reason the Iury might find for him 'T is true he might have pleaded Plene computavit which is the general Plea But it may as well be presumed that the Verdict was against the Plaintiff because the Action would not lye and the Matter being in dubio the Court will intend it against the Pleader he not having averred to the contrary and so they held the Plea to be ill DE Termino Paschae Anno 30 Car. II. in Communi Banco Osborn versus Wright ACtion on the Case for words Viz. The Plaintiff declares that she was unmarried but about to marry one J. S. and that the Defendant to hinder her Marriage spoke these Words of her Viz. She is a Whore a Common Whore and N's Whore per quod maritagium amisit The Iury found the Defendant guilty of speaking the Words but that she did not lose her Marriage thereby and it was moved in arrest of Iudgment that these Words are not actionable being only Scolding and of that Opinion was all the Court and Iudgment was arrested Hambleton versus Justice Scroggs alios In Camera Scaccarii Serjeant at Law whether Priviledge to be Sued only in the Common-Pleas AN Assault and Battery was brought against the Defendants in the Kings-Bench to which one of them pleaded that he was a Serjeant at Law and so ought to have his Priviledge to be sued by Bill in the Common Pleas and in no other Court To this Plea the Plaintiff demurred and Iudgment was given in my Lord Chief Iustice Hales's time by the Opinion of him and the whole Court of Kings-Bench That a Serjeant at Law might be sued there and was not suable in the Court of Common-Pleas only 2. That in this Action the Defendant should not have his Priviledge because it was brought against him and another And afterwards a Writ of Error was brought upon this Iudgment returnable before the Lord Chancellor and Chief Iustices of the Kings-Bench and Common-Pleas and the Errors were argued before the two Chief Iustices at Serjeants-Inn in Chancery Lane Mr. Holt for the Plaintiff in the Writ of Error Ex parte Quer. That a Serjeant at Law is to be sued only in the Court of Common-Pleas and not elsewhere because there is an absolute necessity of his Attendance there He is sworn and no other person can plead at that Bar and therefore if he should be sued in any other Court Vaugh. 155. it would be an Impediment to the Business of that Court where not only the Officers but their Servants have Priviledge In the 11th of E. 4. 2. There was some discourse about the Priviledge of Serjeants at Law where it was held that he is not to be sued in that Court by Bill but by Original but either way he is to have his Priviledge So the Servant of an Officer is not to be sued by Bill Cro. Car. 84. but he is still to have the Priviledge of the Court and so had Serjeant Hedley's Clerk in the Reign of King Charles the first The Serjeants receive a kind of Induction to the Bar and have a place assigned them and that they ought to have Priviledge the very Words of the Writ are observable Viz. mentioning a Serjeant at Law ex officio incumbit in Curia illa And though it hath been said and given as an answer to that Case in Cro. Car. That where the Serjeants Clerk was Arrested in an Inferior Court as in that Case he was there he shall have Priviledge but not against the other great Courts in Westminster-Hall this is a difference never yet taken notice of in any Book nor doth the Writ warrant this distinction 2. He shall have his Priviledge though he be joyned with another because the Action is joynt and several and the one may be found guilty and the other acquitted and it would be an easie way to oust a Man of his Priviledge if it might be done by joyning him with another who hath none 14 H. 4. 21. But the Person with whom the Serjeant is joyned may be sued in the Common-Pleas likewise so that he shall not hinder him from having Priviledge who of right ought to have it 10 E. 4. 15. Offley contra As to the first point Ex parte Def. the Court of Kings-Bench agreed that a Serjeant at Law shall always have the Priviledge of the Court of Common-Pleas against all Inferiour Courts but not against the other Courts in Westminster Hall for he may be sued in any of them A Serjeant is not like the Common Officers of the Court for they are to be attendant there and no where else but a Serjeant at Law is not confined to that Court alone he may be assigned of Council in any other Court and doth usually put his hand to Pleas both in the Kings-Bench and the Exchequer but a Philazer or Attorny of that Court cannot practise in his own Name in any other All Cases of Priviledge ought to be taken strictly And that which was cited concerning the Priviledge of a Serjeants Clerk is not like this because the Arrest was in an Inferiour Court In the 11 E. 4. 2. b. The Chief Iustice of the Kings-Bench came to the Common-Pleas Bar and told a Serjeant who he had assigned for a Pauper That if he would not come into that Court and plead for his Clyent he would forejudge him so that if he could be fetch'd out of the Common Pleas and carried to the Kings-Bench he is not confined to that Court alone In the 5 H. 5. nu 10. Complaint was made that the Subjects of the King were not well served in his Courts the Parliament thereupon Ordered that one Martin and others should take upon them the Dignity of Serjeants at Law so that it appears that their Business lies in other Courts as well as in that of the Common-Pleas 2. As to the second Point Here is a joynt Action for any thing that appears to the contrary 2 Rol. Abr. 275. pl. 4. and the Plaintiff may proceed against one in the Kings-Bench and therefore the other shall be ousted of his Priviledge if he have any in the Common-Pleas Moor 556. 20 H. 6. 32. North Chief Iustice said That he always took it to be an uncontroverted point That a Serjeant at Law should be sued only in the Court of Common-Pleas by Bill he is bound by Oath to be there and when he brings a Writ of Priviledge 't is always out of that Court and no other Curia advisare vult The Attorny General versus Sir John Read In Scaccario INformation A special Verdict was found Disability by a Statute ought to be removed by the Party to enable himself to execute an Office The Case was thus Viz. Sir John Read 1 Apr. 24 Car. 2. was by Sentence in the Spiritual Court divorced a Mensa Thoro and for Non payment of Alimony was excommunicated Afterwards it was Enacted by the Statute of 25 Car. 2.
Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards
upon complaint made and Conviction he shall forfeit 500 l. so that as to himself whatever he doth in his Office is void but it was never the intent of the Act to work a Mischief or Wrong to Strangers for the Law favours what is done by one in reputed authority as if a Bishop be created who upon a Presentation made admits a Parson to a Benefice or collates by Lapse the former Bishop not being deprived or removed such acts are good and not to be avoided Cro. Eliz 699. Cro Car. 97. 2 Cro. 260. But admitting it to be an Error it cannot now be assigned for such because the Parties in Pleading have allowed the proceedings to be good upon Record and there is Iudgment against the Defendant but if he had been taken upon that Iudgment he might have brought an Action of false Imprisonment 2 Cro. 359. Cro. Eliz. 320. Wild Iustice You shall not assign that for Error which you might have pleaded especially having admitted it by pleading and one Musgrave's Case was cited which was that there is an Act of Parliament which lays a Tax upon all Law proceedings and makes them void if the Kings Duty be not paid and it was adjudged That if the Duty was not paid but admitted in pleading you shall not afterwards alledge what before was admitted viz. That the Duty was not paid Vpon a Writ of Error in Parliament it cannot be assigned for Error that the Chief Iustice of the Kings-Bench had not taken this Oath the same might be also of a Writ of Error in the Exchequer Chamber for an Error in Fact cannot be there assigned Sid. 253. but at the last the Iudgment was Reversed See the Reasons thereof by the Chief Iustice Jones in his Reports folio 81. Higginson versus Martin in C. B. IN an Action of Trespass and false Imprisonment If Cause of Action doth not arise within the Jurisdiction tho' Judgment is given below an Action will lie here the Defendant justifies by Process issuing out of the Court of Warwick upon a Iudgment obtained there and sets forth that there was a Plaint there entered in placito transgressionis to which the Defendant appeared super quo taliter processum fuit that Iudgment was given against him upon which he was taken and Imprisoned The Plaintiff replies That the Cause of Action did not arise within the Iurisdiction of that Court. The Defendant rejoyns that the Plaintiff is now estopped to say so for that the Declaration in the Inferiour Court against the now Plaintiff did alledge the cause of Action to be infra jurisdictionem of the Court to which he pleaded and Iudgment was given against him The Plaintiff demurrs And Newdigate Serjeant took Exceptions to the Plea 1. Ex parte Quer. 'T is said a Plaint was entered in placito transgressionis but 't is not said what kind of Trespass it was whether a clausum fregit or other Trespass 2. 'T is said that the Defendant appeared super quo taliter processum fuit that Iudgment was given for the Plaintiff Antea and no mention was made of any Declaration and the pleading taliter processum est in an Inferiour Court is not good 3. The Iustification is ill because the Inferiour Court had no Iurisdiction and so the Proceedings are coram non Judice for the Plaintiff in his Replication saith That the Trespass for which the Recovery was had in the Court of Warwick Moor 422. Latch 180. Cro. Jac. 184. was done at a place out of the Iurisdiction of the Court which the Defendant hath admitted by relying on his Plea by way of Estoppel 4. It did not appear by what Authority the Court at Warwick was held whether by Grant or Prescription These Exceptions were answered by Serjeant Hopkins Ex parte Def. and first he said That the Plaintiff there sets forth that levavit quandam querelam in placito transgressionis which was well enough Secondly taliter processium fuit is the shorter and better way of Pleading and therefore in a Scire Facias nothing is recited but the Iudgment 't is true in a Writ of Error the whole Record must be set out but that is not necessary here Thirdly 't is too late now to question the Iurisdiction of the Inferiour Court after the Party hath admitted it below he ought first to have pleaded to the Iurisdiction but now is Estopped by his own admittance there and since Iudgment is given upon it 't is not now to be questioned but however this being in the Case of an Officer if it was out of the Iurisdiction he is bound to execute the Process of the Court and so this is a good excuse for him Dyer 61. 10 Co. 77. But let the Pleadings be good or bad if the Declaration here be ill the Plaintiff cannot have Iudgment and that it was so he said that the Writ alledged an Imprisonment generally but the Count an Imprisonment donec he paid 5 l. 10 s. which is variant and the Prothonotaries said that the Writ used always to mention donec c. Curia But the Court were all of Opinion that the Count was well enough for there was no matter therein contained which was not in the Writ the Imprisonment was the Gist of the Action and the donec c. might have been given in Evidence because 't is only an aggravation and a consequence of the Imprisonment so that the Count is not larger but more particular than the Writ And as to the two first Exceptions the Court was also of Opinion that there was no difficulty in them or in the last Exception but thought the Plea was well enough as to those And they also agreed that the Officer in this Case was to be discharged for though the Process be erronious yet he is to obey and not to examine 2 Cro. 3. Weaver versus Clifford The great doubt in this Case was upon the third Exception as to the point of Iurisdiction Sid. 151. Latch 181. and whether the other Defendant who was the Plaintiff below should be likewise discharged was the Question And as to that the Chief Iustice and Wyndham Iustice were of Opinion That this was no good justification as to the Plaintiff below for if the cause of Action did arise without the Iurisdiction of which he is bound to take notice the proceedings quoad him are all coram non Judice and he cannot justifie the serving of any Process so that if the Trespass was done out of the Iurisdiction of the Court the Defendant below may bring an Action against the Plaintiff and is not concluded here by the proceedings there but may alledge the cause of Action to arise out of the Iurisdiction and as to his being Estopped by admitting of the Iurisdiction below that cannot be because an admittance cannot give the Court a Iurisdiction where it had none originally and so he said it was resolved in one Squib's Case in a
and yet it was objected that there he was a Iudge Quaere Brook 204. March 117. for which Reasons he prayed Iudgment for the Plaintiff Curia But the whole Court were of Opinion that the bringing of this Action was a greater Offence that fining of the Plaintiff and committing of him for Non-payment and that it was a bold attempt both against the Government and Iustice in general The Court at the Old-Bayly had Iurisdiction of the Cause and might try it and had power to punish a Misdemeanour in the Iury they thought it to be a Misdemeanour in the Iury to acquit the Prisoners which in truth was not so and therefore it was an Error in their Iudgments for which no Action will lie How often are Iudgments given in this Court reversed in the Kings Bench And because the Iudges have been mistaken in such Iudgments must that needs be against Magna Charta the Petition of Right and the Liberties of the Subject These are mighty words in sound but nothing to the Matter There hath not béen one Case put which carries any resemblance with this those of Iustices of the Peace and Mayors of Corporations are weak instances neither hath any Authority been urged of an Action brought against a Iudge of Record for doing any thing quatenus a Iudge That Offences in Iury-men may be punished without Presentment is no new Doctrin as if they should either eat or drink before they give their Verdict or for any contempt whatsoever but 't is a new Doctrin to say that if a Fine be set on a Iury-man at the Old-Bayly he hath no remedy but to pay it for a Certiorari may be brought to remove the Order by which it was imposed and it may be discharged if the Court think fit As to what hath been Objected concerning the Liberty of the Subject that is abundantly secured by the Law already a Iudge cannot impose upon a Iury for giving their Verdict contrary to Evidence if he doth any thing unjustly or corruptly complaint may be made to the King in whose Name Iudgments are given and the Iudges are by him delegated to do Iustice but if there be Error in their Iudgments as here 't is void and therefore the Barons of the Exchequer might refuse to issue Process upon it and there needs no Writ of Error for the very Estreats will be vacated Though the Defendants here acted erroneously yet the contrary Opinion carried great colour with it because it might be supposed very inconvenient for the Iury to have such liberty as to give what Verdicts they please so that though they were mistaken yet they acted judicially and for that Reason no Action will lie against the Defendant and Iudgment was given accordingly The Case of the Warden of the Fleet. COmplaint was made by Serjeant Turner on the part of the Parishioners of St. Brides London against the Warden of the Fleet and his Prisoners for that he suffered several of them to be without the Walls of his Prison in Taverns and other Houses adjoyning to the Prison and fronting Fleet-Ditch where they committed Disorders and when the Constable came to keep the Peace and to execute a Warrant under the Hand and Seal of a Iustice of Peace they came in a tumultuous manner and hindered the execution of Iustice and rescued the Offenders and often beat the Officers the Warden often letting out 20 or 30 of his Prisoners upon any such occasion to inflame the Disorder It was prayed therefore That this Court to which the Prison of the Fleet doth immediately relate might give such Directions to the Warden that these Mischiefs for the future might be prevented and that the Court would declare those Houses out of the Prison to be subject to the Civil Magistrate The Court were all of Opinion but Iustice Atkins Curia who doubted that nothing can properly be called the Prison of the Fleet which is not within the Walls of the Prison and that the Warden cannot pretend an exemption from the Authority of the Civil Magistrate in such places as are out of the Prison Walls though Houses may be built upon the Land belonging to the Fleet for the preservation of the Kings Peace is more to be valued than such a Private Right But Iustice Atkyns said if such places were within the Liberties of the Fleet he would not give the civil Magistrate a Iurisdiction in prejudice of the Warden but thought it might be fit for the Court to consider upon what reason it was that the Warden of the Fleet applied such Houses to any other uses than for the benefit of the Prisoners whereupon the Court appointed the Prothonotaries to go thither and give them an account of the matter and they would take farther Order in it St. Mary Magdalen Bermondsey Church in Southwark In Scaccario Rate for Building a Church shall be set by the Parishioners Jones 89. Mod. Rep. 236. IN a Prohibition it was the Opinion of the whole Court That if a Church be so much out of Repair that 't is necessary to pull it down and that it cannot be otherwise repaired that in such case upon a general warning or notice given to the Parishioners much more if there be notice given from House to House the major part of the Parishioners then present and meeting according to such notice may make a Rate for pulling down of the Church to the Ground and Building of it upon the old Foundation and for making of Vaults where they are necessary as they were in this Church by reason of the springing Water and though the Rate be higher than the Mony paid for doing all this yet 't is good and the Churchwardens are chargeable for the Overplus they not being able to compute to a Shilling That if any of the Parishioners refuse to pay their Proportion according to the Rate they may be Libelled against in the Spiritual Court and if the Libel alledge the Rate to be pro reparatione Ecclesiae generally though in strictness Ecclesia contains both the Body and Chancel of the Church yet by the Opinion both of the Court of Common Pleas and of the Exchequer It shall be intended that the Rate was only for the Body of the Church but in this Case it was made appear clearly that the Rate was only for the Body and that the Minister was at the charge of the Chancel And both Courts agreed That when a Prohibition is moved and desired on purpose to stop so good a Work as the Building a Church the Court will not compel the Parties to take Issue upon the Suggestion when upon examination they find it to be false and therefore will not grant a Prohibition for if the Rate be unduly imposed the Party grieved hath a Remedy in the Spiritual Court or may Appeal if there be a Sentence against him The Bishop or his Chancellor cannot set a Rate upon a Parish but it must be done by the Parishioners themselves
