it because the words were an entire Sentence and spoken altogether at the same time and therefore if a Prohibition should not go it would be a double vexation DE Termino Paschae Anno 1 Jac. II. in Banco Regis 1685. Earl of Yarmouth versus Darrel THE Plaintiff brought an Action on the Case Grant of the King of sole Printing not good setting forth Letters Patents of King Charles the II. by which the Sole Printing of Blank Writs Bonds and Indentures were granted to him excepting such Forms which belonged to the Custom-House and which were formerly granted to Sir Roger L'Estrange that this Grant was to continue for the space of 30 Years and that the Defendant had notice thereof and had printed 500 Blank Bonds which he laid to his damage of the sum of 40 l. Vpon Not Guilty pleaded the Iury found a special Verdict the substance of which was that the Defendant was a Stationer and that the Company of Stationers for the space of 40 years last past before the granting of these Letters Patents had constantly printed Blank Bonds and so made a general conclusion Mr. Trindar argued for the Plaintiff and the only Question was Whether this Patent did vest a sole Interest in the Plaintiff exclusive to all others In his Argument he insisted on these Points 1. That the King hath a Prerogative in Printing and may grant it Exclusive to others 2. That this Prerogative extends to the Case at the Bar. That he hath such a Prerogative 't is confirm'd by constant Vsage for such Grants have been made by the Kings of England ever since Printing was invented But to instance in a few Viz. The Patent for Printing of Law-Books was granted to one More on the 19th day of January in the 15th year of King James the I. And when that Patent was expired another was granted to Atkyns and others on the 15th day of November in the 12th year of King Charles the II. In 23. Eliz. a Patent was granted to the Company of Stationers for the sole Printing of Psalm-Books and Psalters for the space of 30 years And on the 8th of August 31 Eliz. the like Patent was granted to Christopher Barker for Life Another Patent to the Company of Stationers for printing of Corderius c. These and many more of the like nature shew what the constant usage hath been Now the Statute of Monopolies doth not reach to this Case because of the Proviso therein to exempt all such Grants of sole Printing and by the Statute of King Charles the II. for regulating of the Press 14 Car. 2. cap. 33. 't is Enacted That no person shall Print any Copy which any other hath or shall be granted to him by Letters Patents and whereof he hath the sole Right and Priviledge to Print And upon the breaches of these Statutes several Iudgments have been given Between Streater and Roper in this Court Mich. 24 Car. 2. Rot. 237. 't is true the Iudgment was against the Plaintiff but upon a Writ of Error brought in Parliament that Iudgment was reversed The same Term there was a Iudgment given upon a special Verdict in the Common-Pleas for the Plaintiffs Hill 35 Car. 2. B. R. Rot. 99. who were the Company of Stationers against Seymour for Printing of Almanacks And they obtained the like Iudgment against Wright for Printing of Psalters and Psalm-Books Now to apply this to the principal Case 't is to be considered that these Books for which the sole Printing was so claimed were of a publick nature and importance relating to the good and benefit of the Subjects and so likewise are Blank Bonds for there may be false and vitious Impressions to the ruin and destruction of many innocent people And as a farther Argument that the King hath this Prerogative 't is likewise to be considered that where no individual person can claim a Property in a thing there the King hath a Right vested in him by Law and it cannot be pretended that any particular person hath a Right to Print those Bonds therefore the finding that such were printed by the Company for above 40 years is immaterial because there being an inherent Prerogative in the King whenever he exerts it all other persons are bound up who were at liberty before To prove which the Iudgment in the Case of the East-India Company is express in point for before that Patent the subject had liberty to Trade to those places prohibited by that Grant but afterwards they were restrained by that Grant Neither is this in the nature of a Monopoly 11 Co. 84. 't is not like that of the sole Grant of making Cards which hath been adjudged void and with great reason because that Grant reached to prohibit a whole Trade and therefore differs from this Case for the Defendant may print other Instruments or Books and exercise his Trade in some other lawful and profitable Commodities and so might the Merchants in the Case of the East-India Company for they were restrained by the Patent as to particular places but might Trade to any other part of the World Neither will the Subjects in general receive any prejudice by this or such like Grants for if the Patentees make ill use of their Priviledges tho' it cannot be properly called an Office yet 't is a Trust and a Scire Facias will lie to repeal their Grants It was argued by the Councel for the Defendant E contra That the Verdict having found that the Company of Stationers had used to print those Bonds for above 40 years before the making of this Grant the Question will be Whether they are now divested of a Right so long enjoyed And as to that 't is not a new thing to object That notwithstanding such Grants yet other persons have insisted on a Right to Print and have printed accordingly Thus the sole Printing of Law-Books was granted to one Atkyns yet the Reports of Iustice Jones and my Lord Chief Iustice Vaughan were printed without the direction of the Patentees Printing as 't is a manual Occupation makes no alteration in this Case for the King hath as great a Prerogative in Writing any thing that is of a publick Nature as he hath in Printing of it Now considering Printing as an Art exclusive from the thing printed this Patent is not good For if a Man invent a new Art and another should learn it before the Inventor can obtain a Patent if afterwards granted 't is void Then consider it in relation to the thing printed 1 Roll. 4. 11 Co. 53. id which in this Case are Blank-Bonds 't is not a new Invention because the Company of Stationers have printed such above 40 years and for that reason this Patent is void for where the Invention is not New there Trade shall not be restrained No Man can receive any prejudice by the printing of such Bonds for they are of no Vse till filled up 't is only a bare Manufacture
