with much moderation and prudence it had in all probability engaged the whole Assembly in a dangerous quarrel they being both Men of great Estates and Quality in the Country And the Attorney said there was nothing more necessary than that somewhat of a limited Starchamber should be exercised in this Court for the due punishment of such enormous Crimes as these Hale said that they were much discouraged from setting Fines for the new Act binds them to estreat them into the Exchequer and then it was well known whether they went meaning to such as farmed them from the King by Patent The Attorney replied that the legality of such Patents was to be questioned and that one which was granted to the Earl of Berkshire 7 Co. Penal Statutes was now like to be resumed and it was fit it should seeing it was like to prove an obstruction to the publick Iustice Then it was doubted whether the Fine could be set How not being present but held it might but the Course is not to hear any thing moved in mitigation of the Fine unless the Party be present and he was fined 500 Marks Ward versus Forth IN Debt upon a Bond the Defendant pleads that he delivered the Deed as an Escrow to J. S. c. hoc paratus est verificare To this it was demurred For that he ought to have concluded issint ninet son fait for this matter amounts to a Special Non est factum and the Plaintiff cannot reply that he delivered it as his Deed absque hoc that he delivered it as an Escrow and so said the Court. Shermans Case BY Certiorari an Order for the keeping of a Bastard Child by the
Respondeas Ouster But because the Plaintiff said he would be content with the latter that was not Resolved Anonymus IN Trespass Quare clausum fregit 't is a Plea in Abatement to say That the Plaintiff is Tenant in Common with another But cannot be given in Evidence upon Not Guilty as it may where one Tenant in Common brings Trespass against the other Peters versus Opie THe Case was moved again and Hale held clearly that the Promise being pro labore tho' there was also a Counter-Promise did carry in it a Condition precedent viz. That the work should be done first And he said that in Cases tried before him where the Declaration was upon Reciprocal Promises if it appeared upon the Evidence that the Intention was that the Plaintiffs part was to be performed before the Defendants he directed against the Plaintiff and would not have the Defendant driven to his Cross Action Twisden strongly to the contrary Pro labore says he is no more than would have been implied if those Words had been omitted then 't is within the Case of Reciprocal Promises The Case cited in Ughtred's Case 7 Co. A. Covenants to B. to serve him in the Wars B. Covenants to pay him so much for it an Action lies for the Money without averment of the Service done because of the mutual Remedy Hale was now of Opinion that the Plaintiffs saying parat ' fuit obtulit to do the Work tho' he did not say and the other refused yet it was a sufficeint Averment after a Verdict The Case of Vivian and Shipping 3 Cro. 384. in an Assumpsit upon a Promise to perform an Award the Plaintiff said licet He had performed all on his part c. which tho' no good Averment in Form yet held it aided by the Verdict Wherefore tho' they could not agree in the other matter yet Judgment was given for the Plaintiff Ante. King versus Melling IN an Ejectment the Case was thus found in a Special Verdict John Melling was seised in Fee and had Issue Barnard and John and by his Will in Writing devised to Barnard for and during his Natural life and after his decease to such Issue as he should have of the Body of his second Wife his first then being alive and if no such Issue hapned then to John Melling provided that Barnard might make a Joynture to his Wife which she should enjoy for her Life The Devisor dies Barnard suffers a Recovery to the use of himself in Fee and after Covenanted to stand seised to the use of his Wife for her Joynture for Life and died without Issue by any second Wife The Question was Whether the Wife had a good Estate or that J. Melling in Remainder had the Right It was Argued for John Melling First That Barnard Melling had only an Estate for Life by this Devise Indeed if it had been to him and his Issue which he should have by the second Wife that would have been an Entail but here 't is expresly given to him for his Life The Case of Wiat Wield 8 Co. 78. b. is full to this A Devise to a man and his Children is an Estate Tail if he hath none at the time But if the Devise were to a man for his Life and after his Decease to his Children there whether he had Children or no at the time they take by way of Remainder either contingent or vested So Archer's Case 1 Co. 1 Rolls 837. A Devise to his Son for Life the Remainder to the Sons of his Body lawfully begotten the Son takes only an Estate for Life because so expresly limited Then the Recovery destroys this Contingent Remainder and so also the power of appointing a Joynture to his Wife For 't is not a bare Collateral Power but annexed to his Estate and therefore extinguishes in the Conveyance of it But admitting it were still in him yet he did not well execute it which should have been in such manner as it might have taken effect by the Will and not to arise upon a Covenant to stand seised On the other side it was Argued that it was an Estate Tail in Barnard Melling and no Remainder contingent to the Issue For there a Remainder is said to be contingent where the first Estate may fail before 't is ascertained whether the Contingent will happen or no here if it be an Entail Barnard Melling hath it for his Life and the Issue had nothing until after his decease So 't is but an Expressio eorum quae tacite insunt Again The Power remains notwithstanding the Recovery for 't is collateral to the Estate If Executors have Authority to make a Feoffment for the payment of the Testator's Debts if they should first make a Feoffment to another purpose this would not determine their Power but they might afterwards execute it in performance of the Will 1 Co. in Albany's Case Hale It seems very strong upon Weild's Case that Barnard Melling hath but an Estate for Life if it were devised to him and after his decease to his Issue I should think that to be an Estate Tail but here the express Words are for his Life A Devise to one for his Life and after his decease to his Heir that hath been held a Fee for Heir is nomen Collectivum But Archer's Case 1 Co. is a Devise to A. for his Life and after to his Heir and the Heirs of that Heir there because the words of limitation were put to the Heir therefore Heirs was taken to be but designatio personae and Resolved he should take by Purchase Vid. Anderson 110. Construction must be according to the express words of the Will A Devise to Two equally to be divided between them and to the Survivor of them makes a Joyntenancy upon the express import of the last Words Twisden A Devise to one for Life in perpetuity makes but an Estate for Life only 15 H. 7. Hale 'T is considerable also that he adds a Power to make a Joynture which would have been useless if he had intended him in an Estate Tail And this Power is in the nature of an Emolument annexed to his Estate which seems to be destroyed by the Recovery neither hath he well executed his Power for after the Recovery he became seised in Fee so the Covenant to stand seised may work upon that Estate and so shall not be taken in pursuance of his Authority which possibly it might have been if he had but an Estate for Life for without reference to that it would have been ineffectual quando non valet quod ago ut ago valeat quantum valere potest And this is agreeable to the Learning in Sir Edward Clere's Case in the 6 Co. The Court seemed pretty clear in these Points but because it was upon the first Argument they gave leave to the parties to speak to it again if they thought fit Et Adjornatur Post Goffe's Case A Trial at Bar was had upon an Indictment
of Murder The Case appeared to be this Goffe being a Collector of the King's Duty of Chimney-Mony came with a Constable to the House of one West in Southwark to demand Mony due upon that account and entred the House there being only a Maid-Servant at home who telling them That her Master was from home and that she could not tell where to find him or come at any Mony to pay them They presently distrained a Silver Cup which stood by The Maid thinking to prevent the carrying of it away stands against the Door where they were to have gone out and Goffe took her by the Arm and beat her Head and Back against the Door Post divers times of which she died within three Weeks after The Court were of Opinion that this was but Homicide and directed the Jury to find it so for hindring their Passage out to go away with the Distress was a Provocation And 't was found accordingly Meredith's Case ERror of a Judgment given in the King's Bench in Ireland where Robert Meredith was Plaintiff and that Judgment was Entred Quod praedict ' Carolus Meredith recuperet And the Court held it amendable as the Default of the Clerk tho' in the Judgment the Misprision being only in the Name which was right in the rest of the Record that was before the Clerk and should have directed him Sir Ralph Bovy's Case IN Debt upon an Escape the Plaintiff sets forth in his Declaration a Voluntary Escape The Defendant protesting that he did not let him Voluntarily escape pleads That he took him upon Fresh pursuit To which it was Demurred because he did not traverse the Voluntary Escape and Resolved for the Defendant For it is impertinent for the Plaintiff to alledge it and no ways necessary to his Action 'T is out of time to set it forth in the Declaration but it should have come in the Replication 'T is like Leaping as Hale Ch. Justice said before one come to the Stile As if in Debt upon a Bond the Plaintiff should declare That at the time of sealing and delivery of the Bond the Defendant was of full Age and the Defendant should plead deins age without traversing the Plaintiffs Allegation Whiting and Sir G. Reynell's Case 657. in the 2 Cro. seems to be against it But Harvey and Sir Geo. Reynell 2 Car. in Latch is Resolved that no Traverse is to be taken Thomas versus Butler A Prohibition was prayed to the Ecclesiastical Court where the Case was this Sir R. Ashton made his Will and therein gave divers Legacies and the residue of his Goods and Chattels after his Debts and Legacies paid he bequeathed to his Wife and made three Executors and died whereof one only proved the Will and afterwards died Intestate The Daughter of Sir R. Ashton procures Letters of Administration the Wife uncalled and about Five years after the Lady Butler the Relict of Sir R. Ashton and residuary Legatee Sues to have them Repealed And whether there should be any Prohibition to that Suit the Court thought fit to Advise For it was Suggested That there was not Assets to pay the Debts and Legacies and so there could be no residuum And Sir Walter Walker a Doctor of the Civil Law came to Inform the Court what had been their Course in such cases and he affirmed that the Law was positive absque aliqua distinctione Assets or not Assets That Administration should be committed to the residuary Legatee And so Dr. Denni declared in Eastwick and Standen's Case in Dyer And in one Button's Case which goes also by the the Name of Cotton's Case 17 Jac. this Point was much Debated where the next of Kin obtained Administration the residuum being Devised to another who afterwards got it Repealed and the first Administrator appealed to the Delegates who confirmed the Repeal Where the Residuum is Devised the Law judges those words tantamount to the making of him Executor and it would be very inconvenient that that Allegation That there is no Residuum should be admitted for that may be offered in every Case and until that is tryed Administration would not be granted which might bring much Damage to the Estate of the Intestate 'T is also against a strong Presumption viz. That every man leaves as much as will satisfie his Will He said also Seeing committing Administration was of the Cognizance of their Courts he conceived they were to determine all Matters concerning them and cited the Register where 't is said Cognitio principalis trahit ad se accessorium Here Hale interrupted him and said Since the Statutes had made Provision in those cases they were to Expound them and also to whom the Right of Administration appertain'd and if the Ecclesiastical Court did not commit it accordingly they use to prohibit them and that the Court desired only to know from them what their Usage had been He also asked him if it had been Pleaded in their Court That there was no Residuum what they would have done To this he Answered That they should have received it as a Plea but would have Overruled it as Insufficient As was done in the Countess of Lincolns Case in 1655. Dr. Masters contra In this Case the Daughter was Legatee of an 100 l In the case of the next of Kin one may be preferred before another so why not one Legatee before another Qui prior est tempore potior est jure in aequali jure they which first come should be first served and vigilantibus non dormientibus jura subveniunt For Button's Case he said That there the party to whom Administration was first granted was no Legatee So it was in the Countess of Lincolns Case neither was there a Sentence in that Case but ended by Composition In the Case between Blunt and Taylor in 1670. where one Hall having made his Will and made the Wife of Blunt Executrix and Devised to her the Residuum She proved the Will and died Blunt Administers to her de bonis non of Hall and the Grandchild of Hall being next of Kin cites Blunt to Repeal his Administration and obtained a Repeal which was confirmed upon an Appeal to the Delegates But Sir William Wild denied the Case to be so for he said That the Administration was not Repealed as unduly granted at first but for a male Administration For Blunt being Cited denied either to pay the Legacy devised to the Grandchild or bring in an Inventory and the Case was Debated upon that Point only before the Delegates and he said That it was their course to Repeal an Administration tho' granted to the next of Kin in case of Abuse But Hale said That therein they exceeded their Power and a Prohibition ought to go and that they ought to take sufficient Caution at first to prevent male Administration The Court strongly inclined that no Prohibition ought to go in this Case for the Reason that 21 H. 8. requires That Administration should be granted to the next
that time this made an Estate Tail But if it had béen and after their decease to their Children then the Children should take by Purchase tho' born after 'T is true that case is variously reported in the Books but I adhere to my Lord Coke presuming that being brought before all the Judges in the Argument of VVilds Case it was a true Report As for the second Point 't is plain that the power is extinguished for by the Recovery the Estate for Life to which it was annexed in privity is gone and forfeited so that 't is not necessary to dispute the third Point whether well executed or no But upon the whole I agree with my Brother Rainsford that the Plaintiff ought to have Judgment Hale I differ from my two Brothers and tho' I was of their Opinion at the finding of the Special Verdict yet upon very great Consideration of the Case I am of Opinion for the Defendant I shall proceed in a different method from my Brothers and begin with that Point which they made last and I agree with them admitting that Bernard had but an Estate for Life that the power was destroyed also here the Recovery does not only bar the Estate but all powers annexed to it for the recompence in value is of such strong Consideration that it serves as well for Rents Possibilities c. going out of and depending upon the Land as for the Land it self So Fines and Feoffments do ransack the whole Estate and pass or extinguish c. all Rights Conditions Powers c. belonging to the Land as well as the Land it self Secondly I agree with my Brother Rainsford that if Bernard had but an Estate for Life by the Devise the power was not well executed Where Tenant for Life has a power to make Leases 't is not always necessary to recite his power when he makes a Lease but if he makes a Lease which will not have an effectual continuance if it be directed out of his interest there it shall be as made by virtue of his power and so it was resolved in one Roger's Case in which I was Counsel Again Tho' it be here by Covenant to stand seized an improper way to execute his power yet it might be construed an Execution of it Mich. 51. In this Court Stapleton's Case where a Devise was to A. for Life Remainder to B. for Life Remainder to C. in Fee with power to B. to make his Wife a Joynture B. covenanted to stand seized for the Joynture of his Wife reciting his power tho' this could not make a legal Joynture yet it was resolved to enure by virtue of his power quando non valet quod ago ut ago valeat quantum valere potest But in this Case Bernard has got a new Fee which tho' it be defeasible by him in Remainder yet the Covenant to stand seized shall enure thereupon and the use shall arise out of the Fee Thirdly I was at the first opening of the Case of Opinion that Bernard had but an Estate for Life but upon deep Examination of the Will and of the Authority and Considerations of the Consequences of the Case I hold it to be an Estate Tail And first to ease that Point of all difficulties if cannot be denied but a Devise to a Man and the Heirs of his Body by a second Wife makes an Estate Tail executed tho' the Devisee had a Wife at the time As the Case often cited Land given to a Married Man and a Married Woman and the Heirs of their Bodies We are here in case of the Creation of an Estate-Tail where intention has some influence voluntas Donatoris c. and may help words which are not exactly according to legal form 39 Ass 20. Land given to a Man and his Wife haeredi de corpore uni haeredi tantum this judged an Entail Again we are in case of an Estate Tail to be created by a Will and the intention of the Testator is the Law to expound the Testament therefore a Devise to a Man and his Heirs Males or a Devise to a Man and if he dies without Issue c. are always construed to make an Entail It must be admitted that if the Devise were to B. and the Issue of his Body having no Issue at that time it would be an Estate Tail for the Law will carry over the word Issue not only to his immediate Issue but to all that shall descend from him I agree it would be otherwise if there were Issue at the time Tayler and Sayer 41 Eliz. rot 541. a Devise to his Wife for Life 1 Cro. 742. Remainder to his Issue having two Children it was held the Remainder was void being to the Issue in the singular number for incertainy which should take But that was a little too rank for Issue is nomen collectivum Again I agree if a Devise be made to a man and after his death to his Issue or Children having Issue at that time they take by way of Remainder And that was the only Point adjudged in Wild's Case and there also against the Opinion of Popham and Gawdy This way being made I come to the Case it self and shall briefly give my Reasons why I hold Bernard has an Estate Tail First Because the word Issue is nomen collectivum and takes in the whole Generation ex vi termini and so the Case is stronger than if it were Children And where 't is said to the Issue that he shall have of the Body of the second Wife that is all that shall come of the second Wife For so 't is understood in common Parlance Secondly In all Acts of Parliament Exitus is as comprehensive as Heirs of the Body In Westm 2. de donis Issue is made a term of equivalence to Heirs of the Body for where it speaks of the Alienation of the Donee 't is said quo minus ad exitum discenderet So in 34 H. 8. of Entails setled by the Crown 'T is true in Conveyances c. the wisdom of the Law has appropriated the word Heirs as a Term of Art In Clerke's Case A Lease was made to commence after the death of his Son without Issue the Son had a Son and died and then that Son died without Issue It was Resolved both in the Kings Bench and the Exchequer that the Lease should commence for Issue being nomen collectivum whenever the Issue of the Son failed the term of Commencement did happen But now to see the difference Tyler's Case Mich. 34 Eliz. B.R. He had Issue A. B. C. and D. and Devised to his Wife for Life and after her death to B. his Son in Tail and if he dies without Issue then to his Children A. had Issue a Son and died and B. died without Issue Resolved that the Son of A. should not take as one of the Children of the Testator Which Case I cite to shew the odds between the word Issue and the
five years pass Whether the Lessor should have five years after the Term expired was the question and after the hearing of Arguments the Court resolved that he should as well as when Lessee for Life levies a Fine which differs not in reason from this Case for there the Lessor may have his Writ de consimili casu presently as here he may bring his Assize And though in 9 Co. Podgers Case 'T is said that where Lessee for years is ousted by a Disseisor who levies a Fine if five years pass without claim the Lessor is barred that is not the same with this Case for the Disseissor comes in without the consent of the Lessee and of his own wrong and if he can defend his Possession five years he shall hold it but here all is done with the privity and by the means of the Lessee who is trusted with the Possession and it would be of most mischievous import to Mens Inheritances if they should not have five years after the Lease ended and it being put of a Disseisin in Podger's Case seems to imply the contrary in other Cases and tho' there were many notorious Circumstances of fraud in Fermours Case which Co. in his report of it lays much weight upon yet it does not thence follow that the Law is not the same where there are not such evidences of fraud In other Books where that case is reported the resolution does not seem to go so much upon the particularities of the Fraud 'T is Fraud apparent in the Lessee Wilston versus Pilkney IN Debt for Rent the Plaintiff declared that the Dean and Chapter of c. demised to the Defendant for Life by force of which he entred and demised the Land to the Plaintiff for years by virtue of which he was possessed and afterward granted to the Defendant reserving a Rent for which he brings his Action To this Declaration the Defendant Demurrs First Because he doth not say of the Deans Demise hic in Curia prolat ' which Demise must be by Deed. Secondly He says that the Defendant entred by force thereof which is impertinent to be alledged upon a Lease for Life because Livery implies it Thirdly As to the matter that the Reservation was void it being upon a surrender by Parol A Rent cannot be reserved upon a Feoffment by Parol so where Lessee for life or years assigns over his whole interest 12 H. 4. 14. 9 H. 6. 43. 12 H. 4. 17. also no Rent can be reserved upon a Conveyance that works an Extinguishment unless by Deed where it is good upon the contract Peto's Case 3 Cro. 101. is that a Surrender drowns the interest to all intents and purposes between the Parties Dier 251. The Tenant for Life agreed with him in Reversion that he should have his Land for the Annual Rent of 20 s 't is doubted there whether this amounts to a Surrender there being no Deed or Livery But in 2 Rolls 497. 't is said if it had been a Surrender the reservation had béen void Hale I do most doubt of the first exception because the Deed was not produced And for the second it were better pleading to have said by force of which he was seized but that 's not of necessity And as to the matter the Court resolved for the Plaintiff For 1. The Reservation was good by the contract tho' without Deed. And so it was adjudged in this Court in Manly's Case that Tenant for years might assign his whole Term by Parol rendring Rent so in the Case of Purcas and Owen 23 Car. But it was doubted whether an Action would lye until the last day were past 'T is all one where the Grant is made to him in Reversion which is not actually but consequentially a Surrender by operation of Law before which the contract is perfected upon which the Rent arises 7 E. 4. is that the Lessee may Surrender upon Condition and there is no reason why a Rent cannot be created upon it as well as a Condition If it were in the case of Tenant for Life a Deed were requisite as well for a Rent as a Condition in respect of the Freehold but that is not so in case of Tenant for years Vide Postea Cartwright and Pinkney Termino Sanctae Trinitatis Anno 25 Car. II. In Banco Regis Hanslap versus Cater IN Error upon a Judgment in the Court of Coventry where the Plaintiff Cater declared That the Defendant being indebted to him infra Jurisdictionem Curiae pro diversis Bonis Mercimoniis ante tunc venditis deliberatis did then and there assume c. Vpon Non Assumpsit pleaded and a Verdict and Judgment for the Plaintiff the Error assigned was That the Goods were not alledged to be sold within the Jurisdiction of the Court. Hale and Wild seemed to be of Opinion that it was well enough the being indebted and the promise being laid to be within the Jurisdiction Twisden Contra and said he had known many Judgments reversed for the same Cause It being moved again this Term Hale consented that it should be reversed according as the latter Presidents have been for he said it was his Rule Stare decisis Parsons and Muden Pasch 22. Car. 2. Rot. out of Barnstaple Court John Brown's Case HE was indicted upon the Statute of 3 H. 7. cap. 2. for the forcible taking away and marrying of one Lucy Ramsy of the Age of fourteen years having to her Portion 5000 l He was tried at the Bar and the fact appeared upon the Evidence to be thus She was inveigled into Hide Park by one Mrs. P. confederate with Brown who had prepared a Coach for that purpose to take the Air in an Evening about the latter end of May last and being in the Park the Coachman drove away from the rest of the company which gave opportunity to Brown who came to the Coach side in a Vizar-mask and addressing himself first to Mrs. P. soon perswaded her out of the Coach and then pulls out a Maid servant there attending Mrs. Ramsy and then gets himself into the Coach and there detains her until the Coachman carried them to his Lodgings in the Strand where the next Morning he prevails upon her having first threatned to carry her beyond Sea if she refused to Marry him but was the same day apprehended in the same House It was a first doubted whether the Evidence of Lucy Ramsy was to be admitted because she was his Wife de facto tho' not de jure But the Court seriatim delivered their Opinions that she was to be admitted a Witness First For that there was one continuing force upon her from the beginning till the Marriage wherefore whatsoever was done while she was under that violence was not to be respected Secondly As such Cases are generally contrived so hainous a Crime would go unpuished unless the Testimony of the Woman should be received Thirdly In Fulwoods Case reported in 1 Cro. which was read in the
Court the Woman was a Witness tho' married as here and Rainsford cited my Lord Castlehavens Case where the Countess gave Evidence that he assisted the committing a Rape upon her But Hale said he was not governed by that case because there was a Wife de jure the Evidence being clear as to all the Points of the Statute viz. First That the taking was by force Secondly That the Woman had substance according to the Statute Thirdly That Marriage ensued tho' it did not appear she was deflowred the Jury found him guilty Whereupon Judgment was given and he was hanged Note 39 Eliz. cap. 9. takes away Clergy from this Offence Bayly versus Murin IN an Ejectment upon a Special Verdict the Case was to this effect One Cooper Vicar of Granbrook in Kent being seized of an House and Lands thereunto appertaining parcel of the Endowment of his Vicaridge situate in a Market Town in the year 1672 lets it for three years and one year of the said Lease being expired the 11 of Sept. 1673. lets it for 21 years to begin from Michaelmas following reserving the Rent during the Term payable at the usual Feasts or within ten days after this Lease was confirmed by the Archbishop Patron of the Vicarage and Dean and Chapter of Canterbury Some years after Cooper dies and the Question was Whether Buck the succeeding Vicar could avoid this Lease The first Point was Whether the Lease became void within 80 Days after the death of Cooper by the Statute of Non-residence 13 Eliz. 20. And as to that all the Justices were of Opinion that Death would not make such a Non-residence as should avoid the Lease for the Intention of the Statute was to oblige the Incumbents to Residence First By imposing of the Forfeiture of a years Value of their Benefice if they did not Reside Secondly By making their Leases void which tho' prima facie seemed to be to their advantage yet was not so in the consequence for none would be induced to Farm their Lands because it was in their power to defeat their Leases by Non residence Again 'T is plain the Statute meant a Wilful Absence because it says The party so offending the Statute of the 13th of Eliz. that allows Leases of Houses c. in Market Towns for 40 years would be of no effect if Death should be interpreted a Non-residence and the Confirmation of Patron and Ordinary would be to no purpose Butler and Goodale's Case in the 6 Co. 21. b. is that where the Incumbent is absent upon an Inhibition or for the sake of his Health he is not within the Penalty of that Law There is only one single Authority against this viz. Mott and Hale's Case in the 1 Cro. 123. which Twisden doubted whether it were so adjudged because my Lord Coke mentions it no where supposing so Notable a Point would not have escaped his Observation especially in a Case wherein he was Counsel But Hale said It was Adjudged by the Opinion of three Judges tho' in Moor 't is said the Court was Divided but it was a hard Opinion And in the 38th of Eliz. B.R. Moor 609. the very Point was adjudged contrary The second Point Whether it were void because the Rent was reserved at the usual Feasts or within Ten days after For it was urged that the Term ending at Michaelmas would be expired before the last Payment And for the other payments 't is for the Successor's advantage because the Predecessor may dye within the Ten days But the Court were clear of Opinion in regard the Reservation was during the Term that there should be no Ten days given to the Lessee for the last payment according to Barwicke and Foster's Case in the 2 Cro. 227 233. The third point Whether this were a Lease in Reversion and so not warranted by the Statute of the 14 of Elizabeth And all the Court held that it was This Statute repeats that of the 13th of Eliz. as to Houses in Market Towns which Liberty was given as Twisden said to render those places more populous but excepts Leases in Reversion which this is being to commence at a Day to come where a Power is annexed to an Estate for Life to make Leases in possession A man cannot make a Lease to commence in futuro In the 6 Co. Fitz William's Case 4 E. 3. tit Waste 18. the Lessor made a Lease to commence after the death of the Tenant for Life and notwithstanding maintained an Action of Waste And Co. Lit. citing that Case distinguishes between a Grant of the Reversion and a Lease in Reversion as that Case was In Plowden's Commentaries Tracy's Case A Lease made to commence at a Day to come is given as a most proper Instance of a Lease in Reversion In the 1 Cro. 546. Hunt and Singleton's Case a Lease of an House for 40 years there being 10 years unexpired of a former Lease by the Dean and Chapter of St. Pauls was held not warranted by the 14th of Eliz. The like was Resolved in C. B. 14 Car. 2. in the Case of Wyn and Wild of a Lease of the Dean and Chapter of Westminster and there the Court denied the Opinion in Tomson and Trafford's Case Poph. 9. And two of the Judges seemed to be of Opinion and Twisden strongly that if the Lease in the Case at Bar had been made to commence presently it yet would have been void there being another Lease in being so that for so many years as were to come of the former Lease it would be a Lease in Reversion And that the 18th of Eliz. that permits a concurrent Lease so that there be not above three years in being shall not in their Opinion make any alteration of the 14th of Eliz. but it only extends to the 13th of Eliz. because it recites that but not the former And so is the Opinion of Hobart in the Case of Crane and Taylour 269. and it hath been often held that it does not extend to the Statute of 1 Eliz. concerning Bishops But of this Hale doubted and rather conceived the contrary viz. That the Lease had been good if it had been made to commence presently there being less than three years to come of the former Lease And that of the 18 of Eliz. did give a qualification to Leases made upon the 14th as well as the 13th First Because the 14 of Eliz. is a kind of an Appendix to the 13th of Eliz. and does not repeat it but sub modo a little enlarging it as to Houses in Market Towns Wherefore the 18th of Eliz. reciting the 13th does by consequence recite the 14th also Secondly There is such a Connexion betwixt all the Statutes concerning Leases of Ecclesiastical persons that they have been taken into the Construction of one another The Statute of the 32d of H. 8. is not recited neither in the 1st or the 13th of Eliz. yet a Lease is not warranted upon those Statutes unless it hath the Qualifications