the space of 14 days after complaint made then the Sub-Commissioners of the Excise are to determine the same from whom no Appeal doth lye to the Justices of the Peace at their next Sessions which Commissioners of Excise Justices of the Peace and Sub-Commissioners amongst other things are inabled by the said Act to Issue out Warrants under their Hands c. to levie the Forfeitures and so justified the Entry under a Warrant from the Sub-Commissioners three Iustices having refused to hear and determine this Offence To this Plea the Plaintiffs demurred and had Iudgment in the Court of Kings-Bench and a Writ of Inquiry of Damages was Executed and 750 l. Damages given and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given because the Writ of Inquiry was executed the last day of the Term and the Court did immediatly rise and that he could not move the next Term because the Iudgment was given the Term before the Writ of Error was brought The Attorny General therefore said that this was a hard Case and desired a Note of the Exceptions to the Plea which he would endeavour to maintain which Mr. Pollexfen gave him and then he desired time to answer them The Exception to the Plea upon which the Iudgment was given was this Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences and so to issue out Warrants for the Forfeitures but where the Iustices or any two of them refuse And though it was said by the Defendant that three refused yet it was not said that two did refuse for there is a great difference between the allegation of a thing in the Affirmative and in the Negative for if I affirm that A. B. C. did such a thing that affirmation goes to all of them but negatively it will not hold for if I say A. B. C. did not such a thing there I must add nec eorum aliquis So if an Action be brought against several Men and a Nolle prosequi is entred as to one and a Writ of Enquiry awarded against the rest which recites That the Plaintiff did by Bill implead naming those only against whom the Inquiry was awarded and leaves out him who got the Nolle prosequi this is a variance for it should have been brought against them all 'T is true where a Iudgment is recited 't is enough to mention those only against whom it is had but the Declaration must be against all so in a Writ of Error if one is dead he must be named and so the Iustices ought all to be named in this Case viz. that the three next Iustices did not hear and determine this Offence nec eorum aliquis Wells versus Wright In Communi Banco DEBT upon Bond conditioned Bond with an insensible Condition good that if the Obligée shall pay 20 l. in manner and form following that is to say 5 l. upon four several days therein named but if default shall be made in any of the Payments then the said Obligation shall be void or otherwise to stand in full force and vertue The Defendant pleads that tali die c. non solvit 5 l. c. and upon this the Plaintiff demurred Barrel Serjeant The first part of the Condition is good which is to pay the Mony and the other is surplusage void and insensible but if it be not void it may be good by transsposing thus viz. If he do pay then the Obligation shall be void if default shall be made in Payment then it shall be good and for Authority in the Point the Case of Vernon and Alsop was cited Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill 14 Car. 2. Rot. 1786. in B. R. Where the Condition was that if the Obligée pay 2 s. per Week until the Sum of 7 l. 10 s. be paid viz. on every Saturday and if he fail in Payment at any one day that the Bond shall be void and upon the like Plea and Demurrer as here it was adjudged that the Obligation was single and the Condition repugnant The Court were all of Opinion that Iudgment should be given for the Plaintiff and the Chief Iustice said that he doubted whether the Case of 39 H. 6. 9 10. was Law Brittam versus Charnock Where the the Heir takes by the Will with a Charge he is a Purchaser and the Lands shall not be Assets DEBT upon Bond against the Defendant as Heir Vpon Riens per discent pleaded the Iury found a Special Verdict in which the Case was viz. The Father was seized of a Messuage and thrée Acres of Land in Fee and devised the same to his eldest Son the Defendant and his Heirs within four years after his decease provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts and then he deviseth his other Lands to be sold for payment of Debts c. The Father dies the Son pays the 20 l. and if this Messuage c. was Assets in the Hands of the Defendant was the Question Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets it was said because the Heir shall not take by descent but by Purchase for the Word Paying is no Condition if it should the Heir is to enter for the breach and that is the Defendant himself and for that reason it shall be a Limitation Southcot and Stowel Antea 'T is true where there is no alteration of the Estate the Heir must take by descent but in this Case there is an alteration of the Estate from what is directed by the Law viz. the manner how he shall come by the Estate for no Fee passeth to him during the four years But this was denyed by Serjeant Pemberton for he said if a Devise be of Land to one and his Heirs within four years it is a present Devise and if such be made to the Heir 't is a descent in the mean time and those Words within four years are void so that the Question will be whether the Word Paying will make the Heir a Purchaser and he held it would not He agreed that it was usual to make that a Word of Limitation and not a Condition when the Devise is to the Heir and therefore in a Devise to the Heir at Law in Fée he shall take by descent Styles Rep. 148. But if this be neither a Condition or Limitation 't is a Charge upon the Land and such a Charge as the Heir cannot avoid in Equity North Chief Iustice and Atkins Where the Heir takes by a Will with a Charge as in this Case he doth not take by Descent but by Purchase and therfore this is no Assets Moor versus Pit SPecial Verdict in Ejectment The Case was this Surrender of a Copyhold to a Disseisor whether good to extinguish the Right viz. A Copyholder for Life the Remainder for Life he in
Anno 30 Car. II. in Communi Banco The Case of one Randal and his Wife an Administrator c. Judgment may be avoided without a Writ of Error by a Plea where the Party is a Stranger to it DEBT upon a Bond against the Defendant as Administrator They plead a Iudgment recovered against the Intestate in Hillary Term 26 27 Car. 2. and that they had not Assets ultra The Plaintiff replies that there was an Action against the Intestate but that he dyed before Iudgment and that after his death Iudgment was obtained and kept on foot per fraudem The Defendant traversed the Fraud but did not answer the death of the Intestate and upon a Demurrer it was said for the Plaintiff that the Iudgment was ill and that he being a Stranger to it could neither bring a Writ of Error or Deceit and had no other way to avoid it but by Plea and that 't is put as a Rule That where Iudgment may be reversed by a Writ of Error the Party shall not be admitted to do it by Plea but a Stranger to it must avoid it by Plea because he is no Party to the Iudgment as if a Scire Facias be brought against the Bail 't is a good Plea for them to say that the Principal was dead before Iudgment given by way of excusing themselves to bring in the Body but 't is not good to avoid the Iudgment because 't is against the Record Cro. Eliz. 199. which must be avoided by Writ of Error 1 Roll. Abr. 449 742. The Court were of Opinion that the Plaintiff might avoid the Iudgment without a Writ of Error especially in this Case where 't is not only erroneous but void Hill versus Thorn IN an Arbitrament it was held by the Court Rules in an Award that if two things be awarded the one within and the other not within the Submission the later is void and the breach must be assigned only upon the first 2. If there be a Submission of a particular difference and there are other things in Controversie if in such Case a general Release is awarded 't is ill and it must be shewed on the other side to avoid the Award for that cause 3. If the Submission be of all differences till the 10th day of May 1 Sand. 33. and a Release awarded to be given of all differences till the 20th day of May if there be no differences between those two days the Award is good if any it must be shewed in Pleading 1 Roll. Abr. 257. otherwise the Court will never intend it 4. Smith and Shelbury Antea That reciprocal Covenants cannot be pleaded in barr of another and that in the assigning of a Breach of Covenant 't is not necessary to averr performance on the Plaintiffs side Staples versus Alden DEBT upon a Bond conditioned to deliver forty pair of Shooes within a Month at Holborn-Bridge to Henry Knight a Common Carrier to G. for the use of the Obligee Tender of Goods to the Man shall be a Tender to the Master The Defendant pleaded that in all that space of a Month Henry Knight did not come to London but that such a day at Holborn-Bridge he delivered forty pair of Shooes to A. G. the Carriers Porter To this Plea the Plaintiff demurred for that the Condition being to do something to a Stranger the Defendant at his peril ought to perform it 33 H. 6. 13. 4 H. 7. 4. like the Case where the Action of Debt was brought upon a Bond conditioned that the Defendant should give such a Release as the Iudge of the Prerogative Court should think fit the Defendant pleaded that the Iudge did not appoint any Release and it was adjudged no good Plea because the Obligation is on his part and he ought to tender a Release to the Iudge Cro. Eliz. 716. But on the other side it was said that a delivery to the Servant is a delivery to the Master himself and if parcels of Goods are delivered to the Porter and lost an Action lies against the Master Curia The Court absente North Chief Iustice held the Plea to be good and that such a Construction was to be made as was according to the intent of the Parties and that a delivery to the Man was a delivery to the Master whereupon Iudgment was given for the Defendant Gillmore versus Executor of Shooter In Banco Regis A new Act shall not take away an Action to which the Plaintiff was entituled at the Commencement of the Act. INdebitatus Assumpsit There was a Treaty of Marriage between the Plaintiff who was of kin to the Testator and the Daughter of one Harris with whom he afterwards had 2000 l. as the Marriage Portion and Mr. Shooter in his Life time promised to give the Plaintiff as much or to leave him worth so much by his Will This Promise was made before the 24th day of June before this Action brought the Marriage took effect Harris paid the 2000 l. and Shooter dyed in September following having made no payment of the Mony or any Provision for the Plaintiff by his Will This Action was commenced after Shooter's death and upon the Tryal a Special Verdict was found upon the Act of Frauds and Perjuries 29 Car. 2. c. 29 Car. 2. which Enacts That from and after the 24th day of June in the year 1677. no Action shall be brought to charge any person upon any Agreement made in consideration of Marriage c. unless such Agreement be in Writing c. And that this was a bare Promise without Writing And by Wyld and Jones absente Twisden Iudgment was given for the Plaintiff for it could not be presumed that the Act had a retrospect to take away an Action to which the Plaintiff was then intituled For if a Will had been made before the 24th day of June and the Testator had dyed afterwards yet the Will had been good though it had not been in pursuance of the Statute Aster versus Mazeen In C. B. IN Covenant Breach assigned did relate to three Covenants the Declaration concludes sic fregit Conventionem and good the Plaintiff declared upon an Indenture in which the Defendant had covenanted that he was seised in Fee c. and would free the Premisses from all Incumbrances in which there was also another Covenant for quiet Enjoyment and the Breach assigned was upon an Entry and Eviction by another and concludes sic Coventionem suam praedictam fregit in the singular Number And upon a Demurrer to the Declaration Maynard Serjeant said That the Breach did relate to all the three Covenants and therefore the Conclusion was ill because he did not shew what Covenant in particular and if he should obtain a Iudgment upon such a Declaration the Recovery could not be pleaed in Barr to another Action brought upon one of the other Covenants But Conyers for the Plaintiff said that Conventio is
new Will and the Grandson should take by the Name of Son And Iustice Atkins relied on the Case of Brett and Rigden in the Commentaries where new purchased Lands passed by a Republication but a Writ of Error being brought upon this Iudgment in the Kings Bench it was reversed Anonymus In Banco Regis MR. Sanders moved for a Prohibition to the Spiritual Court in the Case of the Children of one Collet and Mary his Wife to stay Proceedings there upon a Libel against them that the said Collet had married Anne the Sister of the said Mary They both appear and confess the Matter upon which a Sentence of Divorce was to pass whereas in truth Collet was never married to Ann but it was a contrivance between him and his Wife to get themselves divorced and the Marriage declared void ab initio to defeat their Children of an Estate settled upon them in Marriage with Remainders over by bastardizing them after they had been married and lived together 16 years The Reason why a Prohibition was prayed was because Marriage or no Marriage was to be tried in pais for that the Inheritance and Freehold of Land were concerned in this Case The Court directed that they should suggest this Matter Curia and that it was a Contrivance to obtain a Sentence of Divorce to defeat them of their Estate entailed on them and then to move for a Prohibition Smallwood versus Brickhouse THE Suggestion was Spiritual Courts are proper to determine where a person is capable of making a Will Godolph 276. that B. being under the Age of sixteen years had made a Will and that the Prerogative Court proceeded to the proof of it whereas by the Common Law a person is not capable till 17 years and therefore a Prohibition was prayed And that the Common Law hath determined the time my Lord Coke's Comment upon Littleton was cited 1 Inst 89. b. where 't is said That at 18 years of Age he may make his Testament and constitute Executors and the Age of a person is triable also in pais But the Court said Curia that the Proof of Wills and the Validity of them doth belong to the Ecclesiastical Court and if they adjudge a person capable the Court will not intermeddle for 't is within their Iurisdiction to adjudge when a person is of Age to make a Will and sometimes they allow Wills made by persons of 14 years of Age and the Common Law hath appointed no time it depends wholly on the Spiritual Law and therefore a Prohibition was denied Joan Bailies Case NOTA. One Joan Bayly being in Execution Administration was committed to the Debtor in Execution the Plaintiff dyed intestate and the Right of Administration came to her and a Motion was made for a Habeas Corpus to bring her from the Compter into this Court for that having administred to her Creditor she might be discharged but it was denyed for she could not be thus discharged because non constat de persona neither can she give a Warrant of Attorny to acknowledge satisfaction therefore let her renounce the Administration and get it granted to another and then she may be discharged by a Letter of Attorny from such Administrator Anonymus Mandamus MAndamus to swear one who was elected to be one of the Eight Men of Ashburn Court it was denyed because it is incertain for it ought specially to be inserted what the Office is and what is the place of one of the Eight Men of Ashburn Court that it may appear to the Court to be such a place for which a Mandamus doth lye and though such a Writ hath been granted for one of the approved Men of Guilford yet it was specially set forth what his Office was Birch versus Lingen Trin. 34 Car. 2. in B. R. Discontinuance where amendable JVdgment was obtained upon a Bond 25 years since and in one of the Continuances from one Term to another there was a blank The Executors of the Defendant now brought a Writ of Error and the Plaintiff in the Action got a Rule to amend and insert the Continuance suggesting to the Court that it was a Iudgment of a few Terms and so aided by the Statute of 16 17 Car. 2. cap. 8. Hughes Abr. tit Costs 480. 2 Sand. 289. Moor 710. Cro. Eliz. 320 489 553 619. Cro. Jac. 211 353 528. Vpon this Rule the Plaintiff fills up the Blank and the Record was certified so filled up into the Exchequer-Chamber And Mr. Pollexfen moved for the Defendant that the Record might stand as it did at first and that the Rule was got by a trick and on a false Suggestion it being a Iudgment before the Restoration of this King and a Discontinuance not amendable for 't is the Act of the Court and for an Authority in the Point the Case of Friend and Baker was cited where after a Record certified Stiles 339. a Motion was made to amend it because day was given over to the Parties from Easter to Michaelmas-Term and so Trinity-Term left out where by the Opinion of Roll Chief Iustice that the giving of a day more than is necessary is no Discontinuance but where a day is wanting 't is otherwise But Sanders for the Plaintiff said that this was only a Misprision of the Clerk and no Discontinuance but amendable The Clerks commonly leave Blanks in the Venires and if they neglect to fill them up 't is only a Misprision and amendable by the Court and the Record being now filled up by the Rule of the Court ought not to be razed to make an Error The Chief Iustice was of Opinion That this was not a discontinuance but an insufficient continuance and an omission of the Clerk only who if he had filled up this Blank himself without Rule it could not afterwards be set aside But Iustice Jones was of another Opinion That it was such a misprision of the Clerk as was not amendable by the Statute of H. 6. since it was not the same Term and all the Proceedings being in the Breast of the Court only during the Term it ought not to be altered but left in Blank as it was for where Iudgment is entred for the Plaintiff the Court may upon just cause alter it the same Term for the Defendant but not of another Term the whole Term being but one day in Law And though the Writ of Error be returned into the Exchequer that will make no alteration for the Record it self remains still here and 't is only a Transcript that is removed thither Sed Adjornatur Anonymus TRespass for breaking of his Close The Defendants plead Power where 't is coupled with an Interest is assignable That the place where were c. the Lands of one Martin who made a Lease thereof to the Plaintiff and did thereby except the Trees growing on the same In which Lease the Plaintiff did Covenant with the said Martin his