of Wills did not Originally belong to the Spiritual Courts de jure they had that Authority per consensum Regis Magnatum And as those Courts had not original Iurisdiction in such Cases so they had no power to grant Administration 'till enabled by the Statute of Edw. 31 Ed. 3. cap. 11. 3. For before that time the Kings of England by their proper Officers solebant capere bona intestatorum in manus suas 'T is plain that the Ordinary had no power by the Common Law over an Intestate's Estate for he could not maintain an Action to recover any part of it now if the Law had given him a power over the Goods it would likewise have given him an Authority or Remedy to recover them An Action would have lain against him at the Common Law 13 E. 1. cap. 19. and by the Statute of Edw. 1. which was made in affirmance thereof if he had possessed himself of such Goods and refused to pay the Debts Then since he hath no original Power in this Case and this being a special kind of Administration when he hath once executed that power he shall not repeal it and the Court enclined to that Opinion vid. 9 Rep. Henslow's Case DE Term. Sancti Mich. Anno 35 Car. II. in Banco Regis 1683. Roe versus Sir Thomas Clargis IN a Writ of Error Papist is actionable Raymond 482. upon a Iudgment in the Common-Pleas in an Action upon the Case wherein the Plaintiff declar'd That the King had made him one of his Privy Council in Ireland and that he was a Deputy Lieutenant of the County of Middlesex and had serv'd in several Parliaments for the Burrough of Christ-Church in Hampshire and that the King having summon'd a Parliament to meet at Westminster he did stand to be a Member of that Burrough and that the Defendant Roe did then speak these words of him Viz. He meaning the Plaintiff is a Papist Vpon a Tryal there was a Verdict and a Iudgment for the Plaintiff This Case was argued by Sir Francis Winnington for the Plaintiff in the Errors and by Mr. Roger North for the Defendant The Questions were these 1. Whether the words abstracted from the Offices set forth in this Declaration were actionable or not 2. Whether they are actionable as joined to those Capacities The Councel for the Plaintiff in the Errors held the Negative in both Points 1. The word Papist is not defin'd either by the Common Law or the Statutes of this Realm for from the first of the Queen to the 25 Car. 2. it is not to be found what a Papist is There are several Statutes between those times which provide against the Iurisdiction of the Pope and which inflict particular Punishments upon committing Offences therein prohibited but none of those Laws give any definition of a Papist If by a Papist is meant him who embraces the Doctrine of the Pope it was punishable before the Reformation to be of a contrary Opinion Now in the vulgar acceptation of the word a man may hold the same Opinion with the Church of Rome and yet not profess the Popish Religion so as to bring himself in danger of any of the Penalties in these Laws There was never yet an Indictment against a person for being a Papist but many have been indicted upon the breach of those Laws made against Recusants by which they incurred the Penalties thereby appointed In Michaelmas 27 H. 8. 27 H. 8. 14. B. an Action on the Case was brought in the Common-Pleas for calling of the Plaintiff Heretick and Willoughby the King's Serjeant argued That the Action would not lye because the word did import a Spiritual Matter of which the Temporal Courts had no knowledge and of that Opinion were the Chief Justice Fitzherbert and Justice Shelley The same may be said in this Case that the word Papist relates to something which is Spiritual of which this Court hath no cognizance Words which are actionable must immediately injure the person of whom they are spoken either in his Profession or bring him in danger of some Punishment Hob. 8. as to call an Attorney Bribing Knave which are adjectively spoken yet 't is an Injury done to him in his Profession It was said at the Trial in the Common-Pleas That 't is actionable to call a Man Papist at this time though it might not be so at another time This seems to be a very vain assertion for though the Times may alter the Law is still the same It would be a very great inconvenience if Men should be deterr'd by Actions to call another Man a Papist for this would be an encouragement to Popery and a check upon the Protestant Religion to punish the Professors thereof for saying a Man is a Papist who is really so both in his Iudgment and Profession But admitting the word to be actionable Not actionable to call a man Papist Cro. Eliz. 191. 