Condition was intended between the Parties to be but in lieu of the Rent which should have been chargeable with that Assessment Anonymus IN an Action upon the Statute of the 13th of this King which Imposes 6 s and 8 d Penalty upon any one that shall print anothers Copy whereof he hath made due Entry in the Register Book of the Company of Stationers without License of the Proprietor It was set forth that the Defendant had printed One thousand parts of a Book called The Young Clerk's Guide after that the Plaintiff had made an Entry thereof in the Register Book of the Company of Stationers After a Verdict for the Plaintiff as to One Book which was all the Plaintiff could prove printed since the late Act of General Pardon It was moved in Arrest of Judgment that the Plaintiff did not shew himself to be Proprietor of the Book before he made the Entry Sed non allocatur For the Statute gives the Action to him that has made an Entry in the Register Book Secondly It was Objected that the Plaintiff ought to have no Costs in this Action But for that the Court said the Plaintiff might release them But it was to be considered whether the Costs were well given or no Hedgeborrow versus Rosenden IN Debt for 100 l the Plaintiff Declared upon Articles of Agreement purporting that the Plaintiff and Defendant should Run an Horse for 100 l and if the Defendant lost that he should pay the 100 l c. The Defendant pleaded the Statute of this King concerning Gaming which provides that all Securities given for Money lost at Play exceeding 100 l shall be void And sets forth that in the Articles it was further agreed that the Plaintiff and Defendant should Run two three or four Heats more at 20 l a Heat if the Plaintiff required it so that the whole amounted to more than 100 l Holt Argued for the Plaintiff First The Statute as appears by the words intended to avoid Securities given for Money lost at Play but not where the Contract is precedent For tho' men when they have lost their Money are very rash in venturing further yet what is done before they enter into play may be supposed to be done considerately Sed non allocatur for that Construction would wholly elude the Statute and let Men loose to play for any great Sum provided they secured it before-hand Secondly It was objected that the Statute did not intend to avoid the security when there was but 100 l lost at a time and it does not appear here that the Plaintiff requested the Defendant to play any further Sed non allocatur for the bargain being to play for more than 100 l 't is void ab initio and tho' the Plaintiff did not request the Defendant 't is not material no more than if one should contract for more interest than the Statute allows if the Creditor requests it tho' he never requests yet 't is within the Statute of Usury and the Court said they would extend this Satute as largely as might be in suppressing of Gaming which was so mischievous Monsieur Bellew Norman Senior and Norman Junior THree Frenchmen were indicted of Treason in Coyning and Clipping the Kings Money by two several Indictments and the Court doubted whether Iudgment for the Clipping should be Drawing Hanging and Quartering or Drawing and Hanging only and having advised with all the Judges at Serjants Inn they resolved it should be Drawing and Hanging only tho' the Presidents are both ways And the Opinion of Coke 3 Inst 17. is that a Clipper should be Drawn Hanged and Quartered But in regard the Statute of 3 H. 5. declared Clipping and Diminishing the Kings Coyn to be within the Statute of the 25 E. 3. which mentions Coyning only that does not stand repealed by 1 Mar. that leaves all Treasons within the Statute of the 25 E. 5. as they were before and so 1 Eliz. against Coyning makes not a new Treason And then as Hale said Coyning was esteemed as an inferiour sort of Treason in comparison of such as concerned the Kings Person wherefore there was Drawing and Hanging only for that and then by the same reason for Clipping which seems a less degree of the same kind of Treason Then there was debate whether Twisden being the antient Judge or the Chief Justice should pronounce the Iudgment Twisden said in case of Treason it belonged to the Chief Justice tho not in Felonies and that the Lord Foster did it in Sir Henry Vanes Case in the 13 of this King Hale Thought the other was to do it and therefore Twisden gave the Judgment ut supra and to avoid scruple Hale pronounced it over again Baker versus Bulstrode IN Debt upon a Bond Conditioned to perform an Award the question did arise upon one part of the Award viz. That the Defendant should Seal and Execute such a Release to the Plaintiff as should be to the satisfaction of the Plaintiffs Counsel within the space of seven days and which of the Parties was to tender the Release was the question And it was resolved that the tender ought to come on the Defendants side and not like the Case where such Deed c. is to be made as the Counsel for the other Party shall advise for the Deed must be offered according as the Counsel does advise and he to whom 't is to be made is to do the first Act but the words here are of another import vid. Lambs Case 5 Co. 23.13 It was held by the Court that a Writ of Error that hears Teste before the Judgment given is good to remove the Record so as Iudgment be given before the Return of it And Hale said that about three years since at Norfolk Assizes the Defendant in an Indictment of Barretry brought a Writ of Error Teste before the Assizes and it was disallowed because if such practice should obtain it would disappoint all the Proceedings at the Assizes And if the Plaintiff does not shew his Writ of Error to the other Party or get it allowed by the Clerk by Endorsing Recipitur upon it within four days which time the Court gives as convenient time for putting in of Bayl according to the Statute the Writ of Error is no Supersedeas Also if before the Writ of Error the Sheriff Returns Fieri feci and non inveni emptores the Execution is not to be undone Termino Paschae Anno 26 Car. II. In Banco Regis Anonymus IN an Assault and Battery the Case upon the Evidence was this The Defendant drew a Sword and waved it in a menacing manner against the Plaintiff but did not touch him so the Jury were ordered to find him Guilty as to the Assault but not of the Battery And the Opinion of the Court was that the Plaintiff was to have no more Costs than Damages for the new Act excepts Actions of Assault and Battery so that both must be proved Anonymus IF a Parish
Vpon which it was Demurred Jones Sollicitor for the Defendant said Tho' the Bail may plead payment because the Condition of the Recognizance is in the Disjunctive viz. for rendring the Body or paying the Money yet the Principal cannot Also it ought to have been pleaded to be paid before a Capias ad satisfaciendum taken out for as it is it may be after the Recognizance forfeited As if the Death of the Principal be pleaded it must be alledged to be before the Capias ad satisfaciendum taken out But the Court held it to be well enough For if that matter be material 't is to come on the other side and ex gratia Curiae the Bail has time to save himself before the Return of the second Scire facias Anonymus IN an Assumpsit the Plaintiff Declared that on the 28th of June Discoursing with the Defendant about the Marriage of his Daughter the Defendant promised him That if he would hasten the Marriage and should have a Son within Twelve Months then next following he would give him an Hundred Pound And sets forth That he did Marry soon after and had a Son within 12 Months after the Marriage Vpon non Assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff had not set forth That he had a Son within the time for then next following shall be referred to the Day of the Discourse and not to the Marriage But the Court were of another Opinion and gave Judgment for the Plaintiff Crawfoot versus Dale IN an Action for Words it was thus There being a Discourse of the Plaintiffs Trade the Defendant said He was a cheating Knave and kept a false Debt-Book with which he cheated the Country After Verdict for the Plaintiff it was moved in Arrest of Judgment that to say a Tradesman was a Cheating Knave tho' there were a Colloquium of his Trade was not Actionable for that might be said because he sold too Dear and so cheated in the Price but to say that He sold bad Commodities is Actionable and to say He kept a False Book will not bear an Action for that may be unwittingly But the Court Resolved that the Words laid together were Actionable for Tradesmens Books are of much regard and sometimes given in Evidence Jennings versus Hunking IN an Action for saying He was Perjured the Declaration was laid in Devonshire The Defendant Iustified for that the Plaintiff made a false Affidavit at Launceston in Cornwal and Issue was taken upon that and tryed at the Assizes in Devonshire and moved that this was a Mis trial But it was Answered That the Statute of 17 Car. 2. cap. 8. helps all Mis-trials so as the Trial be in the County where the Action is brought And a Case was cited in this Court between Crosse and Winton in the 21 Car. 2. where an Action was brought for saying He stole Plate from Wadham Colledge in Oxford The Defendant Iustified that he did Steal there Vpon which there was Issue joyned and tryed in London where the Action was brought and it was held good And this Term a Case was moved in the Common Bench in a Writ of Covenant against Wise The Defendant pleaded a Feoffment of Lands in Oxfordshire and he Issue was non feoffavit and afterwards tryed in London where the Action was laid and the Opinion of the Court there was that the late Statute would help it The Court said It was within the words of the Act but as they conceived not within the meaning for they intended only so the Trial was in the County where the Issue did arise But in regard of the Resolutions before they would not stay Judgment Anonymus IN an Action upon the Case the Plaintiff sets forth that the Defendant malitiose crimen Feloniae ei imposuit and not mentioned any Felony in particular and yet held to be well enough Anonymus Trespass with a Continuando which was alledged for some time after the Term wherein the Action was brought and Damages given to 10 l It was moved in Arrest of Judgment that for part of thâ— Trespass it appears by the Plaintiffs own shewing that the Action was brought before the Plaintiff had Cause of Action And it was said That if the Bill were Filed at the End of the Term and the Trespass reached to some time within the Term the Filing should not relate so as to make it Insufficient But here it was carried to the 3d of July which the Court must see is out of the Term because they take Cognizance of the beginning and end of every Term. Anonymus IF an Audita Querela he brought before the Execution of a Judgment quia timet and it goes for the Defendant he shall execute his Principal Judgment But if it he brought after the party is in Execution and he be bailed out then the Judgment being once Executed there can be no after resort to that but the Defendant shall proceed upon the Record of the Audita Querela Fawkener versus Annis THe Priviledge of the Chancery was pleaded by way of Prescription and upon Demurrer it was held naught First Because it was not Concluded hoc paratus est verificare And Secondly No place alledged for they are Matters of Fact and Triable Anonymus IN an Action upon the Case the Plaintiff Declared That the Defendant the Tenants and Occupiers of such a parcel of Land adjoyning to the Plaintiffs have time out of Mind maintained such a Fence and that from the 23th of April to the 25th of May postea the Fence lay open and that una Equa of the Plaintiffs went through the Gap and fell into a Ditch the 28th of May submersa fuit Vpon Not Guilty pleaded and found for the Plaintiff Holt moved in Arrest of Judgment First That the Prescription is laid in Occupiers and not shewn their Estate and that hath been adjudged naught in the 1 Cro. 445. and the 2 Cro. 665. Curia 'T is true there have been Opinions both ways but 't is good thus laid for the Plaintiff is a Stranger and presumed ignorant of the Estate But otherwise it is if the Defendant had prescribed Secondly It was Objected That the Cause of Action is laid after the 25th of May and for ought appears the Fence might be good at that time tho' 't is said to be open till the 25th of May postea Sed non allocatur For 1. 'T is after a Verdict 2. 'T is said expresly that the Beast was lost in defectu fensuratum and so cannot be intended but that it was down at the time Anonymus AN Indictment of Forcible Entry upon the 8 H. 6 being removed hither by Certiorari a Restitution was prayed But to stop that it was said that the Indictment was traversed and a Plea that the party had had three years quiet possession according to the 31st of Eliz. and tho' Dyer 122 is That 't is in the
one to whom the Promise was made would marry his Kinswoman he would give her 100 l It was adjudged that an Indebitatus will not lye for t is not a Debt but a Collateral Promise Best versus Yates IN an Action upon the Case the Plaintiff declared That the Defendant being a Taylor he retained him to make him a Coat well and artificially and that the Defendant maliciously intending to abuse and damnifie the Plaintiff made it tam inepte negligenter inartificialiter that it became of no value or use to him to his damage 20 l To this Declaration the Defendant Demurred First For that he saies he retained him and does not shew that he delivered him any Materials so that the Action might lie for spoiling of them but this amounts to no more than that he bespoke a Garment which when it was made he did not like and so might have refused it therefore there does not appear to be any damage Vid. The president in Astons Entries fol. 12. Secondly He does not shew wherein he had spoiled the Coat or what defect there was in it and this ought to have béen certainly set forth And of this Opinion were the Court and Iudgment was given quod querens nil capiat per billam James versus Peirce IN an Action of Debt for an Escape upon Nil debet a Special Verdict was found to this effect viz. That the Plaintiff recovered 700 l Debt against J. S. who was thereupon committed in Execution to the Fleet and afterwards the Warden permitted him to make a voluntary Escape after which he returned again to the Fleet and the Defendant was made Warden in the place of the other and J.S. being then in the Fleet was turned over with the other Prisoners and afterwards suffered to Escape So that the question was Whether he were so in Execution upon his return as the escape in the now Wardens time should Intitle the Plaintiff to the Action It was principally insisted on against the Action that there being once an Escape that the party could not be in Execution again without new Process Hale said formerly it was held even in the case of a Permissive Escape that if the party were taken again he might discharge himself by Audita Querela and that he might not be retaken unless in case of a voluntary Escape but there the remedy was only against the Gaoler But afterwards it was held that Debt would lie against the party who escaped because the Duty they did not suppose was discharged by the Escape But they held it was a good Plea to a Scire facias But afterwards 9 Car. between the Lord Roberts and Trevilian The Opinion of the whole Court was that a Scire facias quare Executionem habere non debet would lie against one that had made a voluntary Escape and there is no reason but that he may as well be taken by the party again without a Scire facias for the Party has an interest in the Body of the pledge until his Debt is satisfied Tho' if the Prisoner should bring Trespass against a Gaoler that detained him after a voluntary Escape he could not defend it the mischief would be exceeding if the Sheriff c. might at his pleasure put the Plaintiff to an Action only against himself For this last Vacation the Warden of the Fleet turned as many Prisoners at large as their Debts came to 80000 l and ran away himself And so by the Opinion of the whole Court absente Twisden Iudgment was given for the Plaintiff Vid. Hob. The Sheriff of Essex's Case which was denied to the Law Sir Thomas Littleton Case DEbt was brought against him by one that Entituled himself by Assignment of Commissioners of Bankrupts Vpon the Evidence it appeared That he with two others had covenanted with the King to provide Victuals for the Seaman that served in the late Dutch War at 8 d per Man and after this they made a bargain with the Pursers of the Ships to provide for such as served in their Ships at other Rates agreed upon between them The Victuallers afterwards falling into the Kings displeasure and being thereupon removed from their Employment and having a great Sum of Money due from the King to them upon thhe Contract aforesaid refused to pay the Pursers supposing notwithstanding their Contract that they were not Debtors being upon the Kings Account until such time as their Accounts with the King were allowed and so was said was the usage of the Navy Board whereupon a Comission of Bankrupt issued forth But the Court viz. Hale Rainsford and Wild were clear of Opinion That this Employment in buying up Stores for Victualling the Fleet did not make the Victuallers Traders nor was it buying and selling within the Statute of Bankrupts And Hale said that every Purveyour might as well be made a Trader or Schoolmaster that keeps Boarders in his House and tho' it were shewn to enforce the matter that where there was a Redundancy of Provisions they used to Victual Merchantmen but in regard it was originally designed for the use of the Navy in pursuance of their Contract with the King they might well dispose of the Surplus to any other use And then it was shewn that they Victualled the French Fleet also and that was more than was contained in their first Agreement with the King but that being proved to be done by the Kings express order tho' that Order was not produced The Court held that it was not sufficient evidence to prove them Traders But Hale said they having made a Contract with the King to provide for the Fleet at so much a Head the King was not chargeable to those with whom they contracted and therefore that Contract with the Pursers of the Ships would make them Debtors to them But upon the other matter they directed the Jury to find for the Defendant Termino Sanctae Trinitatis Anno 27 Car. II. In Banco Regis Motteram versus Jolly IN Debt upon a Bond Conditioned to perform Covenants in an Indenture one of which was that the Defendant Covenanted with the Plaintiff that the Plaintiff should elect 20 of the best Trees out of his Wood to be taken within 11 years and the breach was assigned that the Defendant had cut Trees within the time upon which it was Demurred and relied upon Sir Thomas Palmers Cases 5 Co. where Sir T.P. sold 2000 Cords of Wood to be taken at the Election of the Vendee And there it is said if the Vendor cuts the Wood before the Vendee hath elected the Vendee cannot meddle with that which is cut but must supply his bargain out of the residue But here the Court were of Opinion for the Plaintiff for by the Covenant he hath 11 years time to elect and by cutting any Trees in the mean time the Latitude of his Election is abridged And Hale said for the case in 5 Co. there if the Grantee can have the number of his Cords
of Wood he hath the effect of his Grant But Trees differ in value exceedingly from each other Bolton versus Cannon IN Debt against an Executor for Rent Arrere in his own time in the debet detinet The Defendant pleads that the Rent is more worth than the Land and that he tendred a Surrender before the time for which the Rent is demanded and that the Plaintiff refused to accept the Surrender and that he had fully administred and so demands Iudgment of the Action The Plaintiff replies that there was Rent Arrear to him and that therefore he was not bound to accept of the Surrender and to this the Defendant Demurrs The Court said First That an Executor that does intermeddle cannot wave a Lease or any other part of the Testators Estate for he cannot assume the Executorship for part and refuse for part Secondly That in case the Land be not more worth than the Rent it is a good Plea to an Action of Debt in the debet and detinet for he is to be charged in the detinet only tho' where the Rent is of less value he may be charged in the debet detinet for that which is accrued in his own time according to Hargraves Case 5 Co. Thirdly The doubt here is that the Defendant having waved the material part of his Plea viz. That the Rent exceeded the value of the Land and relied upon his tender of a Surrender which is nothing to the purpose whether Judgment can be here for him and that otherwise his Plea is double but because the Plaintiff hath not demurred to that but answered only to one part of it the Defendant might well Demurr upon the Replication because it does not answer all contained in the Plea for unless the party Demurrs for doubleness he is bound to answer all the matters alledged Et Adjornatur But being this Term moved again Iudgment was given for the Plaintiff because the Defendant relinquished the material part of his Bar and offered matter meerly frivolous Cartwright versus Pinkney TEnant for years Surrenders to the Lessor reserving a Rent the question was Whether it was a good Reservation And held that it was upon the Contract and that Debt lay after the first day was incurred wherein it was reserved to be paid for it was in the nature of a Rent and not of a Sum in Gross Ante Wilson and Pinckney Anonymus IN Trespass for Fishing in his several Fishery pisces cepit After a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff ought to have alledged what kind of Fishes and the number of them as in Playters Case 5 Co. is But for that it was said on the other side that at that time they were more strict in the certainty of pleading than since for now and indebitat ' Assumpsit for Work done or Goods sold is allowed without further certainty And that however the Oxford Act 15 Car. 2. here helped it for tho' this be none of the defects there enumerated yet the words of the Act being That Judgment shall not be arrested for any other exception that doth not alter the nature of the Action or Tryal of the Issue shall extend to this Case But the Court were of Opinion that none of the Acts had aided this Case in regard that there was not so much as the number of the Fishes expressed as if a Man should bring Trespass for taking of his Beasts and not say what But Hale said Trover for a Ship cum velis had been allowed because all made but one aggregate Body both the Ship and Sails But Trover pro velis would not be good Vid. 2 Cro. 435. Trespass quare clausum fregit Spinas cepit and 3 Cro. 553. Child and Greenhills Case Dr. Webb versus Batchelour al' IN Trespass for taking so many Cowes upon Not guilty a Special Verdict was found That an Act of this King for repairing of the High-ways appoints that such persons as keep Carts and Horses c. should send them at certain times to assist in the repairing of the Ways not having a reasonable excuse and that warning was given to the Parishioners of the Parish whereof the Plaintiff was Parson to send in their Carts and that the Plaintiff omitting to do it a Justice of Peace made a Warrant to the Defendant to distrain him according to the Authority given by the Act c. It was alledged for the Plaintiff First That Clergymen were not obliged by this Act for Ecclesiastical Persons have always had immunities from such charges as Pontage Murage c. and shall not be comprehended in the general words Parishioners Secondly That in regard the Act allows an excuse the Justice of the Peace ought to have caused the Plaintiff to have appeared before him to have seen whether he had an excuse before he could have made his Warrant and tho' the Officer that executes the Process of a Court of Record be indemnified where the proceeding is Erroneous yet 't is not so where the proceeding is not of Record as the 10 Co. in the case of the Marshalsey 3 Cro. 394. Nicholls versus Walker and Carter Where a Warrant was made by a Justice of the Peace to distrain for a Poors Rate Trespass was maintained against the Officer that executed the VVarrant because the Plaintiff was not chargeable as an Inhabitant of the Parish for whose Poor the Rate was made Curia contra 1. The Clergy are liable to all publick charges imposed by Act of Parliament and that hath been resolved as Hale said upon debate before all the Judges 2. The Officer that executes the VVarrant though unduely made for the cause alledged is not answerable for he is not to judge but to execute the matter it being within the Jurisdiction of the Justice of the Peace and 't is not like the Case in the 3 Cro. for there the Churchwardens And Overseers of one Parish distrained in another Parish which was out of the limits of their Authority but in 14 H. 8. 16. where a Justice of the Peace made a VVarrant to Arrest a Man for Felony which in those times was held beyond his power tho' otherwise since unless there had been some Indictment of Record yet 't is there held the Officer that executes such VVarrant is not punishable Wherefore Judgment was given here for the Defendants Termino Sanctae Michaelis Anno 27 Car. II. In Banco Regis Anonymus A Judgment was removed by Error into this Court and affirmed the Capias that is Awarded thereupon must mention it and not be general as upon a Judgment originally in this Court and if such a Writ issues out the Court will upon motion grant a Supersedeas and there needs no Writ of Error in Adjudicatione Executionis tho' it was taken out in a former Term. Anonymus LIbel was by the Churchwardens of c. in the Ecclesiastical Court for 1 l 6 s 8 d upon a Custom
for payment of so much for being Buried in the Body of the Church and a Prohibition was prayed suggesting that there was no such Custom The Court held such a Custom must be good because the Parish is to be at the charge to make up the Church Floor but if the Custom be denied it must be tried at Law And therefore inclined that a Prohibition was to go tho' it was objected that this duty belongs properly to the Ecclesiastical Court and no remedy for it elsewhere for so is the Case of a modus decimandi which may be demanded in the Spiritual Court but if the Custom be denied there shall be a Prohibition and so the case of a Mortuary since the Statute of H. 8. And it afterwards being moved again Hale Chief Justice being present the Prohibition was granted Which Hale said was sometimes granted pro defectu Jurisdictionis and sometimes pro defectu Triationis as in this case and others where the ground of the Suit is Prescription for in their Law they have sometimes allowed Prescriptions of 20 years sometimes of 40 years but we admit none but what are de temps dont c. St. John versus Moody IN an Action upon the Case the Plaintiff declared That he was possessed of a Wood and that he had a way leading from such a place to the said Wood and that the Defendant had obstructed it Vpon not Not guilty it was found for the Plaintiff and moved in Arrest of Judgment that the Plaintiff had not set forth his Title to the way whether by Prescription or otherwise and this ought to be that the Defendant might be ascertained what to make defence unto Also 't is proper to the nature of an Action upon the Case to set forth the Case at large Curia contra The Action here is grounded upon the Possession indeed if Trespass were brought by the owner of the Soil in a justification for a way 't is necessary to express by what right 't is claimed but this for ought appears may be against a Stranger In Assize for a Rent against the Terre-tenant he may demand Judgment whether he ought to answer before Title made otherwise of an Assize brought against the Pernor of a Mans Rent Where 't is pleaded that the Party ought to keep the Fence it sufficeth to say occupatores reparare consueverunt for in Truth the greatest part of the Enclosures in England have been within time of Memory The Writ of Curia claudenda is only quod debet solet 't is true before 7 Jacobi the usage has been in Actions of this nature to prescribe but not since Vid. 2 Cro. 43 123 3 Cro. 499 575. Sands and Trefuses Case and 325 Symonds and Seabourn Whereupon Iudgment was given for Plaintiff Note This Case was afterwards affirmed upon a Writ of Error in the Exchequer Chamber Drue versus Baily THe Case was an Executor had a Term and let part of it reserving a Rent and made his Executor and died The question was Whether the Executor should have the Rent or the Administrator de bonis non And it was held that the Executor should have it Bell versus Thatcher IN Error upon a Judgment given in the Court of Common Pleas where the Plaintiff in an Action upon the Case declared That he had been retained by the under Postmaster to carry about post Letters of which he made a profit and had behaved himself honestly in that Employment And that the Defendant to defame him said He had broken up Letters and taken out Bills of Exchange which brought him to such discredit that he lost the said Employment And Iudgment was given for the Plaintiff and Error assigned upon the matter for that the words do not import but that he might break open the Letters by the direction of those to whom they were directed neither do they express that they were Post Letters and the innuendo will not help it unless there had been such a signification in the words Neither is it such an Employment that an Action should lie for Scandalizing Also the Plaintiff does not declare that he was retained for above a year and seems to be little more then a Common Porter And for these reasons by the Opinion of the Court the Iudgment was reversed and Hale principally from the quality of the Employment for he said a Man should not speak disparagingly of a mans Cook or Groom but an Action would be brought if such Actions as these should be maintained Anonymus IN an Action for words the case was that the Defendant speaking to the Plaintiff said thus I know my self and I know you I never buggered a Mare And the Opinion of the Court was that the words were Actionable or else there might be sly ways to defame any Man and evade an Action Hodgkins versus Robson and Thornborow IN Debt for Rent The Defendants pleaded in Bar to the Action that the Plaintiff had entred into a Back-yard part of the Land demised by Force and Arms c. The Plaintiff replied that he ought not to be foreclosed of his Action for that the Defendant had let that Back-yard to J.S. for a lesser Term reserving no Rent and that J. S. entred and after assigned unto the Plaintiff c. which is the same Entry in the Bar. The Defendants rejoyns that J. S. did not enter to which it was demurred And after it was several times spoken to at the Bar Iudgment was given this Term by the whole Court for the Plaintiff viz. Hale Chief Justice Twisden Rainsford and Wild. And First They all held that as the pleading was in this case there could be no Apportionment of the Rent for when there is to be an Apportionment either the Jury shall do it upon nil debet pleaded or the Defendant may in his pleading set forth the value of the Land and to what the Apportionment shall be Hale said if the Lessee redemise part to the Lessor reserving a Rent there shall be no Apportionment for the parties by the Reservation have ascertained what Rent shall be allowed for that part but where there is no Rent reserved upon the Redemise there shall be an Apportionment but if part be assigned by the Lessee to a Stranger who Assigns it to the Lessor and the Lessee had reserved no Rent in that case there shall be no Apportionment for the Lessor comes under the benefit of the Strangers Contract And Hale resembled it to the Case of Lord and Tenant by an entire Service if such Tenant aliens part the Service is multiplied and after it be conveyed to the Lord the entire Service still remains upon the Tenant that holds the residue A Rent upon a Lease is not within the Statute of Quia emptores terrarum yet in many Cases there shall be an apportionment at Common Law If the Lessor enters into part by Wrong this shall suspend the whole Rent for in such case he shall not so apportion his