Habens legale jus titulum need not shew what Title the disturber had after Verdict 213 In a Bond to pay 40 l. when an Accompt is stated by two Attornies to be chosen between the Parties 't is a Covenant and not a solvendum 266 Breach is assigned relating to three Covenants and concludes sic Conventionem fregit 't is good 311 Where an Agreement to pay will amount to a Covenant 269 Covenants reciprocal cannot be pleaded in bar to each other 34 75 76 309 Breach where assigned and not necessary to aver performance on the part of the Plaintiff 309 Court Inferiour the cause of Action must arise within the Jurisdiction 30 Judgment therein arrested because the Damages were laid to 30 l. 101 102 For not saying that the Jurors were electi ad triand ' 102 Taliter processum fuit and the proceedings not set forth at large well enough in a Plea but not in a Writ of Error 102 195 Vi armis contra pacem whether good or not 102 Cannot hold Plea for work done without the Jurisdiction though the Promise be made within 141 Cause of Action must appear to be within the Jurisdiction to oust the Courts above 197 Where it doth not appear that the Court was held either by Grant or Prescription good 197 198 If the cause of Action doth not appear to be within the Jurisdiction though there is a Judgment recovered below yet an Action of Trespass will lye and false Imprisonment upon the taking out of that Judgment 197 If upon Evidence it appear that the cause of Action did arise extra Jurisdictionem the Plaintiff must be non-suit 273 If Jurisdiction be admitted in pleading and Verdict and Judgment thereon t is too late for a Prohibition Ibid. Court Ecclesiastical In what Case a Bishop shall administer an Oath in Temporal Matters 118 Custom One cannot be pleaded in bar to another 105 In pleading it must be strictly alledged 41 Where 't is a reasonable Custom for the Lord to have derelict Lands 107 D. Day Vide Plea WHere 't is excluded being alledged in the Declaration it makes the Plea ill 146 'T is but punctum temporis and of no consideration in the Law 281 Release of all demands usque 26 April a Bond dated that day is not released 281 Debt Upon the Sheriffs Bond will be good though the Statute be not pleaded 36 Will lye upon the Contract where the whole Term is assigned 174 175 176 Whether it will lye for a Fine set by a Steward for 't is ex quasi contractu 230 It must be upon the Contract or ex quasi contractu 262 Deed. Where 't is lost the Party must make Oath of it to entitle himself to a Bill in Equity to have it performed in Specie 173 Demand Must be made where an Interest is to be determined 264 Devise To a Man and his Heirs if the Devisee die in the Life time of the Devisor his Heir takes nothing 313 Republication makes it a new Will ibid. To the Heir at Law makes a Limitation and not a Condition 7 To an Infant in ventre sa mere if there is a sufficient description of him 't is good 9 Where the word paying makes a Fee where not 26 To him till he be of Age then to him in Fee he dyed within Age yet a Free-hold vested in him presently 289 To him in Fee when of Age if he dye before then to the Heirs of the Body of R. and their Heirs he died living R. within Age his Sister and Heir shall take by way of Executory devise 289 Executory devise how it differs from a contingent Remainder at Common Law ibid. Construction of words therein 290 Departure From his Plea 31 Disability By a Statute where it ought to be removed by the Party to enable himself to execute an Office 299 Discharge By Parol good before the breach of promise but not afterwards 259 Discontinuance Where amendable 316 In pleading the Plaintiff declared of taking several things the Defenant justifies as to part and saith nothing of the residue 259 In the Adjournment of a Court where a day certain is not given 59 Distress Cannot be of Sheaves of Corn in Shocks for Rent 61 Distribution Shall be equally made amongst the Children of the whole and half Blood 204 205 206 Disturbance Coactus fuit to pay is a sufficient Disturbance 55 E. Escape THE Plaintiff declared upon Process in an Inferiour Court and the Bond was not made infra Jurisdictionem the Action would not lye 29 30 Debt thereon lies against the Warden of the Fleet as Superior where the Grantee for Life is insufficient 119 After an Escape the Plaintiff may have a Capias ad satisfaciendum or Scire facias at his Election 136 Whether it will lye against the Sheriff for taking insufficient Bail 181 Election In disjunctive Conditions where the Election is in the Obligor 201 304 'T is at the Plaintiffs Election to have a Ca. Sa. or Scire facias after an Escape 136 Enclosure Where a Custom is good to Enclose in a Common Field 105 Entry Not necessary to avoid an Estate in case of a Limitation 7 Error Where a Writ of Error will lye upon a Fine in the Old Bayly 219 Error in Fact cannot be assigned in the Exchequer-Chamber 194 If one be dead after the Judgment he must be named in a Writ of Error 285 Where a Judgment shall be avoided by a Plea without a Writ of Error 276 Estate Where the word Body makes an Estate for Life and no Tail 16 Estoppel Good by a Fine levied by a Remainder man in Tail 90 No Uses can be declared of a Fine by Estoppel 90 One who has no Estate levies a Fine 't is good by Estoppel 115 Evidence A Decree in Chancery or Sentence in in the Ecclesiastical Court read as Evidence of the fact 231 232 Excuse If one Man doth not perform his Covenant 't is no Excuse for the breach on the other side 75 76 What is a good Plea by way of Excuse and what not 27 28 29 Executor De son tort cannot retain 51 Where the Judgment shall be de bonis Testatoris 108 What is requisite to make an Executor 147 What must be done when he refuseth Ibid. De son tort where he may be of a Term but not of a Term in futuro because he cannot enter 175 Cannot plead non detinet where the Testator could not plead nil debet 266 Executor of an Executor de son tort where not liable at Law 293 294 Where he pleads a Judgment kept on Foot by fraud 36 Explain A Man grants Tenementa praedicta then follows totum quicquid habet whether these subsequent words shall explain or enlarge the Grant 112 113 c. Execution Payment of the Mony to the Marshal the Defendant may be taken again in Execution at the Suit of the Plaintiff 212 213 Executory Decree Is of no force in Equity 232 Existen
be in an Act of Parliament to restrain the power of the Courts at Westminster 128 Negative pregnant 138 Negative Plea that three did not such a thing it must be said nec eorum aliquis 284 285 Non Obstante Where it makes a Grant good 107 Where a general Non obstante will not dispense with a particular Statute 261 Notice Where the Agreement is that it shall be in writing it must be so pleaded 268 Where 't is made to the Testator alone it shall not be personal but is good if given to the Executor 268 269 O. Oath EX Officio lawful 118 Where it ought to be made of the loss of a Deed to entitle a Man to a Bill in Equity 173 Office and Officer Grant thereof to two and the Survivor one surrenders and another is admitted the benefit of Survivorship is gon 95 96 Of the Warden of the Fleet not to be granted for years 120 Where a person recomended proves insufficient the recommender shall be liable 121 In an Office of Trust there shall be no Survivorship 260 Officer excusable for executing an erroneous Process 196 Ordinary When his Power began 148 Outlary Pleaded in Disability to an Information and good 267 268 Where it needed not to be pleaded sub pede sigilli being in the same Court 267 P. Parish HOW it differs from a Vill 237 Pardon Where nothing vests but by Office found a Pardon restores the Party 53 Where the thing it self is pardoned and the consequence not 52 Parliament Where the time of the Session is misrecited and yet good 241 Where the Court ought to take notice of the commencement of a private or general Act 241 Difference between an Adjournment and a Prorogation 242 Partners The Action cannot be brought against one without setting forth the death of the other 280 If Judgment be against one the Goods of the other may be taken in Execution ibid. Paying In the Case of an Heir is not a Condition but a Limitation 286 Place Where it shall be intended not being laid in the pleadings 304 Pleas and Pleading What the Parties have admitted in pleading shall be good though the Jury find otherwise 5 Shall not afterwards be assigned for Error 193 194 Pleading of a Grant of a Reversion without hic in Curia prolat ' whether good or not 19 In Dower that the Demandant ought to have Judgment de tertia and doth not say parte and yet good 17 18 19 Award nullum fecerunt arbitrium de praemissis whether good without adding nec de aliqua parte 27 28 29 Plea to a Bond not good 33 A Judgment ultra quod no Assets where good 36 Estoppel you must relie upon it and not conclude with a Traverse 37 38 One promise in discharge of another where good or not 43 44 Of an accord in must be averred to be executed in all points 43 Replication where the Heir pleads a Settlement in Tail and a Lease for 99 years and that he had not Assets praeter the Reversion a general Replication of Assets is good because the praeter is idle 50 51 Justification in Trespass for taking corrupt Victuals held good 56 Justification by Arrest upon process out of an Inferiour Court 58 59 Justification by the Defendant where he must shew the Commencement of his Estate or not 70 71 Where 't is incertain 76 Touts temps prist not good after Imparlance 62 Profert hic in Curia where it must be pleaded formally 77 78 It must be pleaded when the Title is by Deed either as party or privy 64 De injuria propria sua where a Servant is Defendant 't is good without a Traverse 68 Plea where 't is naught with a Traverse ibid. Where the Defendant may plead any thing which amounts to a performance 139 Where the Defendant was charged with receiving 80 Pigs of Lead and he saith that he was not Receiver but omits aliquam partem inde the Plea was ill 146 Hoc paratus est verificare where good or not ibid. The Defednant was charged as Bayliff 1 Martii he saith he was not from the 1st of March and so excludes the day 146 In Covenant for not Repairing the Defendant pleads recuperavit generally and held good after Verdict 176 Affirmative Plea ought to be particular as if the Defendant pleads a Conveyance made he must shew what 239 Of another Action depending for the same Cause in another Court 246 Where good though it amounts to the general Issue 274 275 276 277 278 Argumentative Plea where good 276 Negative Plea viz. that three did not such a thing the Defendant must say nec eorum aliquis 284 Otherwise in an affirmative Plea ibid. Plea puis darrein Continuance must be certified as part of the Record of Nisi Prius 307 Non damnificatus generally no good Plea where the person and Lands are to be indempnified 305 Where a Judgment shall be avoided by a Plea without bringing of a Writ of Error the party being a Stranger to it 308 Prescription Not to be pleaded against another without a Traverse of the first 104 Must be alledged with a Seisin in Fee and not for Life 318 To a Modus where good 320 Presentation The King being entituled by the Symony of the Patron presents though the Symony be pardoned the Presentee shall not be removed 52 53 54 Between three by turns they are Tenants in Common of the Advowson and one may grant the next Avoidance the Church being full 97 How it must be pleaded tempore pacis 184 185 Possibility A Grant made thereof and good 106 107 By an Executor before Probate is but a Possibility and yet good 108 Priviledge Will not extend to a Case of necessity 182 Of a Serjeant at Law 296 Of an Attorny of the Kings Bench 181 Process Where an Action will not lie against the Defendant for doing a thing in Execution of the Process of Law 244 Prohibition To the Bishops Commission to set Rates upon the Parishioners to repair the Church 8 Prohibition printed in English and dispersed a Crime fit to be punished 119 Not granted for a Rate for building of a Church 222 223 Where it shall be granted at any time 273 Where a Sentence of Divorce was intended to adnul a Marriage 314 Upon a Suggestion of Excommunication because he refused to accuse himself 278 Power Where 't is coupled with an Interest 't is assignable 317 Promise Where they are mutual the performance need not be averred 33 34 Purchase Where the Heir takes by Purchase the Ancestor must depart with his whole Fee 208 Where the Heir shall take by Purchase and where by Descent 286 Q. Quare Impedit REal Mainpernors must be returned upon the Summons Pone and Grand Cape if the disturber do not appear and not John Doe and Richard Roe 264 265 Que Estate Where 't is pleadable 143 144 R. Rates FOR building of a Church shall be set by the Parishioners 222 Recital Where a Title is set
The Second PART OF Modern Reports BEING A COLLECTION Of Several SPECIAL CASES Most of them ADJUDGED in the COURT OF Common Pleas In the 26 27 28 29 30th Years of the Reign OF King Charles II. When Sir Fra. North was Chief Justice of the said Court. To which are added Several select CASES in the Courts of Chancery Kings-Bench and Exchequer in the said Years Carefully Collected by a Learned Hand LONDON Printed by the Assigns of Rich. and Edw. Atkins Esquires for Charles Harper at the Flower de Luce over against St. Dunstans Church in Fleetstreet 1698. TO THE Right Honourable JOHN Lord SOMERS Baron of Evesham Lord High Chancellor OF ENGLAND My Lord WHEN both the Favour and Severity of the Laws were by partial and unusual Methods applyed to the Persons and not to the Cases of the accused when the Life and Honour of an unfortunate Man depended on the Arbitrary Dictates of some Men in Authority and when the Sentence pronounced was more Criminal than the Offence of which the Party was too easily convicted then was your Lordship as far from any Advancement to a judicial Office as your Judgment and Inclinations were from the Approbation of such Proceedings But no sooner were places of Honour and Profit in the Law made the unsought Rewards of good and learned Men but your Lordships Merits entituled you to both whose Moderation and Temper will make your Administration just and easie in that honourable Court to which Fortune had no share in your Promotion and whose natural Abilities are so improved by a continued and inflexible Study that your Knowledge is not alone confined to the municipal Laws of this Nation but is generally extensive to all humane Learning What Services may not a Prince expect from the Wisdom and Vigilancy of such a Counsellor And what Benefit may not a divided People find by your equal Dispensation of Justice who if they can be united in any thing it must be in the general Satisfaction which all have in your Promotion because they know those Causes which come before your Lordship will receive a due Hearing and Attention without Passion or Prejudice to Persons such Emotions being as much beneath the Greatness of your Lordships Mind as they are beyond the Duty of Justice and fit only for such who will neither be guided by the Rules of Equity or Reason so true is that Saying Utitur animi motu qui uti ratione non potest The Respect which is due to the Office of Magistrates challengeth an universal Obedience but that particular Affection and Esteem which we have for their Persons is due only to their Vertues and Merits And such is that which I have and all Men especially those of my Profession ought to have for your Lordship and the present Judges in Westminster-Hall whose Learning and Integrity in judicial Determinations may bring the Laws nearer to Perfection and whose Examples are the just Commendation of the present and I hope will be the Imitation of succeeding Ages I could never understand the right meaning of that Sentence Boni Judicis est ampliare Jurisdictionem for if that be true then to what purpose were those Arguments at the Bar of the House of Peers against some late Judges for retaining Bills in Equity the subject Matter whereof was only tryable at the Common Law Such Complaints are now no more because your Lordship will not only support the Honour and Dignity of that Court wherein you preside in the Beauty of Order but will not enjoyn any other from exercising its proper Jurisdiction Thus will the Credit of the Laws of England be revived and Men will acquiesce under the legal Determinations of each Court very few Writs of Error will be brought for Error in Law because of the Justice and Stability of the Judgment in that Court wherein it was given and very few Appeals because your Lordship knows so well how to temper Equity with Justice that he must be a very angry Man who goes away dissatisfied with your Lordships Decree But since the Actions of Men in great Places are subject to the various Censures of Mankind if any prejudiced Person should revive those Disputes or quarrel at your Lordships Administration such Complaints would leave no other Impression upon the Minds of impartial Men than to convince them of the Wrong done to your Lordship and the Folly of such Misapprehensions My Lord I have prefixed your Lordships Name to this mean Performance taking this occasion to shew that great Honour and Respect which I have for your Lordship not that I am so vain to think any thing herein to be worthy of your Lordships Leisure neither do I think it Manners to beg your Lordships Patronage because a good Book will protect it self at all times and a bad one deserves no Protection I know few Books are either praised or perused but what are warranted by the common Repute and Esteem of the Writer which must be imputed to the Prejudice and Partiality of Men and which argues a Diffidence of our natural Parts as if we did not dare to make a right use of our own Judgments For this Reason I have concealed my Name that a Judgment may not be made of the Book by the Repute of the Writer But I hope your Lordship will not condemn my Ambition when I say I am not altogether unknown to your Lordship who am Your Lordships Most humble Servant J. W. Middle-Temple June 22. 