't is not so before Conviction for 't is very improperly used and of no signification or discredit before that time 2. These words are not actionable as coupled with his Offices because he hath alledged no particular damage or Loss and his Offices are only Honorary and of no Profit and therefore he could receive no Damage by speaking these words if true when they in no sort relate to his Offices and are too remote to be applied to them 1. E contra The words are actionable in themselves for they scandalize the Plaintiff in his Reputation and may be a means to bring him to corporal Punishment for by several Acts of Parliament many Punishments are inflicted upon Popish Recusants which is the same thing with a Papist they are disabled from holding any Office or Imployment in the Kingdom they are not to come into the Kings presence or within five Miles of the City of London and the calling of him Papist subjects him to the danger of being Indicted for a Traytor for the words are Synonimous When H. 8. took upon him the Supremacy which the Pope had unlawfully Vsurped there were certain Papists in those days who called themselves Roman Catholicks that they might be distinguished from those who bore Allegiance to their lawful King which general appellation was afterwards changed into the word Papist so that both signifie the same thing The Objection that tho Times change the Law is still the same may receive this Answer That when the force of words is changed with the Times those words shall be actionable now which were not so at another time As for Example the proper and genuine signification of the word Knave is a Servant but now the Times have altered the sense of that word and made it to be a term of Reproach so that 't is actionable to call an Attorny Knave who is but a Servant to his Client 1. Then as to the Objection that the word Papist is not defin'd in our Law There is a Statute which disables a
Trust as in the Case of Wardship formerly which always went to the Executor of the Grantee and which was of greater consideration in the Law than the feeding or clothing of an Ideot and of that Opinion was the Court that the King had a good Title to dispose of both the Ward and the Ideot one till he was of Age and the other during his Ideocy Iudgment for the Defendant DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis 1684. Reeves versus Winnington THE Testator was a Citizen and a Freeman of London A Devise of all his Estate passed a Fee and being seised in Fee of a Mesuage c. and likewise possessed of a considerable personal Estate made his Will in which there was this Clause viz. I hear that John Reeves is enquiring after my Death but I am resolved to give him nothing but what his Father hath given him by Will I give all my Estate to my Wife c. The Question was Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage It was argued that she had only an Estate for life because the Words All my Estate cannot be construed to pass a Fee for it doth not appear what Estate was intended and Words in a Will which go to disinherit an Heir must be plain and apparent A Devise was in these Words viz. Sid. 191. Bowman versus Milbank I give all to my Mother all to my Mother and it was adjudged that a Fee did not pass which is as strong a Case as this for by the word All it must be intended All that was in his power to give which is as comprehensive as if he had said All my Estate 'T is true Kerman and Johnson Stiles 281. 1 Rol. Abr. 834. Cro. Car. 447. it hath been adjudged that where a Man devised his whole Estate to his Wife paying his Debts and Legacies that the word Estate there passed a Fee because it was for the benefit of the Creditors there being not personal Assets sufficient to pay all the Debts But that is not found in this Case therefore the Word Estate being doubtful and which will admit of a double construction shall not be intended to pass a Fee Mr. E contra Pollexfen contra The first part of this Sentence consists in negative words and those which are subsequent explain the intention of the Testator viz. That John Reeves should take nothing by the Will The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property like a Release of all Actions which is a good discharge as well of real as personal Actions In common understanding it carries an interest in the Land and then 't is the same as if he had devised all his Fee-simple Estate In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All because it was a Relative Word and had no Substantive joined with it and therefore it might have been intended All his Cattle All his Goods or All his personal Estate for which incertainty it was held void yet Iustice Twisden in that Case said that it was adjudged that if a Man promise to give half his Estate to his Daughter in Marriage that the Lands as well as the Goods are included The Testator devised all his Tenant-right Estate held of such a Manor 3 Keb. 245. Mod. Rep. 100. and this being found specially the Question was Whether any more passed than an Estate for Life because he did not mention what Estate he intended but it was held that the Devisee had a Fee-simple because the Words were as comprehensive as if he had devised all his Inheritance and by these Words a Fee-simple would pass Curia It plainly appears that the Testator intended nothing for John Reeves therefore he can take nothing by this Will and that the Devisee hath an Estate in Fee-simple for the Words All my Estate are sufficient to pass the same Rex versus Sir Thomas Armstrong Saturday June 14th THE Defendant was outlawed for High-Treason and being taken at Leyden in Holland was brought into England and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry and he tried by virtue of the Stature of Ed. 6. which Enacts 5 6 E. 6. cap. 11. That if the Party within one year after the Outlawry or Judgment thereupon shall yield himself to the Chief Justice of England and offer to traverse the Indictment upon which he was outlawed he shall be admitted to such Traverse and being acquitted shall be discharged of the Outlawry He alledged that it was not a year since he was outlawed and therefore desired the benefit of this Law But it was