legitimum Granting of Administrations was originally Temporal an came to the Churchmen by the Indulgence of Princes and therefore must in some sort be governed by the Temporal Laws In Administrations the Whole Blood ought to be preferred before the Half Blood for Next of Kin shall be taken to be meant by the Statute such as our Laws judge to be so Rolls tit Prohibition 303. and so it was held in one Brown's Case before the Delegates in 8 Car. This being a New Case the Court gave no Opinion but Adjourned it to the next Term. Postea Termino Paschae Anno 29 Car. II. In Banco Regis NOte Where Justices of the Peace find a Force and make a Record of it upon their View they are to Commit the Offenders but cannot restore the Possession Anonymus A Prohibition was prayed to a Suit in the Spiritual Court for Money taxed for the Reparation of the Church upon a Surmize that the Tax was imposed upon one part of the Parish omitting the rest And for this was cited Rolls tit Prohibition 291. in the Point But the Court doubted in regard it was not alledged That they had offered that Plea in the Ecclesiastical Court because Reparation of Churches is proper for their Cognizance But the Prohibition was granted and the other might Demur if they thought fit But afterwards in this Term it was Countermanded Anonymus A Prohibition was prayed to the Admiralty where there was a Libel for a Ship taken by Pirates and carried to Tunis and there Sold for that it did not appertain to the Court to try the Property of the Ship being sold upon Land Curia In regard it was taken by Pirates it is originally within the Admiral Jurisdiction and so continues notwithstanding the Sale afterwards upon the Land Otherwise where a Ship is taken by Enemies for that alters the Property And this was the Opinion of the Court in Eglesfield's Case in my Lord Hales's time contrary to my Lord Hobart in the Spanish Ambassador's Case 78. in the 1. Cro. 685. they have Cognizance of the Case of the Pirate because incident to the Principal Matter But afterwards it was observed upon the Libel that there was no mention made That the Ship was taken super altum Mare And tho' there was contained therein very much to imply it yet the Court held that to be absolutely necessary to support their Jurisdiction Note One taken upon an Excom ' Cap ' was Discharged because the Writ de Excom ' Cap ' was not delivered into this Court and Enrolled as is required by the Statute Robinson versus Woolly IN an Ejectment upon a Special Verdict the Case appeared to be thus A Clerk was Admitted and Instituted to a Benefice within the Diocess of Gloucester whilst the Bishoprick was Vacant and a Mandate from the Archbishop for Induction but before it was Executed by the Archdeacon a new Bishop of Gloucester was Consecrated and whether the Induction coming after was sufficient was the Question That it was It was Argued that after the Mandate made it was Executed so far as the Bishop had to intermeddle in the matter For if no Induction does follow the Remedy lies not against the Bishop F.N.B. 47. h. But an Action upon the Case against the Archdeacon for the Induction is said to be a Temporal Act 1 Rolls 125 195. Neither can such Mandate be Revoked by the Bishop or be Inhibited by the King 1 Rolls 294. Again the Archbishop hath a concurrent Jurisdiction with the Bishops throughout his Province and may Admit and Institute until the Inferiour Bishoprick is full And the Statute of 23 H. 8. cap. 9. takes away the Jurisdiction of the Metropolitan only as to Proceedings in that Court In case the Inferiour Ordinary refuses to Admit the Archbishop may do it as appears Hob. 15. Hutton's Case and Mo. 879. It was said on the other side That this was but an Authority derived from the Bishop and therefore ceasing before it was Executed is determined The Bishop may direct his Mandate to another as well as the Archdeacon It was compared to a Letter of Attorney to make Livery which cannot be done after the Death of him that gave it Et Adjornatur Postea Anonymus IN an Information of Forgery the Defendant Challenged one of the Jury for that the Prosecutor had been late Entertained at his House This was admitted to the Favour tho' against the King Vid. for that in the 1 Cro. 663. And then the Counsel for the King challenged another and being pressed to alledge the Cause for 33 Ed. 1. does take away the General Challenge quia non sunt boni pro Rege But all the Court save Wild who seemed to be of another Opinion ordered the Panel to be first gone through and if there were enough the King is not to shew any Cause Vertue versus Bird. IN an Action upon the Case the Plaintiff declared that it was agreed between him and the Defendant That he should carry the Defendants Timber from a certain place to the Defendants House then and there to deliver at such place as the Defendant should appoint and that such a Day and Year he did carry with certain of his Carts to the place aforesaid the said Timber there ready to be delivered but that the Defendant delayed by the space of six Hours the Appointment of the place insomuch that his Horses being so Hot with Carrying of the Timber aforesaid and standing in aperto Acre they died soon after After Not Guilty pleaded and a Verdict for the Plaintiff Ventris moved in Arrest of Judgment that here did not appear any Cause of Action for it was the Plaintiffs Folly to let the Horses stand Neither was the Defendant under the Penalty of an Action bound to receive the Timber or appoint a place but in case of Refusal the other might recover what he Contracted for the Carriage having done all on his part but not to bring an Action for not appointing a Place And by the Opinion of all the Court the Judgment was stayed Vid. 2 Cro. 386. Roll. Rep. 275. Baily and Merritt Anonymus IT was moved for the setting aside of an Order of Sessions for the Setling a Poor person in a Town which had been sent thither by a Warrant of two Justices and it was Confirmed upon an Appeal to the Sessions But the Court would hear nothing of the Merits of the Cause the Order of the Sessions being in such case Final unless there were an Error in the Form Note A man gives a Warrant of Attorney to Confess a Judgment and dies before the Judgment is Confessed This is a Countermand Anonymus JUstices of the Peace at the Sessions Ordered the Father of him which had the Bastard Child to provide for it under the pretence of the reputed Grandfather for the Statute doth enable them to Tax the Grandfather of a Legitimate Child But in this Case the Court held there was no Colour and therefore quashed the
Order And Wild said It was well Westminster-Hall Doors were open Kent versus Derby INdebitatus Assumpsit The Plaintiff declared that the Defendant being indebted to him in a certain sum pro diversis mercionis ante tunc venditis deliberatis ad requisitionem of the Defendant to a Stranger did promise to pay c. After Verdict for the Plaintiff it was moved in Arrest of Judgment that this was but a Collateral Promise and that no Indebitatus Assumpsit would lie for the Debt was from the person to whom the Goods were sold Wild and Jones held the Action well brought and cited an Action sur indebitatus Assumpsit lately in this Court against one for Money promised in Marriage with his Sister Vid. R. 120 122. Sed Rainsford Chief Justice contra But the Plaintiff had Judgment Termino Sanctae Trinitatis Anno 29 Car. II. In Banco Regis Howlet versus Carpenter THe case upon a Special Verdict in Ejectment was this a Copiholder of a Dean and Chapter levied a Fine with Proclamation and five years passed without any Seizure or Claim by him that was Dean at the time of the Fine levied and whether the succeeding Dean was barred was the question And the Court at the first opening held clearly that he was not for if so the Statutes 1 13 Eliz. which restrain the Alienation of the Church Revenue would be of small effect 11 Co. Magd. Colledge's Case The Company of Ironmongers versus Nailer IN Trespass upon Not guilty a Special Verdict was to this effect that Nailer being one of the Officers for Collecting of the Duty of Hearth Money distrained for a certain Sum accruing for the Chimneys of a new built House which had never been inhabited neither did it appear that there had been any account of the Chimney's thereof returned into the Exchequer There were made three questions First Whether any thing shall be paid for Chimneys in such new built Houses Secondly Whether the Distress can be for that Duty in other places than at such Houses Thirdly Whether there can be any Distress taken before such time as the account of the Chimneys be returned into the Exchequer As to the first the whole Court were clear of Opinion that such new Houses which were never inhabited were chargeable for the words of the first Act are express viz. That every Dwelling and other House and Edifice other than such as are after excepted shall pay And there is no exception that extends to such House altho' it were objected that the Proviso in the Act of 14 is that the Duty shall be chargeable only on the Occupier and every Clause in the Act runs upon Occupiers and the Act of 15 recites the Kings Revenue to have been much obstructed for want of just Accounts of Chimneys under the hands of the Occupiers and the Act of 16 charges the next Occupiers with the half years payment where the former Occupâ—er removed before it grew due which implies if an House stood empty for longer time it should not be paid Again it is appointed to be demanded at the House and in case of refusal to distrain which shews an intention that it should be inhabited But it was answered That the words before mentioned were so full as not to be avoided and that there were sundry Clauses also in the Act which did import an intention that empty Houses should pay and so hath been the practice ever since the Act and that there were no manner of difference between these Houses which were new built and other Houses that in case there was no Tenant the Owner was understood to be Occupier as if the Owner grants an House in his Occupation it would be well tho' he did not inhabit it himself if it were inhabited by no other The Act of the 13 and 14 appoints notice to be fixed upon the Door for an account to be given in case there be no Inhabitant and six days after such notice to enter and take account which shews they meant empty Houses should be chargeable and why not as well as for Chimneys whereof no use is made As to the second Point the Distress it well taken tho' it doth not appear to be after an account made into the Exchequer for the duty accrues before and that is provided only that the King might be apprized of the number of Chimneys and so there might be a check upon the Collectors when they make their Accounts neither is any Process appointed to go out upon such Return of the number of Chimneys The Statute of 21 Jac. appoints Informers to be Sworn but if an Informer be not Sworn 't is but a neglect in the Officer The Proceedings are notwithstanding sufficient Mo. 447. where 21 H. 8. appoints the Enrolments of Dispensations in Chancery yet if not done it does not invalidate the Dispensation Thirdly The Distress was resolved to be well taken being in the Kings Case for an Act of Parliament shall be expounded according to the reason of the Law in such Cases Note Livesay the Secondary craved the Opinion of the Court whether he should tax treble Costs in this Case for the Act of 14 gives treble Costs where any person is prosecuted for what he should do in execution of that Act c. Now that Act appointed the Constables c. to Collect and Execute the Act. But now by vertue of the subsequent Acts for the Chimney Money the Collection c. is by other persons and the doubt is Whether they can have treble Costs by the Act of 13 and 14. But the Attorney General who was of Counsel with the Defendant said he would not insist upon treble Costs at this time because this Cause was brought on by consent for the determination of the doubt about new empty Houses paying but desired that it might be without prejudice Baker versus Bakers A Prohibition to the Delegates The case was that Administration had been granted to the Wife upon which an Appeal was brought by the Mother of the Intestate upon this Allegation in t ' al' That the Wife had Covenanted that she would not intermeddle in the Administration in regard she had been otherwise sufficiently provided for for it was said that the Ecclesiastical Judges had not to do with such matter But it was objected on the other side that it fell incidently into the principal matter whereof they had Conuzance but they might be prohibited if they judged the effect of it contrary to our Law neither did it appear that the Delegates would admit of this Allegation and there were no presidents for a Prohibition quia timer But on the other side it was said that there would go a Commission out to examin this matter of course before the Judges Delegates should sit to hear the merits of the case and that would take up so much time that many of the Goods being bona peritura would be lost but note the Ecclesiastical Judges may provide for the
Mandate is to intimate to him that the party is Instituted Secondly To oblige the Archdeacon to Induct under the penalty of an Ecclesiastical Censure But if it be granted that the Archdeacon's Authority in this matter is only derivative yet that being Executed by the Mandate quoad the Guardian of the Spiritualties what remains to be done remains only to the Archdeacon who shall finish what hath proceeded so far already If a Venire be awarded to the Coroners because of Kindred in the Sheriffs Family tho' a New Sheriff comes in before it be Returned yet the Coroner shall proceed in the Execution thereof The Sheriff seized Goods by a Scire facias and before they were sold a New Sheriff was made and then he sold them and it was Resolved that the Sale was good in the 2 Cro. 73. Ayre and Aden's Case Sed Nota The Court said that if the Did Sheriff had Returned That the Goods had remained in his hands pro defectu emptorum a Distringas should have gone to have them delivered to the New Sheriff and then a Venditioni exponas should have gone to the New Sheriff Vid. Yelv. 44. In the 2 Cro. 48. the Executors of the Bishop of Carlisle were admitted to proceed in a Suit commenced by the Testator in the Ecclesiastical Court because the Suit was well commenced and the Court were possessed of the Cause Where Commissioners of Oyer and Terminer have given Judgment and a New Commission granted which determines the Old yet the former Judgment may be Executed Bro. tit Commission 13. So by the Sitting of the Kings Bench the Commission at the Old Baily being in the same County is superseded and yet Execution is done in Term time But the Court said That was by the Statute of 2. E. 6. Again Induction is but a Formality and therefore shall not be so strictly Examined Where the Queen granted to two the Stewardship of a Mannor it was held that admission by one of them was sufficient Mo. 107. Noy's Reports Quaere that Case the Archdeacon having received a Mandate for Induction makes a Precept omnibus literatis infra Archidiaconatum to Induct and a Clerk who did not belong to the Archdeaconry made the Induction and this was held to be well enough Saunders contra The only Question is Whether the Archdeacon Inducts by his own Authority or derivative from the Bishop For if by the latter then the Induction cannot be good 'T is clear that the Archdeacon is but Minister Episcopi and in his Precept to those of the Clergy to Execute he does as a Sheriff doth who makes a Precept to his Bayliffs recites his Mandate If the Sheriff makes Execution after the Kings death if he hath no notice thereof he is excused in Trespass but the Execution shall be avoided It appears by the making of the Statute of 2. E. 6. of Executing Judgments given by Commissioners after such time as the Commission is expired is a great Doubt and yet there the thing was Executed in a great part But here 't is but one single Act whereof no part was done before the New Bishop was made In Sir Randolph Crew 's Case in the 3 Cro. 97. it appears that Commissioners to Examine Witnesses could not proceed after Notice of the Demise of the King But here 't is Objected That the Verdict finds that the Archdeacon had no Notice I Answer That the Consecration of a Bishop is a publick and notorious Act. And all the Court were of Opinion that the Induction was wholly void and gave Judgment for Woolly the Defendant and said It was a Ministerial Act in jure Episcopi and like a Letter of Attorney to deliver Seisin which cannot be Executed but in the Life of him that made it Ante. Quaere Whether this Judgment was not afterward Reverst in the Exchequer Chamber Ent versus Withers THe Case was Debt against an Executor upon a Bond of the Testator and it was brought in the Debet and Detinet suggesting a Devastavit in the Executor The Defendant Demurred For altho' such Action will lye if there has been a Judgment against the Executor yet no such Action has been upon a Bond and 't is hard upon such a Surmize to Charge the Executor in his own Right But on the other side it was said That this differs not in Reason from the Case of a Judgment and upon Nil debet the whole Matter shall be brought in question as Whether the Bond was Sealed c. And in a Case between Merchant and Driver tryed at Guild-Hall before my Lord Hale where it was brought as this because the Plaintiff could prove no actual Wasting as is necessary in this Case he was Nonsuited But Hale took no Exception to the Action But the Court said That they would extend these Actions no further than they had been already Resolved and they would not agree that an Executor should be held to Bail upon a surmize of a Devastavit and so Judgment was given for the Defendant Ante. Pierce versus Win. ERror out of the Grand Sessions of Wales The Case upon a Special Verdict was thus A Devise to one and to the Heirs Males of his Body with a Proviso That if he does attempt to Alien then immediately his Estate shall cease and another shall Enter The Devisee in Tail made a Feoffment and he in Remainder Entred and Judgment was given in the Grand Sessions for the Feoffee against him in the Remainder And the Errors were assigned in the Matter in Law And to maintain the Errors it was said That it must be agreed of all hands that a Tenant in Tail could not be restrained from Aliening by Fine or Recovery and also that in this Case a bare Attempt would be no breach according to Corbett's and Sir A. Mildmay's Case c. and also that a Tenant in Tail might be restrained to Alien by Feoffment or other Act which was torcious and would make a Discontinuance and here this Proviso imports as much and therefore the Feoffment will be a breach for that is an Attempt and more For First In Conveyances the Intention of the words of a Condition and the Substance is regarded and the Form of the words not so precisely followed As a Feoffment upon Condition That the Feoffee shall give the Land in Frank marriage with the Daughter of the Feoffor This cannot be strictly pursued yet the Feoffee must make a Gift as near as may be Co. 1 Inst 217. So upon Condition to give the Land to a Layman in Frankalmoign But this Rule holds especially in Wills where the Intent is chiefly looked at A Devise of all his Rents will pass Reversions upon Leases and tho' the words be here Proviso if he does attempt to alien 't is as much as to say Proviso if he doth alien c. Secondly Whether the Feoffment shall determine the Estate quasi by Limitation so that the Remainder man shall take immediately by Executory Devise and that
Anonymus IN Trespass for Fishing in his several Piscary and for taking 20 Bushells of Oysters there such a day continuando piscationem praedictam from the said day to the time of the Action brought Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Fishing in the continuando was altogether incertain not expressing the quantity or quality of the Fishes as it ought according to Playters Case 5 Co. And of this Opinion were Wild and Jones But the Chief Justice inclined to think it well enough and said Playters Case had not been very well approved of of late years and that is that 't is necessary to express the kind of the Fishes which has béen held since needless and he knew not why it might not be as well as an indebitatus Assumpsit pro diversis mercinoniis But the other Judges said tho' it was reason it should be as the Chief Justice said yet they knew not how to depart from the Authorities in the Point and that Playters Case had remained mishaken Sed Adjornatur Anonymus IN Debt for Rent against an Assignee of a Lessee The Defendant pleaded That before the Action brought he assigned over to J. S. and thereof gave notice to the Plaintiff The Plaintiff replied That he still kept the Possession and had made the Assignment by fraud to disappoint him c. To which it was demurred for it was said that fraud was not averrable in this case neither by the Common Law nor any Statute But the Court inclined that it might for if such a practice should obtain the Lessor might be hindred perpetually of his Action of Debt by making Assignments to persons unknown An Executor confesses a Judgment which is lawful for him to do yet this may be avereed to be entred or kept on foot by fraud and that by the Comman Law which hates all frauds Sed Adjornatur Postea Anonymus A Prohibition was prayed to the Councel of the Marches for that they proceeded upon an English Bill there against the Defendant supposing that he had promised upon a Consideration to pay the Debt of a Stranger because 't is in the nature of an Action upon the Case and consists meerly in Damages And altho' many Presidents were shewn of their Proceeding in such of Actions and the Statute of 34 H. 8. cap. 26. that they should determin such Cases as were heretofore accustomed and used c. as should be assigned to them by the Kings Majesty and it was pretended that this was within their Instructions yet the Court granted the Prohibition For where Damages are uncertain they cannot be set in a Court of Equity but by a Jury In Debt because the demand is certain the Courts here have sometimes assessed Damages without a Writ of Enquiry but never in Trespass or Actions upon the Case which lie wholly in Damages Anonymus AN Habeas Corpus The Return was read and spoken to and the Prisoner ordered to be remanded Twisden said the Return should have been first Filed and the Prisoner committed to the Marshalsey for otherwise the Court have no power over him Vid. Mo. 839. and he cited 1 H. 7. Humphry Staffords Case who being brought to the Bar upon an Habeas Corpus by the Lieutenant of the Tower was committed to the Marshalsey and afterwards remanded to the Tower but the other Judges differed as to the Commitment and said it was not necessary to keep the Prisoner in the Marshalsey until the Matter was determined but he might be sent from time to time to the same Prison and brought up by Rule of Court until he is either Bailed Discharged or Remanded And so they said it was lately done in the Earl of Shaftsbury's Case Gilmore versus .... UPon a Special Verdict the Point was whether a Promise made upon such Consideration as by the Act of 29 Car. 2. to prevent Frauds and Perjury's is requisite to be in Writing signed by the Party to be charged therewith being made before the 24 of June last but the Action brought after be within the restraint of the Act which saith That from and after the 24 of June no Action shall be brought upon such Promise c. And it was resolved that the Case was not within the Act which did not extend to any Promise made before the 24 of June The King versus Sir Thomas Fanshaw SIr Thomas Fanshaw and others were indicted for not Repairing of a Bridge which it was alledged they were bound to Repair Ratione Tenurae of such Lands Sir Thomas Fanshaw pleaded That he was not bound to Repair Ratione Tenurae and found that he was In Arrest of Judgment it was said that the Verdict was not pursuant to the Indictment for therein 't is alledged that Sir Thomas Fanshaw and others were bound to Repair Ratione Tenurae and the Verdict is that Sir Thomas Fanshaw Ratione Tenurae c. Reparare debet Parietem praedict ' modo forma prout per Indictamentum praedict ' supponitur Sed non allocatur for each of them may be bound to Repair for their respective Lands and they must get Contribution by the Writ de onerand ' pro rata portione Secondly It was said that 't is Ratione Tenurae and not said Suae and this was said to be naught Noy's Rep. 93. Sed non allocatur for the Presidents are generally so Parkers Case A Mandamus to restore an Attorney to his liberty of practising in a Court within the County Palatine of Chester was Returned That the Court was holden before the Chamberlain Vice-Chamberlain Baron or the Deputy of the Baron and that at a Court before the Barons Deputy he spoke contemptuous words of him whereupon he suspended him from his Practice quod non aliter amotus fuit Vpon exceptions offered to the Return The Court held it a good cause of Suspension and ordered a Submission to him that received the affront in open Court before that he should be restored Anonymus THe Case upon the Averment of Fraud upon an Assignment by the Assignee of a Lessee was now moved again and by Twisden Wild and Jones against the Opinion of Scroggs Chief Justice Iudgment was given for the Plaintiff viz. That Fraud in such Case might be averred Ante. Anonymus IN Ejectment it was debated whether Confession of Lease Entry and Ouster would serve where there ought to have been an actual Entry upon the Title as the in case of a Condition broken or the like And the Opinion of the Court inclined that it would not tho' my Lord Hale was said to be of another Opinion Ante. Termino Sancti Michaelis Anno 30 Car. II. In Banco Regis Dutton versus Poole CUjus principium ante Michael ' 29 Car. 2. It was now moved again to stay the Iudgment by Sanders who argued that the Action could not be maintained by the Plaintiff for the Father whose the Wood was could only bring it for
it will be agreed he might have released it or by cutting of the Wood might have taken away all the right of Action Again it does not appear by the Record that the Defendant was here and so no benefit by the forbearing to cut the Wood. Rookwoods Case cited on the other side 1 Cro. 163. 1 Leonard 192. is that the Promise was made to the younger Brothers and the Consideration that they would consent but here the Plaintiff who was to have the Money had no share in the Consideration or Meritorious Act as where the Father promises J. S. if his Son will Marry his Daughter he will give him 1000 l the Son may bring the Action because the Consideration moves from him Hetlys Rep. 20. the Case was to this effect A Man promises a Woman whom he was to Marry upon a certain Consideration that if he had a Son by her he should have a Term whereof the Woman was then possessed and if it were a Daughter she should have the Moiety of the Goods c. they Intermarry and after the death of the Husband the Daughter born between them brings an Action against the Executor of the Husband and resolved that it would not lie tho' they did not think the Agreement made with the Wife to be discharged by the Intermarriage but only suspended which is a Quaere in my Lord Hobart Yet the Daughter being no Party to the Promise or to the Consideration could not bring an Action The Case of Norris and Pine before cited is stronger for there he that made the Promise had a benefit for it was in Consideration of Marriage On the other side it was said that tho' it doth not appear that the Defendant was Heir yet it may be intended after Verdict however 't is not nudum pactum for if the Defendant had no benefit yet there was a restraint upon the other and that is Consideration enough And for the objection of releasing that holds where J. S. promises J.N. if his Son will Marry his Daughter he will pay him 1000 l J.N. may Release but 't is doubtful whether he can after Marriage because then 't is vested in the Son as Scroggs Chief Justice said 1 Roll. 31. The Uncle of an Infant delivered J.S. 12 l who promised to pay the Infant when he came of Age and the Action was well brought by him after his Age. So Goods sold to A. to pay 10 l to B. B. may Sue Vid. 1. Roll. 32 Starkey and Mills The Court said it might be another Case if the Money had béen to have been paid to a Stranger but there is such a nearness of Relation between the Father and Child and 't is a kind of Debt to the Child to be provided for that the Plaintiff is plainly concerned And so by the Opinion of them all viz. Scroggs Wild Jones and Dolben Judicium pro Querente Ante. Anonymus A Prohibition was prayed to the Sheriffs Court of London for that an Action was there Commenced to which the Defendant pleaded That the cause of Action did not arise within the Jurisdiction and offered to swear his Plea but it was refused The Counsel for the Plaintiff objected against the Prohibition that the Plea came too late for it was after an Imparlance But it being proved by Affidavit that the Plea was tendred within two days after the Declaration was delivered and that immediately upon delivering the Declaration there is an Imparlance of course The Court granted the Prohibition and said that the other side might Demurr if they thought fit for the liberty of the Subject was infringed by bringing him within a private Jurisdiction when the Matter arises out of it and Attorney's in such places are sworn to advise no Plea to the Jurisdiction nor that none shall be put in by them And whereas 't was said that the Party had not prejudice for he might remove his Case by Habeas Corpus The that the Court answered coming by Habeas Corpus Bail must be put in above tho' the Cause otherwise did not require it Note It appeared here that there was no defence made in this to the Jurisdiction and Co. Inst was quoted that defence should be made tho' not full defence But the Court said it was not necessary and that Presidents were otherwise especially where the Court have no Jurisdiction of the matter otherwise where not of the person James versus Richardson IN Ejectment the Case upon a Special Verdict was thus A. devised the Lands to B. and his Heirs during the Life of J. S. and after to the Heirs of the Body of R. D. now living and to such other Heirs was should after be Born the Devisee for Life levied a Fine in the Life of him to whose Heirs the Remainder was limited but he had a Son at the time of the death of the Testator The question was Whether it was a Contingent Remainder the consequence whereof was to be destroyed by the Fine and that it was vested in the Son Scroggs Chief Justice Wild and Jones held it a Remainder vested by reason of the words now living which was a sufficient Designation of the person that was to take in a Will tho' improper to call him Heir But Dolben Contra for by this Construction the Heirs Born after are excluded and the Son would take but an Estate for Life tho' it were devised to the Heirs in the Plural Number Note Vpon a Writ of Error in the Exchequer Chamber this Iudgment was reversed Hillary 31 32. Car. 2. Termino Paschae Anno 31 Car. II. In Banco Regis A Mandamus was prayed to the Ecclesiastical Court to grant the Probat of a Will under Seal c. The Case was the Executor named in the Will had taken the usual Oath but after a Caveat entred and then Refused and another endeavoured to obtain Letters of Administration the Executor came after to desire the Will under Probat and contested the granting of Administration Which was Adjudged against him supposing that he was bound by his Refusal And after an Appeal to the Delegates this Mandamus was prayed and granted by the Court for having taken the Oath he could not be admitted to Refuse and the Ecclesiastical Court had no further Authority and the Caveat did not alter the Case Note The Oath was taken before a Surrogate yet it was all one Anonymus A Prohibition was prayed to a Suit for Tythes upon the Suggestion that the Lands out of which they were demanded say out of the Parish and the Bounds of Parishes are tryable at the Common Law But the Court denied the Prohibition because it did not appear that a Plea thereof had been offered in the Ecclesiastical Court Anonymus A Prohibition was prayed to stay a Suit against J. S. Lessee of a Rectory out of which a Pension was demanded It was suggested that the Lord Biron had three parts in four of this Rectory upon which the Pension was chargeable and that