1693. A TABLE OF THE NAMES OF THE CASES A. ABbot versus Rugely 307 Abraham versus Cunningham 146 Adams versus Adams 169 Addison versus Otway Mil 233 Alford versus Tatnel 49 Arris and Arris versus Stukley 260 After versus Mazeen 311 Astry versus Ballard 193 312 Atkins versus Bayles 267 Attorny General versus Read Mil 299 ........ versus Turner Mil 106 ....... versus Alston 247 Anonymus 7 17 62 94 100 100 167 199 206 279 293 306 314 316 317 B. BAilies Joan Case 315 Ballard versus Oddey 307 Barker versus Keat 249 Barker versus Warren 270 Barker versus Basket 200 Basset versus Salter 136 Beaver versus Lane 217 Bell versus Knight 182 Benson versus Idle 37 Beaumont versus ...... 140 Bill versus Nichol 246 Birch versus Wilson 274 Birch versus Lingen 316 Blackbourn versus Conset 304 Bridges versus Beddingfield 27 Brittam versus Charnock 286 Brook versus Turner Mil ' 170 Brown versus Johnson 145 Brown versus Waite 130 C. CAlthrop versus Phillips 217 Calthrop versus Heyton 54 Chapter of Southwel versus the Bishop of Lincoln 56 Cockram versus Welby 212 Columbel versus Columbel 77 Cook and others versus Herle 138 Cooper versus Hawkeswel 58 Crosier versus Tomlinson Executor 71 Crossman versus Churchil Mil ' 97 Crowder versus Goodwin 58 Curtio versus Bourn 61 Curtis versus Davenant 8 D. DAshwood versus Cooper 283 Dawes versus Sir Paul Pindar 45 Daws versus Harrison 65 Dorchester's Marquess of Case 215 Dunning
Barr. COnspiracy Rozal declares That a Replevin was brought against him and others and that the Defendant Lampen appeared for him without any Warrant and avowed in his Name and suffered Iudgment to pass against him and that 22 l. 10 s. Damages were recovered against him at such a place Lampen pleads a Recovery in a former Action brought by the now Plaintiff the Record of which being recited in the Plea appears to be the same with this but only here the place is mentioned where the Damages were recovered which was omitted in the former Action to which Lampen had pleaded a Reteiner by one of the then Defendants in Replevin and upon a Demurrer had Iudgment But the truth of the Case was That Iudgment was not then given for him that his Plea was good for the Court were all of Opinion that it was naught but because the Declaration was not good for want of mentioning the place where the Damages were recovered which the Plaintiff had amended now The Plaintiff demurred again because of this Variance between the two Actions upon the Defendants own shewing Ex parte Quer. Post Rose and Standen Putt and Roster Sir Robert Shaftoe for the Plaintiff insisted That a Recovery in an Action is no barr where there is a substantial variance as here there is and that so it has been adjudged in the Case of Leach and Thompson 1 Roll. Abr. 353. lit B. pl. 1. where the Plaintiff declared That he at the Defendants request having promised to Marry the Defendant's Daughter he promised to pay him 1000 l. Vpon Non Assumpsit pleaded Iudgment was given for the Defendant And the Plaintiff brought another Action for the same Sum and then laid the promise to pay 1000 l. cum inde requisitus esset and it was adjudged that the former Iudgment was no bar to the last Action because there was a Material difference between the two Promises one being laid without Request and so the Money was to be paid in a convenient time and in the last the Request is made part of the Promise and must be specially alledged with the time and place where it was made So in this Case The Plaintiff had not declared right in his first Action which he had amended now and therefore the former Iudgment shall be no barr to him In Robinson's Case there was a Mistake in the Writ viz. A Formedon in Remainder for that in Reverter and held no barr so by a parity of reason there shall be no barr here because the first Declaration was mistaken Stat. 3 H. 7. c. 1. Syd 316. and it was vitium Clerici Vide 2 Cro. 284. Level versus Hall Barton Serjeant contra This is no new Action Ex parte Def. for the ground of it is not where the Damages was done or recovered but the appearing without a Warrant and so having pleaded a Reteiner and had Iudgment and now pleading that Iudgment to this Action and averring 't was for one and the same thing 't is a good barr which the Plaintiff by his Demurrer hath confessed Adjornatur Milward versus Ingram INdebitatus Assumpsit for 50 l. and quantum meruit One promise pleaded in discharge of another good before the breach Mod. Rep. 205. the Defendant confesses both but pleads That after the promise made and before the Action brought they came to an Accompt concerning divers Sums of Money and that he was found in arrear to the Plaintiff 30 s. whereupon in consideration the Defendant promised to pay him the said 30 s. the Plaintiff likewise promised to release and acquit the Defendant of all Demands The Plaintiff demurred Seys Serjeant argued for the Plaintiff Ex parte Quer. that though one promise may be discharged by another yet a duty certain cannot as in this Case where a demand was of a Sum certain by the Indebitatus besides this Plea is in nature of an Accord which cannot be good without an averment of satisfaction given Broke Accompt 46 48. Neither is it said that the Plaintiff promised in consideration that the Defendant ad instantiam of the Plaintiff had promised Ex parte Def. But it was answered by Serjeant Hopkins and admitted to be true That where a Matter is pleaded by way of accord it must be averred to be executed in all Points but that was not the present Case ◠Cro. 100. The Defendant hath pleaded that he and the Plaintiff had accounted together and so the Contract is gone by the Accompt 2. That he was discharged of the Contract by parol both which the Plaintiff had now admitted by his Demurrer And it will not be denied that a Parol discharge of an Assumpsit is good as if A. promises to perform such a Voiage within a time limited and the breach assigned was that he did not go the Voiage The Defendant pleads that the Plaintiff exoneravit eum and upon Demurrer it was held good 22 Ed. 4. 40. 3 H. 6. 37. Object If it be objected that 't is no Consideration to pay a just Debt for if 30 s. were due of right it ought to be paid and that can be no reason upon which to ground a Promise Answ 'T is a good Consideration to pay Mony on the day which the party is bound to upon Bond because it is paid without Suit or Trouble which might be otherwise a loss to the Plaintiff But in this Case here is an express Agréement and before there was only a Contract in Law Cro. Car. 8. Flight versus Crasden Curia North Chief Iustice It has béen always taken that if there be an Assumpsit to do a thing and there is no breach of the promise that it may be discharged by Parol but if it be once broken then it cannot be discharged without Release in a writing In this Case there are two Demands in the Declaration to which the Defendant pleads an Accompt stated so that the Plaintiff can never after have recourse to the first Contract which is thereby merged in the Accompt If A. sells his Horse to B. for 10 l. and there being divers other dealings between them if they come to an accompt upon the whole and B. is found in arrear 5 l. A. must bring his insimul computasset for he can never recover upon an Indebitatus Assumpsit and of the same Opinion were the other three Iustices and though it was not said ad instantiam of the Plaintiff that he promised yet it was adtunc ibidem and so should be intended that the Defendant made the Promise at the instance of the Plaintiff and so Iudgment was given for the Defendant Daws versus Sir Paul Pindar COvenant to pay a Sum of Mony within a year after one Nokes shall be admitted to the Office of Secretary to the Governour of Barbadoes Barbadoes whether governed by the Laws of England so that the Statute of buying Offices extends to it The Defendant pleads that that the
de se by Inquisition and then comes an Act of Indempnity that shall not divest the King of his Right But where nothing Vests before the Office found a Pardon before the Inquisition extinguishes all Forfeitures as it was resolved in Tomb's Case So if the Pardon in this Case had come before the Presentation the Party had been restored Statu quo c. The King can do no more the Bishop is to do the rest neither is the Presentation revoked by this Act it might have been revoked by implication in some Cases as where there is a second Presentation but such a general revocation will not do it and Iudgment was given for the Plaintiff and a Writ of Error brought but the Cause was ended by Agreement Hill versus Pheasant Gaming at several meetings whether within the Statute AN Action of Debt was brought upon the Statute of 16 Car. 2. cap. 7. made against deceitful and disorderly Gaming which Enacts That if any person shall play at any Game other than for ready Mony and shall lose any Sum or other thing played for above the Sum of 100 l. at any one time or meeting upon Tick and shall not then pay the same that all Contracts and Securities made for the payment thereof shall be void and the person winning shall pay treble the Mony lost It happened that the Defendant won 80 l. at one meeting for whcih the Plaintiff gave Security and another meeting was appointed and the Defendant won 70 l. more of the Plaintiff being in all above 100 l. And if this was within the Statute was the Question The like Case was in the Kings-Bench Trin. 25 Car. 2. Rot. 1230. between Edgberry and Roseberry and in Michaelmas Term following this Case was argued and the Court was divided which the Plaintiff perceiving Anonymus Postea desired to discontinue his Action but the better Opinion was that it was not within the Statute though if it had been pleaded That the several meetings were purposely appointed to elude the Statute Sid. 394. in might be otherwise Calthorp versus Heyton Traverse not good viz. Absque hoc quod legitimo modo oneratus IN Replevin The Defendant avowed for that the King being seised in Fee of a Mannor and of a Grange which was parcel of the Mannor granted the Inheritance to a Bishop reserving 33 l. Rent to be yearly issuing out of the whole and alledges a Grant of the Grange from Sir W. W. who claimed under the Bishop to his Ancestors in Fee in which Grant there was this Clause Viz. If the Grantee or his Heirs shall be legally charged by Distress or with any Rent due to the King or his Successors upon account of the said Grange that then it should be lawful for them to enter into Blackacre and distrein till he or they be satisfied And afterwards the Grantee and his Heirs were upon a Bill Exhibited against them in the Exchequer decreed to pay the King 4 l. per Annum as their proportion out of the Grange for which he distreined and so justified the taking The Plaintiff pleads in barr to the Avowry and traverseth that the Defendant was lawfully charged with the said Rent and the Defendant demurred Baldwyn Serjeant maintained the Avowry to be good Ex parte Def. having alledged a legal charge and that the Barr was not good for the Plaintiff traverseth quod Defendens est ligitimo modo oneratus which being part matter of Law and part likewise matter of Fact is not good and therefore if the Decree be not a legal charge the Plaintiff should have demurred But on the other side it was argued by Seys Serjeant Ex parte Quer. That the Avowry is not good because the Defendant hath not set forth a legal charge according to the Grant which must be by Distress or some other lawful way and that must be intended by some execution at Common Law for the coactus fuit to pay is not enough a Suit in Equity is no legal disturbance Moor 559. The same Case is Reported in 1 Brownl 23. Selby versus Chute Besides the Defendant doth not shew any Process taken out or who were Parties to the Decree and a Que estate in the Case of a Bishop is not good for he must pass it by Deed. North and the whole Court A Rent in the Kings Case lies in Render and not in Demand and after the Rent day is past he is oneratus and the Decree is not material in this Case for the charge is not made thereby but by the Reservation for payment whereof the whole Grange is chargeable The King may distrain in any part of the Land he is not bound by the Decree to a particular place that is in favour only to the Purchasor that he should pay no more than his proportion As to the Que estate the Defendant hath admitted that by saying bene verum est that Sir W. W. was seised The Traverse is ill and Iudgment was given for the Avowant Vaughan versus Wood. Trespass justified for taking corrupt Victualls Mod. Rep. 202. TRespass for taking Beef The Defendant pleads a Custom to choose Supervisors of Victuals at a Court Leet That he was there chosen and having viewed the Plaintiffs Goods found the Beef to be corrupt which he took and burned The Plaintiff demurrs for that the Custom is unreasonable and when Meat is corrupt and sold there are proper remedies at Law by Action on the Case or presentment at a Leet 9 H. 6. 53. 11 Ed. 3. 4. 6. Vide Stat. 18 Eliz. cap. 3. But the Court held it a good Custom and Iudgment was given for the Defendant the Chief Iustice being not clear in it Chapter of Southwel versus Bishop of Lincoln Grant of next Avoidance not bind the Successor Mod. Rep. 204. IN a Quare Impedit the Question upon pleading was Whether the Grant of the next Avoidance by the Chapter was good or not to bind the Successor The doubt did arise upon the Statute of 13 Eliz. cap. 10. which was objected not to be a publick * Yelv. 106. Act because it extends only to those who are Ecclesiastical persons or if it should be adjudged a publick Law yet this is not a good Grant to bind the Successor for though the Grant of an Avoidance is not a thing of which any profit can be made yet it is an * Cro. Eliz. 441. Hereditament within the meaning of that Statute by which among other things 't is Enacted That all Grants c. made by Dean and Chapter c. of any Lands Tythes Tenements or Hereditaments being parcel of the Possessions of the Chapter other than for the Term of 21 Years or 3 Lives from the time of the making the said Grant shall be void But it was agreed by the Court to be a general Law like the Statute of Non Residency which hath been so ruled and that this Presentment or Grant