denied because he had not rendered himself according to the Statute but was apprehended and brought before the Chief Iustice Whereupon a Rule was made for his Execution at Tyburn which was done accordingly DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis 1684. Hebblethwaite versus Palmes Mich. 36 Car. II. in B. R. Rot. 448. AN Action on the Case was brought in the Common-Pleas Possession is a sufficient cause to maintain an Action against a wrong doer for diverting of a Watercourse The Declaration was That the Defendant Primo Augusti c. injuste malitiose did break down an ancient Damm upon the River Darwent by which he did divert magnam partem aquae ab antiquo solitu cursu erga molendinum ipsius quer c. ad dampnum c. The Defendant pleaded that before the said Breach made he was seised in Fee of an ancient Mill and of six Acres of Land adjoyning upon which the said Damm was erected time out of mind to turn the Water to his said Mill which Damm was always repaired and maintained by the Defendant and the Tenants of the said Land that his Mill was casually burnt and he not intending to Re-build it suffered the Damm to be broken down and converted the Timber to his own use being upon his own Soil prout ei bene licuit c. The Plaintiff replied that by the breaking of the Damm the Water was diverted from his Mill c. The Defendant rejoyned and justified his Plea and Traversed that the Mill of the Plaintiff was an ancient Mill. And upon a Demurrer to this Rejoynder Iudgment was given for the Plaintiff and a Writ of Error now brought to reverse that Iudgment and for the Defendant in the Action it was argued 1. That the Declaration is not good because the Plaintiff had not set forth that his Mill was an ancient Mill. 2. Because he had not entituled himself to the Watercourse 3. That the Plea was good in Bar to this Action because the Defendant had sufficiently justified having a Right to the Land upon which the Damm was erected and always repaired it As to the first Point it
forth that the Plaintiff was amerced and that it was affered at the Court and so he hath confounded the Office of the Iurors and Affearers together which he ought not to do for he should be amerced to a certain Sum Hob. 129. Rol. Abr. 542. and not in general which Sum may be mitigated or affered by others If it had been a Fine 8 Co. 38. 1 Leon. 142. it need not be affered because that is imposed by the Court but this is an Amerciament which is the act of the Jury and therefore it must be affered 3. The chiefest Exception was to the matter of the Warrant viz. the Defendant sets forth that he seised by virtue of a Precept from the Dean and Chapter whereas he ought to shew it was directed to him from the Steward of the Court and then to set forth the Warrant without which he cannot justifie to distrain for an Amerciament And of this Opinion was the whole Court and therefore Iudgment was given for the Plaintiff in Michaelmas Term Primo Will. Mariae If it had been in Replevin where the Defendant made cognizance in the right of the Lord it might be well enough as here pleaded but where 't is to justifie by way of excuse there you must averr the Fact and alledge it to be done and set forth the Warrant it self 3 Cro. 698.748 1 Leon. 242. and the taking virtute Warranti for a Bayliff of a Liberty cannot distrain for an Amerciament by virtue of his Office but he must have a Warrant from the Steward or Lord of the Leét for so doing The other Exception that the Amerciament ought to be to a Sum Rast Ent. 606. Co. Ent. 665. the Presidents are otherwise for an Amerciament per duodecim probos legales homines adtunc ibidem jurat ad 40 s. afferat ' is well enough but the Warrant is always set forth Dominus Rex versus Darby THE Defendant was indicted for speaking of scandalous words of Sir J.K. a Justice of the Peace Viz. Sir J.K. Indictment for Scandalous words is a buffle-headed Fellow and doth not understand Law he is not fit to talk Law with me I have bafled him and he hath not done my Clyent Justice Mr. Pollexfen for the Defendant said that an Indictment would not lye for these words because not spoken to the Party in the exceution of his Office but behind his back it will not lye for irreverent words but for Libels and Writings because such are publick but words are private offences But the Court being of Opinion that an Indictment would lye where an Action would not because it respects the publick Peace and that an Action would not lye in this Case unless the party had a particular loss Sid. 65. 2 Cio 5 8. and therefore it hath been held not to be actionable to call a Iustice of Peace Fool Ass Coxcomb He then took Exceptions to the Form of the Indictment 1. There is no place of Abode laid where the Defendant did inhabit which is expresly required by the Statute of H. 5. Viz. 1 H. 5. cap. 5 That in Indictments there shall be addition of the Estate Degree c. and of the Towns Hamlets Places and Counties where the Defendants dwell And by the Statute of H. 6. 