Tail was executed by the first Conveyance And in the Case at Bar until the Release of B. the Fee was not executed in B. for the preservation of the Joynture and so the Plight and Condition of the Estate altered by matter subsequent and by consequence the Contingent Remainder destroyed The Court doubted whether there were such alteration of the Estate as to destroy the Remainder for they said to some purposes the Fee was executed before the Release Vid. 1 Inst 184. a. for if the Joynt-tenants had joyned in a Lease for years an Action of Wast would he against the Lessee Et Adjornatur Anonymus A Person who was committed to the Tower for Conspiring the death of the King was brought up by Habeas Corpus and prayed to have Bail taken unless an Indictment were found against her this Term according to the new Act of 31 Car. 2. for Habeas Corpus's The Court said that they which would have the benefit of that Act must pray it before the first week of the Term expires but in regard it appeared that she had prayed it before by her Counsel and her Habeas Corpus was taken out in time the Court said the benefit of the Act should be saved to her for the prayer is not necessary to be made in person But Mr. C. G. was refused the advantage he having omitted to make the prayer during the first week either in Person or by Counsel Sir Robert Peytons's Case HE was brought up by Habeas Corpus from the Tower his Counsel pressed much to have the Return Filed supposing that he would be then a Prisoner to the Court and committed to the Marshalsey but the Court ordered the Return to be Filed and notwithstanding remanded him to the Tower as they said they might do The King versus Plume ANte Hill 29 30 Car. 2. The Case was spoken to again upon the Demurrer to the Indictment for using of the Trade of a Fruiterer contra 5 Eliz. not having been bound an Apprentice Scroggs Chief Justice and Dolben inclined to the Opinion that it was a Mystery within the Statute there being great Art in chusing the times to gather and preserve their Fruit. And that the Cause deserved the more Consideration for that the Fruiterers were an ancient Corporation in London viz. From the time of E. 4. also a Barber Upholster and lately a Coachmaker Ruled to be within the Act. Jones and Pemberton seemed to be of another Opinion for it would be very inconvenient to make every one that sells Fruit by the penny within the Act and majus minus would make no odds surely since the 5 of Eliz. there would have been some Prosecution by the Company of Fruiterers in this case if it would have lain Brewers and Bakers require Skill and yet not within the Act. But the Court took time to deliver their positive Opinions Et Adjornatur Reve versus Cropley AN Indebitat ' Assumpsit was brought for 20 l as Executor to William Burroughs for so much of the said Williams Money had and received by the Defendant in his Life time whereupon the Plaintiff had Iudgment by Nihil Dicit and upon a Writ of Inquiry the Plaintiff not being provided to prove the Debt supposing it to be confessed by the Judgment the Jury found but two pence Damages Ventris moved to set aside this Writ of Enquiry for that the Plaintiff was not obliged in this Action to prove the Debt at the executing of the Writ of Enquiry no more than if he had brought an Action of Debt 2 Cro. 220. In Trespass for taking of Goods the Property is not to be proved upon the Writ of Enquiry after Iudgment Sur Nihil Dicit for said the Court if he should fail thereof it would be in destruction of the first Judgment Vid. Yelv. 152 Curia This being in an Action upon the Case which lies in Damages the Debt ought to have been proved and so let it stand Note If a Verdict be for 30 l and the Iudgment is quod recuperet damna praedicta ad 32 l This surplus will do no hurt because 't is damna praedicta Jones 171. Cooke versus Fountain IN an Ejectment upon a Trial at the Bar the Title of the Lessor of the Plaintiff was upon the Grant of a Rent with power to enter for Non payment The Executor of the Grantor was produced as a Witness for the Defendant And it was objected against him that in the Grant of the Rent the Grantor covenanted for himself and his Heirs to pay it and that the Executor being obliged was no competent Witness Against which it was much insisted upon on the other side that this Covenant annexed to a real Estate would not bind the Executor but only the Heir But the whole Court were against it The Counsel for the Defendant mentioned a Bill of Exceptions and the Court doubted whether it would lie in the Kings Bench so they waved it and shewed that the Executor had fully Administred the Inventory But they gave a further charge on the Plaintiffs side and so that Witness was set aside Termino Sanctae Trinitatis Anno 32 Car. II. In Banco Regis Anonymus IN an Action upon the Case The Plaintiff declared that he kept a Stage-Coach and got his Livelyhood by carrying of Passengers And that the Defendant spoke such Scandalous words of his Wife that so reflected upon him and rendred him so ridiculous that no body would Ride in his Coach and he thereby lost his Customers After Verdict for the Plaintiff it was moved to stay Iudgment that here was no cause of Action But on the other side a Case was cited of one Bodingly 14 Car. 2. C. B. where the Plaintiff declared That he was an Innkeeper and that the Defendant had presented his Wife at a Leet for a Scold and that such and such Guests in particular had absented from his House upon it and after Verdict he had Judgment But the Court here said that the Cases differed for that quality of the Wives might make the House troublesome to the Guests but a Stage Coachman could receive no probable prejudice in his Trade by defaming of his Wife or at the least the Plaintiff should have declared what Customers he had lost in particular and therefore they ordered quod querens Nils capiat per Biliam Anger versus Brewer IN an Attachment upon a Prohibition the Plaintiff declared That he proceeded in the Court Christian after the Prohibition delivered After Judgment by Nihil dicit and 100 l Damages given to the Plaintiff it was moved to stay Judgment that there was no place laid in the Declaration where the Defendant prosecuted since the Prohibition delivered and so if Issue had been taken upon Non prosecut ' fuit post deliberat ' brevis whence should the Venue have come But it being made appear to the Court that in all the Presidents of these kind of Declarations there is no place found mentioned
could not be digged up there might be an Indictment Exhibited to the Grand Jury who might Enquire thereupon Termino Sancti Hillarij Anno 32 33 Car. II. In Banco Regis Anonymus A Motion was made against a Judge of an Inferiour Court of Record for increasing upon a View the Damages in an Action of Trespass and Battery to so much more than was given by the Jury Curia The proper way is to Reform it by a Writ of Error for none but the Courts at Westminster can increase Damages upon View Anonymus IF a Writ of Error in Ejectment c. abates by the Act of God a second Writ will be a Supersedeas Otherwise where it abates by the Act of the Party Anonymus IN a Writ of Error to Reverse a Fine the Proclamations were pleaded in the same Fine and Five â—ears quiet possession and this in barr of a Writ of Error The Court Inclined that the Error being in the Fine Five years possession could not be pleaded Sed Adjornatur Mo. Rep. 8. Termino Paschae Anno 33 Car. II. In Banco Regis NOte This Term Sir Francis Pemberton was made Lord Chief Justice of the Kings-Bench in the room of Sir William Scroggs who was displaced Page versus Denton HIll 32 33. Car. 2. Rot. 45. In Debt upon a Bond against an Executor who pleads that the Testator was Indebted to him by an Obligation the Condition whereof was to pay Rent and that at the time of his Decease there was 300 l due for Rent and that he had not more than 60 l Assets to pay it c. The Plaintiff Replied That there was but 30 l due for Rent at the time of the Testator's death Which the Court held to be a good Replication altho' the Penalty of the Bond was forfeited at the time of the Testator's death For if a Bond due to a Stranger be forfeited and this be pleaded by an Executor and that he hath not Assets ultra 't is a good Replication to say That the Obligee would have taken part of his Money in full and it shall be a Bar for no more and here the Defendant ought to take but his due Debt And the Court said that if men would plead their Case Specially it would save many a Suit in Chancery Fitzharris's Case EDward Fitzharris was Indicted of High Treason upon which being Arâ—aigned and demanded to plead he delivered in a Paper containing a Plea to the Jurisdiction of the Court which could not be received as the Court said not being under Counsel's Hand Whereupon he prayed to have Counsel assigned and Named divers whereof the Court assigned Four And he was taken from the Bar three of four days being given him to advise with his Counsel to prepare his Plea as they would stand by him The Counsel prayed that they might have a Copy of the Indictment But the Court denied it and said that it was not permitted in Treason or any other Capital Crimes But Justice Dolben said that sometimes it had been allowed to take Notes out of the Indictment Vid. Mirror 304. Abusion est que Justices ne monstre l'Indictment à les Indictes s'ils demandront Sect. 115. Termino Sanctae Trinitatis Anno 33 Car. II. In Banco Regis Anonymus IN an Action of Debt against an Executor in the Debet and Detinet upon a Surmize of a Devastavit the Defendant was held to Special Bail And so Ruled upon Motion Anonymus IT was said by the Court That if a Corporation that hath been by Prescription accept a New Charter wherein some alteration is of their Name and likewise of the Method in the Governing part yet their Power to remove and other Franchises which they had de temps d'ont c. do continue And if the Power to Remove be at their Will and Pleasure this Will must be expressed under their Common Seal but in Return to a Mandamus debito modo amotus may suffice Note No Writ of Error lies upon an Indictment of Recusancy and Conviction by Proclamation Note In an Ejectment where there are divers Defendants which are to Confess Lease Entry and Ouster if one does not appear at the Trial the Plaintiff cannot proceed against the rest but must be Nonsuit Termino Sancti Michaelis Anno 33 Car. II. In Banco Regis Anonymus IN Covenant the Plaintiff Declared upon several Breaches one whereof was for not paying of 7 l according to the Covenant It was moved for the Defendant that he might be admitted to bring 7 l into Court to pay to the Plaintiff together with his Costs hitherto c. as is usual in Cases of Debt or Assumpsit for Money and that the Plaintiff might proceed for the rest if he thought fit But the Motion was denied because the Plaintiff had Declared of other Breaches and the Matter lay in Damages Anonymus ERror upon a Judgment in the Common Pleas where the Plaintiff Declared in an Action upon the Case that he had Common in the Defendants Lands habere debuit c. The Defendant Demurred because not set out how the Plaintiff was Intituled to the Common whether by Prescription or otherwise Notwithstanding which Judgment in the Common Bench was for the Plaintiff and now the same Matter insisted on for Error here and the Court doubted To make the Declaration good there was quoted the Case of Sands and Trefuses in the 3 Cro. in an Action for Stopping of a Watercourse to his Mill which was held good without saying an Ancient Mill or that he was Intituled to the Watercourse by Prescription or otherwise 2 Cro. 43.122 Dent and Oliver an Action for disturbing of him to take Toll and no Title set forth Sed Adjornatur Vid. Co. Entr. 9. 11. Day versus Copleston IN an Assumpsit for Money the Defendant pleaded the Statute for the Discharge of poor Prisoners and that he had been Discharged by that Act which provides that there shall be no after Prosecution by a Creditor in such case so as to subject the Body to Execution and says that he can say nothing further in Bar of the Action Vpon which the Plaintiff Demurred and the Defendant joyned in the Demurrer and Judgment was Entred up for the Plaintiff but with a Cesset executio quoad Corpus c. And the Court approved of this way of pleading the Statute for otherwise they said if the Matter had not been disclosed in pleading they doubted whether the could have given the Defendant the benefit of the Act but he would be driven to his Audita Querela Anonymus ERror of a Judgment in the King's Bench in Ireland it was suggested that the Plaintiff was in Execution upon the Judgment in Ireland And the Court seemed to be of Opinion that a Habeas Corpus might be sent thither to remove him as Writs Mandatory had been awarded to Calais and now to Jersey Guernsey c. Anonymus THe Case was A. Tenant in Tail Remainder to B. in Tail c. A.
makes a Lease for the Life of the Lessee not warranted by the Statute and dies leaving B. in Remainder his Heir B. let ts for 99 years to commence after the death of the Tenant for Life reserving Rent and then the Tenant for Life surrenders to B. upon Condition and dies B. suffers a Recovery with single Voucher and dies the Lessee for years enters the Heir of B. distrains for the Rent and the Lessee brings a Replevin and upon an Avowry and Pleadings thereupon this Case was disclosed to the Court of Common Bench and Judgment given there for the Avowant and Error thereupon brought in this Court For the Plaintiff in the Error it was Argued That the Lease being derived out of a Reversion in Fee which was Created in A. upon the Discontinuance for Life and the New Fee vanishing by the Surrender of the Tenant for Life for it was urged he was in his Remitter altho' the taking of the Surrender was his own Act that the Lease for years by consequence was become void Again It was Objected against the Common Recovery that the Tenant in Tail and a Stranger which had nothing in the Estate were made Tenants to the Praecipe and therefore no good Recovery Again In case B. were not remitted after acceptance of the Surrender then he was Seised by force of the Tail and so no good Recovery being with single Voucher On the other side it was Argued to be no Remitter because the acceptance of the Surrender was his own Act and the Entry was taken away But admitting it were a Remitter because by the Surrender the Estate for Life which was the Discontinuance was gone and it was no more than a Discontinuance for Life For if Tenant in Tail letts for Life and after grants the Reversion in Fee if the Lessee for Life dies after the Death of the Tenant in Tail so that the Estate was not executed in the Grantee during the Life of the Tenant in Tail the Heir shall immediately Enter upon the Grantee of the Reversion Co. Litt. It seems also to be stronger against the Remitter in this case because 't is not Absolute but only Conditional However the Lease may be good by Estoppel for it appears to have been by Indenture and if the Lessor cannot avoid the Lease the Lessee shall without question be subject to the Rent But it was Objected against the Estoppel that here an Interest passes and the Lease was good for a time As if the Lessee for Ten years makes a Lease for Twenty years and afterwards purchaseth the Reversion it shall bind him for no more than Ten. To which Pemberton Chief Justice said The difference is where the party that makes the Estate has a legal Estate and where a Defeasible Estate only for in the latter a Lease may work by Estoppel tho' an Interest passed so long as the Estate out of which the Lease was derived remained undefeated As to the Recovery it was held clearly good altho' a Stranger that had nothing in the Land was made Tenant to the Praecipe with the Tenant in Tail for the Recompence in Value shall go to him that lost the Estate and being a Common Assurance 't is to be favourably Expounded Et Adjornatur Termino Sancti Hillarij Anno 33 34 Car. II. In Banco Regis Anonymus IN Error upon a Judgment in Ejectione Firmae in the Common Pleas where the Case was That the Bishop of London was seized injure Episcopatus of a Mannor of which the Lands in question were held and time out of mind were demised and demisable by Copy of Court Roll for Life in Possession and Reversion and J.S. being Copyholder for Life in Reversion after an Estate for Life in Ann Pitt and J.N. being seized of the Mannor by Disseisin J.S. at a Court holden for the Mannor in the name of J. N. surrendred into the Hands of the said J.N. the Disseisor Lord to the used of the said Lord. Afterwards the Bishop of London entred and avoided the Disseisin Ann Pitt died and an Ejectment was brought by J. S. And it was adjudged in the Common Bench that he had a good Title and now upon a Writ of Error in this Court the Matter in Law was insisted upon by Pollexfen for the Plaintiff in the Writ of Error That this Surrender to the Disseisor Lord to the Lords own use was good for all the Books agree a Copyholder may Surrender to a Disseisor of the Mannor to the use of a Stranger and why not to the Lords own use As if Lessee for years be ousted and he in Reversion disseised and the Lessee Releases to the Disseisor this extinguishes his Term. Here is a compleat Disseisin of the Mannor by Attornment of the Freeholders without which the Services cannot be gained and the Copyholders comeing to the Disseisors Court and by making Surrenders c. owning him for their Lords tantamounts Serjeant Maynard contra And he insisted that this Surrender was not good for the Disseisor had no Estate in this Land capable of a Surrender for the Copyholder for Life continuing in Possession and never having been ousted there could be no Disssesin of that And he endeavoured to distinguish it from a Surrender to a Disseisor Lord to the use of another for in such Surrenders the Lord is only an Instrument and does but as it were assent and until admittance the Estate is in the Surrenderer And he resembled it to the Attornment of a Tenant when è converso a Seigniory is granted and he put Cases upon Surrenders of Leases that they must be to one that hath the immediate Reversion as an under Lessee for part of the Term cannot Surrender to the first Lessor and he cited a Case of Lessee for years Remainder for Life Remainder in Fee to a Stranger he that had the Fee enfeoffed the Tenant for years by Deed and made Livery and the Conveyance held void for it could not work by Livery to the Tenant for years who was in Possession before and a Surrender it could not be because of the intermediate Estate for Life and it could not work as a Grant for want of Attornment He said it had been commonly received that a Common Recovery cannot be suffered where the Tail is expectant upon an Estate for Life not made Tenant to the Praecipe which he said was true in a Writ of Entry in the Post which are commonly used And the true reason is because such Writ supposes a Disseisin which cannot be when there is a Tenant for Life in Possession But as he said a Common Recovery in such case in a Writ of Right would be good Pemberton Chief Justice said his reason of Desseisin would overthrow Surrenders to the use of a Stranger for if the Possession of the Copyholder would preserve it from a Disseisin then was it pro tempore lopped off or severed from the Mannor and then no Surrender could be at all Et Adjornatur Berry
given pro Quer. Termino Paschae Anno 34 Car. II. In Banco Regis Clayton versus Gillam IN Trespass for breaking and entering of his Close and Feeding c. and laying thereon certain pieces of Timber c. Et continuando Transgressionem praed ' After Verdict for the Plaintiff it was moved in Arrest of Judgment that one of the Trespasses viz. The laying of Timber could not be with a Continuando But it was resolved by the Court that continuando transgressionem praed ' shall be referred only to the Trespasses which may properly be said with a continuando But if the continuando had been expresly laid for that Trespass all would have been naught as it was resolved in a Case in this Court between Letchford and Elliot 16 Car. 2. The Earl of Shaftsbury versus Cradock IN an Action of Scandalum Magnatum for saying That the Earl was a Traytor c. The Action being laid in London where the words were supposed to be spoken It was moved in behalf of the Defendant that the Venue might be changed into some other Country and Affidavits were read that the Plaintiff had a great interest in the City and an intimacy with the present Sheriffs so that the Defendant could not expect an indifferent Tryal there and thereupon the Court did think fit to take the Cause out of London and gave the Earl the Election of any other County but he refused to Trie it elsewhere and would rather let the Action fall Curtis versus Inman IN Debt for the Penalty forfeited by the Statute of 5 Eliz. for using the Trade of a Grocer having not been Bound an Apprentice It was moved that the Action lies not in this Court because 21 Jac. cap. 4. Enacts That Actions popular shall be brought before Justices of Assize of the Peace c. But a Case was cited which was adjudged in this Court Hill 20 21 Car. 2. between Barns and Hughes which see before that such Action would lie But the Court notwithstanding in this Case said they would hear Arguments The Earl of Shaftsbury versus Graham al. IN an Action upon the Case in the nature of a Conspiracy the Declaration was That the Defendants did conspire to indict the Plaintiff of High Treason and for that purpose did Sollicit one Wilkinson and endeavoured to Suborn him to give false Testimony against the said Earl and an Indictment was offered at the Sessions at the Old Baily in London by the Defendant in pursuance of the said Conspiracy which Indictment the Grand Jury there found Ignoramus c. It was moved in behalf of the Defendants that whereas the Conspiracy was in the Declaration alledged to be in London that the Court would change the Venue and an Affidavit of the Defendants was produced That the Conspiracy alledged in the Declaration if there were any such was in Surry and not in London Note Wilkinson at the time of the supposed Conspiracy was a Prisoner in the Kings Bench and Affidavits were produced likewise to shew that the Plaintiff had such Interest with the present Sheriffs of London that an indifferent Jury was not like to be returned and that several Persons named to be material Witnesses for the Defendant durst not come to the Tryal if it were in London for fear of their Lives in regard they had been so affronted and abused when they were produced to prove the before mentied Indictment at the Old Baily and several other matters were alledged But it was insisted upon by the Counsel for the Earl That First The Venue uses not to be changed in Case of a Peer who is one of the Comites Regis and shall not be forced to Travel into another County to trie his Case as a Common Person Secondly That the present Case was local viz The preferring the Indictment at the Old Baily and where the Cause of Action ariseth in two Counties the Plaintiff hath his Election to bring it in either 7 Co. Bulwers Case But the Court declared that they were satisfied that no indifferent Tryal could be had in London they remembered they were affronted themselves when they were at the Old Baily upon the before mentioned Indictment And they resolved that they had a power to alter the Venue in the case of a Peer as it had been done about six years since in a Scandalum Magnatum brought by the Earl of Salisbury in this Court. And also they said that the Cause of Action here was Transitory viz. The conspiring and that the preferring of the Indictment was but in aggravation of Damages and the Action would lie altho' none had been offered or if preferred by other Persons than the Conspirators 'T is true when the matter ariseth in several plates the Plaintiff has Election but if there be like to be no indifferent Tryal in the place where it is laid 't is usual with this Court to change the Venue But the Court said they would not confine the Plaintiff to Surry if he could shew them cause that that was not an indifferent County Vid. 42 Ed. 3. 14. Termino Sancti Michaelis Anno 34 Car. II. In Banco Regis Denison versus Ralphson IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of a Sum of Money paid by the Plaintiff did promise to deliver to him ten Pots of good and Merchandizable Pot Ashes and that not regarding his Promise and to defraud him he delivered him ten Pots of Ashes not Merchandizable but mixed with Dirt c. And declared also that pro quadam pecuniae summa c. the Defendant vendidit to the Plaintiff ten other Pots of Ashes Warrantizando c. that they were good and Merchandizable and that he delivered them bad and not Merchandizable knowing them to be naught and to this Declaration the Defendant Demurred And it was argued by Sanders That here were Causes of Action of several Natures put into one Declaration and they required several Pleas viz. Non Assumpsit and Not guilty and therefore ought not to be joyned Thompson for the Plaintiff cited a Case between Matthews and Hoskin An Action against a Common Carrier and declared upon the Custom of the Realm and that he had not delivered the Goods and declared also in a Trover and Conversion upon the same matter and after Verdict upon motion in Arrest of Judgment the Action was adjudged well brought 16 and 17 Car. 2. Hill in this Court. So an Action against one for twenty shillings upon the Hire of an Horse and declared further that he abused him and held good Curia Those Cases were after Verdict Causes upon Contract which are in the Right and Causes upon a Tort cannot be joyned for they do not only require several Pleas but there is several Process the one Summons Attachment c. the other Attachment c. These upon the Contract lie for and against Executors the other not but these seem to be both upon the Contract viz. That
Indicted of Perjury in a voluntary and Extra judicial Oath and cited a late Case where one had stole away a mans Daughter and went before a Justice of the Peace and Swore that he had the Fathers Consent and this in order to get a Licence to marry her and he was Indicted and Convicted thereupon And all the Court said that it was not the course to quash Indictments of Perjury Nusance or the like but to put the party to plead to them Termino Paschae Anno 36 Car. II. In Banco Regis Duncomb versus Walter IN an Indebitat ' Assumpsit by an Assignee of Commissioners upon the Statute of Bankrupts upon Non assumpsit a Special Verdict was found upon which the Case appeared to be thus One Staly was Arrested by an Executor of his Creditor 6 Sept which was before Probat of the Will and within two or three days after he paid 1000 l to the Defendant to whom he stood Indebted in such Sum and after the 18th of September he yielded himself to Prison upon the said Arrest The Question was Whether the Defendant should be obliged to Refund this Money which was paid unto him as aforesaid First Whether the Arrest before the Probat was a good Arrest It was said If an Executor hath a Reversion in a Term upon which a Rent is reserved and Distrains c. he may avow for the Rent before the Probat Vid. 1 Roll. 917. tit Executors where an Executor brings an Action before Probat yet if he shews the Probat upon the Declaration 't is well enough Secondly Whether when he yields himself to Prison it shall not relate to the first Arrest to make him a Bankrupt from that time This depends upon the Statute of 21 Jac. cap. 19. where it is said that in the Cases of Arrest and lying in Prison he shall be adjudged a Bankrupt from the time of his first Arrest Object This Relation doth not prejudice Strangers Answ Dame Hales's Case Pl. Com. 293. If one giveth another a mortal Wound and then sells his Land and the person dies there shall be such Relation as to make the Land forfeit from the first Stroke Note This Case came by Writ of Error out of the Common Pleas where Judgment was given for Walter and the said Judgment was affirmed in this Court principally upon the point of Relation For the Court said that it would be a great mischief if it should relate to the first Arrest as to the payment of Money to Strangers Termino Sancti Hillarij Anno 1 2 Jac. II. In Banco Regis Herring versus Brown Quod vid. ante Michaelmas 35 Car. 2. THe Case upon a Special Verdict was to this effect That J. S. being Seised in Fee had made a Conveyance of his Estate to the use of himself for Life with divers Remainders over to other persons with a power of Revocation by Writing under his Hand and Seal c. Afterwards the said J. S. having a purpose to Revoke the said Uses and make a new Settlement of his Estate he levied a Fine and after the Fine he made a Deed wherein he expressed that he Revoked the former Uses and so proceeded to a new Limitation by that Deed and declared that the Fine by him limited should be to the Vses of the said Deed. The sole Question was Whether the Fine had extinguished his Power and by consequence forfeited his Estate or Whether the Fine and Deed should be taken as one Conveyance and so be a good execution of his Power and new limitation of the Uses And after many solemn Arguments it was Resolved by the Chief Justice Herbert Holloway and Wright that the Fine was an extinguishment of his Power and that the Deed came too late contrary to the Opinion of Justice Withens Vido ante ADDENDA Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Pibus versus Mitford Intratur Trin. 20 Car. 2. Rot. 703. IN an Ejectment the Jury find a Special Verdict to this effect viz. That Michael Mitford was seiz'd of the Lands in question and of divers other Lands in Fee and having Issue Robert by one Venter and Ralph by Jane his second Wife did 23 Jan. 21 Jac. by Indenture Covenant to stand seized of some of the Lands to the use of himself for Life Remainder to Trustees for years for several purposes Remainder to Jane his second Wife for Life Remainder to Ralph and the Heirs Male of his Body And as to the Lands in question he Covenants to stand seiz'd To the use of his Heirs Male begotten or to be begotten on the Body of his second Wife and died And then the Jury made this Special Conclusion If any Use did arise by the Deed to Ralph then they find for the Defendant and if not they find for the Plaintiff This Case was Argued several times at the Bar and now the Judges delivered their Opinions seriatim Wild Justice for the Defendant We are to give our Opinions upon a Deed of Uses made for the Provision of younger Children not otherwise provided for But if the Case were not so It is a safe way when the Words are ambiguous to follow the Intention of the party appearing in the Deed. I shall not maintain that Ralph is a Purchaser and so make this an Executory Use I agree a man cannot either by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser I agree also Griswold's Case in Dyer 156. and if this Case had operated by Transmutation of Possession this Limitation to the Heirs of the Body of the Covenantor had been void and no Use should have risen But here in the Case of a Covenant to stand seiz'd nothing moves out of the Covenantor he retains the Land and directs the Use and keeps sufficient in him to maintain this Use There 's a great difference between a Conveyance at the Common Law and a Conveyance to Uses At the Common Law the Heir cannot take where the Ancestor could not but otherwise it is in case of Uses 2 Rolls 794. and so is Wood's Case 1 Co. 99. a. cited in Shelly's Case This I say to shew that the Intent of the Parties shall be the Guide and that there is a difference between Conveyances at the Common Law and Conveyances to Uses Horwood's Opinion in Hussey's Case 37 H. 8. comes to our Case There 's no great difference between a Covenant to stand seiz'd and a Feoffment to Uses I will not Argue to prove that this Deed shall enure as an Executory Use because 't is against a Rule in Law taken by my Lord Hobart and so Agreed before his time But here Ralph is Tenant in Tail Michael his Father being Tenant for Life Remainder to his Heirs Male begotten on the Body of Jane his second Wife For the Law to preserve this Limitation to the use of his Heirs Male c. will by Implication create an Estate for Life in Michael