of the next Avoidance was not good because it was made by those who were not Head of the Corporation and it must be void immediately or not at all and Iudgment was given accordingly Threadneedle versus Lynam THere being two Mannors usually let for 67 l. 1 s. 5 d. by the year Lease by a Bishop and more than the old Rent reserved good Mod. Rep. 203. a Bishop lets one of them for 21 years reserving the whole Rent and whether this was a good Lease within the Statute of 1 Eliz. cap. 19. was the Question which depended upon the construction of the Words therein viz. All Leases to be void upon which the old accustomed Rent is not reserved and here is more than the old Rent reserved and this being a private Act is to be taken literally North Chief Iustice agreed that private Acts which go to one particular thing are to be interpreted literally but this Statute extends to all Bishops and so may be taken according to Equity and therefore he and Wyndham and Atkins Iustices held the Lease to be good But this Case was argued when Vaughan was Chief Iustice and he and Iustice Ellis were of another Opinion DE Term. Sancti Mich. Anno 27 Car. II. in Communi Banco Thorp versus Fowle No more Costs than Damages NOTA. In this Case the Court said that since the Statute which gives no more Costs than Damage 't is usual to turn Trespass into Case Cooper versus Hawkeswel Words IN an Action upon the Case for these Words I dealt not so unkindly with you when you stole a Stack of my Corn Per Curiam the Action lies Escourt versus Cole Words IN an Action on the Case for Words laid two ways the last Count was Cumque etiam which is but a recital and dubitatur whether good Sharp versus Hubbard Six Months for proving of a Suggestion THE six Months in which the Suggestion is to be proved must be reckoned according to the Calendar Months and 't is so computed in the Ecclesiastical Court Crowder versus Goodwin Justification by Process out of inferiour Court IN Assault and Battery and false Imprisonment as to the Assault c. the Defendant pleads Not-Guilty and as to the Imprisonment he justifies by a Process out an inferiour Court and upon Demurrer these Exceptions were taken to his Plea 1. The Defendant hath set forth a Precept directed Servienti ad Claven and 't is not said Ministro Curiae 2. 1 Rol. 484. Cro. Car. 254. Dyer 262. b. It was to take the Plaintiff and have him ad proximam Curiam which is not good for it should have beén on a day certain like Adams and Flythe's Case * Cro. Jac. 571. Mod. Rep. 81. where a Writ of Error was brought upon a Iudgment in Debt by Nil dicit in an inferiour Court and the Error assigned was That after Imparlance a day was given to the Parties till the next Court and this was held to be a Discontinuance not being a day certain 3. 'T is not said ad respondend ' alicui 4. Nor that the Action arose infra Burgum 5. The Precept is not alledged to be returned by the Officer To all which it was answered That a Pleint is but a Remembrance and must be short Rast 321. and when 't is entred the Officer is excused for he cannot tell whether 't is infra * Squibb versus Hole antea 29. Jurisdictionem or not And as to the first Exception a Precept may be directed to a private person and therefore Servienti ad Clavem is well enough Then as to the next Exception 't is likewise well set forth to have the Plaintiff ad proximam Curiam for how can it be on a day certain when the Iudge may adjourn the Court de die in diem Then ad respondendum though 't is not said alicui 'tis good though not so formal and 't is no Tort in the Officer but t is to be intended that he is to answer the Plaintiff in the Plaint As to the fourth Exception the Defendant sets forth that he did enter his Plaint secundum consuetudinem Curiae Burgi and when the Plaintiff declared there he shewed that the Cause did arise infra Jurisdictionem And as to the last The Officer is not punishable though he do not return the Writ The end of the Law is that the Defendant should be present at the day and if the Cause should be agreed or the Plaintiff give a Release when the Defendant is in custody no Action lies against the Officer if he be detained afterwards But the Chief Iustice doubted that for the second Exception the Plea was ill for it ought to be on a day certain and likewise it ought to be alledged infra Jurisdictionem But the other threé Iustices held the Plea to be good in omnibus and said that the inferior Court had a Iurisdiction to issue out a Writ and the Officer is excusable though the cause of Action did not arise within the Iurisdiction which ought to be shewn on the other side And so Iudgment was given for the Defendant Snow and others versus Wiseman Traverse necessary where omitted is substance TRespass for taking of his Horse The Defendant pleads that he was seised of such Lands and intitles himself to an Herriot The Plaintiff replies that another person was jointly seised with the Defendant Et hoc paratus est verificare The Defendant demurs generally because the Plaintiff should have traversed the sole Seisin But it was said for him that the sole Seisin néed not be traversed Sid. 300. because the matter alledged by him avoids the Barr without a Traverse In a Suggestion upon a Prohibition for Tythes the Plaintiff entituled himself by Prescription under an Abbot and shews the Vnity of Possession by the Statute of 31 H. 8. by which the Lands were discharged of Tythes Yelv. 231. Pl. Com. 230. 231. The Defendant pleads that the Abbey was founded within time of Memory and confesseth the Vnity afterwards and the Plea was held good for he néed not traverse the Prescription because he had set forth the Foundation of the Abbey to be within time of Memory which was a sufficient avoiding the Plaintiffs Title Yelv. 31. The Plaintiff therefore having said enough in this Case to avoid the Barr if he had traversed it also it would have made his Replication naught Cro. Jac. 221. like the Case of * Bedel and Lull where in an Ejectment upon a Lease made by Elizabeth the Defendant pleads that before Elizabeth had any thing in the Lands James was seised thereof in Fee and that it descended to his Son and so derives a Title under him and that Elizabeth was seised by Abatement The Plaintiff confesses the Seisin of James but that he devised it to Elizabeth in Fee and makes a Title under her absque hoc that she was seised by Abatement and upon a Demurrer the
but if he will justifie by vertue of any particular Estate he must shew the Commencement of that Estate and then such pleading as here will not be good But when the Matter is * Yelv. 75. Cro. Car. 138. collateral to the Title of the Land and for any thing which appears in the Declaration the Title may not come in question such a Iustification as this will be good In this Case no Man can tell what the Plaintiff will reply 't is like the Cases of Inducements to Actions which do not require such certainty as is necessary in other Cases So where an Action is brought for a Nusance and he intitles himself generally by saying he is possessionat ' pro termino annorum 't is well enough and he need not to set forth particularly the Commencement because he doth not make the Title his Case for which reason Iudgment was given for the Defendant Crosier versus Tomlinson Executor IN an Action on the Case Statute of Limitations of personal Actions extends to Indebitatus Assumpsit The Plaintiff declared that the Defendants Testator being in his Life time viz. such a day indebted to the Plaintiff in the Sum of 20 l. for so much Mony before that time to his use had and received did assume and promise to pay the same when he should be thereunto required and that the Testator did not in his Life time nor the Defendant since his death pay the Mony though he was thereunto required The Defendant pleads that the Testator did not at any time within six years make such promise The Plaintiff replies that he was an Infant at the time of the promise made and that he came not to full Age till the year 1672. and that within six years after he attained the Age of one and twenty years he brought this Action and so takes advantage of the promise in the Statute of * 21 Jac. c. 16. Limitations that the Plaintiff shall have six years after the disability by Infancy Coverture c. is removed And the Defendant demurred by Serjeant Rigby Ex parte Def. and the reason of his Demurrer was because in the said Proviso Actions on the Case on Assumpsit are omitted This Act was made for quieting of Estates and avoiding of Suits as appears by the Preamble and therefore shall be taken strictly there is an enumeration of several Actions in the Proviso and this is Casus omissus and so no benefit can be taken of the Proviso In a Writ of Error upon a Iudgment brought 4 Car. 1. in the Court of Windsor the Iudges held that an Action on the Case for * Cro. Car. 163 513 535. Debt upon Escape is out of the Statute 1 Sand 37. But an Action for Escape is not Sid. 305. So is Debt for not setting out of Tithes for these are not grounded upon any Contract Cro. Car. 513. Hut 109. slandering of a Mans Title is out of this Act because such an Action was rare and not brought without special damages But Hide Chief Iustice doubted 1 Cro. 141. The Law-makers could not omit this Case unadvisedly because 't is within those sorts of Actions enumerated by this Act. This Promise was made to the Plaintiff when he was but a day old and it would be very hard now after so many years to charge the Executor Ex parte Quer. But Turner Serjeant argued that though an Indebitat̄ assumpsit is not within the express words of the Proviso yet 't is within the intent and meaning thereof and so the Rule is taken in 10 Co. 101. in Bewfages Case quando verba statuti sunt specialia ratio autem generalis statutum intelligendum est generaliter And this is a Statute which gives a general remedy and the mischief to the Infant is as great in such Actions of Indebitatus assumpsit as other Actions and therefore 't is but reasonable to intend that the Parliament which hath saved their Rights in Debts Trovers c. intended likewise that they should not be barred in an Indebitatus Assumpsit In 2 Anders 55. Smith versus Colshil Debt was brought upon a Bond the Defendant there pleaded the Statute of the 5 E. 6. of selling of Offices the words of which are viz. That every Bond to be given for money or profit for any Office or Deputation of any Office mentioned in the Statute shall be void against the Maker In that case the Bond was given to procure a Grant of the Office and also to exercise the same now though this was not within the express words of the Statute yet the Bond was held void and if it should be otherwise the mischiefs which the Statute intended to remedy would still continue and therefore the intent of the Law-makers in such cases is to be regarded for which reason if Actions of Indebitatus Assumpsit are within the same mischief with other Actions therein mentioned 2 Anders 123 150. Cor. Car. 533. 19 H. 8. 11. such also ought to be construed to be within the same remedy But he took the Case of * Cro Car. 245. Swain versus Stephens to rule this Case at Bar in which Case this very Statute was pleaded to an Action of Trover and the Plaintiff replied that he was beyond Sea and upon a Demurrer to the Replication the Court held Trover to be within the Statute it being named in the Paragraph of Limitation of personal Actions which directs it to be brought within the time therein limited that is to say all Actions on the Case within six years and then enumerates several other Actions amongst which Trover is omitted yet the Court were then of Opinion that Trover is implied in those general words Curia And of that Opinion was the Chief Iustice and Wyndham and Atkyns Iustices That upon the whole frame of the Act it was strong against the Defendant for it would be very strange that the Plaintiff in this Case might bring an Action of Debt and not an Indebitatus Assumpsit When the Scope of an Act appears to be in a general sense the Law looks to the meaning and is to be extended to particular Cases within the same reason and therefore they were of Opinion That Actions of Trespass mentioned in the Statute are comprehensive of this Action because 't is a Trespass upon the Case and the words of the Proviso save the Infants Right in Actions of Trespass And therefore though there are not particular words in the enacting Clause which relate to this Action yet this Proviso restrains the severity of that Clause and restores the Common Law and so is to be taken favourably and this Action being within the same reason with other Actions therein mentioned ought also to be within the same remedy But Iustice Ellis doubted whether Actions of Trespass could comprehend Actions on the Case and that when the Parliament had enumerated Actions of Trespass Trover Case for Words c. If they had intended
enough and Iudgment was given accordingly When this Cause was tried at the Barr which was in Easter-Term last the Lord Mohun offered to give his Testimony for the Plaintiff but refused to be sworn offering to speak upon his Honour but Iustice Wyld told him in Causes between Party and Party he must be upon his Oath The Lord Mohun asked him whether he would answer it The Iudge replyed that he delivered it as his Opinion and because he knew not whether it might cause him to be questioned in another place he desired the rest of the Iudges to deliver their Opinions which they all did and said he ought to be sworn and so he was but with a salvo jure for he said there was an Order in the House of Peers That 't is against the Priviledge of the House for any Lord to be sworn Anonymus DEBT upon the Statute for not coming to Church and concludes Per quod Actio accrevit eidem Domino Regi quer̄ ad exigend ' habend ' The Exception after Iudgment was taken that it ought to have been only Actio accrevit eidem the Plaintiff qui tam c. and not exigend ' habend ' for the King and himself Sed non allocatur For upon search of Presidents the Court were all of Opinion that it was good either way Anonymus Factor where he cannot sell but for ready Mony IN Accompt Iudgment was given quod computet and the Defendant pleads before the Auditors that the Goods whereof he was to give a reasonable accompt were bona peritura and though he was carefull in the keeping of them yet they were much the worse that they remained in his hands for want of Buyers and were in danger of being worse and therefore he sold them upon Credit to a Man beyond Sea The Plaintiff demurred and after Argument by Barrel Serjeant for the Plaintiff and Baldwin Serjeant for the Defendant the whole Court were of Opinion that the Plea was not good Curia For if a Merchant deliver Goods to his Factor ad merchandizand ' he cannot sell them upon Credit but for ready Mony unless he hath a particular Commission from his Master so to do for if he can find no Buyers he is not answerable and if they are bona peritura and cannot be sold for Mony upon the delivery the Merchant must give him authority to sell upon Trust If they are burned or he is robbed without his own default he is not lyable and in this Case it was not pleaded that he could not sell the Goods for ready Mony and the Sale it self was made beyond Sea where the Buyer is not to be found like the Case of * 1 Bulst 103. Yelv. 202. Sadock and Burton where in Accompt against a Factor he pleads that he sold the Iewel to the King of Barbary for the Plaintiffs use and upon a Demurrer the Plea was held naught for when a Factor hath a bare Authorty to sell in such Case he hath no power to give a day of payment but must receive the Mony immediately upon the Sale Therefore in the Case at Barr if the Master is not bound by the Contract of the Servant without his Consent or at least the Goods coming to his use neither shall the Servant have Authority to sell without ready Mony unless he hath a particular Order for that purpose There was another thing moved in this Case for the Plaintiff that the Plea ought to be put in upon Oath for having pleaded that he could not sell without loss he ought to swear it Fitzh Accompt 47. But no Opinion was delivered herein only the Chief Iustice said that the Plaintiff ought to have required the Plea upon Oath for otherwise it was not necessary But for the substance of the Plea it was held ill and Iudgment was given for the Plaintiff Harris's Case SErjeant Hopkins moved for a Prohibition The Case was Husband dies his Wife Executrix she dies before Probate Administration must be to the next of kin of the Husband 22 23 Car. 2. cap. 10. A Man makes a Will and appoints his Wife to be Executrix and devises a Shilling to his Daughter for a Legacy and dies the Executrix before Probate of the Will dies also intestate and whether the Goods shall be distributed by the Act for settling Intestates Estates amongst the next of kin to the Executrix or to the next of kin to the Testator her Husband was the Question Since she dying before Probate her Husband in Iudgment of Law died also intestate This Case seems to be out of the Statute the Husband having made a Will and the Act intermeddles only where no Will is made The Court delivered no Iudgment in it but seemed to incline that the Statute did extend to this very Case and that Administration must be committed to the next of kin of the Husband but if there should be no distribution it must then be according to the Will of the Testator Reder versus Bradley IT was moved to reverse a Iudgment given in an Honour Court upon a Writ of false Iudgment brought here Judgment reversed in an inferior Court where the damage was laid to 30 l. The Plaintiff declared in the Action below that there was a Communication between him and the Defendant concerning the Service of his Son and it was agreéd between them that in consideration the Plaintiff would permit his Son to serve him the Defendant promised to pay the Plaintiff 30 s. The Plaintiff avers that he did permit his Son to serve him and that the Defendant hath not paid him the 30 s. There was a Verdict for the Plaintiff and the Exceptions now taken were 1. 'T is not said that the Iurors were electi ad triand ' c. 2. He lays his damage to 30 l. of which a Court Baron cannot hold Plea for the difference taken by my Lord Coke is where Damages are laid under 40 s. Costs may make it amount to more but where 't is laid above in such Case all is coram non Judice for which reason Iudgment was reversed but in this Court the Iudge doth not pronounce the Reversal as 't is done in the Kings Bench. Lane versus Robinson Inferior Court TRespass for taking of his Cattel the Defendant justifies by vertue of an Execution in an Action of Trespass brought in a Hundred Court and the Plaintiff demurred Serjeant Pemberton took two Exceptions to the Plea 2 Cro. 443 526. Hob. 180. Sid. 348. 1. Because the inferior Court not being of Record cannot hold Plea of a Trespass quare vi armis contra pacem but it was not allowed for Trespasses are frequently brought there and the Plaintiff may declare either vi armis or contra pacem Postea 2. The Defendant reciting the Proceedings below saith taliter processum fuit whereas he ought particularly to set forth all that was done because not being in a Court