8 H. 6. cap. 12 which gives the Iudges power to amend Records in affirmations of Iudgments such defects which are named in the Statute of H. 5. are excepted and therefore where a Writ of Error was brought to reverse an Outlawry upon the Statute of 5 Eliz. for Perjury 2 Cro. 167. the Defendant was Indicted by the Name of Nicholas Leech de Parochia de Aldgate and did not shew in what County Aldgate was and for this cause it was reversed 2. The Caption is coram Justiciariis ad pacem dicti Domini Regis conservand ' and the word nunc is left out It was the Opinion of Iustice Twisden that it ought to be nunc conservand ' Sid. 422. for otherwise it may be the Peace of King Stephen The Councel on the other side said that it was a new Doctrine that the King shall not have the same Remedy by an Indictment which the Subject may have by an Action What is the meaning of the words of all Commissions de propalationibus verborum As to the first Exception they said that the Indictment was certain enough for the Defendant is laid to be de Almondbury in the West-Riding of Yorkshire To the second Exception they said that ad pacem conservand ' without nunc is well enough for it cannot be intended upon this Indictment that they were Iustices to preserve the Peace in any other Kings Reign and what was quoted out of Siderfin is but the Opinion of one single Iudge This is a Scandal upon the Government and 't is as much as to say that the King hath appointed an ignorant Man to be a Iustice of Peace for which an Indictment will lye And of that Opinion was the whole Court and gave Iudgment accordingly Ball versus Cock A Writ of Covenant did bear Teste the first day of Trinity Term Error to reverse a Fine where the Cognisor died after the Caption and before it passed the King's Silver retornable tres Trinitatis and it was taken by Dedimus 30 Julii A Writ of Error was brought to reverse this Fine and the Error assigned was that the Cognizor died after the Caption and before the Enrolment at the King's Silver Office It was argued by the Councel for the Plaintiff in the Writ of Error that a Fine Sur Cognizance de droit c. is said to be levied when the Writ of Covenant is returned and the Concord and King's Silver which is an antient Revenue of the Crown pro licencia concordandi duly entred for though the Cognisor dieth afterwards Dyer 220. b. 5 Co. 37. Cro. Eliz. 469. the Fine is good and the Land passeth but if the King's Silver be not entred the Fine may be reversed by Writ of Error for it is an Action and Iudgment and the death of either Party abates it If it should be objected that this cannot be assigned for Error because 't is against the Record which is Placita terrae irrotulat de Termino Sanctae Trinitatis anno primo Jacobi c. 'T is true an Error cannot be assigned against the very essence of a Record but in the matter of time it may and so 't is in this Case 'T is like Syer's Case 32 Eliz. 3 Inst 230. 4 Co. Hind's Case 10 H. 7.24 who was indicted for a Burglary supposed to be done primo Augusti and upon the Evidence it appeared to be done primo Septembris and though he was acquitted of the Indictment for that reason viz. because the Iudgment relates to the day of the Indictment yet it was resolved by all the Iudges of England that the very day needs not be set down in
Remainder during her Life 84 2. There must be proof of the Stealing an Heiress either by slight or force to bring the person within the Statute of Phil. Mar. 169 3. There must be a continued disassent of the Parent or Guardian for if she once agree 't is an assent within the Statute though she or they disagree afterwards 169 4. Marriage de facto is triable in the Temporal Courts but de Jure in the Spiritual Court only 165 Mandamus Denied to restore a person to a Fellowship of a College 265 2. Denied to restore a Proctor to his Office in Doctors Commons 332 3. It hath been granted to restore an Attorny 333 4. It will not lye to restore a Steward of a Court-Baron 334 Master and Servant See Robbery 2. Where the Act of the Servant shall charge the Master 323 2. Where the Master may have an Action for a Robbery done upon the Servant 287 Melius Inquirendum Not granted but for a Misdemeanour in the Jury 80 2. It never helps a defective Inquisition 336 3. Whether it may be granted to a Coroner in the Case of a Felo de se who makes his Enquiry super visum corporis 238 Merchants See Custom Pleas and Pleading Misfeazance Not Guilty is a good Plea to any Misfeazance whatsoever 324 Misprision of Clerk See Amendment Mistrial 'T is not a Mistrial where the day and place of the Assises is left out of the Distringas for the Jurata is the Warrant to try the Cause 78 Mortuary 'T is not due but by particular Custom of the Place 268 Monopoly The Definition of it 131 N. Ne exeat Regum IS a Writ grounded upon the Common Law and not given by any particular Statute 127 2. It was brought to prevent a person who had married an Heiress without her Parents consent to go beyond Sea 169 Nolle prosequi Whether it may be entred after the Jury is sworn 117 Non compos Mentis If he releaseth his Right that shall not bar the King but he shall seize his Lands during Life 303 2. Surrender made by him is void 305 3. He may purchase Lands and may grant a Rent-Charge out of his Estate and shall not plead Insanity to avoid his own Acts 309 Notice See Executor 115. A Settlement was made in Trust for A. provided she married with the consent of Trustees Remainder to B. she married without consent Whether the Trustees ought not to give notice of this Settlement before the Marriage or whether the Estate is forfeited without notice 29 30 2. Where Conditions are annexed to Estates to pay Mony notice is necessary but where Estates are limitted upon performance of collateral acts 't is not necessary 30 3. Lapse shall not incur upon a Deprivation but after notice given to the Patron by the Ordinary himself 31 4. The Heir himself ought to have notice of such Conditions which his Ancestor hath put upon his Estate because he hath a good title by descent 34 5. Where it ought to be given of Debts to an Executor 115 Number Where the singular number shall be intended by the plural as by Children is meant Child 63 O. Obligation Obligor and Obligee DEbt upon Bond will not lie before the day of payment is past but it may be released before 61 2. Where the Debt is confessed under and Hand Seal whether that will amount to an Obligation 154 Office and Officer Whether the Office of Marshal of B.R. can be granted in Trust 145 2. It cannot be granted for years ibid. 3. Non-Attendance whether a Forfeiture