feeds to their damage it will be a Surcharge and an Action upon the Case will lie against him The Lord cannot improve but he must leave them sufficent and there can be no reason why the Owner should not have the Surplusage if any be I know they will cite an Authority against me in the Case between Webb and Littleburgh which was in C. B. 1654. There I confess the Declaration was grounded upon a Prescription much like to this and the Plaintiff had a Verdict and the Court would not arrest Iudgment upon it The Answer that I must give to that Case is grounded upon the difference between a Demurrer and a Verdict The Court may intend that after a Verdict which may help it for I allow an exclusion of the Lord upon a Special Case disclosed in pleading and that Special Matter may be supplied by the Verdict Besides I must observe that it was a Case of small consequence that concerned the Lord only for his Costs for he hath enjoyed his feeding against that Verdict ever since I can say it upon my own knowledge for I know the Parties and know the Place it was at Elinswell near Bury St. Edmonds in Suffolk The Iudges listen to Exceptions after a Verdict but will give Judgment if there be any possibility to maintain it I may add that this was a Popular Times when all things tended to the licentiousness of the Common People I shall Conclude praying Judgment against this Prescription for these Reasons It is a new and unheard of way of Pleading and against the Rule of Law joyning Freehold Tenants in the generalty which have no relation one to another and annexing an entire Interest to several Estates and mixing Prescription and Custom which are of contrary Natures and are great Absurdities It is against Reason to oust the Owner of all the feeding which for ought appears is all the Profits without any Special Matter or Recompence appearing in Pleading There is great inconvenience in admitting of such a Prescription new Inventions bringing unknown Consequences No inconvenience in ousting Tenants of this Prescription seeing that they claim the same Usage the ordinary way and the Lord can do them no wrong either by feeding or improvement In this Case the Court of Common-Pleas had been divided in Opinion upon the Matter in Law as appears by Vaughans Reports and therefore Sir Henry North thought not fit to wave the Matter of Law in the Kings-Bench altho' he had so good a Case upon the Fact that if it had been no prejudice he would joyn Issue and try the truth of this Prescription at the Bar whereupon the Demurrer was by consent waved and the Cause tried at the Bar and the Verdict passed for Sir Henry North with the approbation of the whole Court Afterwards another Action was brought to trial in the Exchequer at the Bar and it appearing to the Court that there had been Proposals towards an Agreement a Juror was withdrawn and my Lord Chief Baron Hale gave the Tenants advice to comply with this saying Redime te captum quam queas minimo So that the Matter of Law was never adjudged against Sir Henry North but the Matter of Fact tried for him and the main Question upon the Act of Level never came in Question which may extend to this great Waste altho' both the other Points were against Sir Henry North. Afterwards there was another Action brought to trial in the Exchequer and after a full evidence of about 4 or 5 hours the Plaintiff not daring to stand the Verdict was nonsuited THE CASE OF Sir Robert Atkyns AGAINST HOLFORD CLARE Under-sheriff of the County of Gloucester TERMINO Sancti Hillarij Anno 22 23 Car. II. In Scaccario AN Action upon the Case was brought by the Plaintiff Vid. Co. Entr. 439. a Quo Warranto brought for these Hundreds setting forth That he was seised of the Seven Hundreds of Crochon Bright Reppesgate Bradley c. in the County of Gloucester and had Return and Execution of Writs there That the Defendant knowing of it did Execute several Writs there to the Plaintiffs damage c. Vpon Not Guilty pleaded Issue is taken and this Special Verdict is found viz. They find the Patent of 11 May 5 Johannis whereby the King restores to the Abbot and Convent of Canons Regular in Cirencester certain Lands granted to them by his Brother Richard the First and also grants That no Sheriff of Gloucester or his Bayliff do intromit in aliquo within the Seven Hundreds except for Pleas of the Crown and Summons which the Abbot c. should receive from the hands of the Sheriffs and execute They find the Patent of 20 Decembris 17 E. 3. wherein the King reciting that Richard the First by Patent granted to this Abbot and Convent the Mannor of Cirencester and the Seven Hundreds and the Return of Writs in them that thereby they had used and enjoyed Retorna Brevium tanquam pertinentia ad Septem Hundred ' praedict ' Reciting also that by a Presentment made it was seised into the Chancery and that He Edward the Third for a Fine of 300 l grants that they should hold the Mannor Hundreds Vills c. quod haberent in Villis Hundredis praedictis c. absque impedimento retorna Brevium Infangthief c. tanquam pertinent ' Hundredis praedictis c. of the King and his Successors c. and confirms the Patent of King John They find that the Abbot c. were seised prout Lex postulat till 4 Febr. 27 H. 8. when the Monastery was dissolved and all came to the Crown They find the Statute for vesting of these Lands c. belonging to the Monastery in the King and the Statute of 32 H. 8. cap. 20. whereby it is Enacted That all Liberties c. which the late Owners of Monasteries had used c. shall be revived and be really and actually in the King his Heirs c. and shall be in the Rule Order Survey and Governance of the Court of Augmentations and that the same Liberties c. shall be used and exercised by such Stewards Bayliffs c. as the King his Heirs c. shall name and appoint c. and that the said Stewards Bayliffs c. shall be attendant and obedient to all the King's Courts for all Returns of Writs c. as the Officers of the late Owners should have been c. and that no Sheriff Under-Sheriff c. should intromit meddle in with or upon the Premisses otherwise or for other cause than they lawfully might have done before the same Premisses came to the possession of the King They find that Edward the Sixth being seised by descent from Henry the Eight Anno primo of his Reign per Lit ' Patent ' ex gratia advisamento Concilii sui dedit concessit cuidam Tho. Seymour Mil ' Dom ' Seymour de Sudley omnia illa Hundreda de Crochen c. nuper Monasterio
Verdict is ill found for 't is concessit c. Dom ' Seymour c. but not found what Estate and here is a breaking off in the middle of which we cannot tell what to make Now when the King Grants and expresses no Estate some Books have held the Grant to be void but the better Opinion is that it creates an Estate at will 5 E. 4. 8. the last Leaf B. Pl. 1. but 17 E. 3. 45. Pl. 46. is express in it Davis 45 45. and so it was adjudged Paschae 8. Jacobi in Petsall's Case Why then the consequence will be that by the Attainder the Will was determined and then the King was in of his Old Reversion and then the Statute of 32 H. 8. served well to preserve the Liberty in the same Estate still But if the Grant were in Fee then the King came in by a New Title viz. the Attainder and then there is no benefit of the said Statute so that this Error in the Verdict is most to the disadvantage of the Party the Defendant who would not amend it for there was a Proposal and Discourse of amending and some things were amended but the amending of this Mistake would not be consented to by the Defendant But to suppose this to be a Grant in Fee I say still it stood of it self a Liberty without the Statute and so when it returned to the Crown by Attainder it stood not in need of any such Statute it was Substantive and not melted down in a General Confusion into the Form whence it was derived Fifthly Come we now to the Grant to Kingston It has many Clauses in it I will insist upon two 1. The King Grants Omnia Amerciamenta c. with large words Cognita Reputata Acceptata c. I did say that the Grant of E. 3. made an annexation of this Liberty of Ret ' Brev. to the Hundreds and if we should admit that it were not sufficient to create an appurtenancy in reputation and if it were no more than so these words would lay hold on it 2. The other Clause I will rest upon thereby the King grants tot talia tanta c. as any c. had ratione vel praetextu Hundred ' praedict ' virtute praetextu vel colore alicujus Doni Chartae c. Now certainly the latter words are subservient and ancillary and the ratione vel praetextu Hundredi governs all for it is but one entire Sentence like Finches Case 6 Co. 39. This praetextu is a very large Clause and much more than tot talia tanta wherefore I conclude that it is a good and sufficient Grant of the thing in Question Three Objections have been made to which I shall endeavour to give Answers Object 1. By the coming to the Crown the Liberty is merged Answ 1. It is not 2. Admit it were merged thereby yet that is not till the dissolution Why now in this last Grant there is a Retrospect and it is with a leaping over to the Seisin which the Abbot had and therefore the Grant of the King conjoyning it to the possession of the Abbot the Liberty is effectually revived and erected in the same manner and condition as it was before the uniting of it to the Crown Object 2. If this Liberty be to be revived yet 't is not revivable without Special Words in the Grant to Seymour there are the words Retorna Brevium but in the Grant to Kingston not Answ Tot talia c. does it and 't is as much as if all had been particularly recited because it refers to a thing determinate 'T is true if there were an Act of Resumption as in Pager and Darcy's Case or if the thing were meerly Personal as in the Abbot of Walthams Case the priviledge for his Dogs in the Forrest such General Words will not revive and pass the things because of the ratio privata which intervenes but if there be nothing in the Case which hinders more than the generality of the words 't is clear the words do it no Case can be fuller than Amerediths Case is in this point 9 Co. 29. B. 30. in the Case of Coleharborow above-mentioned The Ret ' Brev ' c. came to the Crown by Act of Parliament The King Ed. 6. grants to Francis Earl of Shrewsbury the House quod habeat tot talia c. specially reciting many Priviledges Liberties c. but not mentioning Returna Brevium and concludes alia c. and it was adjudged that this Grant in these general words did revive Returna Brev ' for I have a Report of the Case but only for the Cause above-mentioned Iudgment was given against the Earl as to the thing This Verdict is ill found the effectual Statute which should aid this Case if there were need is 1 Ed. 6. c. 8. which is not found thereby it is Enacted That all Letters Patents c. made or to be made by the King of any Honours c. Franchises Liberties c. should be good sure c. notwithstanding any misnaming misrecital or nonrecital of the Premisses or the lack of the true naming of the Natures Kinds Sorts and Qualities of them or any parcel thereof and notwithstanding divers and sundry other suggestions and surmises c. Object 3. The Patent of Ed. 3. or at least this Patent made to Kingston is void by reason of the Statute 2 Ed. 3. c. 12. and likewise 14 Ed. 3. c. 9. whereby it is Ordained That henceforth the Hundreds and Wapentakes should not be given nor severed from the Counties Answ This indeed is the grand Objection and was materially objected by my Brother Littleton and the Case of Fortescue against my Lord Coke has been truly cited to this purpose which was in this Court and is reported by himself How shall we do now in this great difficulty Truly this Objection had need be strictly examined into for it runs to the avoiding of the Grants of 100 Hundreds and more which have been granted since 2 E. 3. I do conceive this Grant of Ed. 3. is not within the Statute for though it be a New Grant of Ret ' Brev ' yet t is no New Grant of the Hundreds neither is the Grant of Ed. 6. avoided hereby For 1. This Statute extends only to those Hundreds which were parcel of the Sheriffs Farm and not to those which were divided because as to the first only there was an inconvenience to the Sheriff in that he should be charged with the Farm of the County the Sheriffs Farm and yet the profits the Firma Ballivarum be taken from him The words of the Statute are That such Hundreds viz. as were annexed to the Farms of the Counties shall not be given nor severed from the Counties neither did these Hundreds come into the Sheriff by their coming to the Crown The Sheriffs Farm was modelled and setled long before and when these Hundreds came to H. 8. they were not part of
the Statute are to King James and in administring the Oath King Charles is named 171 172 The Ecclesiastical Court may make Defendants answer upon Oath as the Chancery doth 339 Obligation If two be bound joyntly and one be sued he cannot demur unless he aver the other is living And if there be two Obligees one cannot sue unless he avers the other is dead 34 A Release of one Joint Obligee of all Actions c. upon his own account does not discharge the Obligation 35 I do acknowledge to E. H. by me 20 l upon demand for doing the Work in my Garden Adjudged upon Demurrer to be a good Bond 238 Office and Officer Whether acceptance of a second Grant of an Office be a surrender of the first 297 An Act begun by one Officer and left imperfect what remains for his Successor 319 320. Outlawry Reverst for want of the Words pro Comitatu and why 108 P. Pardon See Witness WHere good without mentioning the Indictment 207 Parliament See Error The Three Estates See King Pasture Custom for Copyholders to have sole Feeding in a Certain Waste it is not needful to alledge that the Beasts were Levant and Couchant Here also a Copyholder may license others without Deed to put on their Beasts 165 Peace See Indictments Ac. Case Formality of Words where necessary in the Proceedings of Justices of Peace 39 Justices of Peace their Proceedings in relation to Bastard Children 48 59 210 310 336 Upon a Forcible Entry 308 Order of Sessions final in relation to a settlement of the Poor 310 King's Bench may judge of Fines imposed at Sessions and mitigate them 336 Perjury See Indictment One gave Evidence at a Trial and afterwards made Affidavit that he was perjured and suborn'd for which Affidavit an Information of Perjury was exhibited against him and he found guilty of Perjury in swearing he was perjured 182 Pleading See Escape Trespass In Debt upon Obligation the Defendant pleads that he delivered it as an Escrow plea nought 9 Where the Defendant pleads in Abatement and the Plaintiff Demurs if it be adjudged against the Defendant it shall be quod respondeat ulterius But if any thing be alledged in Abatement where upon Issue joyned it goes for the Plaintiff there he shall have Judgment to recover his Debt 22 In Actions laid by way of Reciprocal Promise there needs no Averment of Performance 41 178 Double Plea what 48 272 Trespass quare Arbores succidit Declaration insufficient because not exprest what kind of Trees 53 The like of Fishes 272 329 In Battery absque hoc quod moderate castigavit no direct Traverse to the Defendants Justification 70. Yet good after a Verdict ibid. A Plea in Abatement shall not be admitted after Imparlance 76 136 184. Exception 236 A Traverse designed to bring a Colateral matter in question not allowed 77 Executor pleads plene Administravit the Plaintiff confesseth the Plea and prays Judgment de bonis Testatoris quae in futuro ad manus defendentis devenerint 94 Where the Plaintiff denies what the Defendant affirms whether he ought to traverse or conclude to the Country 101 In Trespass where the Defendant claims a Way what Justification is sufficient what not 13 Incertainty in the Declaration or Plea where naught 106 114 120 278. What shall be said a Departure in Pleading what not 121 Where one Declares against one upon a Deed and it appears that another was bound with him it shall not be intended that the other sealed unless averr'd on the Defendants side 136 137 Deed delivered as an Escrow how to be pleaded 210 An apt Issue is not formed without an Affirmative and a Negative 213 To declare that a Bishop was seized in fee and not say in Jure Episcopatus not binds Successor 223 In Debt for Rent semper paratus is no good plea without saying quod obtulit 322 The effect of an Innuendo 337 The Statute for discharge of poor Prisoners how to be pleaded 356 Several Freeholders cannot joyn or be joyned in a Prescription to claim an Intire Interest in another mans Soyl 384. Nor can Freeholders and Copyholders joyn 390 Powers See Rocovery Of Power to Lease where well persued 294 340 Of Power of Revocation See Revocation Whether the Power of Revocation is extinguished by a Fine 368 371 Prescription See Appurtenant Common Grant The Nature and Rules of Prescription 386 Diversity between Prescription and Custom 389 The Owner of the Soyl can by no Prescription or Custom be excluded out of his own Soyl at all times of the year 390. But he may be excluded for a certain time and as to some kind of Profits 391 Prohibition Where it lies to the Admiralty 1 146 To the Ecclesiastical Court where a Parson sues for calling him Knave 2 Whether it lies where a Bishop sues for a Pension in his own Court 3 Whether it lies upon Suggestion that the Proprietors and Occupiers of such a Mannor or any parcel thereof pay a Groat to the Parson for Herbage-Tythes ibid. Lies for citing a man to answer in the Ecclesiastical Court and not delivering a Coppy of the Articles 5. And if the Party be excommunicate a Prohibition with a Mandamus to absolve him ibid. 252 Not lies to the Ecclesiastical Court for calling Impudent Whore 7. Or Whore and Bawd 61 220. Denied to the Ecclesiastical Court for calling Old Theif and Old Whore 10. Secus in London 343 352 In Prohibition on a Suit for Tythes what Suggestion is to be proved within six months 107 To the Ecclesiastical Court to stay a Suit there for Apparators Fees Suggesting there were no such Fees due by Custom 165 To Woodstreet Compter London for refusing to admit a Plea to their Jurisdiction before Imparlance 180 The Defendant in the Ecclesiastical Court pleads that the Tythes belong to another which Plea is refused Prohibition lies 248 335 Granted to the Ecclesiastical Court where Custom and Prescription comes in question tho the Principal Cause belongs properly to that Court as Church-Wardens Rates Tythes Mortuaries 274 Whether it lies to the Ecclesiastical Court for refusing to admit a Proof by one Witness 291 No Precedent for a Prohibition quia timet 313 To the Council of the Marches 330 Proof See Record Where Proof is to be made upon a Writ of Enquiry and where not 347 Q. Queen A Reservation to the Queen of England does not exclude a Queen Dowager 151 One who hath been a Queen not properly called nuper Regina in her Life time 152 Qui tam. See Error Action Judgment arrested because Issue was joyned only on behalf of the Informer and not also for the King 122 Quo Warranto Against certain Persons of the City of Worcester claiming to be Aldermen 366 R. Record If a Record be lost it may be proved to Jury by Testimony 257 Recorder See Mandamus What Causes may be sufficient to remove a Recorder 144 145 Recovery Where a Fine is Levyed to Lessee for years with an Intent
that he should suffer a Recovery his Term is not drowned 195 Tenant for Life with power to make a Jointure suffers a Recovery the Power is extinguished 226 227 Good tho' a Stranger that hath nothing in the Land be made Tenant to the Praecipe for a Recovery being a Common Assurance is to be favourably expounded 358 Whether a Recovery can be suffered where the Tail is expectant upon an Estate for Life the Tenant for Life not being made Tenant to the Praecipe 360 Release See Obligation Of all Demands its effect 314 Remainder Contingent Remainder by what Act destroyed 188 306 334 345 No Cross Remanders upon Construction in a Deed tho' sometimes in a Will 224 Rent Difference between a Rent and a Sum in Gross 99 Lease by Tenant in Fee and Rent reserved to the Lessor Executors Administrators and Assigns the words Executors and Administrators void 162 A Rent may be reserved by Contract without Deed 242 Where Rent shall be suspended and where apportioned by the Lessors Entry 276 277 Reputation Lands repurted parcel of a Mannor shall pass in a Recovery under the Word Appurtenances 52 Retorn Sheriff amerced for retorning Non est inventus on the Writ brought against his Bayliff 12 24 Sheriff retorns that Goods came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit this tantamounts to quod devastavit 20 221 Sheriff retorns upon a Fi. fa. that he had taken Goods and that they were rescued from him not good 21 Action against Sheriff for a false Retorn of Cepi Corpus 85 Revocation What shall be a good Revocation upon a Power reserved 278 infra S. Scandal See Action upon the Case for Slander Scandalum Magnatum I do not know but my Lord of P. sent G. to take my Purse Action lies 59 Difference between an Action on the Statute of Scandalum Magnatum and a Common Action of Slander the Words in one Case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of Great Persons may be preserved 60 Sewers Commissioners of Sewers and their Proceedings subject to the Jurisdiction of the King's Bench notwithstanding the Clause in Statute 13 Eliz. cap. 9. 67 Sheriff Sheriff may bring Trover for Goods taken in Execution and after taken away by the Defendant in the first Action 52 Soldiers Every Officer and Soldier as liable to be arrested as a Tradesman or any other person whatsoever 251 A Captain and Serjeant committed to Newgate for a great Misdemeaner in rescuing a Soldier ibid. Statutes When a Statute makes an Offence the King may punish it by Indictment but an Information will not lie when a Statute doth barely prohibit a thing 63 31 Ed. 1. Statute of Winton in an Action upon this Statute what taking shall be sufficient to discharge the Hundred 118 235 4 Ed. 3. cap. 7. Action lies for Executors upon this Statute for cutting and carrying way Corn 187. This Statute hath been always expounded largely ibid. 3 H. 7. cap. 2. A Wife forcibly married contrary to this Statute shall be admitted to give Evidence against her Husband 244 5 Eliz. cap. 4. For using a Trade not being Apprentice thereto 8 51 142 326 346 364. This Statute in relation to Apprentices expounded 174 31 Eliz. cap. 7. Of Cottages no Offence against this Statute to erect a Cottage if no body inhabits therein 107 43 Eliz. cap. 2. Poor By this Statute that enables Justices of Peace to tax a Neighbouring Parish the Justices may tax any of the Inhabitants and not the whole Parish 350 21 Jac. cap. 26. Of Felony to Personate 301 12 Car. 2. Of Ministers A good Act being made by King Lords and Commons and any defects in the Circumstances of calling them together ought not to be pried into 15 This Act extends only to Benefices with Cure ibid. 14 Car. 2. cap. 10. 16 Car. 2. cap. 3. Harth-mony Smiths Forges shall pay 191 192. So empty Houses 312 14 Car. 2. cap. 33. Of Printing Seditious Books 316. 16 Car. 2. cap. 7. Of Gaming Articles for above 100 l at a Horse Race within this Statute 253 254 17 Car. 2 cap. 2. Of Non Con-Ministers explained 328 29 Car. 2. Of Frauds and Perjuries No Promise made before the 24th of June within this Act 330. What Contracts within ths Act 361 31 Car. 2. Habeas Corpus Prayer must be made by Council wiihin the first Week after the beginning of the Term 346 T. Tail THO' a Term in gross cannot be entail'd yet where man hath a Term in point of Interest and at the same time the Trust of the Inheritance here he may entail the Trust of the Term to wait upon the Inheritance 194 What Words create an Estate Tail and what in Remainder contingent or vested 215 230 231 Estates Tail how forfeitable for Treason 299 infra A Devise to a Man and the Heirs Males of his Body with a proviso if he attempts to alien the Estate to cease the Condition void 321 322 A Limitation in Tail how it operates 378 Tender Tender and refusal is as much as payment 167 Tender where not good 252 261 Teste Where the Teste of a Writ before it was taken out is notwithstanding good 362 Tythes May be paid of a Warren by Custom 5. So of Doves and Fish ibid. Whether an Executor may bring Debt upon the Statute 2 E. 6. for Tythes due to the Testator 30 31 Where and what Modus shall bar the Recovery of Tythes in specie 32 A Prescription cannot be suggested time out of mind to pay a Modus for Tythe Hops since they were not known in England till Queen Elizabeth's time 61 Tythes of VVood tho' not Fewel payable unless exprest to be burnt in a House for the maintenance of Husbandry 75 Treason In Coyning and Clipping the Judgment 254 For raising a Rebellion in Carolina 349 Trespass See Pleading Quare Clausum fregit and threw down his Fences what Plea in Justification good 221 Continuando in Trespass where good and where not 363 Trust See Tayl. A Use in former time the same with what a Trust is now 130 Where a Trust for Life Remainder over with Power of Revocation is forfeitable and where not 128 infra Whether a Trustee is compellable to produce Writings or the Key of the Box wherein they are against the Interest of the Party for whom he is Trustee 197 Tryal See Venue What shall be Cause for new Tryal what not 30 Justices of Assize may try Informations tho' commenced before the Justices of a former Assizes 85 181 V. Venue WHere a Deed is forged at S. and given in Evidence at D. from whence the Venue ought to come in an Information thereupon 17 A Breach of Covenant assigned in Barwick the Venue shall arise from the next place in Northumberland 58 Judgment by Nihil dicit reverst after a Writ of Enquiry executed because no
1 W. M. After which Judgment for the Defendants 166 That the said Defendants shall go sine die and have their Costs 167 Averment that the said Judgment remains in full force That the Goods in the said Action of Trespass and this of Trover are the same That the Conversion in this Action and the Taking in the other is the same That the Cause of Action was the same in both And that the Plaintiffs and Defendants are the same Et hoc parati sunt verificare unde petunt Judicium si praedicti the Plaintiffs Actionem suam versus eos habere debeant c. Not guilty to the residue of the Goods The Plaintiffs demur The Defendants joyn 168 Vsury Pleaded Vid. Debt 7. Way Action for stopping it Vid. Action on the Case 5. WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Public approve of and allow the Printing and Publishing of this Book Intituled The Reports of Sir Peyton Ventris Kt. Late One of the Justices of the Court of Common-Pleas J. Som̄ers C.S. J. Holt Geo Treby Ed Nevill Joh. Powell W. Gregory N. Lechmere Tho. Rokeby G Eyre Jo Turton John Powell Sam. Eyre April the 20 th 1965. The Second Volume TERMINO SANCTI HILLARII Anno Vicesimo primo secundo Caroli Secundi IN COMMUNI BANCO Craw versus Ramsey IN an Ejectment of Lands and the Rectory of Kingston upon Thames in Surrey Vpon Not Guilty pleaded the Jury found a Special Verdict to this effect viz. That Robert Ramsey Born in Scotland before the Accession thereof to the Crown of England had Issue four Sons Robert Nicholas John and George Antenati Robert died they do not find when leaving Issue three Daughters Margaret Isabel and Jane who were also Aliens and alive 1 Octob. 14 Car. 1. Nicholas had Issue Patrick born in England 1 May 1618. They also find that at the Parliament holden 10 Car. 1. in Ireland it was Enacted That all Persons of the Scottish Nation should be reputed the Kings Natural Subjects to all intents constructions and purposes of that his Realm of Ireland as if Born there And they find the Act of Parliament at large Nicholas Ramsey was alive at the making of that Act. John the third Son afterwards Earl of Holderness was Naturalized by Act of Parliament in England 1 Jacobi and purchased the Lands and Rectory in question and being seised 22 Jac by Indenture Tripartite between him of the First part Sir William Cocke and Martha his Daughter of the Second part and Charles Lord Effingham of the Third part In Consideration of a Marriage to be had between him and Martha did Covenant to levy a Fine to the use of himself for Life and afterwards to Martha for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs And 29 Septemb. 22 Jac. the Marriage was had and the Michaelmas Term after a Fine was Levied accordingly The 24 of Jan. 1 Car. 1. the Earl died without Issue Martha Entred and was seised for her Life and died 17 Car. Et eodem anno it was found by Office that the Earl of Holderness died seised of the Rectory as before and without an Heir and that King Charles anno decimo granted this Rectory to one Murray George the fourth Son of Robert was Naturalized by the Parliament here 7 Jac. He had Issue John the Defendant Nicholas died Patrick his Heir in 1651. bargained and sold to the Earl of Elgin and one Sydenham virtute cujus vigore Statuti c. they were seised prout Lex postulat and in 1662. bargained and sold for years to Amabel Countess of Kent and Jane Hart and afterwards Released to them and their Heirs in 1665. They being seised bargained and sold by Lease and Release also to Pullen and Neale who Entred and bargained and sold to Sir Lionel Talmash and West the Lessors of the Plaintiff upon whom John the Defendant Entred Vpon which the Action is brought and the great Question in the Case was Whether Patrick the Son of Nicholas might claim these Lands as Heir to the Earl of Holderness by virtue of the Act of Parliament in Ireland 10 Car. or that they should descend to the Defendant the Son of George Naturalized the 7 of Jac. in England Wyld and Archer who Argued first were of Opinion That however the Point was adjudged the Plaintiff could not have Judgment upon this Verdict for they do not find that Patrick entred or was seised but that he in 1651. did bargain and sell c. Virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold in 1662 and do not so much as find their Bargainees seised prout Lex postulat But they find the Defendant Entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it not being found that Patrick Entred Again If the Naturalization in Ireland will serve in England the Title appears for the Daughters the Heirs of Robert the eldest Son for 't is found that he died but not when so it might be after the Act of 10 Car. But Tyrrell and Vaughan Chief Justice differed in these two Points As to the First They said it would be intended Patrick entred for a Verdict that leaves all the Matter at large to the Iudgment of the Court will be taken sometimes by Intendment as well as where the Jury Conclude upon a Special Point 2 Cro. 64. find an Incumbent Resigned the Resignation shall be intended accepted So in 4 Co. Fullwood's Case it was found that one came before the Recorder of London and Mayor of the Staple recognovit se debere c. and did not say per scriptum suum Obligatorium nec per formam Statuti yet intended so Vid. Hob. 262. And where they find the Bargainees seised prout lex postulat that doth not leave it doubtful whether seised or no but whether by right or wrong for Seisin must be taken as found expresly Neither do they find any other in possession nor that the Defendant made any Claim in Twelve years after which enforces the Intendment as before And it is found expresly that Pullen and Neale Entred in 1665. so that the Defendant had not the primer Possession however or if he had he should not have Judgment if no other Title were found for him as is Resolved in 1 Cro. 42. Hern and Allen's Case As to the Second It shall be intended Robert died before 10 Car. For he is found an Alien and shall be presumed to have continued so during his Life unless found to the contrary then the Discent to the Daughters is obstructed by the Incapacity of their Father And tho' when the Title is found for the King the Court shall adjudge for him because the Kings Courts are intrusted with his Rights 't is not so of any other person but they shall take no