should take revenge themselves for which reasons he held the Action will lye Atkyns Iustice contra This is not a common Action upon the Case but an Action founded upon the Statute of the 2 of R. 2. upon the Construction whereof the Resolution of this Case will depend whether the Action will lie or not And as to that he considered 1. The Occasion 2. The Scope 3. The parts of the Statute 1. The occasion of it is mentioned in Cotton's Abridgment of the Records of the Tower f. 173. nu 9 and 10. At the summoning of this Parliament the Bishop of St. Davids declared the Causes of their meeting and told both the Houses of the Mischiefs that had hapned by divers slanderous Persons and sowers of Discord which he said were Dogs that eat raw Flesh the meaning of which was that they devoured and eat one another to prevent which the Bishop desired a Remedy and his Request seemed to be the Occasion of making this Law for ex malis moribus bonae nascuntur Leges 2. The Scope of the Act was to restrain unruly Tongues from raising false Reports and telling Stories and Lyes of the Peers and Great Officers of the Kingdom so that the design of the Act was to prevent those imminent dangers which might arise and be occasioned by such false Slanders 3. Then the parts of the Act are three viz. reciting the Offence and the Mischief then mentioning the ill Effects and appointing of a Penalty From whence he Observed 1. That here was no new Offence made or declared for nothing was prohibited by this Statute but what was so at the Common Law before The Offences to be punished by this Act are mala in se and those are Offences against the Moral Law they must be such in their nature as bearing of false Witness and these are Offences against a common Person which he admitted to be aggravated by the eminency of the person against whom they were spoke but every uncivil Word or rude Expression spoken even of a Great Man will not bear an Action and therefore an Action will not lie upon this Statute for every false Lye but it must be horrible as well as false and such as were punishable in the High Commission Court which were enormous Crimes 12 Co. 43. By this description of the Offences and the consequences and effects thereof he said he could better judge whether the Words were actionable or not and he was of Opinion that the Statute did not extend to Words of a small and trivial nature nor to all Words which were actionable but only to such which were of a greater magnitude such by which Discord might arise between the Lords and Commons to the great peril of the Realm and such which were great Slanders and horrible Lies which are words purposely put into this Statute for the aggravation and distinction of the Crime and therefore such Words which are actionable at the Common Law may not be so within this Statute because not horrible great Scandals He did not deny but that these were undecent and uncivil words and very ill applied to that honourable person of whom they were spoken but no body could think that they were horrible great slanders or that any debate might arise between the Lords and Commons by reason such words were spoken of this Peer or that it should tend to the great peril of the Kingdom and the quick destruction thereof such as these were not likely to be the effects and consequences of these Words and therefore could not be within the meaning of the Act because they do not agree with the discription given in it 2. Here is no new punishment inflicted on the Offender for at the Common Law any person for such Offences as herein are described might have been Fined and Imprisoned either upon Indictment or Information brought against him and no other punishment is given here but Imprisonment Even at the Common Law scandal of a Peer might be punished by Pillory and loss of Ears 5 Co. 125. De Libellis Famosis 12 Co. 37. 9 Co. 59. Lamb's Case So that it appears this was an Offence at the Common Law but aggravated now because against an Act of Parliament which is a positive Law much like a Proclamation which is set forth to enforce the execution of a Law by which the Offence is afterwards greater He did agree that an Action would lie upon this Statute though there were no express Words to give it to a Peer because where there is a Prohibition and a Wrong and Damage arises to the Party by doing the thing prohibited in such Case the Common Law doth intitle the Party to an Action 10 Co. 75. 12 Co. 100 103. And such was the Resolution in the Earl of Northampton's Case upon construction of the Law as incident to the Statute and as the Offence is greater because of the Act and as the Action will lie upon the Statute so the Party injured may sue in a qui tam which he could not have done before the making this Law 3. But that such words as these were not actionable at the Common Law much less by the Statute for the Defendant spoke only his Iudgment and Opinion and doth not directly charge the Plaintiff with any thing and might well be resembled to such Cases as are in Rolls Abridgm 1 part 57. pl 30. which is a little more solemn because adjudged upon a special Verdict the Words were spoken of a Iustice of Peace Thou art a Blood-Sucker and not fit to live in a Commonwealth These were not held actionable because they neither relate to his Office or fix any Crime upon him Fol. 43. in the same Book Thou deservest to be hanged not actionable because it was only his Opinion So where the Words are general without any particular Circumstances they make no impression and gain no credit and therefore in Cro. Car. 111. 1 Roll. Abridgm 107. pl. 43. You are no true Subject to the King the Action would not lie In this Case 't is said the Plaintiff acts against Law which doth not imply a Habit in him so to do and when Words may as well be taken in a mild as in a severe Sense the Rule is quod in mitiori sensu accipienda sunt Now these Words are capable of such a favourable construction for no more was said of the Plaintiff than what in some sense may be said of every person whatsoever for who can boast of his Innocency who keeps close in all his actions to Law and Reason and to say A Man acts against both may imply that he departed from those Rules in some particular Cases where it was the Error of his Iudgment only In the Duke of Buckingham's Case Sheppard's Abridgment 1 part f. 28. Viz. You are used to do things against Law and mentions a particular fact there indeed because of Usage of the ill practice it was held that an Action lies but if he had been
Case of * Sid. 233. the Marquess of Dorchester He is no more to be valued than the Black Dog which lies there which were Words of disesteem and only the Opinion of the Defendant in which Case Iudgment was affirmed in a Writ of Error Object If it be objected to what purpose this Statute was made if no Action lies upon it but what lay at the Common Law Answ The Plaintiff now upon the Statute must prosecute tam pro Domino Rege quam pro seipso which he could not do at the Common Law And it has beén held in the Starr-Chamber that if a Scandalum Magnatum be brought upon this Statute the Defendant cannot justifie because 't is brought qui tam c. and the King is concerned but the Defendant may explain the Words and tell the occasion of speaking of them if they are true they must not be published because the Statute was to prevent Discords Object These Words carry in them no disesteem Answ According to a Common Vnderstanding they are Words of disrespect and of great disesteem for 't is as much as to say that the Plaintiff is a Man of no Honour he is one who lives after his own Will and so is not fit to be employed under the King if any precedent discourse had qualified the speaking these Words it ought to have been shewn by the Defendant which is not done and therefore he concluded that the Words notwithstanding what was objected were actionable and so by the Opinion of him Wyndham and Scroggs Iustices Iudgment was given for the Plaintiff Atkins Iustice of a contrary Opinion Anonymus AN Action of Assault Battery Amendment after a Demurrer joyned and before Judgment given good Wounding and false Imprisonment for an hour was brought against the Defendant who pleads quoad venire vi armis Not-Guilty and as to the Imprisonment he justified as Servant to the Sheriff attending upon him at the time of the Assize from whom he received a Command to bring the Plaintiff being another of the Sheriffs Servants from the Conventicle where finding of him he to wit the Defendant did molliter manus imponere upon the Plaintiff and brought him before his Master quae est eadem transgressio To this the Plaintiff demurred and shewed for Cause 1. That the Substance of the Iustification is not good 2 Cro. 360. because the Servant could not thus justifie though his Master might for the Lord may beat his Villain without a Cause but if he command another to do it an Action of Battery lies against him 2 H. 4. 4. But though this might have been good if well pleaded yet 't is not good as pleaded here for 2. The Defendant saith quoad venire vi armis Not-Guilty Harding and Ferne Postea but saith nothing of the wounding which cannot be justified and therefore this Plea is not good for which reason it was clearly resolved that the Plea was ill but the Court inclined that the Substance of the Plea was well enough The Chief Iustice and Iustice Scroggs were of Opinion that a Man may as well send for his Servant from a Conventicle as from an Alehouse and may keep him from going to either of those places And the Chief Iustice said that he once knew it to be part of a Marriage Agreement that the Wife should have leave to go to a Conventicle But in this Case Leave was given to amend the Plea Sid. 107. and put in quoad vulnerationem Not-Guilty and it was held that though the Parties had joined in Demurrer yet the Defendant might have Liberty to amend before Iudgment given Singleton versus Bawtree Executor Traverse must be where the Charge in the Declaration is not fully answered ASsumpsit against the Defendant as Executor who pleads the Testator made one J. S. Executor who proved the Will and took upon him the Execution thereof and administred the Goods and Chattels of the Testator and so concludes in Abatement Et petit Judicium de Brevi with an Averment that J. S. Superstes in plena vita existit To this Plea the Plaintiff demurred because the Defendant ought to have traversed absque hoc that he was Executor or administred as Executor and so are all the Pleadings 9 H. 6. 7. 4 H. 7. 13. 7 H. 6. 13. But Serjeant Pemberton for the Defendant said that there is a difference when Letters of Administration are granted in case the Party die intestate and when a Man makes a Will and therein appoints an Executor for in that Case the Executor comes in immediately from the death of the Testator but when a Man dies intestate the Ordinary hath an Interest in the Goods and therefore he who takes them is Executor de son tort and may be charged as such but 't is otherwise generally where there is a Will and a rightful Executor who proveth the same for he may bring a Trover against the Party for taking of the Testators Goods though he never had the actual possession of them and therefore the taking in such case will not make a Man Executor de son tort because there is another lawful Executor but 't is true that if there be a special Administration 't is otherwise as if a Stranger doth take upon him to pay Debts or Legacies or to use the Intestates Goods such an express Administration will make him Executor de son tort and liable as in Read's Case 5 Co. So in this Case the Defendant pleads that J. S. was Executor which prima facie discharges him for to make him chargeable the Plaintiff ought in his Replication to set forth the special Administration that though there was an Executor yet before he assumed the Execution or proved the Will the Defendant first took the Goods by which he became Executor of his own Wrong and so to have brought himself within this distinction which was the truth of this Case and that would have put the matter out of dispute which not being done he held the Plea to be good and so prayed Iudgment for the Defendant The Court were of Opinion that prima facie this was a good Plea for where a Man * 2 Sand. 28. confesses and avoids he need not traverse and here the Defendant had avoided his being chargeable as Executor de son tort by saying that there was a rightful Executor who had administred the Testators whole Estate but the Surmise of the Plaintiff and the Plea of the Defendant being both in the * 2 Cro. 579. pl. 9. Sid. 341. 1 Sand. 338. affirmative no Issue can be joined thereon and therefore the Defendant ought to have traversed that he was Executor or ever administred as Executor the rather because his Plea gives no full Answer to the Charge in the Declaration being charged as Executor who pleads that another was Executor and both these matters might be true and yet the Defendant liable as Executor de son tort which
inconvenient that the Capias against the Defendant should be delivered to the new Sheriff and not the Supersedeas which was to admit the Charge and not the Discharge Westby's Case 3 Co. 73. And it was the constant practice not only to deliver the Supersedeas but the very Book in which 't is allowed and this he said appeared by the Certificates of many Vnder-Sheriffs which he had in his hand 2. If the Sheriff hath an Exigent against B. who appears and brings a Supersedeas to the old Sheriff and then a new Sheriff is made if he hath not the Supersedeas he may return him outlawed by vertue of the Exigent so in the Case of a Iudgment set aside for Fraud or Practice and a Supersedeas granted and the like in the case of an Estrepment which is never returned and it would be an endless work upon the coming in of every Sheriff to renew this Writ As to the Objection that the old Sheriff may have occasion to plead it As often as such occasion happens he may have recourse to it in the Office of the new Sheriff and he can have no Title to it by the direction of the Writ for that is Vicecomiti Berks and not to him by express Christian and Sirname and of that Opinion was all the Court and Iudgment was given accordingly nisi causa c. Hamond versus Howel Recorder of London An Action will not lie against a Judge for what he doth judicially tho' erroniously Mod. Rep. 184. FAlse Imprisonment The Defendant pleads specially the Substance of which was that there was a Commission of Oyer and Terminer directed to him amongst others c. and that before him and the other Commissioners Mr. Penn and Mr. Mead two Preachers were indicted for being at a Conventicle to which Indictment they pleaded Not-Guilty and this was to be tried by a Iury whereof the Plaintiff was one and that after the Witnesses were sworn and examined in the Cause he and his Fellows found the Prisoners Penn and Mead Not-Guilty whereby they were acquitted quia the Plaintiff male se gesserit in acquitting them both against the direction of the Court in Matter of Law and against plain Evidence the Defendant and the other Commissioners then on the Bench fined the Iury 40 Marks a-piece and for Non-payment committed them to New-gate c. The Plaintiff replies de injuria sua propria absque hoc that he and his Fellows acquitted Penn and Mead against Evidence and to this the Defendant demurred Serjeant Goodfellow who would have argued for the Defendant said that he would not offer to speak to that Point whether a Iudge can fine a Iury for giving a Verdict contrary to Evidence since the Case was so lately and solemnly resolved by all the Iudges of England in * Vaugh. 146. Bushel's Case that he could not fine a Iury for so doing But admit a Iudge cannot fine a Iury yet if he doth no Action will lie against him for so doing because 't is done as a Iudge 12 H. 4. 3. 27 Ass pl. 12. 1 Roll. Abr. 92. Liter Q. pl. 1. But the Court told him that he neéd not to labour that Point but desired to hear the Argument on the other side what could be said for the Plaintiff Serjeant Newdigate argued that this Action would lie 1. It must be admitted that the Imprisonment of the Iury was unlawful and then the consequence will be that all that was done at that time by the Commissioners or Iudges was both against Magna Charta and other Acts of Parliament the Petition of Right c. and therefore their Proceedings were void or at least very irregular to imprison a Iury-man without Presentment or due Process in Law and consequently the party injured shall have an Action for his false Imprisonment In 10 H. 6. f. 17. In an Action brought for false Imprisonment the Defendant justifies the Commitment to be for Suspicion of Felony but because he did not shew the ground of such Suspicion the Iustification was not good The Trial of Penn and Mead and all incidents thereunto as swearing the Iury examining of the Witnesses taking of the Verdict and acquitting the Prisoner were all within the Commission but the fining of the Iury and the imprisoning of them for Non-payment thereof was not justifiable by their Commission and therefore what was done therein was not as Commissioners or Iudges If this Action will not lie then the Party has a Wrong done for which he can have no remedy for the order for paying of the Fine was made at the Old-Bayly upon which no Writ of Error will lie and though the Objection that no Action will lie against a Iudge of Record for what he doth quatenus a Iudge be great the Reason of which is because the King himself is de jure to do Iustice to his Subjects and because he cannot distribute it himself to all persons he doth therefore delegate his Power to his Iudges and if they misbehave themselves the King himself shall call them to account and no other person 12 Co. 24 25. But that concerns not this Case because what was done here was not warranted by the Commission and therefore the Defendant did not act as a Iudge and this difference hath beén taken and allowed that in the Case of an Officer if the Court hath Iurisdiction of the Cause no Action will lie against him for doing what is contrary to his Duty but if all the Proceédings are coram non Judice and so void an Action doth lie 10 Co. 77. So in the Case of a Iustice of the Peace or Constable where he excéeds his particular Iurisdiction so if a Iudge of Nisi Prius doth any thing not warranted by his Commission 't is void And that the Commissioners here had no power to impose this Fine he argued from the very nature of the pretended Offence which was neither a Crime or in any wise punishable because what the Plaintiff did was upon his Oath and for that reason it hath béen adjudged in the Case * Bridgman 131. Agard and Wild that an Action would not lie against one of the Grand Iury after an acquittal for procuring one to be indicted for Barretry because he is upon his Oath and it cannot be presumed that what he did was in Malice The Habeas Corpus gives the Party Liberty but no Recompence for his Imprisonment that must be by an Action of False Imprisonment if otherwise there would be a failure of Iustice and it might encourage the Iudges to act ad libitum especially in inferior Courts where Mayors and Bayliffs might punish Iuries at their pleasures which would not only be a grievance to the Subject but a prejudice to the King himself because no Iuries would appear where they are subject to such arbitrary Procéedings An Action on the Case lies against a Iustice of the Peace for refusing to take an Oath of a Robbery committed 1 Leon. 323.