or not 146 4. Non-Feazance is a Forfeiture ibid. 5. It lies in Grant and cannot be transferred without Deed 147 6. Neither a Judicial or a Ministerial Officer may make a Deputy unless there is an express Clause in the Grant that it may be executed per se vel Deputatum 147 150 7. Marshal of B. R. may grant that Office for Life but cannot give the Grantee power to make a Deputy 147 8. That Office may be granted at will 149 9. Deputy may be made without Deed 150 Ordinary Probate of Wills did not originally belong to him 24 2. He had no power at Common Law over the Intestate's Estate 25 3. An Action lay against him at Common Law if he got the Goods and refused to pay the Intestate's Debts 25 4. Was alone entrusted by the Common Law as to the distribution of the Intestates Estate 59 5. Afterwards by the Statute of W. 2. was bound to pay Debts so far as he had Assets 60 6. Then and not before an Action of Debt might be brought against him if he did dispose the Goods without paying Debts ibid. 7. By the Statute of the 31st of Ed. I. he was bound to grant Administration to the next of Kin ibid. 8. Afterwards by the Statute of 21 H. 8. was compelled to grant it to the Widow or next of Kin or both ibid. 9. Before the Statute of Distributions he always took Bond of the Administrator to distribute as the Ordinary should direct ibid. Outlary See 5 Ed. 6. For Treason cannot be reversed without the Consent of the Attorney-General 42 2. For Treason the Party was taken within the year but because he was apprehended and did not render himself he had not the benefit of the Statute 47 3. For Treason and a Rule of Court for the Execution of the person 72 4. For Murder against three persons it was reversed because it did not appear that the Court was held pro Comitatu 2dly 't is said Non comperuit but doth not say nee eorum aliquis comperuit 90 P. Pardon THE King hath power to pardon by general words as felonica interfectio for Murder 37 2. Where his Power is restrained by Act of Parliament yet a Non obstante is a Dispensation to it 38 3. A Suit was commenced for Dilapidations which is to have satisfaction for Damages sustained 't is not pardoned by these general words viz. Offences Contempts and Penalties 56 4 If an Interest is vested in the King a Pardon of all Forfeitures will not divest it without particular words of Restitution 101 241 242 5. An Exception in a Pardon ought to be taken as largely as the Pardon it self 242 6. A Pardon of all Offences except Offences in collecting of the King's Revenue that must be of the stated Revenue and not what arises by any Forfeiture ibid. Parish See Indictment Parliament Writ of Error upon a Judgment in B. R. returnable in Parliament Prorogued from the 28th of April to the 29th of November whether this was a Supersedeas to the Execution because a whole Term intervened between the Teste and Return of the Writ of Error 125 Pedegree Where persons are named by way of Title and where by way of Pedegree 255 Perjury See Information Pleading In pleading of the Statute of Usury you must set forth what Agreement was made and what Sum was taken more than six pound in the Hundred 35 2.
The Third PART OF Modern Reports BEING A COLLECTION Of Several SPECIAL CASES IN THE COURT OF King's-Bench In the last Years of the Reign of King Charles II. In the Reign of King James II. And in the two first Years of his present MAJESTY TOGETHER WITH The Resolutions and Judgments thereupon None of these Cases ever Printed before Indignor quicquam reprehendi non quia crassè Compositum illepidéve putetur sed quia nuper Hor. Epist 2.1 Carefully Collected by a Learned Hand LONDON Printed by the Assigns of Rich. and Edw. Atkins Esqrs for Charles Harper at the Flower de Luce over-against St. Dunstan's Church in Fleetstreet 1700. Mr Ambrose Holbech of Mollington. in the County of Warwick 1702 TO THE PROFESSORS OF THE Common Law OF ENGLAND Gentlemen ALL Human Laws are either Natural or Civil The Law of Nature which is also the Moral Law is at all times and in all places the same and so will always continue By Civil Laws I mean such as are established by Human Policy which with us are either Customs or Statutes and these have also some resemblance to Natural Laws because they are for the most part introduced by the concurrent Reason of Men and Reason is the Law of Nature Customs are made by Time and Usage and do thereby obtain the force of Laws in particular places and Nations but no otherwise than upon supposition that they were reasonable at the beginning To these may be added such Laws which are usually called Responsa Prudentum which together with Customs make a great part of our Municipal Laws And because 't is impossible that future Evils should be foreseen by the Wisdom of Mankind so as to prevent them therefore 't is very reasonable that positive Laws should be instituted by the Legislative Power which we call Statutes and those are either Commands or Prohibitions always enacted upon some present Emergencies and may be altered or repealed according as the Manners of Men change or as the Conjuncture of Affairs require for the publick Good I do not find this Nation was governed by any settled Laws from the time of William called the Conqueror till 9 H. 3. but by the irregular Power of the Norman King and of those who immediately succeeded him 'T is true he swore to preserve approbatas antiquas Leges Angliae but 't is as true that the same Force which compelled our Forefathers to submit did likewise exact their Obedience to the Customs of Normandy some of which we retain to this very day It was then a term of Reproach to be called an Englishman as if that denomination imported to be a Slave This made the lesser Barons that is the Freeholders or those which had such Lordships which are now called Court-Barons