her But Object All these words together to make a Slander Answ No man can assign me such a ratiocination a male divisis ad bene conjuncta I never heard it but in my Lord Straffords Case viz. that many Trespasses should make a Treason 'T is said he stirred up a Vexatious Action so does a Counsell when he Advises an Unsuccessful Action for the party is amerced pro falso clamore He will milk your Purse taken enunciatively signifies no more than Milking a Bull the Phrase is not come to an Idiom So of Filling his Pockets these Words might have been spoken of the Law and indeed they are spoken of the Thing not the Man or his Practice Dunce Corrupt c. concern the Profession but these words are applicable to any If he had said he were not a Good Fidler would that be Actionable Termino Paschae Anno 28 Car. II. In Communi Banco Hockett Uxor versus Stegold Ux ' TRespass for Assault Battery and Wounding of the Baron and Feme Vpon Not Guilty pleaded the Verdict was as to the Wife Guilty and quoad residuum Not guilty It was moved in Arrest of Judgment that the Baron and Feme could not joyn in an Action of Trespass for Beating them both 2 Cro. 355 655. 2. That there is nothing found as to the Beating of the Husband and so an imperfect Verdict for the Quoad residuum shall extend only to the other Trespasses done to the Wife Yelv. 106. Vid. Lib. which goes to both Points But the Whole Court were of Opinion that the Verdict had Cured this Mistake in the Action 9 Ed. 4. 51. 6 Acc ' Vid. Styles 349. Termino Paschae Anno 29 Car. II. In Communi Banco Herbert Perrot's Case HE having married a Wife that had an Inheritance of a considerable Value prevails upon her while she was but of the Age of 20 years to levy a Fine upon which the Use was declared to him and her and the Heirs of their two Bodies This was taken in the Country upon a Dedimus potestatem by Sir Herbert Perrot his Father and Mother After which the Wife died without Issue but had Issue at the time of the Fine It was moved in Court that this Fine might be set aside and a Fine imposed upon the Commissioners for the undue Practice and taking of a Fine of one under Age. But all the Judges agreed they could not meddle with the Fine but if the Wife had been alive and still under Age they might bring her in by Habeas Corpus and inspect her and set aside the Fine upon a Motion for perhaps the Husband would not suffer the bringing or proceeding in a Writ of Error And Justice Atkyns said These Abuses which are so frequent in taking Fines were occasioned by the Alteration of the Common Law made by the Statute of Carlisle 15 Ed. 2. that Fines which before were always to be done in Court may now be taken by Dedimus But the Common Law â—alls much short of the Order the Statute prescribes which requires that two Judges of the Court or one at the least should taking with him an Abbot Prior or Knight of good Fame take such Fines whereas 't is now the Common Practice to name Attorneys and Inconsiderable persons The Court were of Opinion That if a Commissioner to take a Fine do execute it corruptly he may be Fined by the Court for in relation to the Fine which is the proper Business of this Court he is subject to the Censures of it as Attorneys c. But they held that they had no power to Fine the Parties for a Misdemeanour in them North Chief Justice and Wyndham would have Fined Sir Herbert Perrot for taking a Fine of one under Age But Atkyns and Scroggs dissented because it did not appear that Sir Herbert Perrot did know she was under Age and it could not be discerned by the View she being Twenty Termino Sancti Hillarij Anno 29 30 Car. II. In Communi Banco Sir John Otwaie's Case IN an Ejectment upon a Special Verdict the Case was to this effect It was found that there was a Parish of Ribton and Vill of Ribton but not Coextensive with the Parish J.S. had Land in Tail in the Parish and out of the Vill and bargained and sold by Indenture with a Covenant to levy a Fine and suffer a Recovery to the Vses of the Deed of the said Land in the Parish of Ribton and the Fine and Recovery were only of Lands in Ribton and whether this would serve for the said Land in the Parish of Ribton was the Question Serjeant Maynard Argued that it would not and said that the Division by Parishes is wholly Ecclesiastical the Limits of which are equal to the Cure of the Parson But that of Towns and Vills is Civil and hath the same Limits with the Power of the Constable and Tythingman Where a Place is named in a Record of the Law and no more said 't is always intended a Vill tho' when a Vill and Parish are both mentioned and of the same Name they are intended Coextensive The later Authorities have admitted Fines to be levied of Land in a place known 1 Cro. 2 Ro. 20. But in a Recovery the Town must be mentioned But 't is Objected That here the Intention appears by the Deed that these Lands should pass But he Answered That cannot carry the Words further than they are contained in the Record Again it is Objected That the Deed Fine and Recovery do all make but one Assurance True but each hath its several effect the Deed serves to declare the Uses but it cannot make the Record larger than it is in the Subject Matter of it If a Formedon had been brought and the Fine and Recovery pleaded in Bar had it not been a good Reply to have said Nient comprise c. In 2 Cro. 120. Storke and Fox the Case was Walton and Street were two Vills in the Parish of Street and a Fine was of Lands in Street and Resolved that no Lands but in the Vill of Street tho' in the Parish did pass And so is Mo. 910. in case of a Grant 2 Ro. 54. If this were permitted it would introduce much Mischief for men would not know what passed by searching the Record but this should be known only by a Pocket Deed and so they in Reversion a Lord of Ancient Demesne c. would not know when to make their Claim and should be barred by reason of a Private Deed when the Record of the Fine or Recovery did not import that they were concerned Fines are to end Controversies and therefore must be certain and in that respect sometimes receive a stricter Construction than Grants A Fine of a Tenement is not good but ought to be reversed but a Grant of a Tenement will bind On the other side it was Argued that since Common Recoveries have been so much in practice and become the Common Assurances of mens Estates
out of Repair Secondly The whole is Sequestred whereas it ought to have been but in proportion to the Charge of Repairing and should be certainly expressed what it required Thirdly The Sequestration is to remain by the Sentence until the Judge should take further Order Whereas it ought to have been but until the Repairs had been done These Exceptions the Court held fatal and therefore gave no Opinion as to the Matter in Law but did incline that there could be no Sequestration for being made Lay Fee the Impropriation was out of their Jurisdiction and it was now only against the Person as against a Layman for not Repairing the Church And they said in case of Dilapidations the whole ought not to be Sequestred but to leave a proportion to the Parson for his Livelyhood Anonymus IN an Ejectment upon a Special Verdict the sole Point was Whether a Lease for a year upon no other Consideration than reserving a Pepper Corn if it be demanded shall work as a Bargain and Sale and so to make the Lessee capable of a Release And it was Resolved that it should and that the Reservation made a sufficient Consideration to raise an Use as by Bargain and Sale Vid. 10 Co. in Sutton's Hospitals Case Rozer versus Rozer AN Indebitatus Assumpsit pro parcell ' Corii ad specialem instantiam requisitionem of the Defendant sold and delivered to J.S. Et sic inde Indebitat ' existens the Defendant promised to pay Vpon Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that there is no Promise laid and no Reason to presume a Promise when 't is the very ground of the Action tho' after a Verdict And admitting there were a Promise yet it being Collateral it did not make a Debt but should have been brought as an Action upon the Case Mo. 702. and Dyer 230. And hereupon Judgment was stayed Tho' as I hear in the King Bench about two years since between Danbey and Kent they held such a Case well enough after a Verdict Quaere Termino Sanctae Trinitatis Anno 33 Car. II. In Communi Banco Page versus Kirke IN an Action of Trespass upon Not Guilty at the Assizes in Suffolk a Verdict was found for the Plaintiff and 10 s Damages and 40 s Costs and Judgment entred accordingly And an Action of Debt was brought upon the Judgment and the Defendant pleaded Specially the Statute 22 23 of Car. II. ca. 9. against Recovering more Costs than Damages where the Damages are under 40 s in Trespass unless certified by the Judge that the Title was chiefly in question the Words of the Statute being If any more Costs in such Action shall be awarded the Judgment shall be void To which the Plaintiff Demurred and the Plea was held Insufficient because the Verdict was for 40 s Costs and not Costs increased by an Award of the Court. 2. If the Judgment were Erroneous yet it was hard to make it avoidable by Plea notwithstanding that the Words of the Statute are Shall be void Termino Sanctae Michaelis Anno 33 Car. II. In Communi Banco Onslowes Case HE brought an Action against a Bayliff being the chief Magistrate of a Corporation for that although he were chosen one of the Burgesses to serve in Parliament for the Corporation by the greater Number c. yet the Bayliff to disappoint him of sitting and to bring trouble c. upon him did return another Person in the Indentures together with him to his Damage c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Action would not lie And of that Opinion were the whole Court viz. North Chief Iustice Wyndham Charlton and Levins for they said they had no Iurisdiction of this Matter the principal part thereof being a Retorn in Parliament No Action before the Statute H. 6. c. did lie against a Sheriff or chief Officer of a Corporation for a False-retorn and the Courts at Westminster must not enlarge their Iurisdiction in these matters further than those Acts give them That there were no Presidents of any Actions at the Common Law save Nevils Case in the late times and Sir Samuel Bernardistons Case both which miscarried In the Long Parliament there were a great many double Retorns but no Actions had been brought which is a great Argument that no such Action lies as Littleton argues upon the Statute of Merton of disparaging an Heir Termino Paschae Anno 35 Car. II. In Communi Banco The Lord Conwallis's Case THE Case was Isaac Pennington a Copyholder of the Mannor whereof my Lord Conwallis is now feised committed Treason in the matter of the Murder of King Charles the First and then about Anno 1655. surrendred into the hands of the Lord of the Mannor his Copyhold Lands to the use of some of his Children who were admitted In 1659. the Mannor was aliened to the Lord Conwallis then came the Act of Attainder 12 Car. 2. whereby Tychburn with other Regicides were attainted and thereby it was Enacted That all their Mannors Messuages Lands Tenements Rents Reversions Remainders Possessions Rights Conditions Interests Offices Annuities and all other Hereditaments Leases for Years Chattels Real and other things of that nature whatsoever they be shall stand forfeited to the King c. Provided that no Conveyance Assurance Grant Bargain Sale Charge Lease Assignment of Lease Grants and Surrenders by Copy of Court Roll c. made to any Person or Persons other than the Wife or Wives Child or Children Heir or Heirs of such Person or Persons c. After which Attainder c. the Lord of the Mannor caused the Lands to be seised and brought an Ejectment The First Point Was whether in Case of Treason or Felony the Lord can seise before Conviction or Attainder And the Court seemed to be of Opinion that no Seisure could be till Attainder without Special Custom but they agreed the presentment of the Homage was not necessary to precede a Seisure or to entitle the Lord to take the advantage of a Forfeiture but in case of a Capital Crime it would be unreasonable and inconvenient to permit the same to be tried or controverted in a Civil Action before the Conviction appeared upon Record Secondly Whether this were such a Forfeiture as the Lord was bound to take notice thereof for if no notice then the acceptance of the Surrender c. would not preclude him from taking advantage of the Forfeiture And the Court inclined that the Lord should be presumed to take notice in this Case as he shall in the Case of Failer of Suit of Court Non-paiment of Rent c. Vide 2 Cro. Matthews and Whetton 233. Thirdly Whether the Mannor being conveyed away before the Attainder shall purge the Forfeiture Iustice Levins said That although no advantage of this Forfeiture can be taken till Attainder yet after Attainder it has relation and
illam modo forma praed ' fact ' necesse non habet nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defectu sufficien ' Narration ' ipsius Francisci in hac parte ijdem Edwardus Walterus pet ' Judicium qd ' praed ' Franciscus ab actione sua praedicta versus eos habend ' praecludatur c. Et praedictus Franciscus dic ' qd ' Joynder in Demurrer narratio praedicta materiaque in eadem content ' bon ' sufficien ' in lege existunt ad ipsum Franciscum actionem suam praedictam inde versus praed ' Edwardum Walterum habend ' manutenend ' Quam quidem materiam idem Franciscus parat ' est verficare Unde ex quo praedict ' Edwardus Walterus ad narrationem praed ' non responder ' nec materiam in ead ' content ' aliqualit ' dedixer ' idem Franciscus pet ' judicium dampna sua occasione fractionis conventionis praed ' sibi adjudicari c. Et quia Justic ' c. Morly versus Polhill IN an Action of Covenant the Plaintiff declared as Executor to George Morly late Bishop of Winchester and sets forth that Brian the Predecessor of the said Bishop had demised a Rectory and certain Lands to J. S. for 21 years who had assigned it to the Testator of the Defendant and that the Lessee covenanted with Brian and his Successors to repair the Chappel of the Church and the Barns c. and assigned a breach in the not xepairing by the Testator of the Defendant in the life of George Morly and that the Lease afterwarns expired To this the Defendant demurred for that it was pretended that the Executor of the Bishop could not bring this Action for the Covenant was with the Predecessor Bishop and his Successors and cited the Cases of Real Covenants 1 Inst 384 385. A Parcener after partition Covenants to acquit the other Parcener of a Suit and the Covenantee assigns the Assignee shall not bring Covenant But the whole Court gave Iudgment for the Plaintiff and that the Executor is here well entituled to the Action for the Breach in the Testators time Wright versus Wyvell IN an Ejectment the Plaintiff declared upon a Demise of Dorothy Hewly and upon a Special Verdict the Case appeared to be thus That Christopher Hewly was seised of the Premisses in Fee and made his Will in this manner I make my last Will in manner following As concerning my Personal Estate First I give and bequeath unto Ann Hewly my Wife the sum of Six Hundred Pounds to be paid unto William Weddall of Eastwick Esq and it 's for the full payment of the Lands lately purchased of the said Mr. Weddall by the said Christopher Hewly and is already estated in part of a Joynture to Ann my said Wife during her natural Life being of the value of Sixty Seven Pounds per annum That of Wiskow York and Malton the Lands and Tenements there amounting to the yearly value of Sixty Three Pounds in all One Hundred and Thirty Pounds which being also estated upon my said Wife it is in full of her Joynture And after this he gives several Legacies and the rest of his Personal Estate he gave to his Wife and made her Executrix Then they find that he had made no settlement of the Premisses or of any part of them upon his Wife and that the Lessor of the Plaintiff was Heir at Law to Christopher Hewly and that Ann the Wife is still living So that the sole Question was whether the Lands should pass to the Wife upon these words in the Will and divers Cases were put upon implicit Devises as that his Feoffees should stand seised to the use of J. S. has been held a good Devise to J. S. tho' there were no Feoffees 3 Leon. 167 162. Devise to his eldest Son after the death of his Wife there the Wife takes tho' nothing expresly devised to her After Arguments heard on both sides by the Opinion of Pollexfen Chief Justice Rokeby and Ventris Iudgment was given for the Plaintiff against the Opinion of Powell Here it appears indeed that the Testator took it that she had the Land but it appears he did not intend to devise any thing by the Will for he mentions that she was estated in it before and in the Cases of Implicit Devises there is no reference to any Act that should have conveyed the Land to the Devisee before but the Will there passes the Land by Construction and Implication Again This Devise is introduced with this Clause as to the disposing of my Personal Estate and throughout the Will he giveth only Personal Things Again This recital comes in as part of another Clause of an express Devise of the Six-Hundred Pounds But Powell relied upon the Case in Mo. 31. A man made a Will in this manner I have made a Lease to J. S. paying but 10 s Rent this was held a good Lease by the Will To which it was answered That the Case there was of little authority for it did not appear how that matter came in question or in what Court or in what Action and said only fuit tenus 3 Eliz. And Iudgment here was given for the Plaintiff Bowyer versus Milner IN a Formedon against several Tenants one appeared and was Essoigned and then another appeared and it was moved whether he could be Essoigned by reason of the Statute of W. 1. c. 43. which seems to be that Parceners or Ioyntenants should have but one Essoign and that they should not fourch Cut ' Contra. The Statute is to be understood of Essoigns after appearance and so is the Book of 28 Ed. 3. 18. it is said to have been the Law of the Times for Tenants to fourch before appearance and so is Co. 2. Inst 250. Hob. 8 46. The Case of Essoigns if the Tenant voucheth two one Essoign may be cast for each of them singly Vid. Stat. of Glouc. c. 6. Anonymus IN an Action of Trespass de Uxore abducta cum bonis viri to his damage of 10000 l Upon Not Guilty pleaded and a Trial at the Bar the Return of the Jury was Octab ' Trin. and the Appearance Day was die Mercurij at which day the Jury appeared but it being appointed for the keeping of a solemn Fast by the King's Proclamation the Jury was adjourned to the Day following and then the Jury and Parties being at the Bar a Plea was offered by the Defendants Counsel puis darrein continuance that the Plaintiff was Excommunicated and produced it under the Seal of the Court and begun their Plea thus Ad hunc diem viz. die Jovis prox ' post Octab ' Trin ' c. So that the Plea came too late for it should have been pleaded die Mercurij for tho' the Jury was adjourned to Thursday yet all Matters were entred as upon Wednesday So this Plea did appear upon the
usque diem martis prox ' post tres septiman ' Sanct ' Michael de audiend ' inde Judicio suo quod iidem Justic ' hic inde nondum c. Bockenham versus Thacker IN an Action upon the Case the Plaintiff declared that J. S. was indebted in a sum of Mony to the Plaintiff not exceeding 12 l and that the Defendant as he the Defendant said was indebted to J. S. in 12 l or there about That the Defendant in consideration that the Plaintiff at his request would procure an Order from J. S. in writing to the Defendant for payment of the Mony which the Defendant owed J. S. or any part thereof to the Plaintiff he promised to pay the Mony according to such Order The Plaintiff avers that he procured such Order from J. S for the Defendant to pay him 5 l which he shewed to the Defendant and the Defendant refused to pay c. The Defendant demurs generally to the Declaration Levinz for the Defendant argued that it was no sufficiently set forth that the Defendant was indebted to J. S. and if not there was no consideration Cur ' contra for it must be intended that he was indebted for 't is set forth that the Defendant said so but if not the procuring the Note at the Defendants request by the Plaintiff was a sufficient consideration It was Objected further that the Plaintiff had not alledged that he procured the Note at the request of the Defendant as the agreement was and for that 3 Leon. 91. was cited in consideration that he should repair such part of the House at his request it was held naught for not laying the repairing to be done at request Sed non allocatur for it shall be intended to have been done at request and so is Bretton and Boltons Case 3 Cro. 246. 2 Cro. 404. Berisfords Case and Poynters Case 1 Cro. Sed Nota All those Cases are after Verdict and so is the above cited Case See more of this Case afterwards Termino Sancti Michaelis Anno 1 W. M. In Communi Banco SErjeant Trinder moved the Court to set aside a Verdict recovered in an Action for the mesn Profits after a recovery in an Ejectment shewing that the Defendant in the Ejectment had brought another Ejectment since and recovered so that the first recovery was disaffirmed and therefore there ought to have been no recovery for the mesn Profits but the motion was denied by the whole Court Leigh versus Ward DEbt upon a Bond the Condition was to perform an Award and the Defendant pleaded that the Arbitrator made no Award The Plaintiff replied that after the Bond entred into and before the time set in the Condition for making of the Award scilicet tertio die Novembris anno c. per quoddam Scriptum suum arbitr ' adtunc ibidem fact ' c. and so sets forth the Award upon which the Defendant demurred because no place was mentioned where the Award was made Tremain for the Plaintiff said that the adtunc ibidem should refer to the place mentioned in the Declaration where the Bond was made Cur ' contra The adtunc ibidem cannot be referred to the place in the Declaration and there is no place mentioned in the Replication Whereupon Iudgment was given for the Defendant Memorandum Mr. Justice Eyres came to this Court at the desire of the Court of Kings Bench who were trying of a Cause at the Bar to know the Opinion of the Court of Common Pleas upon this Question An Infant who was a party to the Ejectment that was upon trial had answered a Bill in Chancery by his Gardian whether that Answer could be read in Evidence against the Infant And the Opinion of the whole Court was that it could not be read for it is not reason that what the Gardian swears in his Answer should affect the Infant Blake versus Clattie TRespass Quare clausum fregir diversa onera equina of Gravel had carried away per quod viam suam amifit After Verdict it was moved in Arrest of Judgment that the diversa onera equina was incertain and then mentioned the loss of his Way and had set forth no Title to the Way nor set forth any certainty of it It was said on the other side that the Incertainty was aided by the Verdict and the other Matter about the Way was only laid in aggravation of Damages But the Court held the Exceptions material and thought it would be very inconvenient to permit such a Form of putting in of a Way to a Declaration in Trespass Anonymus IN an Action of Debt for Rent the Plaintiff declared in Michaelmass Term last and laid the Demise to be Anno primo Jacobi Secundi Regis The Defendant pleaded Nil hab ' in Tenementis and the Plaintiffs Attorney delivered a Copy of the Issue where the Demise was laid Anno primo Regis nunc and so the Nisi prius Roll was at first but it was observed that the Plaintiffs Attorney had amended it but gave no Notice thereof to the Defendants Attorney nor delivered him a new Copy of the Issue and so went to Trial which proceeded the Nisi prius Roll being right and a Verdict was found for the Plaintiff And it was moved by Serjeant Rotheram that there should be a New Trial granted for the Defendant was surprized to find the Record right when they had a wrong Copy of the Issue But it appearing to the Court that the Defendant notwithstanding proceeded in his Defence and the Verdict was after a long Evidence that the Court would not set it aside but ordered the Plaintiffs Attorney to attend for the undue Practice in making of an Amendment in such manner Bailes versus Wenman IN an Ejectment upon a Special Verdict the Case appeared to be thus That Articles of Marriage were made between the eldest Son and Heir apparent of the Defendant and Martha one of the Daughters of one William Nailor whereby the Defendant was to settle the Lands in question upon the Lessor for his Life and after his decease upon Martha for her Ioynture with a Proviso that the Lessor should make a Lease of the Premisses to the Defendant for 99 years if the Defendant and Susan his Wife should so long live and that Susan died before the Lease made to the Plaintiff So the only Question was Whether the Lease for 99 years determined by the Death of said Susan The Court upon the first opening without Argument were all of Opinion that it did determine and Ordered Judgment to be Entred for the Plaintiff 5 Co. 9. in Brudnell's Case Daniel and Waddington 2 Cro. 378. Vide Dyer 67. and 1 Inst 225. a. Trupenny's Case Vide Anderson 151. A Lease made to two for their Lives absque impetitione vasti durant ' vitis of the Lessees and held that this Priviledge would hold to the Survivor for 't is reasonable to give the Priviledge as large a Construction as
them The Lessee comes to the Lessor and the Lessee saith to the Lessor I surrender saith he if the Lessor doth not agree 't is void Car il ne poit surrender à luy maugre son dents And that is certainly so in Surrenders and all other Conveyances for a man cannot have an Estate put into him in spight of his Teeth But I cannot find any of the Books cited that come to this Point That where a Deed of Surrender is executed without the Notice of him in Reversion that it shall pass nothing till he Consents so that it cannot be said that there is any express Authority in the Case Now as to the Form of Pleading of a Surrender it has been Objected That a Surrender is always pleaded with Acceptance and many Cases have been cited of such Pleadings Rastal's Entries 176 177. Fitzh tit Barre 262. which are Cases in Actions of Debt for Rent and the Defendant in Bar pleads That he surrendred before the Rent grew due and shews that the Plaintiff accepted the Surrender So in Waste brought a Surrender pleaded with the Agreement of the Plaintiff These and the like Cases have been very materially and I think fully Answered at the Bar by my Brother Pemberton That those Actions being in Disaffirmance of the Surrender and implying a Disagreement the Defendant had no way to bar or avoid such Disagreement but by shewing an express Agreement before The Case of Peto and Pemberton in the 3 Cro. 101. that has been so often cited is of the same sort In a Replevin the Avowry was for a Rent-charge in Bar of which 't is pleaded That the Plaintiff demised the Land out of which the Rent issued to the Avowant The Avowant Replies That he surrendred dimissionem praedict to which the Plaintiff agreed This is the same with Pleading in Bar to an Action of Debt for Rent But when the Action is in pursuance of the Surrender then it is not pleaded So is Rast Entries 136. The Lessee brought an Action Covenant against the Lessor for entring upon him and ousting of him The Defendant pleads a Surrender in Bar and that without any Agreement or Acceptance In Fitzherbert tit Debt 149. where the Case is in an Action of Debt for Rent The Defendant pleaded in Bar that he surrendred by force of which the Plaintiff became seised There is no mention of pleading any Agreement notwithstanding that the Action was in Disaffirmance of the Surrender Therefore as to the Argument which has been drawn against the Form of Pleading I say that if an Agreement be necessary to be pleaded Then I say First That 't is answer'd by an implied Assent as well as an express Assent I would put the Case Suppose a Lessee for Life should make a Lease for years reserving Rent and in Debt for the Rent the Lessee should plead That the Plaintiff before the Rent grew due surrendred to him in Reversion and he accepted it and Issue is upon the Acceptance and at the Trial it is proved that the Plaintiff had executed a Deed of Surrender as in this Case to him in Reversion in his absence would not this turn the Proof upon the Plaintiff that he in Reversion disagreed to this Surrender for surely his Agreement is prima facie presumed and then the Rule is stabit praesumptio donec probertur in contrarium Again I say it appears by the Cases cited that it is not always pleaded and when pleaded 't is upon a special Reason as I have shewn before i. e. to conclude the party from disagreeing and it would be very hard to prove in Reason that an Agreement admitting an express Assent to be necessary must be pleaded for if it were a necessary Circumstance to the Conveyance why then 't is imply'd in pleading sursum reddidit for it cannot be a Surrender without it In pleading of a Feoffment it is enough to say Feoffavit for that implies Livery for it cannot be a Feoffment without it Now why should not sursum reddidit imply all necessary requisites as well as Feoffavit and therefore I do not see that any great Argument can be drawn from the Pleading For 1. It is not always to be pleaded 2. It cannot be made out to be necessary so to plead it for if Assent be a necessary requisite then 't is implied by saying sursum reddidit as Livery is in Feoffavit and then to add the words of Express Consent is as superflous as to shew Livery after saying Feoffavit And again If it were always necessary it is sufficiently answered by an Assent intended in Law for Presumptions of Law stand as strong till the contrary appears as an express Declaration of the party Memorand Anno quarto Willielmi Mariae this Case was brought by Writ of Error into the House of Lords and the Judgment was there Reversed upon the Reasons in the aforegoing Argument Termino Sancti Michaelis Anno 2 W. M. In Communi Banco Coghill versus Freelove IN an Action of Debt for Rent the Plaintiff Declared for 78 l upon three several Demises against the Defendant as Administratrix to Thomas Freelove her late Husband in the Detinet The Defendant pleaded that after the Letters of Administration granted to her and before the Rent became due she assigned to Samuel Freelove the Indenture of Demise and all her Estate and Interest in the Premisses and that Samuel entred and was possessed and that the Plaintiff had notice of the Assignment before the Action brought To this the Plaintiff Demurrs It was said for the Plaintiff that the Action being brought in the Detinet the Assignment was no Plea for the Administratrix is charged upon the Contract of the Intestate and liable so far as there is Assets tho' there be no Assignment And tho' in the 3 Co. and in the 1 Cro. 555. Overton and Syddal's Case seems the contrary and so Marrow and Turpin's Case in the 1 Cro. 715. And that the privity of Contract is determined by the Death of the Lesser yet in Ironmonger and Newsam's Case in Latch 260. the contrary was Resolved Note it did not appear by Latch to be Resolved but the Chief Justice said it was so Resolved So in 17 Car. 2. Syderfin 266. in Heylar and Casbord's Case it was Resolved that the Action lay against the Executor upon the Contract after an Assignment where it was held also that an Executor cannot wave a Term unless he renounceth the whole Executorship After hearing Arguments at the Bar the Court gave Judgment for the Plaintiff Powell absente As to Overton and Syddal's Case it appears by Mo. 352. that Popham and Fenner were against Gawdy and Clench vide Poph. Rep. 121. It appears that the Action was brought in the Debet and Detinet and by a Prebend upon the Lease of his Predecessor and then an Assignment will be a Bar which matters indeed do not appear to be urged in the Case as Cited by my Lord Coke and Reported