there hath put down these feigned Attachers for Examples sake from whence the Sheriff in this Case might inferr that they need not be real persons as in truth they ought both upon the Summons Pone and Distress and he cited a Case lately adjudged where the like Return was made upon the Grand Cape and the Iudgment set aside and of this Opinion was the whole Court and said Where the Process is so fatal the Party ought to be duly served and that the Sheriff ought to have gone to the Church and to have seised the Profits and if there be nothing to return a Nihil and though the Iudgment was given before the Term or long since yet when 't is Irregular 't is to be set aside and so it was now and being moved again the Court continued of their former Opinion The like Case was moved in Michaelmas-Term following between Fleming and Lee where the Patron Defendant was thus summoned and never appeared and the Incumbent did cast an Essoign and a Case was cited betwéen Vivian and the Bishop of London Mich. 23 Car. 2. in C. B. where the like Iudgment was set aside But on the other side it was objected that leaving due notice upon the Summons was as much as was required for the other Writs are only to give the Defendant time to plead and therefore 't is not necessary that notice should be given upon every one of the Writs for if once served 't is enough 11 H. 6. 3 4. 36 H. 6. 23. 8 H. 6. 8. Long 5 to E. 4. 26. 29 E. 3. 42 43. Doctor and Stud. 125 126. 21 H. 6. 56. But the Court were of Opinion that the Defendant having not appeared nor cast an Essoign and Iudgment final being given Curia it was reason that all the Process should be served really of which there had been no occasion if he had either appeared or essoined and therefore the Process not being duly served Iudgment was set aside Rast Ent. 217. And they held that the Essoign of the other Defendant was no wise binding to the Patron Defendant because they may sever in Pleading and so that Iudgment was likewise set aside DE Term. Sancti Mich. Anno 29 Car. II. in Communi Banco Sir John Otway versus Holdips Executor c. Bond to pay 40 l. when an Accompt shall be stated 't is a Covenant and not a Solvendum DEBT upon Bond brought by the Plaintiff against the Defendant as Executor wherein the Testator did acknowledge himself to be indebted to the Plaintiff in 40 l. which he thereby did covenant to pay when such a Bill of Costs should be stated by two Attornies indifferently to be chosen between them and sets forth in his Declaration that he named one Attorny and desired the now Defendant to name another which he refused and so intitles himself to this Action The Defendant pleads Non detinet to which the Plaintiff demurred But the Plea was not offered to be maintained because the Executor cannot plead Non detinet but where the Testator himself might plead Nil debet which in this Case he could not do But it was insisted that the Declaration is not good because the Mony was to be paid upon an accompt stated which not being done by the Plaintiffs own shewing 't is not yet due and this ought to be taken as penned viz. Solvendum and not an express Covenant But on the contrary it was held not to be a Solvendum but a Covenant to pay the Mony the Debt and the Duty being in the first place ascertained but if it be a Solvendum and repugnant to the Obligatory Clause 't is void 21 Ed. 4.36 As the Defendant would have it expounded it would be in his power totally to defeat the Bond either way for if he would never chuse an Attorny there could be never any thing due The whole Court were of Opinion that it was not a Solvendum but a Covenant which did not take away the Duty ascertained by the Obligation and if it should not be a Covenant but an entire Bond then it would be in the Power of the Obligor whether ever it shall be payable but be it either the one or the other the Plaintiff having named an Attorny ought to recover and Iudgment was accordingly given for him Dunning versus Lascomb DEBT on a Bond the Condition was to pay Mony when a Ship should go from A. to C. and from thence to Bristol and should arrive there or at any other Port of discharge in England the Ship going from A. to C. took in Provisions at Bristol but not to be discharged there but proceeded in her Voiage to Cales and was cast away And by the Opinion of the Court the Mony was not payable but if he had never intended to perform the Voyage it might have been otherwise 1 Roll. Abr. 142. 39 H. 6.10 Iudgment for the Defendant nisi Atkins versus Bayles AN Information was exhibited against the Defendant Outlary pleaded to an Information good being a Iustice of the Peace for refusing to grant his Warrant to suppress a Conventicle The Defendant pleads an Outlary in disability and the Plantiff demurred 1. 3 Inst 194. This Plea is not good because the King is interested qui tam c. and therefore where the Informer dies the Attorny General may proceed 2. The Statute gives power to any person to inform c. by which general Words the Disability of this person is removed But the Court held that there was no colour in either of these Objections 3. 'T is not pleaded sub pede sigilli sed non allocatur for it need not be so pleaded being in the same Court 4. 'T is not averred that the Plaintiff was the same person who was outlawed but it was answered that the praedictus makes that certain and that though the King be interessed yet the Informer only is Plaintiff and intituled to the benefit and that though he was disabled yet he might sue for the King Moor 541. Dyer 227. b. Cro. Eliz. 583. but not for himself and therefore Iudgment was given that the Plea was good Harwood Bincks versus Hilliard c. Notice where 't is agreed to be in writing must be so pleaded BY an Agreement between the Plaintiffs and the Testator of the Defendant a parcel of Lands was to be sold for 400 l. but if it did not arise to so much then they covenanted with each other to repay proportionable to the Abatement and the Defendant's Testator covenanted for himself and his Executors to pay his proportion to the Plaintiffs so as the Plaintiffs gave him notice in writing of the said Sale by the space of ten days but doth not say that such notice was to be given to his Executors or Administrators And now the Plaintiffs averred that they gave notice accordingly to the Defendant who was Executor and the breach assigned was that he hath not paid c. The
taken in Execution 1 Cro. 239. Hob. 180. Rol. Rep. 233. 2. The Promise here was not to pay the Mony absolutely but sub modo so that the Evidence did not maintain the Action and the Plaintiff was Nonsuited Nichols versus Ramsel Release of all Demands usque 26 Apr. a Bond dated that day is not released TRespass done 24 Martii 26 Car. 2. usque 26 Augusti 28 Car. 2. diversis diebus vicibus c. The Defendant pleaded that on the 24th day of April in the 26th year of King Charles the Second he paid the Plaintiff 6 d. which he received in full satisfaction of all Trespasses usque ad the said 24th day of April absque hoc that he was guilty ad aliquod aliud tempus praeter praedictum 24 Aprilis anno 26 Car. 2. aut aliquo tempore postea but leaveth out the 24th day of April and for that Reason the Plaintiff demurred because the Defendant had not answered that day for the Word usque excludes it So where Debt was brought upon a Bond dated 9 Julii the Defendant pleaded a Release of all Actions Owen ' 50. 2 Rol. Abr. 521. c. the same day usque diem dati ejusdem scripti the Bond was not discharged because the Release excludes the 9th day on which it was made But Serjeant Weston contra Though generally in pleading the Word usque is exclusive yet in the Case of Contracts because of the intent of the Parties 't is inclusive and therefore in one Nichol's Case 20 Car. 2. in B. R. Rot. 21. the Term was not named a Lease was made Habendum from Lady-day usque Festum Sancti Michaelis 1665. paying the Rent reserved at Michaelmas during the Term the Rent shall be paid on Michaelmas-day 1665. and so the day shall not be excluded So where a Man prescribes to put Cattle from and immediately after Lady-day where they are to stay till Michaelmas-day the putting them in on Lady-day and driving them away on Michaelmas-day is not justifiable in strictness yet it hath been allowed good So in a Devise the Question was whether the Testator was of Age or not and the Evidence was that he was born the first day of January in the Afternoon of that day and died in the Morning on the last day of December And it was held by all the Iudges that he was of full Age for there shall be no fraction of a day North Chief Iustice said that prima facie this is to be intended good for a day is but Punctum temporis and so of no great consideration But the other three Iustices were of Opinion that the Word Usque was exclusive and that the Plaintiff should not be put to shew that there was a Trespass done on the 24th of April and said that in a Release of all Demands till the 26th of April a Bond dated that day is not released wherefore Iudgment was given for the Plaintiff Trevil versus Ingram COvenant to pay an Herriot post mortem J. S. or 40 s. at the election of the Plaintiff Release of all Demands doth not barr a future Duty Mod. Rep. 216. and sets forth the death of J. S. and that afterwards he chose to have the 40 s. for which he brought this Action and assigns the Breach for Non payment The Defendant pleaded that the Plaintiff released to him all Actions and Demands c. But this Release was made in the Life time of J. S. and there was an Exception in it of Herriots The Plaintiff demurred and Serjeant George Strode argued that this Action was not discharged by that Release and cited Hoes Case 5 Co 70. where it was held that a Duty incertain at first which upon a Condition precedent was to be made certain afterwards was but a possibility which could not be released that the Duty in this Case was incertain because the Plaintiff could not make his Election till after the death of J. S. A Covenant to repair 2 Cro. 170. Roll. Abr. 407. But a Release of all Covenants in such an Indenture had been a Barr 5 Co. 71. a. and a Release pleaded to it within thrée days after the date of the Indenture And upon a Demurrer it was held that it being a future Covenant and not in demand at the time of the Release although it was of all Demands yet that Covenant was not thereby released So here neither the Herriot nor the 40 s. were either of them in demand at the time of the Release given and it plainly appears by the Exception in the Release that it was the intention of the Parties not to release the Herriots 2 Cro. 623. and of that Opinion was the whole Court whereupon Iudgment was given for the Plaintiff North Chief Iustice It is the Opinion of * Sect. 508 510. 2 Roll. Abr. 408. Sid. 141. Littleton That a Release of all Demands doth Release a Rent And of that Opinion was Iustice Twisden in the Argument of Hen and Hanson 's Case though it was resolved there that a Release of all Demands did not discharge a Rent reserved upon a Lease for years because such Rent is executory and incident to the Reversion 2 Cro. 486. and grows every year out of the Land but when it is severed from the Reversion as by assigning over the whole Term then it becomes a Sum in gross and is due upon the Contract and in that Case a Release of all Demands discharges a Rent afterwards due DE Term. Sancti Hill Annis 29 30 Car. II. in Communi Banco Shambrok versus Fettiplace PRohibition Prescription to have an Isle in a Church because of repairing no good cause for a Prohibition Hob. 69. The Question was whether a Prescription be good to an Isle in a Church which he and all those c. used to repair as belonging to a Mannor where he had no Dwelling House but only Land and Serjeant Geo. Croke argued that it was good and cited the Case of Boothby and Bayly where such a Prescription as this was held to be a good ground for a Prohibition Vide Moor Rep. 878. contra The Court inclined that it was not good but ordered the Prohibition to go and the Defendant to plead that it might come Iudicially before them to be argued Dashwood versus Cooper alios in Cammera Scaccarii ERror of a Iudgment in Trespass In a Negative Plea viz. That three did not such a thing it must be said nec eorum aliquis wherein Cooper and others brought an Action of Trespass against Dashwood for entring into a Brew-house and keeping of possession and taking away of 50 s. The Defendant pleaded That the Plaintiffs had committed an Offence against the Statute of 12 Car. 2. cap. 23. by which it is Enacted That all Offences thereby prohibited except in London shall be heard by two or more of the next Justices of Peace and in case of their neglect or refusal by
as much as is required by Law 'T is true a Subject is bound to serve the King in such capacity as he is in at the time of the Service commanded but he is not obliged to qualifie himself to serve in every capacity Neither doth it appear in this Case that the Defendant was able to remove this Incapacity and that should have been shewn on the other side and all Iudges are to judge upon the Record The intent of the Statute is That if persons will not qualifie themselves they shall not execute any Office and it was made to keep Roman Catholicks out of Places but not to force them to accept of Offices of Trust in the Government and it designs no punishment for quitting but for executing of a place contrary to the Law but if this be an Offence this Information will not lie and for that 2. It was argued That if a thing be either commanded or forbidden by a Statute the transgression in either Case is an Offence punishable by Information 25 H 6. pl. 9. b. 7 H. 4. 5. but when an Act doth not generally command a thing but only sub modo the party offending is punishable no otherwise than designed by that Law as where the Statute of 18 H. 6. cap. 11. prohibits any Man from being a Iustice of the Peace unless he have 40 l. ê‘ AnÌ„ and the Statute of 5 6 E. 6. cap. 16. which makes such Bargains as are therein mentioned about buying of Offices void if such Office be forfeitable then an Information will lie but when 't is ipso facto void as in both the former Cases then 't is otherwise because the punishment is executed by the Statute it self and therefore where the avoidance is made by the Act there is no need of an Information And the Objection of impotentia voluntatis is not material to this purpose because Symony buying of Offices not subscribing the 39 Articles according to the Statute of the Queen these are all voluntary Acts yet no Information lies against such Offenders because the Statutes execute the punishment The intent of the Parliament is here declared the disability of the person makes the Office void void to all intents for the Right of Infants or Men in Prison is not saved so that admitting it to be an Offence if the Duty be not performed yet if such a qualification be requisit to make a Man to act in such an Office or perform such a Duty if that qualification be wanting the Party is only punishable by the loss of the Office The Act doth not distinguish between Offices of Trust and Profit And as to the other Objection viz. That 't is in the power of the Defendant to qualifie himself the same might as well be objected against all the Popish Recusants upon the Statute of 3 Jac. and if a Statute doth disable persons or abridge the King of their Services there is no injury done because the King himself is party to the Act but if mischiefs were never so great since they are introduced by a Law they cannot be avoided till that Law is changed 3. But admitting the Information to be good and that this is an Offence for which it will lie yet the Excommunication is a sufficient excuse it appears by the Verdict that the Defendant was absolutely disabled to be Sheriff for if he is to take the Oath and receive the Sacrament in order to it if he cannot be admitted to the Sacrament as being under the Sentence of Excommunication that is an excuse The Defendant is only argued into a Guilt for the Iury have not found any they do not say that it was in his power to yield Obedience or that he might have enabled himself they only find his incapacity and though it was a voluntary Act which was the cause of his disability yet in such Cases the Law doth not look to Causes so remote If a Man be in Prison for Debt it is his own Act for contracting it and not paying but yet an Outlary against him whilst in Prison shall be reversed because the immediate Cause viz. the Imprisonment and the Iudgment was in invitum and the Law looks no farther and so Iudgment was prayed for the Defendant But the Court were all of Opinion that this Information would lye and that the Defendant was punishable for not removing the disability it being in his power to get himself absolved from the Excommunication And so Iudgment was given against him and a Writ of Error brought c. Godfrey versus Godfrey In Communi Banco Intrat ' Hill ult Rot. 321. DEBT upon a Bond for performance of an Award Award of a lesser Sum in satisfaction of a greater and good in which the Arbitrators had taken notice of 72 l. in controversie and had awarded 50 l. in satisfaction The Defendant pleads Nullum fecerunt Arbitrium the Plaintiff replies an Award and sets it forth and assigns a Breach to which the Defendant demurred because it appeared by the Award that 72 l. was in controversie for Rent due and that 50 l. was awarded in full satisfaction of 72 l. and general Releases to be given but it did not appear that any other Matter was in Controversie between the Parties though the Submission was general and Arbitrators may reduce incertain things to a certainty but they cannot make a Debt certain to be less except there were other differences for which likewise this Release was to be given 10 H. 7. 