take up Arms to regain their ancient Rights and by that means they obtained a Grant of their old Laws from some of those Kings which was called Magna Charta Libertatum but living in a tumultuous Age they did never quietly enjoy those Liberties for notwithstanding that Charter many Infringements were made upon them which they continued in Arms to defend insomuch that in the Seventeenth Year of King John they delivered to that King a Schedule of their ancient Customs in Writing desiring that he would establish them by another Grant which was done accordingly But this Charter was as little observed as the former for the Norman Customs did still interfere with St. Edward's Laws and the People were miserably divided by those Innovations till Anno 9 H. 3. the Great Charter was established by Authority of Parliament From that time those ancient Laws and Customs were had again in repute they were revived by that Grant which was only declaratory of them and because a more exact Obedience and Conformity might be given to them for the future therefore did his Successor the good King Edward I. encourage the Lawyers in his time to reduce them into Order and Writing which was done accordingly about the middle of his Reign by John Breton not the Bishop of Hereford but a Judge of the King's Bench for as Mr. Selden has observed the Bishop of that Name died Anno 3 E. 1. And in that Book which is now called Breton the Statute of W. 2. is cited which was made 13 E. 1. and therefore it could not be penned by the Bishop unless he could quote a Statute which was not made till above ten years after his Death This is one of the first Systems extant of our Laws 'T is true the Book called The Mirror of Justice was written before but many Additions were made to it in this King's Reign by Andrew Horn a learned Man in that Age. There was likewise a small Tract then written by Sir Ralph Hengham Lord Chief Justice of the Common Pleas which only treats of Essoins and Defaults in Writs of Right Writs of Assize and Dower and therefore cannot be called a Body of our Laws I must admit that two such Books were written by the Lord Chief Justice Glanvil and Justice Bracton the one in the Reign of Henry the Second and the other in the time of Henry the Third but not one more of that Nature almost in the space of two hundred Years for I do not think the Book which the Lord Chancellor Fortescue wrote in the Reign of King Henry the Sixth can be properly called a System of Law It was published by him for these purposes first to obviate the design of two great Favourites the Dukes of Exeter and Suffolk who had used some endeavours to introduce the Imperial Law and therefore he shewed the Excellency of the Common Law above that and in the next place it was intended to soften the warlike Temper of the young Prince Edward by inclining him to the Study of those Laws by which he was to govern his People and to instruct him in some Occurrences therein The Abridgment by Baron Statham and the Year-Books are for the most part made up with Cases then depending in the several Courts at Westminster and with the Opinions and Resolutions of Judges which I rather call Responsa Prudentum than Systems of Law The next Attempt in that kind was made by Justice Littleton in the Seventh Year of Edward the Fourth who hath taught succeeding Ages with great Judgment and Learning in his Profession but 't is now two hundred and thirty Years since he wrote and many alterations have been made in the Law since his time I only mention these things to shew the necessity of new Books and that the old Volumes are not so useful now as formerly because many of the great Titles of which they were composed are now quite disused they are mentioned by my Lord Hales in his Preface to the Lord Chief Justice Roll's Abridgment which I shall not repeat and those very Titles make the greatest part of Justice Littleton's Tenures But amongst all the Old Tenures and Customs I admire that of Burrough English should still
computation of the price of Provisions and other Necessaries in 2 H. 5. and how they encreased in Value from that time till the Queen's Reign it may be reasonably affirmed that 40 s. per Annum about the time when that King lived would bear an equal proportion to 40 l. a year in her Reign and if so it may as reasonably be said that 4 l. per Annum in her days would almost bear the like proportion to 80 l. per annum now because of the vast encrease of Riches by Commerce and otherwise in this last Age and such an Estate doth now qualifie a Man to be of the Grand Jury The 40 s. per annum in King H's Reign was esteemed a sufficient Estate to supply all the common Necessities of Life Wheat being then sold for 12 d. per Quarter and good Gascoign Wine for 40 s. per Tun. It was an Age when 20 Marks per Annum was a very good Allowance to maintain a Student at the Inns of Court but too great a Charge for a Commoner to bear and therefore the Lord Chancellor Fortescue tells us that none but the Sons of Noblemen in Hospitiis illis Leges addiscebant The Jurors in those days were all Knights but are now mean and illiterate persons for 't is a very poor Estate which qualifies them for that Service How can Matters of Fact which often require great Examination be tryed by Men of such narrow Capacities which are generally found amongst Men of 10 l. per Annum for so it will be so long as the Degrees of Fortune make such a vast inequality amongst us Experience teacheth us that Men of such low Fortunes and whose Education is generally amongst the Beasts of the Plow have not the same sense of Honour and Vertue with Men of more elevated Qualities and Conversation there must be danger of Subornation and Perjury among such Jurors And what will the villanous Judgment in Attaint signifie I mean in