Pollexfen Chief Justice was of Opinion that it ought to have been shewn in the Declaration that the Racks were set up and fixed But the other Justices conceived that it should be intended that they were Racks fixed for use in the Stable and it would be very remote to give it any other Construction And so Judgment was given for the Plaintiff Anonymus IN an Ejectment it was moved in Arrest of Judgment that the Plaintiff had declared of two Demises viz. That J. S. demised 10 Acres of Land to him an that J. N. had demised 10 other Acres of Land to him habend ' for the Term of Five years c. and that he entred into the Premisses demised to him by J. S. and J. N. in forma praedict ' After Verdict upon Not guilty for the Plaintiff it was Objected That in one of the Demises there is no certain Term or Estate for the habend ' can be referred only to the Demise of J.S. for that begins a New sentence But the Court held that the Habend ' should be a good Limitation of both Demises for Five years and when 't is shewn that the Plaintiff entred into the Premisses demised to him in forma praedict ' that is an Averment that all was demised for Five years for that is the forma paed ' As Lands lett to A. for his life Remainder to B. in forma praed ' this is an Estate to B. for Life And so Judgment was given for the Plaintiff Anonymus IN an Action upon the Statute of Hue and Cry it was after Verdict moved in Arrest of Judgment that in the Recital of the Statute there were Variances from the Statute and Omissions First There was no mention of Burning of Houses in the Recital but that is in the Statute Non allocatur For 't is not necessary to set forth more in the Declaration than is pertinent to the Action Secondly The Statute is That the Country should answer for the Bodies of the Malefactors and the Recital is Quod patria respondeat ê“ Malefactoribus the sense of which is That the Country should stand in their stead whereas the meaning of the Statute is That they should produce their Persons Sed non allocatur For as it is in the Recital of the Declaration it well answers the sense of the Statute Anonymus IN an Action of Trespass quare Clausum fregit and digging up and carrying away of his Trees It appeared upon the Evidence That the Defendant had entred into the Plaintiffs Close and digged up several Roots of his Trees and removed them to a place on the same Ground about two yards distance off And the Question was Whether this were such a Carrying away as that the Plaintiff should have full Costs or only Costs according to the late Statute where the Damages are under 40 s as was in this Case Pollexfen Chief Justice and Rokeby Powell absente were of Opinion that the Plaintiff was to have full Costs because the Roots were carried from the place where they were digged tho' not removed off from the Ground and they said that it had been adjudged Felony to take and removed things with an intent to steal them tho' laid at a small distance from the place and not carried out of the House or the like Ventris conceived That the taking of the Roots and laying them a little way off in the same man's Ground could not be taken as an asportavit and it differed from the Case of Stealing for taking Goods as a Thief is the Felony and it doth not lye in the carrying them off but in the Felonious intent in the taking But by the Opinion of the other two of the Plaintiff had his full Costs Anonymus IT was moved for a Prohibition to the Ecclesiastical Court to stay a Suit for Dilapidations by the Successor against the Executor of the former Incumbent upon the late General Act of Pardon for that all Suits for Offences of Incest Simony or Dilapidations are excepted in the Act unless commenced and depending before such a Day viz. the 20th day of March last and this Suit was commenced since The whole Court upon Hearing of Counsel at the Bar and Consideration of the Matter conceived that the Parliament never intended to take away the Successors Remedy for Dilapidations for that would be to ease the Executor of the last Incumbent who was the Wrong-doer and translate the Charge to the Successor But they would intend this Exception of such Suits as might be in the Ecclesiastical Court ex Officio against the Dilapidator himself to punish it as a Crime against the Ecclesiastical Law and to pardon it unless there were Prosecution before the Day aforesaid And so the Prohibition was denied Nota If a Sheriff of a County in a City be in Contempt the Attachment is to go to the Coroner and not to the Mayor or Chief Officer of the Corporation in such City or Town And if the Offender be out of his Office the Attachment shall be directed to the New Sheriff Gawden versus Draper IN an Action of Covenant the Plaintiff declared upon a Deed of Covenant by Indenture made between the Defendant and him whereby the Defendant Covenanted with the Plaintiff That Sarah Wife of the Defendant should be permitted to live separate from the Defendant until the Defendant and the said Sarah by Writing under their several Hands attested by two Witnesses should give notice to each other that they would again Cohabit And further Covenanted That he the Defendant during the Coverture and until such Notice should be given of their desires to Cohahit as aforesaid would pay to the Plaintiff for the Maintenance of the said Sarah 300 l per Annum at four Quarterly payments and sets forth That the said Sarah form the Date of the said Indenture to the time of the said Suit did live separate from the Defendant and no notice of Cohabitation as aforesaid had been given during that time of either side And for 75 l for one Quarters payment of the said 300 l which was to be paid at our Lady-day last the Action is brought The Defendant pleads in Bar That after the Indenture aforesaid and before the Action brought another Indenture was made between the Defendant and the said Sarah his Wife of the one part and the Plaintiff of the other part which the Defendant ê“fert hic in Cur ' reciting the said first Indenture and further reciting That the Defendant and the said Sarah did then intend to Cohabit and did at that time Cohabit and expressing that it was the true intent and meaning of all the said parties to the said Indenture produced ut supra by the Defendant That so long as the Defendant and the said Sarah should agree to Cohabit the said Annual payment should cease And the Plaintiff did by the said last mentioned Indenture by the appointment of the said Sarah as appointed by her being party thereunto and her Signing Sealing and
c. To this the Plaintiff Demurred First This is a Grant by Richard to Nicholas and so void without Attornment or Enrollment and being intended to Enure as a Grant shall not work as a Covenant to stand seised Secondly The Defendant hath pleaded it as a Grant and what he saith after in the Avowry to set forth how the Deed should work is vain and idle As to the first Point the Court held this Deed having no Execution to make it work as a Grant it shall operate as a Covenant to stand seised Mod. Rep. 178. Sanders and Savins Case A Grant of a Rent to his Kinsman for Life there being no atturnment it raised an use by way of Covenant but the pleading the Court held impertinent for instead of pleading of this Grant according to the effect of it in Law viz As a Covenant to stand seised He sets forth the matter in Law and haw it ought to be construed and because they would not countenance such vain and improper pleading the Case was adjourned Biddulph versus Dashwood IN an Action of Debt for 90 l The Plaintiff declared quod cum recuperasset coram Justiciariis de Banco apud Westm ' 90 l ê“ dam ' against the Defendant prout ê‘ Record process ' quae Dom ' Rex Regina coram eis causa Erroris in eisd ' corrigend ' Venire fac ' quae in Cur ' dicti Domini Regis Dom ' Reginae in pleno robore vigore remanent minime revocat ' plen ' apparet per quod actio accrevit c. To this the Defendant Demurred supposing that the Iudgment was suspended so far that an Action of Debt could not be brought upon it pending the Writ of Error But the Court held if the Defendant could insist upon this he ought not to have Demurred but to have pleaded Specially and demanded Iudgment if the Plaintiff should be answered pending the Writ of Error So Iudgment was given for the Plaintiff Termino Sancti Hillarij Anno 2 3 W. M. In Communi Banco Anonymus TRespass quare clausum fregit diversas petias Maheremij cepit c. Iudgment by default upon the Writ of Enquiry returned The Iudgment was stayed for the incertainty of the Declaration James Tregonwell Vid. Executrix of John Tregonwell against Sherwin IN an Action of Debt for Rent the Plaintiff declared in this manner That Frances Fen and John Tregonwell the 23 of Jan. 24. Car. 2. did Demise to the Defendant certain Lands for 21 years reserving 20 l per Annum to the said Frances during her Life and after her Decease to the said Tregonwell his Executors and Administrators and set forth Frances to be Dead and that the said Tregonwell being possessed of the Reversion of the Premisses pro Termino Annor ' adtunc adhuc ventur ' the 4 of May 30 Car. 2. made his Will and thereof made the Plaintiff his Executrix and died and that she took the Executrixship upon her and by vertue thereof became possessed of the said Reversion and for 30 l for a year and halfs Rent accruing after she brought the Action The Defendant pleaded an insufficient Plea and the Plaintiff Demurred And Iudgment was given against the Plaintiff upon the insufficiency of the Declaration for there is no good Title set forth to the Plaintiff for the Rent for t is not said that Tregonwell was at the time of the Lease possessed of the Lands pro Termino Annorum c. but that at the time of making his Will and that might be upon the creating of such Estate since and the Rent might not belong to the Reversion And tho' it was said his reserving the Rent to his Executors carried an intendment that he had a Term for years only yet that was held not to be sufficient and Iudgment was given for the Defendant Sir Lionel Walden versus Mitchell Hunt ' ss JOHANNES MITCHELL nuper de Huntington in Com' praed ' Maulster Attach ' fuit ad respondend ' Action for Words viz. Papist and Pensioner spoken of one who had been a Member of Parliament â—n the time of King Charles the Second Lionello Walden Mil ' de placito Transgr ' super Casum Et unde idem Lionellus per Robertum Clarke Attorn ' suum queritur quare cum praed ' Lionellus bonus verus pius fidelis honestus subditus ligeus domini Regis dominae Reginae nunc existit ac ut bonus verus pius fidelis honestus subditus ligeus eorundem domini Regis dominae Reginae nunc ê“genitorum suorum à tempore Nativitat ' suae hucusque se habuit gessit gubernavit bonorumque nominis famae conversaconis gesture tam in t ' quamplurimos venerabiles fideles subdit ' dictorum domini Regis dominae Reginae nunc ê“genitorum suorum quam omnes vicinos suos per tot ' tempus praed ' habit ' not ' reputat ' fuerat per tot ' tempus praed ' The Plaintiff a Protestant fuit adhuc existit verus professor Religionis Protestan ' Reformat ' per leges hujus regni Angliae stabilit ' ill ' sincere proficiend ' exercen ' Divina Servitia in Ecclesia in paroch ' sua seu aliqua Ecclesia capello aut alio usuali loco Communis precacon ' secundum usum Ecclesaie Anglicanae lect ' semper frequentans audiens Ecclesiae Romanae nunquam reconciliat ' And never a Professor of the Romish Religion fuit neque Religionem Romanam unquam profeffus fuit neque ad Missam unquam ivit Cumque praed ' Lionellus fuit extit un ' Burgens ' That he hath been a Member of Parliament sive Membr ' Parliamenti pro Villa de Huntingdon ' in Com' Hunt ' in Parliamento domini Caroli secundi nuper Regis Angi ' inchoat ' tent ' apud Westm ' in Com' Midd ' octavo die Maijanno regni sui decimo tertio ut hujusmodi Burgens ' sive Membr ' Parliamenti per tot ' idem Parliament ' usque dissolucon ' inde juste fidelit ' And did his Duty therein justly deservivit debitum fiduciae officij sui Burgens ' Membr ' ejusdem Parliamenti per tot ' idem tempus performavit Idemque Lionellus pro performacone fiduciae officij sui praedict ' Burgens ' sive Membr ' Parliamenti praedict ' alijs Causis diversa itenera ad Civitat ' London ' Westm ' à Villa Hunt ' praedict ' fecit performavit praed ' tamen Johan ' praemissorum non ignarus set machinans malitiose intendens eundem Lionellum non solum in bonis nomine fama credenc ' reputacone ' suis praedict ' multiplicit ' laedere detrahere penitus distruere verum etiam ipsum Lionellum infra poenas poenalitat ' contra Papistas subdit '
requisicon ' praedict ' Rogeri Flexman ac per mandat ' Justic ' praed ' de novo apponuntur Quorum nomina Panello infrascript ' affilantur secundum formam Statut ' in hujusmodi casu edit ' provis ' ac Jur ' sic de novo apposit ' videlicet Hugo Bidwell Johannes Crauscombe VVillielmus Avent Johannes Sprye exact ' silit ' ven ' Qui ad veritatem de infracontent ' simulcum al' Jur ' praedict ' prius impannelat ' jurat ' dicend ' elect ' triat ' jurat ' dicunt super SacrumÌ„ suum quod praed ' Johannes Chapman est culpabilis de praemiss infrascript ' prout praed Verdict for the Plaintiff Rogerus Flexman interius inde versus eum queritur Et assidunt dampnum ipsius Rogeri Flexman occone inde ultra mis ' custag ' sua per ipsum circa sectam suam in hac parte apposit ' ad un ' denar ' Et pro mis ' custag ' The Judgment ill ' ad quadragint ' solid ' Ideo cons ' est quod praed ' Rogerus Flexman recuperet versus praefat ' Johannem Chapman dampna fua praedict ' per Jur ' praed ' in forma praed ' Asses necnon sexdecim libras pro misis custag ' suis praed eidem Rogero per Cur ' dicti domini Regis nunc hic ex assensu suo de IncroÌ„ adjudicat ' Quae quidem Dampna in toto se attingunt ad octodecim libras un ' denar ' Et praed ' Johannes in misericordia c. The Placita in the Exchequer Chamber Placita in Camera Scaccarij apud Westm ' coram Edw ' Atkyns Mil ' Capital ' Baron ' de Scac ' dnÌ„i Regis de gradu dela Coife Thoma Jenner Mil ' Richardo Heath Thoma Powell Mil ' tribus al' Baron ' de Scaccario dnÌ„i Regis de gradu de la Coife necnon Thoma Street Mil ' Edw ' Lutwich Mil ' Christof Milton Mil ' tribus al' Justic ' dnÌ„i Regis de Communi Banco vicesimo sexto die Maij anno regni domini Jacobi secundi Dei gratia Angliae Scot ' Franciae Hiberniae Regis Fidei defensor c. quarto Ad quem diem hic ven ' praedict ' The General Errors assigned Johannes Chapman per Johannem Lugg Attorn ' suum Et dic ' quod in Record ' ê“cess praedict ' ac etiam in reddicone Judic ' praed ' manifest ' est errat ' in hoc videlicet quod Judic ' praed ' in foima praed ' reddit ' reddit ' existit pro praedict ' Rogero versus praefat Johannem Chapman ubi per legem terrae hujus regni Angliae idem Judicium reddi debuisset pro praed Johanne Chapman versus praed ' Rogerum Ideo in eo manifeste est errat ' Et petit quod Judicium praed ' ob Errores praedict ' alios in Record ' ê“cess praed ac in reddicone Judicij praed existen ' revocetur adnulletur pro nullo penitus habeatur quod ipse ad omnia quae occone Judic ' praed amisit restituatur c. And a Scire facias ad audiendum Errores prayed Et petit breve domini Regis Vic' Devon ' dirigend ' ad praemuniend ' praefat ' Rogero essendi hic auditur ' Record ' ê“cess praed ' ei conceditur c. And awarded Ideo Praecept ' est Vic' quod probos c. Scire fac ' praefat ' Rogero quod sit hic die ê“x ' futur ' auditur ' Record ' ê“cess praedict ' si c. Et ulterius c. Idem dies dat' est eidem Johanni Chapman hic c. Et praedict ' Rogerus Flexman dic ' quod nec in Record ' ê“cess praedict The Defendant in the Errors appears and pleads in nullo est Erratum nec in reddicone Judic ' praed ' in ullo est erratum Et petit etiam quod Cur ' domini Regis dominae Reginae hic procedat ad examinacon ' tam Record ' ê“cess praed ' quam praed ' causae per ip mÌ„ Johannem Chapman superius ê‘ erroribus assign ' allegat ' Et quod Judic ' praed ' in omnibus affirmetur Et quia Cur ' dicti domini Regis dominae Reginae hic se advisare vult de super praemiss prius quam Judic ' inde reddat dies dat' est partibus praed ' usque diem Sabbati prox ' futur ' de Judicio suo inde audiend ' eo quod Cur ' domini Regis hic inde nondum c. Chapman versus Flexman IN an Action upon the Case in B. R. the Plaintiff declared That one Jo. Specot 2 Novembr ' 1685. diu ante was seiseo of the Mannor and Burgh of Torrington and of seven antient Water Corn Mills sufficient to grind the Corn of the Inhabitants within the Mannor and Burgh aforesaid for their necessary uses and that the Plaintiff was the day aforesaid continue postea Tenant at Will to the said Specot of the said seven Mills and had the Toll of Corn which was ground in the said Mills during the time aforesaid habere debuisset And whereas all the Inhabitants of any antient Messuage within the Mannor and Burgh aforesaid de jure debuerunt molere ad praed ' septem molend ' aliqua sive aliquod eorum omnia omnimoda grana sua infra Mess ' praed ' expendit ' ac solvere pro molitura inde rationab tolnetum And whereas the said Chapman the day aforesaid diu antea was Occupier of an antient Messuage within the Mannor and Burgh aforsaid the said Chapman the 2 of November c. Erected a certain Mill within the Mannor and Burgh aforesaid and within his said Messuage wherewith he did grind divers viz. 1000 Bushels of Malt which he spent in his said House by Reason whereof the said Flexman lost the benefit of the Tall of the said Malt which he should have had ad damnum c. The Defendant pleaded not Guilty and a Verdict was found Plaintiff and Judgment that he should Recover in B. R. And the Error now insisted upon was That the Plaintiff had not set forth any Title in his Declaration to the Toll or any Custom or Prescription for the Inhabitants of those antient Houses to bring their Corn to be ground there But the Opinion of all the Court the Judgment given in the Kings Bench was affirmed for t is sufficient to say in this possessory Action that during the time aforesaid he had and ought to have the Toll and that the Inhabitants debuerunt molere vide the Case of Dent and Oliver in 2 Cro. 43.122 vide Rastall Tit. molin ' in Action sur le Case fol. 90. F. N. B. 123. for an antient Water-course said currere consuevit Note That of Rastall cited by Pollexfen
qm ' pro mis ' custag ' fuis per ipsos circa sectam suam in hac parte apposit ' Writ of Inquiry awarded sustinuer ' Ideo praecept ' est Vic' London ' praedict ' quod per Sacrum ' proborum legalium hominum de Balliva sua diligent ' inquir ' quae dampna iidem Stephanus Petrus tam occone praemissorum praedict ' qm ' pro mis ' custag ' suis per ipsos circa sectam in hac parte apposit ' sustinuer ' Inquisicon ' qm ' c domino Regi dominae Reginae apud Westm ' praedict ' die Veneris prox ' post Craftin ' sanctae Trinitatis sub Sigill ' c. Sigill ' c. mittant una cum Brevi dicti domini Regis dominae Reginae eis inde direct Idem dies est praefat ' Stephano Petro ibidem c. Ad quem diem coram domino Rege domina Regina apud Westm ' praedict ' ven ' praed ' Stephanus Petrus per Attorn ' suum praed ' Et Vic' London ' praed ' videlicet Johannes Fleet Mil ' Humfrid ' Edwin Mil ' retorn ' quandam Inquisicon ' The Inquisition retorned coram eis vicesimo quarto die Maij anno regni domini Willielmi dominae Mariae nunc Regis Reginae Angl ' c. primo apud Guild-Hall scituat ' in paroch ' sancti Laurencij in Veteri Judaismo in Warda de Cheape ejusdem Civitat ' Virtute Brevis praedict ' capt ' per Sacrum ' duodecim proborum legalium hominum de Balliva praefat ' Vic' per quam compert ' exist ' quod praedict ' Stephanus Petrus sustinuet ' dampna occasione praemissorum praed ' ultra mis ' custag ' sua per ipsos circa sectam suam in hac parte apposit ' ad sexcent libr ' Damages found Judgment for the Plaintiff pro mis ' custag ' ill ' ad vigint ' sex solid ' octo denar ' Ideo cons ' est quod praed ' Stephanus Petrus recuperent versus praefat ' Lancelot ' dampna praed ' per Inquisicon ' praed ' superius in forma praed ' compert ' necnon trigint ' sex libr ' tresdecim solid ' quatuor denar ' pro mis ' custag ' suis praed eisdem Stephano Petro per Cur ' dictorum domini Regis dominae Reginae nunc hic ex assensu suo de Incrō adjudicat ' Quae quidem dampna in toto se attingunt ad sexcent ' trigint ' octo libr ' Et praed ' Lancelot ' in misericordia c. Judic ' sign ' sexto die Junij MDCLXXXIX General Errors assigned Cramlington versus Evans and Percival IN a Writ of Error upon a Judgment in the Kings Bench where Evans and Percival declared against the Defendant in an Action upon the Case that in the Realm of England viz. in the Parish of St. Mary le Bow London there is and hath been time out of mind a Custom amongst Merchants and other persons viz. That if a Merchant or other person makes a Bill of Exchange according to the Vsage of the Merchants directed to a Merchant or other person resident in England requesting the person to whom directed to pay the Sum of Money in the Bill mentioned at the time therein limited to the person in the Bill named or his Order for the use of any other person in such Bill mentioned for the value received of the person mentioned in such Bill and to place it to account as by advice and if the person to whom such Bill is directed accepts it according to the Vsage of Merchants and if that person who in such Bill is appointed to receive such Money by an Indorsment upon the said Bill orders the payment of such Money to any other person or persons or their Order for the value in the Indorsment mentioned to have been received of the person named in such Indorsment if he that accepted such Bill doth afterwards refuse to pay it to him named in the said Indorsment then he which made and directed the Bill upon Notice of such Refusal is chargeable to pay the Money to the person or his Order to whom by the Indorsment it was appointed to be paid Then they say That Cramlington the 10th day of November Anno Domini 1685. at Newcastle directed a Bill of Exchange of the same Date to one William Ryder requesting him at 25 Days after the Date of the said Bill to pay to Thomas Price or his Order 500 l for the use of Felix Calvert Esq for the value received of Francis Clever and to place it to account prout per advisamentum and on the 14th of the said November it was shewn to the said Ryder who then according to the Vsage of Merchants accepted it and that the said Price upon the said 14th day of November for the value received of them the said Evans and Percival by an Indorsment upon the said Bill according to the Vsage of Merchants ordered the Contents thereof to be paid to the said Evans and Percival and that the said Ryder afterwards viz. the 5th day of December in the year aforesaid was requested by them the said Evans and Percival to pay to them the said Money according to the aforesaid Indorsment and the said Ryder refused to pay it Of all which the said Cramlington had Notice viz. upon the 1st day of January in the same year and by reason thereof and of the Custom aforesaid he became charged with the payment of the said Money to them the said Evans and Percival and thereupon the said Cramlington in consideratione praemissorum did promise to pay the said 500 l to the said Evans and Percival c. but not minding his Promise had not paid the said Money licet saepius requisitus c. To this the Defendant Cramlington puts in a Plea in Bar to the effect as followeth viz. Protestando that there was no such Custom as set forth in the Declaration pro placito dicit that long before the Action brought Felix Calvert in the Declaration mentioned was one of the Commissioners of Excise and upon the 10th of November Anno primo Domini Regis nunc by the hands of Clever in the Declaration mentioned did pay 500 l of the Money arising to his Majesty upon the Duty of Excise and at the Request of the said Calvert the Defendant upon the some 10th of November made and directed the aforesaid Bill of Exchange to the said William Ryder to pay to the said Price 500 l for the use of the said Calvert as in the Declaration is set forth And he further saith That the said Calvert upon the 24th day of the said November was indebted to the King upon the Account aforesaid in 5000 l and upwards prout per Recordum Scaccar ' c. superinde taliter processum fuit in Cur ' Scaccar '
Mesuages Lands and Premisses And to the intent that the Contingent Remainder by the said Will limited to the Heirs Males and Females of the Body of the said Robert Durdant might be extinguished and destroyed he the said John Higden by the appointment of the said Robert Durdant did surrender his Estate in the Premisses to the said Gideon Durdant and by the said Deed it was Covenanted That the said Robert Durdant John Higden and Gideon Durdant should levy a Fine of the Premisses which should be to the use of the said John Higden and his Heirs They find that a Fine was levied accordingly in Easter Term 15 Car. 2. They find That Robert Durdant died on the 19th of August 20 Car. 2. and that John Higden after in 20 Car. 2. upon a valuable Consideration in money enfeoffed John Burchet of the Premisses and that the said Burchet died the 1st day of October in the same year and that the Premisses from him came to the Defendant Burchet who entred into the Premisses and became seised prout lex postulat And they find That Robert Durdant as well at the time of the said Will making as at the death of the said Henry Wicks had an only Son called George Durdant who was also Godson to the Testator and that the said George Durdant died and that William Durdant Lessor of the Plaintiff was his Son and Heir and entred and made the Demise prout c. si super totam materiam c. Vpon his Special Verdict Iudgment was given in the Kings-Bench for the Plaintiff And the Court here afterwards having heard the Case thrice Argued did affirm the Iudgment And the first Point spoken to was Whether the Estate did not execute in Robert Durdant by the Statute of 27 H. 8. of Uses For if so he would be seised of an Estate tail and then Burchet would have a good Title It is clear Lands may be Devised to the use of another as in Popham 4. 'T is true a Devise implies a Consideration and will lodge the Estate in the Devisee if no Vse be limited upon it Here it is Devised to John Higden and his Heirs upon trust and confidence that he should permit and suffer c. The word Trust is proper for the Limitation of an Use and the Estate shall Execute unless it be first limited to the use of a man and his Heirs in Trust for another there the Intention is that it should be only a Trust and here Robert Durdant is restrained only from doing waste which shews that he intended he should take an Estate or else he could not commit waste But Lands may be Devised to an Use tho' the Statute of Wills is since the Statute of Uses Mo. 107. 1 Cro. 343. The Court over-ruled this Point and Resolved it to be only a Trust in Robert Durdant for the words are That Higden should permit him to take the profits which shews that the Estate was to remain in Higden And for the restraint of waste it was proper for Higden was to permit Robert Durdant to have the possession but the Testator would not have him to commit waste or spoil The second and principal Point was Whether the Remainder to the Heirs of Robert Durdant now living did vest in George Durdant or was a Contingent Remainder It was much urged That one could not take in the Life of his Ancestor by the name of Heir for nemo est haeres viventis in the 1 Co. Archer's Case A Devise to Robert Remainder to the next heir Male of Robert and to the heirs Males of the Body of that heir Male this is Resolved to be a Contingent Remainder during the Life of Robert and it was said in that Case that the next heir Male is as much a designation of a person as an Heir now living He that will take by purchase by the name of Heir must be a compleat Heir to all intents Co. Littl. 24. b. 2 Leon 70. Chaloner and Bowyer 's Case upon a Devise But it was Resolved that this was a Remainder vested in George Durdant for the Remainder being limited to the Heirs of the Body of Robert Durdant now living and George being found to be then the only Son it was a sufficient designation of the person and as much as if it had been said to his Heir apparent and such an one is called Heir sometimes in proceedings in Law where the greatest strictness of phrase is used as in Writs of Ravishment of Ward Quare filium haeredem rapuit 2 Inst 439. Westm 2. cap. 35. 25 Ed. 3. the Statute of Treasons Treason to kill the Heir of the King The third Point was Whether George Durdant took an Estate Tail or only an Estate for Life for it was Objected that if the words Heirs of the Body were taken for the description only of the person who should take then he must take only for Life But the Court held that they would make an Estate Tail for Heirs is nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number A Devise to one for life Remainder to the heir Males of his Body for ever this is an Estate Tail in the Devisee Pawsey and Lowther in Rol. Abr. 2. Part 253. But in case the first words viz. Heirs of the Body now living would carry but an Estate for Life to George Durdant yet the subsequent words would make an Entail in him viz. and to such other Heirs Male and Female as he should hereafter happen to have of his Body this would clearly vest an Entail in George he being Heir of the Body of Robert and surviving Robert So the Judgment was affirmed Sed Nota as to the second Point the Lord Chief Baron Atkyns and Justice Powell seemed to be an Opinion that the Remainder was Contingent But in regard the Point had been upon a Writ of Error brought in the House of Lords upon a Judgment given in the Kings-Bench in another Case upon the same Will adjudged to be a Remainder vested they conceived themselves bound by that Judgment in the House of Lords Paschae Anno 2 Willielmi Mariae Memorandum BY an Order of the King and Council 1 Willielmi Mariae the Judges were Ordered to meet and all of them except Gregory Eyre and Turton were assembled at the Lord Chief Justice's Chamber to give their Opinion concerning Colonel Lundy who was appointed Governour of London Derry in Ireland by the King and Queen and had endeavoured to betray it and afterwards he escaped into Scotland where he was taken and brought Prisoner into England and Committed to the Tower Whether admitting he were guilty of a Capital Crime by Martial Law committed in Ireland he might be sent thither from hence to be Tryed there in regard of the Act of Habeas Corpus made Anno 31 Car. 2. which Enacts That no Subject of this Realm shall be sent over Prisoner to any Foreign parts But