4. But the whole Court were of Opinion that the Award was good Curia for that the Arbitrators might consider other Matters between the Parties neither did it appear by the Award that the 72 l. was due but in demand only and 't is unreasonable for him to find fault with his own case for he alledges that he ought to pay 72 l. and complains because the other Party is contented with 50 l. and demands no more Iudgment for the Plaintiff Wright versus Bull. Condition where 't is disjunctive 't is in the Election of the Party to have either DEBT upon a Bond for payment of 40 l. The Condition whereof was That if the Defendant should work out the said 40 l. at the usual Prices in packing when the Plaintiff should have occasion for himself or his Friends to imploy him therein or otherwise shall pay the 40 l. then the Bond to be void The Defendant pleads that he was always ready to have wrought out the 40 l. but that the Plaintiff did never imploy him and upon Demurrer the Plea was held ill because the Defendant did not averr that the Plaintiff had any occasion to make use of him and for that it was at his Election either to have Work or Mony Basket and Basket Antea and not having imployed him but brought his Action that is a request in Law and so he hath determined his Election to have the Mony and Iudgment was accordingly given for the
Heirs and Assigns that he and they from time to time during the said Lease should have liberty and full power to Fell the said Trees and root them up repairing the Hedges where they did grow That the said Martin granted some of the Trees to the Defendant by virtue whereof he and the rest of his Servants did cut them down which is the same breaking of the Close of which the Plaintiff complains To which Plea Mr. Pollexfen did demurr for the Insufficiency because the Defendant did not shew that upon cutting down the Trees he did repair the Hedges as by the Agreement ought to have been done for this being a limited and qualified power ought to be set forth at large and that it was a power only annexed to the Reversion and not assignable to any one else and so the Defendant hath wholly failed in his Plea he might have justified under Martin but not in any of their own Rights But the Court were of Opinion That an Action doth lie in this Case both against the Lessor and his Assignee acting under his Power and they agreed that a bare power was not assignable but where 't is coupled with an Interest it may be assigned and here was an Interest annexed to the power for the Lessor might sever the Trees from the Reversion Whereupon Iudgment was given for the Defendant Scoble versus Skelton Presciption must be alledged with a Seisin in Fee THE Plaintiff declared That he was seised of a Tenement called East and the Defendant of another Tenement called West Travallock and that he and all those whose Estate he had did use to fetch Pot Water from the Defendants Close c. Issue was taken upon this Prescription and a Verdict for the Plaintiff and Mr. Pollexfen moved in Arrest of Iudgment That the Declaration did set forth generally that he was seised and it did not appear it was in Fee for if it be for Life only then the Action doth not lie because a Prescription cannot be annexed to an Estate for Life Tremain insisted that the Declaration was sufficient and certain enough for when the Plaintiff doth alledge that he was seised generally it shall be intended a seisin in Fee especially after Verdict But the Court held the Declaration to be defective in Substance because a Prescription cannot be annexed to any thing but an Estate in Fee and therefore 't is not helped after Verdict The Iudgment was reversed Putt versus Roster A Recovery in Trespass good Plea in bar to an Action of Trover TRespass for taking of his Cattle The Defendant justifies for a Herriot and upon a Demurrer had Iudgment The Plaintiff did afterwards bring an Action of Trover and Conversion for the same Cattle and the Defendant pleaded the former Iudgment in Trespass in barr to this Action of Trover and the Plaintiff demurred Serjeant Maynard argued That the Plea was not good because Trespass and Trover are distinct Actions and one may be where the other is not as if an Infant give Goods to one an Action of Trover doth lie to recover them but Trespass will not So if Goods be delivered to another and he refuse to deliver them upon demand Trover but not Trespass will lie and therefore these being different Actions a Recovery in one shall be no barr to the other A Formedon brought in the Descender and Iudgment thereon is not pleadable in barr to a Formedon in Remainder There is a great difference between a barr to the Action 5 Co. 33.6 Co. 37. a. Cro. El. 667. Eo Entr. 38. b. 2 Cro. 15. pl. 20. Antea and to the Right as where an Administrator sues not knowing that he was made Executor and Iudgment against him and he afterwards proved the Will and brought an Action as Executor the former Iudgment had against him as Administrator shall not be a barr to this new Action because 't is not a barr to the Right for by misconceiving his Action the former abated But Mr. Holt argued That these were Actions of the same nature and therfore a Iudgment in one was a good Plea in barr to the other Trespass or Trover lies for taking or carrying away the Goods of another and when he hath made his Election which to bring a Recovery there shall be a perpetual barr to the other In an Appeal of Mayhem 4 Co. 39. the Defendant pleaded a former Recovery in an Action of Assault and Battery and held good though one is of a higher nature than the other But the Court were of Opinion Curia Rose and Standen Antea That an Action of Trover doth lie where a Trespass doth not and if the Plaintiff hath mistaken his Action that shall be no barr to him As to the Case put of the Mayhem Rozal and Lampen Antea that doth not agree with this because there can be no Mayhem without an Assault but there may by a Trover without a Trespass and though the Appeal of Mayhem be of a higher nature than the Assault because it doth suppose quod felonice Mayhemiavit yet the Plaintiff can only recover damages in both If a Man bring Trespass for the taking of a Horse and is barred in that Action yet if he can get the Horse in his possession the Defendant in the Trespass can have no Remedy because notwithstanding such Recovery the Property is still in the Plaintiff The Defendant in this Case hath justified the taking of the Cattle for a Herriot and by the Demurrer the justification is confessed to be true in fact now by the taking for a Herriot the property of the Goods was altered and wherever the Property is determined in Trespass an Action of Trover will never lie for the same but 't is a good Plea in barr and so it was adjudged here James versus Trollop Prescription for a Modus good ERror of a Iudgment in the Common-Pleas on an Action upon a Prohibition where the Plaintiff did suggest That William late Prior of Norbury in Staffordshire was seised of the said Mannor and of the Tythes thereof simul semel as of a portion of Tythes c. That the said Prior 25 H. 1. granted the said Mannor and Tythes to William Fitzherbert and his Heirs rendring Rent That the said Fitzherbert did Enter and was seised and held it discharged of Tythes that his Heirs afterwards granted two Hides of Land part of the said Mannor to S. with the Tythes at 5 s. Rent and so draws down a Title by Descent for 300 years to F. who being seised devised the same to Dorothy James under whom the Plaintiff in the Prohibition claimed and then concludes That Fitzherbert and all those whose Estate c. did pay the said Rent to the said Prior which since the Dissolution was paid to the King and his Assigns in discharge of all Tythes c. The Defendant having craved Oyer of the Deed demurred to the Suggestion and Iudgment was given for the Plaintiff
Where 't is good without the word tunc where not 129 Of words where the Pronoun pro makes the Contract conditional 33 34 F. Factor WHere he cannot sell but for ready Mony 100 101 Factum valet quod fieri non debet 194 Failure Of Record certified 246 Feoffment To Uses the Estate is executed presently 208 209 Fine Of Lands in a Lieu conus good 49 In a Scire facias to have such Fine excuted the Vill must be named 48 Good by Estoppel levied by a Remainder man in Tail 90 No Uses can be declared of such Fine ibid. Fine sur concessit the nature and effect of it 110 111 112 By such a Fine nothing shall pass but what lawfully may 111 Fines shall work a disseisin where they can have no other interpretation 112 Fines in Criminal Cases must be with Salvo contenemento 150 Flotsam Where it shall be sued for at Common Law and not in the Admiralty 294 Forbearance And doth not say from the making of the promise hucusque held good 24 Formedon In Descender the difference in pleading between that and a Formedon in Remainder or Reverter 94 25 Fraction Where an Estate shall pass by Fractions where not 114 115 G. Gaming WHat Acts amount to make it penal within the Statute 54 Not within the Statute where the Security is given to a third person 279 Grant of the King Where a false recital shall not make it void 2 3 Where the first description is full the misrecital afterwards shall not make it void 2 3 4 He may grant what he hath not in possession 107 Where words shall be rejected rather than his Grant shall be void ibid. Where an Advowson passeth though not named 2 Where a thing will pass by general words ibid. Misrecital where it doth not concern his Title shall not make the Grant void 2 3 Grant of a common Person Of the next Avoidance where it shall not bind the Successor 56 Must be taken according to usual and common intendment 193 Grant where the word in a Deed will make a thing pass by way of Use 253 Guardian In Socage where a doubt is of his sufficiency he may be compelled to give Security 177 H. Harmless vide Condition COndition to save harmless the Plea indempnem conservavit generally is not good 240 305 Habeas Corpus Cannot be granted by the Court of Common Pleas in Criminal Cases 198 199 306 Heir Where he takes by the Will with a Charge he comes in by Purchase and not by Descent and the Lands shall not be Assets 286 Where a general Replication to Riens per descent is good 50 51 Where he shall have a thing though not named 93 Hors de son Fee When to be pleaded 103 I. Ieofails THE Statute of 16 and 17 Car. 2. helps a misrecital in a proper County but not where the County is mistaken 24 An immaterial Issue not arising from the matter is not helped after a Verdict 137 Inducement Not such certainty required as in other Cases 70 Indebitatus Assumpsit Where it will not lie for want of Privity 262 263 Imparlance Tout temps prist not good after an Imparlance 62 Implication Where a Man shall have an Estate for Life by Implication 208 Imprisonment False Imprisonment will not lye against a Judge for committing of a Jury Man for finding against Evidence 218 It lies not against an Officer for refusing Bail but a special Action on the Case lies against the Sheriff for it 32 Information Upon the Statute of Philip and Mary for taking away a Maid unmarried within the Age of sixteen years 128 It will not lie where the Punishment is executed by the Statute 302 Infant When he may make a Will 315 Interest Where 't is vested in the King 53 Where it differs from an Authority 79 What words give an Interest 80 81 Where the word Interest signifies the Estate in the Land 134 Intention Of the Parties where to be considered 76 77 80 111 116 234 280 281 310 Where a thing shall be intended and where not 227 280 282 Grants where they shall be taken according to common intendment 193 Ioynder in Action Covenant to two not to do a thing without their consent one may bring the Action 82 Issue Where Time shall be made parcel of the Issue 145 Iudge and Iudgment Judge cannot fine a Jury for finding against Evidence 218 Action will not lie against him for what he doth judicially though erroneously 221 Judgment may be avoided by Plea without a Writ of Error 308 Iustification Vide Pleading Where 't is local you must traverse both before and after 68 Under a Lease for the Life of another Man and doth not averr that the Life is in being ill 93 Where 't is not local a Traverse makes the Plea naught 270 271 By vertue of a particular Estate you must shew the commencement of it 70 Where it is general and yet good 144 In Assault Battery and Wounding and saith nothing to the Wounding not good 167 Of a Servant by Command of his Master and good ibid. In Assault Battery and Imprisonment for 11 l. 10 s. the Defendant justifies by a Warrant for the 11 l. and saith nothing of the 10 s. not good upon Demurrer 177 Where 't is but of part the general words Quoad residuum transgressionis will not supply the rest 259 K. King THE Defendant cannot justifie in a Scandalum Magnatum brought upon the Statute of R. 2. because the King is a Party tam pro Domino Rege quam pro seipso 166 Where his Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be charged by the Statute of 13 Eliz. 247 248 Difference between the Case of the King and of a common person 263 A person disabled by Outlary may sue for him but not for himself 267 Where an Interest is vested in him it shall not be divested by a general Pardon 53 L. Lease BY a Bishop and more than the old Rent reserved good 57 Where it shall be made by the words Covenant Grant and Agree and where not 80 81 Lessee for years assigns over his whole Term whether Debt will lie on the Contract or not 174 175 Liberties What is meant by the Word 48 Limitation of Action Extends to Indebitatus Assumpsit though not named in the enacting Clause 71 72 73 Statute no Barr where the Sheriff levyed Goods by a Fieri Facias and did not pay the Mony within nine years 212 Doth not extend to an Action on the Case Indebitatus Assumsit Quantum meruit and Insimul computasset 311 312 Limitation of Estate What are good words to take by Purchase from a Stranger 210 211 Limitation of Estate when void makes the Estate absolute 227 Livery Secundum formam Chartae where good or not 78 79 M. Mannor WHere a thing becomes in gross it can never after be united to it 144 What may be appurtenant to it ibid. N. Negative WOrds must