void if Livery had been made It was Resolved not to enure as a Covenant to stand seised because the Deed was void in the frame of it The Lords affirmed the last Judgment given by the Lords Commissioners c. and held that no Vse would arise With the concurrent Opinion of Baron Nevil Justice Eyre and Justice Ventris THE ARGUMENT OF Mr. Iustice Ventris IN THE EXCHEQUER-CHAMBER UPON A Writ of ERROR out of the Kings-Bench Christopher Dighton Gent Plaintiff versus Bernard Greenvil Esq Defendant THE Plaintiff brought a Writ of Error upon a Judgment in an Action of Trespass and Ejectment in the Kings-Bench given for the Defendant where the Plaintiff declared upon the Demise of Theophilus Earl of Huntington of a Moeity of the Mannor of Marre and of divers Messuages Lands and Tenements lying in Marre Bentley in Baln in the County of York and also of the Demise of Robert Earl of Scarsdale of the other Moiety of the said Mannor and of the Demise of Elizabeth Lewis of the entire Mannor of Marre and that by Vertue of these several Demises he entred and was possessed until ejected by the Defendant Vpon Not Guilty pleaded the Jury found the Defendant Not Guilty of the Trespass and Ejectment upon the Demise of Elizabeth Lewis and as to the Demises of the several Moieties by the said Earls they found a Special Verdict to this effect Viz. That Thomas Lewis the 9 of April 20 Jac. 1. before the Mayor of Lincoln acknowledged a Statute Merchant to William Knight for 1200 l to be paid at the Feast of St. Philip and Jacob then next following and that the said Money was not paid at the day and that William Knight the 16 of November 1629. made his last Will and one Isaack Knight his Executor and died that Isack proved the said Will and in Trinity Term 20 Car. 1. sued a Cap. si laicus out of the Common Pleas against the said Thomas Lewis directed to the Sheriff of Lincoln returnable in Tres Trin. who returned quod laicus fuit sed not fuit inventus in balliva sua upon which issued a Writ hearing Teste the 7 of July 23 Car. 1. Vic Eborum to estate the Goods and Chattels and all the Lands and Tenements of the said Thomas Lewis tempore Recognitionis debiti praed ' returnable Mense Michael upon which the said Sheriff returns an Inquisition taken the 11 of October then next following whereby Thomas Lewis was found seised of divers Lands and Tenements parcel of the Lands in the Declaration mentioned to be demised by the said Earls which he the same day caused to be delivered to the said Isack to hold by Extent as his Free-hold until he should be satisfied of his said Debt with his Damages and Costs They further find That the said Thomas Lewis and one John Levet and Thomas Lever the 20 of Novemb. 13 Car. 1. acknowledged a Recognizance in nature of a Statute Staple before the Lord chief Justice Brampston to Richard Gerrard for 1000 l payable at Christmass then next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in the Chancery by John Gerrard surviving Executor of Richard Gerrard the 22 of June 24 Car. 1. there issued a Cap. si laicus and an Extent against the said Thomas Lewis to the Sheriff of the County of York retainable in Craft animar ' prox ' at which day the Sheriff returned all Inquisition by him taken whereby it appeared that the said VVilliam Lewis tempore Recogn ' debiti praed ' was sessed in Fee of the Mannor of Marre and of divers Messuages Lands and Tenements being the same Lands in the Declaration mentioned to be devised by the said Earls and the 29 of Novemb. 24. Car. 1. a Liberate was sued out returnable in quinden ' Hillar ' to the said Sheriff who returned that the 29 of Novemb. 24. Car. 1. he had caused to be delivered the said Mannor Messuages Lands and Tenements to the said John Gerrard to hold as his Free hold until he should be satisfied his said Debt will his Damages and Costs They further find That Thomas Lewis and Thomas Lever the 27 of May 15 Car. 1. acknowleged a Recognizance in nature the of a Statute Staple before the Lord Chief Justice Brampston to Sir Gervase Elwaies and William Burroughs for 5000 l payable at the Feast of St. John the Baptist next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in Chancery by the said Sir Gervase Elwaies and William Burroughs the 10 of Decemb. 15 Car. 1. there issued out a Cap. si laicus and an Extent against the said Thomas Lewis directed to the Sheriff of the County of York returnable in Quinden ' Hill prox at which day the Sheriff returned on Inquisition by him taken whereby it appeared that the said William Lewis tempore Recogn ' debiti praed ' was seised in Fee of a Capital Messuage in Marre and of divers Messuages Lands and Tenements being the same Lands mentioned in the Declaration to be demised by the said Earls and that the 10 of Febr. 15 Car. 1. a Liberate ' was sued out returnable in Quidden ' Pasch to the said Sheriff who returned that he had caused to be delivered the said Lands and Tenements to the said Sir Gervase Elwaies and William Burroughs to hold as their Free hold until they should be satisfied the said Debt with their Damages and Costs They find that Thomas Lewis was seised of all the Lands mentioned in the said several Inquisitions at the respective times of his acknowledgment of the said Statute and Recognizance They find that the 15 of July 1651. Isaack Knight and John Gerrard by their respective Deeds granted their said several extended interests to one Edward Lewis by vertue whereof the said Edward Lewis became possessed of the Mannor and the Tenements praed Edwardo sic possessionat existente praedictoque Thoma Lewis de Manerio omnib ' premissis seisit ' existen ' in actual reali possessione inde the said Thomas Lewis by his Indenture of Lease and Release dated the 25 and 26 of May 1657. for 4000 l conveyed the said Mannor and Premisses to John Lewis and his Heirs in which there is a Covenant to Levy a Fine before the end of Trinity Term then next ensuing and that accordingly in Trinity Term 1657. The said Thomas Lewis did Levy a Fine come ceo with Proclamations of the said Mannor and Premises to the said John Lewis to the uses in the said Indenture mentioned by vertue whereof the said John Lewis was seised in Fee of the said Mannor and Premises And that John Lewis being thereof so seised the 21 day of July 1670 made his last Will and Testament in Writing and thereby devised the said Mannor and Tenements to Edward Lewis and the Heirs Males of his Body and for want of such Issue to his
a Scotishman Antenate being Naturalized by Act of Parliament in Ireland can Inherit Lands in England 2 Ne exeat Regnum Granted in Chancery to stop one from going beyond Sea to avoid a Sentence in the Ecclesiastical Court 345 Nonsuit The Plaintiff Nonsuited in Ejectment after Evidence where two Defendants and one appears to confess Lease Entry c. and the other not the Plaintiff shall pay Costs but quaere how to be divided 195 Notice See Chancery Conveyance Mortgage If a Man pleads a Valuable Consideration in Chancery to save his Estate from a Judgment he must also set forth That he had no Notice of the Judgment 361 O Obligation A Penalty may be recovered in an Action of Debt upon a Bill Obligatory tho' it be not drawn properly as a Penal Bill 106 Occupant Occupancy favoured in Chancery 364 Office Where the Archdeacon forfeits his Right to grant the Office of his Register by the Stat. 5 E. 6 c. 16. against the Sale of Offices whether the King or Bishop shall take advantage of the Forfeiture 188 213 267 A Dissenter that hath not received the Sacrament of 12 Months before may plead the Stat. 13 Car. 2. Stat. 2. cap. 1. to excuse him from serving Offices in Corporations 247 248 Original See Writs What Original Filing within time shall be sufficient to prevent the pleading the Statute of Limitations 193 259 Whether in the Common Pleas an Original in a Clausum fregit be sufficient to warrant a Declaration in an Assumpsit 259 Outlawry A Man in Prison ought not to be Outlawed by him who Imprisoned him 46 Action on the Case will not lye for the Party who hath an Outlawry agaist a Sheriff who neglects to extend the Goods of the Outlaw upon the delivery of a Writ of Capias Vtlagatum for that it is the King's loss 90 Whether Outlawry may be pleaded in Bar to an Assumpsit upon a Quantum meruit 282 Oxford See By-Law The Priviledge of the University not allow'd to a Townsman so as to excuse him from Office who keeps a Shop and follows a Trade tho' he be Matriculated and Servant to a Doctor 106 Priviledge not allow'd to a Member of this University in a Suit in Chancery 362 P Pardon SUits by Successor against Executor for Dilapidations not pardon'd by the General Pardon otherwise of Suits ex Officio against the Dilapidator 216 Parliament No Action lies against the Chief Officer of a Corporation for a Double-Return of a Burgess the Common Pleas having no Jurisdiction of this Matter 37 Peace The King cannot discharge a Recognizance taken for Surety of the Peace but after it is broken he may 131 A Gentleman said to be a Member of the House of Commons bound to the Peace for Challenging one of the King's Witnesses to Fight 317 Plantation Tho' a Plantation be an Inheritance yet being in a Foreign Country 't is look'd upon as a Chattel to pay Debts and a Testamentary thing 358 Pleading See Baron and Feme Covenant Intent Scire facias Copyhold What shal be held a Double Plea and what not 68 198 Trespass for carrying away diversa onera equina of Gravel naught for incertainty 73 Want of the Word alio or aliis in a Declaration where several mention is made of things of the same nature yet good enough 78 For the Defendant to traverse Matter not alledged good Cause for the Plaintiff to demur 79 If a Judgment and Execution be pleaded in an Inferiour Court not of Record the Proceedings ought to be set forth at large and not sufficient to say taliter processum fuit also it ought to be set forth That the Cause of Action did arise within the Jurisdiction 100 In a Prescription for Priviledge tempore quo non exstat memoria good enough tho' the Course be to say à tempore cujus contrarium memoria hominum non existit 130 Tho' by Course of the Court if a Defendant lye in Prison two whole Terms without any Declaration put in he may get a Rule to be discharged yet if a Declaration be afterwards delivered and Judgment thereupon 't is a good Judgment and the Bail formerly given will be liable 143 Where Freehold Lands were pleaded to pass by Surrender according to Custom the Special Custom must be set forth 144 Where the Writ contains more than is Declared for this is a Variance not aided by the Verdict and Judgment arrested 153 Debt upon Bond Condition'd That the Husband shall permit the Wife to dispose of her Personal Estate c. it is not sufficient for the Defendant to plead quod Conditio nunquam infracta fuit and put the Plaintiff to assign a Breach but the Defendant must shew forth That he hath perform'd the Condition 156 Where an Action of Trespass brought for the same Matter in another Court may be pleaded in Bar to an Action of Trover 169 170 In Trespass quod duas acras terrae fod subvert asportavit Judgment stayed because the Declaration doth not express the quantity of Earth carried away for the two Acres relate only to the Ground digged 174 The Plaintiff Declares for Assault Battery Wounding and Imprisonment the Defendant in his Plea takes no notice of the Battery naught 193 Plea in Abatement That the Plaintiff was dead before the Action brought where good 196 Where preadict is necessary and where not 197 Where a Traverse that might have been omitted is Cause of Demurrer 212 Doubleness in a Declaration cured by Answering 222 Day of the Week where material ought to be set forth in Pleading for the Court are not obliged to consult the Almanack 248 Tempore dimissionum where it should be temporibus dimissionum naught 253 254 271 Super Acclivitatem de Hampsted which is a description of a Scituation whether it be a Vill or Lieu conus sufficient for a Jury 254 272 Diversas petias Maheremij cepit c. naught for the Incertainty 262 Where the Defendant pleads an Insufficient Plea the Plaintiff shall make no Advantage of that upon Demurrer if his own Declaration be naught but Judgment will be against the Plaintiff 262. As where an Executor sues for Rent and does not sufficiently Intitle his Testator to the Estate demised ibid. Plenam potestatem Jus Titulum ad Praemissa dimittend ' and does not set forth what Estate he had whether in Fee or other Estate not good upon a Demurrer 271 Houses are set forth in Pleading to lye in Parochia praedicta and two Parishes are named before naught for the Incertainty 278 Traverse impertinent where the Matter is confest and avoided 283 No General Rule That a Matter cannot be pleaded specially which may be given in Evidence upon a General Issue and in what Cases it may 295 Vid. infra Statut. 1 W. M. cap. 4. Presumption Presumptions of Law stand as strong till the contrary appears as an express Declaration of the Party 208 Priviledge Whether the Warden of the Fleet shall have a Writ
Tenant in Tail and levying of a Fine there is an Instantaneous Fee in him out of which the new Estate Tail is supposed to be created and that cannot hold bring derived out of a Fee subject to the Forfeiture by Relation but this Point was not touched by the Judges for that they were fully agreed upon the other Point Beasly's Case HE was taken in Execution taken a Recognizance of Bail and he made it appear to the Court that he never acknowledged the Recognizance but was personated by another and thereupon it was moved that the Bail might be vacated and he discharged as was done in Cottons Case 2 Cro. 256. But the Court said since 21 Jac. cap. 26. by which this Offence is made Felony without Clergy it is not convenient to vacate it until the Offender is convicted and so it was done 22 Car. 2. in Spicers Case Wherefore it was ordered that Beasly should bring the Money into Court an be let at large to prosecute the Offender Twisden said it must be tried in Middlesex tho' the Bayl was taken at a Judges Chamber in London because filed here and the Entry is venit coram Domingo Rege c. So it differs from a Recognizance acknowledged before my Lord Hobart upon 23 H. 8. at his Chamber and Recorded in Middlesex there Scire facias may be either in London or Middlesex Hob. rep If a false Bayl be acknowledged it is not Felony unless it be Filed and so held in Timberly's Case The King versus Humphrey's al. AN Indictment upon the Statute of Maintenance and one only found Guilty and it was moved in Arrest of Judgment that seeing but one was found Guilty it did not maintain the Indictment 2 Rolls 81. several were indicted for using of a Trade and said uterque eor ' usus fuit and held not good Sed non allocatur for that in that case in Rolls the using of the Trade by one cannot be an using by the other But this is an Offence that two may joyn in or it may be several as in a Trespass But then it was alledged that the Maintenance was in quodam placito in Cur ' coram Domino Rege pendent ' and not said where the Kings Bench Sate and this was held fatal Termino Sancti Hillarij Anno 28 29 Car. II. In Banco Regis Jay's Case A Mandamus to restore to his place of a Common Council Man in the Corporation of Eye in Suffolk The Return was that he was amoved for speaking of approbious words of one of the Aldermen viz. That he was a Knave and deserved to be posted for a Knave all over England And it was moved that the Return was insufficient for words are not good cause to remove a Man from his place in the Corporation To which it was said that this not a difranchising of him but only removing him from the Common Council as a person not fit to sit there To which Twisden said that his place there could no more be forfeited than his Freedom for he was chosen thereunto by the Custom of the place And Magna Charta is that a Man shall not be disseised de liberis consuetudinibus But he held that words might be a cause to turn out a Freeman as if they were that the Mayor or the like did burn the Charters of the Town or other words that related to the Duty of his place But in the Case at Bar the words do not appear to have any reference to the Corporation wherefore it was ordered that he should be restored The Court said that my Lord Hale held That Returns of this nature should be sworn tho' of late days it has not been used and that it was so done in Medlecot's Case in Cro. Abram versus Cunningham UPon a Special Verdict the Case appeared to be to this effect A. possessed of a Term makes B. Executor who makes three Executors and dies two of them dies and the Will of B. the Executor not being discovered Administration is granted cum Testamento annexo to D. who grants over the Term. The surviving Execcutor never intermeddles but so soon as he had Notice of the Will Refused before the Ordinary and the Point was Whether the grant of the Term in the mean time was good Saunders to maintain it Argued That to the making of an Executor besides the Will there was requisite that the Executor should assent and if the Executor refuses 't is as much as if there never had been any There is no Book which proves the Acts of an Administrator void where there is a Will and the Executor renounces Greysbrook and Foxe's Case in Plowden's Com. is that after Administration granted the Executor proved the Will And so in 7 E. 4. 14. in Dormer and Clerke's Case it was held that where there was an Executor who after refused and Administration committed the Administrator should have all the Rent belonging to the Term in Reversion which accrued after the death of the Testator If an Executor be a Debtor and refuses the Administrator may Sue him Which was denied by Twisden because a Personal Action once suspended is ever so Dyer 372. If one makes an Executor who dies and never proves the Will Administration shall be granted as upon a dying Intestate suppose an Executor de son tort had Judgment against him Shall not there be Execution upon a Term as Assets in his hands Twisden It hath been Doubted whether there could be an Executor de son tort of a Term or whether he were not a Disseisor And by the same Reason it may be granted in the present Case for at least the Administrator here is an Executor de son tort before the Refusal Levins contra Anciently Bona Intestati capi solebant in manus Regis as appears in Hensloe's Case in the 9 Co. And since the Power of the Ordinary hath been introduced it was only to grant Administration upon a dying Intestate 4 H. 7. Pl. 10. If the Ordinary cites the Executor to prove the Will and he Renounces 't is said he may grant Administration which implies that it cannot be before So 21 H. 8. cap. 5. is to grant Administration c. upon a dying Intestate or refusal of the Executor the Interest of the Executor commences before the Probat In 36 H. 6. 8. an Executor commanded one to take the Goods and after the Executor refused before the Ordinary who committed Administration and the Administrator Sued the person that took the Goods who Iustified by the Executor's Command and it was held good And a Relation shall never make an Act good which was void for defect of Power And the Court seemed strongly of that Opinion But Serjeant Pemberton desiring to Argue it the Court permitted him to speak to it the next Term. Et sic Adjornatur And afterwards it was Argued again and Judgment was given for the Defendant per totam Curiam Dunwell versus Bullocke IN an Action of
it could not appear upon the Record but that the Verdict was against the Plaintiff upon the mistake of the Action whereas here it appears upon the Matter at large set forth in the Special Verdict that Judgment was given against the Plaintiffs upon the Merits of of the Cause And the Court were of Opinion that the Plea in Bar was good in this Case but they took the Case of Putt and Royston to be a Case of the same nature For tho' the Issue were General yet in regard of the Averments which in every such Plea there must be it appears to the Court that the Matter was the same as well as here it doth upon the Special Verdict and if it were not the same so that the Plaintiff was barred to the former by mistaking the Nature of his Action the Averment might be traversed Therefore by reason of that Case Adjudged and the Importunity of the Plaintiffs Leave was given by the Court to speak further to the Case the next Term. The Earl of Mountague versus The Lord Preston IN an Action on the Case for the Profits of the Office of Master of the King's Wardrobe the Plaintiff Declared That King Charles the Second in the 23th year of his Reign granted him a Patent to hold the said Office for Life reciting a former Grant thereof to the Earl of Sandwich and the Surrender of that Grant And that the Defendant by colour of a Patent granted to him in the First year of the late King James had entred upon the Office and taken the Profits and had deprived the Plaintiff of the whole benefit and profit of the Office Vpon Not guilty pleaded it came to a Trial at the Bar this Term and it was insisted upon for the Defendant That the Plaintiffs Patent having recited a former Grant that they must prove that Grant to have been surrendred To which it was Answered That if they took advantage of the Recital they must admit all that was recited as well the Surrender as the Grant And of that Opinion was the Court. Then the Defendant produced the Earl of Sandwich's Patent and this the Court held would put the Plaintiff to prove a Surrender And a Surrender was shewn in Evidence accordingly Note It was said in an Action of this Nature that it is not necessary to shew every particular Sum received by the Defendant But it is a good Evidence for the Damage to shew the Profit of the Office communibus annis Anonymus AFter an Extent upon a Statute and a Liberate out of this Court the Writ was Habere fac ' terr' tenementa instead of Liberari facias and it was moved to amend the word Habere in the Writ and to make it Liberari And after divers Motions the Court Ordered the Amendment to be accordingly because it is a Judicial Writ 8 Co. 157. a. 1 Cro. 709. A Writ of Enquiry was awarded to the Sheriffs of London and it was quod Inquirat instead of Inquirant and it was amended Vid. the Case of Walker and Riches 3 Cro. 162. and the Case of Keer and Guyn Hob. 90. but in that Case the Roll was wrong in a very material thing for it was not said in the Elegit the Lands and Tenements of the Defendant Anonymus AN Action of Debt was brought in this Court for a Sum of Money recovered in the Hundred Court and the Defendant was admitted to wage his Law tho' at first the Court doubted Vid. Mo. 276. for a Wager of Law to an Action of Debt brought for an Amercement in a Court Baron Note When the Defendant hath his Hand upon the Book before he is sworn the Plaintiff is to be called and he may be Non-suited The Defendant is to bring his Compurgators but they may be less than Eleven and they are sworn de credulitate Anonymus AN Action was brought for speaking of these words of the Plaintiff He broke my House like a Thief And upon Not guilty pleaded a Verdict was found for the Plaintiff And the Court held the words not to be Actionable Anonymus IN an Action for Words spoken of the Plaintiff in saying He was a Clipper and Coiner After Verdict upon Not guilty pleaded it was moved in Arrest of Judgment that the Words did not charge him with Clipping and Coining of Money and Clipping and Coining might be apply'd to many other things But the Court held the Words to be Actionable in regard of the strong Intendment and such Words are understood by those that heard them to mean Clipping and Coining of Money Anonymus AN Attorney brought an Action for that the Defendant said of him He is a Cheating Knave and not fit to be an Attorney After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Communication of his Profession and the Words did not necessarily relate to his Practice But the Court held the Action would lye for saying That he was not fit to be an Attorney shewed plainly that Cheating Knave had reference to that Anonymus UPon a Motion for a New Trial it appeared that the Solicitor for the Plaintiff who also was an Attorney had wrote two Letters to two of the Jury before the Trial importuning them to Appear and setting forth the Hardships that his Client had suffered in the Cause and how he had Verdicts for his Title The Court set aside the Trial for this Cause and Committed the Solicitor to the Fleet for this Misdemeanor being Embracing of a Jury and before his Discharge made him pay Ten pounds to the party towards the Charges of the Trial. Pretious versus Robinson THe Cause being at Issue in Hillary Term last a Venire was awarded and a Jury Retorned upon it and in Easter Term after another Venire was awarded and a Trial was by a Jury Returned upon the two Venire's Vpon this the Court set aside the Verdict for there was no Authority for the two Venire's so all the Proceedings thereupon are void and not aided by the Statute of 16 Car. 2. Cooke versus Romney AN Action of Covenant was brought against two and it was quod teneat conventionem instead of teneant and after a Writ of Error brought it was moved that it might be amended and made teneant It was Objected That False Latin in an Original could not be amended as hos breve for hoc breve so in Waste destrictionem for destructionem Blackamore's Case 8 Co. But the Court granted the Motion and ordered the Amendment And it was said of late days it had been done in case of a word Mistaken in an Original as in Ejectment divisit for dimisit Vid. in Blackamore's Case the like 159. b. Imaginavit for imaginatus est was amended Anonymus IN Trover and Conversion for a Mare Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Mare was said ad valentiam and it should have been pretii Sed non
allocatur After Verdict 2 Cro. 307. Styl 174 182. 2. the Plaintiff declares that he was possessed de quadam equa ut de catallis suis propriis and that catalla praedict ' casualiter perdidit and that coming to the Defendants hands he converted catalla praedict ' to his own use so that there is no express Conversion of the Mare The Court said That the Declaration was Inartificial but good after a Verdict for catalla praedict ' must refer to the Mare for nothing else is mentioned before Tunstall versus Brend IN an Ejectment upon Not guilty a Special Verdict was found upon which there arose several Points of Law but it was moved for the Defendant that the Declartion was of Michaelmass Term 2 Jac. 2. and the Demise is laid to be 30 Octob. 2. Jac. and so after that Term began Note The Declaration recited an Original and an Original was produced Teste 2 Novembris which was after the Demise And the Prothonotary informed the Court that this was frequently allowed and that no Memorandum of the Originals bearing Teste within the Term was used to be made upon the Record Highway versus Derby IN an Action of Trespass Quare clausum fregit solum fundum viz. duas acras terr' fod ' subvert ' asportavit Vpon Not guilty pleaded and Verdict for the Plaintiff it was moved in Arrest of Judgment that the Declaration was insufficient as to the digging and carrying away of the Soyl for duas acras terr' doth not express the quantity of Earth but the measure and extent of the Ground where the digging was And for this Cause the Judgment was stayed by the Opinion of the whole Court Note If the Sheriff Return a Rescous it is not traversable but an Attachment goes against the Rescousers and a Fine usually set Tho' it appears by Dyer such Return was allowed to be traversed in C.B. but not practised of late Termino Sanctae Trinitatis Anno 2 W. M. In Communi Banco Sherborn versus Colebach IN an Indebitat ' assumpsit for 20 l lost by the Defendant to the Plaintiff at a certain Play called Hazard Vpon Non assumpsit after Verdict for the Plaintiff it was moved in Arrest of Judgment that to Play at Dice is an unlawful Game and so the Consideration is insufficient But to that the Court said that they could not intend that this was Play at Dice tho' there is a Play called Hazard at Dice known amongst Gamesters neither is Play at Dice in it self unlawful tho' prohibited by several Statutes to certain persons and to be used in certain places Then it was moved that the Declaration was too General for tho' there have been divers Actions maintained for Money won at Play yet they use to declare that in Consideration the Plaintiff promised That if the Game went on the Defendants side he would pay so much to the Defendant the Defendant promised That if it went on the Plaintiffs side to pay so much to him But the Court said that of late it had been the usage to declare Generally and it might be as well as an Indebitatus pro opere labore And Judgment was given for the Plaintiff Note Justice Powell cited in the Case supra the Lord North's Case 2 Leon. 179. where Queen Elizabeth had granted the Fines to him and his Heirs pro licentia concordandi within a certain place and he brought an Indebitat ' assumpsit for such Fine and it was held that it would lye And also a Case adjudged in the Kings Bench the last Term that an Indebitat ' assumpsit would lye for a Dropping Fine in one Shuttleworth's Case Pyne versus Woolland Civit ' Exon ' Debt for Rent against an Executor upon a Lease parol THomasina Woolland nuper de Civitat ' Exon ' in Com' Civ8788 itat ' Exon ' Vid ' Executrix testament ' Isaaci Woolland sum ' fuit ad respondend ' Mariae Pyne Vid ' de placito quod reddat ei octoginta sex libras duos solid ' un ' denar ' un ' obulum quos ei injuste detinet c. Et unde eadem Maria ê‘ Nathanielem Salter Attorn ' Demise to the Testator suum dic ' quod cum praedicta Maria decimo die Maij Anno Domini Millesimo sexcentesimo octogesimo tertio apud Civitat ' Exon ' praedict ' in Com' ejusdem Civitat ' dimisisset praefat ' Quarta pars molendini c. Isaaco in vita sua quartam partem duorum molendinorum granaticorum unius molendini brasiatorij sub uno tecto Anglicê Roof vocat ' sive cognit ' per nomen de Cuckingstool-Mists scituat ' jacen ' existen ' in Exland in Paroch ' sancti Edmundi in Com' Civit ' Exon ' praedict ' ac quartam partem domus molendin ' sive tenementi cum pertin ' adinde prox ' jacen ' ex boreali latere eorundem necnon quartam partem medietatis pasturae unius parcell ' terrae pone dicta molendina not ' sive cognit ' per nomen de Bonhay eisdem molendinis pertin ' Habend sive pertinen ' habend ' occupand ' eidem Isaaco à primo die ejusdem mensis Maij usque finem terminum unius anni integri extunc prox ' sequen ' plenar ' complend ' finiend ' Pro uno anno Et sic de anno in annum sic de anno in annum quamdiu ambabus partibus placeret reddend ' solvend ' proinde eidem Mariae ad finem cujuslibet mensis secundum computacon ' viginti octo dierum pro quolibet mense quo idem Isaacus eadem dimissa praemissa teneret reddit ' The Rent payable Monthly sexaginta solidor ' quatuor denar ' unius obuli legalis monet ' Angl ' Virtute cujus dimissionis idem Isaacus in quartas partes praedictas intravit fuit inde possessionat ' ac easdem quartas partes usque nonum diem Septembr ' Anno Domini millesimo sexcentesimo octogesimo nono habuit occupavit ac quinquaginta septem libr ' septem solid ' un denar ' un ' obul de praedictis octoginta sex libris duobus solid ' un ' denar ' un ' obul ' parcell ' super eodem nono die Septembris Anno Domini millesimo sexcentesimo octogesimo nono supradicto ê“ reddit ' dimissorum praemissorum pro novem decim mensibus secuncum computacon ' praedict ' adtunc finit ' eidem Mariae aretro fuer ' non solut ' Rent unpaid Actio accrevit per quod accoÌ„ accrevit eidem Mariae ad exigend ' habend ' de praefat ' Isaaco in vita sua de praedict ' Thomasina post ipsius Isaaci mortem praedictos quinquaginta septem libras septem solid ' un ' denar ' un ' obul ' de praedictis octoginta sex libris duobus solidis un ' Another