respect to their Estates viz. That their Goods be confiscate their Lands and Possessions seised into the King's Hands their Houses demolished their Woods felled and their Meadows plowed This is a very dreadful Sentence to a Man of a good Estate which by the very Form of this old Judgment every Juror was supposed to have but 't is an empty sound to a Man of 10 l. per Annum who cannot have all those Possessions and but a very small proportion of either It may be therefore thought necessary that a farther Provision be made that none should be impanelled to try such Issues but Men of 40 l. per Annum or at least such as like the Jurors in Attaint qui multa majora habent Patrimonia than what will qualifie a Petty Juror at this day Gentlemen The following Collection is the Product of your Labours It was borrowed from you at the Bar and 't is but just to restore it I know Men have generally very faint Inclinations to approve any Writings beside their own and seldom declare in favour of a Book till they hear what success it has in the World and even then are biassed by the Multitude who very often condemn without reading or read without Understanding I have heard it often objected though I am still to learn upon what accompt that we have too many Printed Books of the Law already and that it was more certain and intelligible when fewer Volumes of it were published I must confess some of the late Reports are collected with very little Judgment But still there is a necessity of new Books tho' not of such for I would feign know how any Lawyer can now be able to advise his Client with the help and direction only of the Old Books 'T is true we have but few of them but 't is because in former Ages all Causes where the thing in demand did not exceed 40 s. were tried either in the County Court in the Hundred Court or in the Court Baron of the Mannor In those days the great Courts of Record at Westminster were not so full of Suitors as now When Bracton wrote the Justices in Eyre who had the same Power with our Justices of Assise went their Circuits but once in seven years and a long time afterwards even in the Reign of King Henry the Eighth the Judges would often rise from the Bench in Term-time without hearing a Motion or trying of a Cause and I think the Practice did not much encrease till this last Age for Anno 10 Eliz. there was but one Serjeant at the Common-Pleas Barr for a whole Term together and that was Serjeant Bendloes and I do not read that he had any Business there Nay at that time the Court of Chancery had no greater share of Practice than the Courts of the Common Law for in the two and twentieth Year of King Henry the Eighth Sir Thomas Moor being then Lord Chancellor did usually read all the Bills which were exhibited into that Court but Business is now so much encreased that all the Council can scarce find time enough to read the Briefs of such Bills which are filed every Term. But the Law hath now its Residence in Westminster-Hall most Causes of Value are there determined and the great Number of Country Attornies in our days who according to my Lord Coke's Opinion by dayly multiplying Suits have so wonderfully encreased the Business of those Courts that it seems very necessary that the judicial determinations there should by new Books be transmitted to future Ages And though some Cases in this Collection which were adjudged in the late Reign may not have the Authority of Presidents because they taste a little of the Times wherein the Administration of Justice was not so nicely regarded as the Dispensation of such things which were then thought Political Rights yet the Reader will find some good Arguments of Learned Men then at the Bar who endeavoured to support our sinking Laws I do acknowledge that if Men were just honest and impartial to themselves and others there would be no occasion for Books of this nature and because they are not so I will not make an Apology for the Publishing of this I think the Book being done with so much Care may be of good use to the Professors of the Law but submit it to your Judgments I confess I am led by my Profession to Affairs of this nature though my Circumstances disingage me from the suspicion of being an Author Vale. A TABLE OF THE CASES Contained in the THIRD PART OF Modern Reports A. ALdridge versus Duke 110 Ashcomb versus Inhabitants Hundred de Eltham 287 Ayres versus Huntington 251 B. BAxter's Case 68 Baldwyn versus Flower 120 Ball versus Cock 140 Barker Mil ' versus Damer 336 Barnes versus Eggard 39 Beak versus Tyrrwhite 194 Banson versus Offley 121 Bishops their Case 212 Bisse versus Harcoutt 281 Blaxton versus Stone 123 Boyle versus Boyle 164 Boson versus Sandford 321 Bowyer versus Lenthal 190
Bradburn versus Kennerdale 318 Brason versus Deane 39 Brett versus Whitchott 96 Bridgham versus Frontee 94 Broad versus Piper 268 Burgh's Case 67 C. CAlthrop versus Axtel 168 Capel versus Saltonstal 249 Carter versus Dowrish 226 Chapman versus Lamphire 155 Clarke versus Hoskins 79 Claxton versus Swift 86 Coghil versus Freelove 325 Cole versus Knight 277 Cross versus Garnett 261 D. DAvies Case 246 Dawling versus Venman 108 Dixon versus Robinson 107 Dobson versus Thornigrove 112 Doe versus Dawson 274 Dorrington versus Edwyn 56 E. ECcleston versus Speke 258 Evans versus Crocker 198 F. FItzgerald versus Villiers 236 Fisher versus Wrenn 250 Franshaw versus Bradshaw 235 Friend versus Bouchier 81 G. GRandison Lord versus Countess of Dover 23 Grantham Mil ' his Case 120 Godfrey versus Eversden 264 Gold versus Strode 324 Goring versus Deering 156 H. HAcket versus Herne 134 Hall versus Wybank 311 Hamson Serjeant his Case 89 Hanchet versus Thelwell 104 Harman versus Harman 115 Harrison versus Austin 237 Harrison versus Heyward 295 Hebblethwait versus Palmes 48 Hexam versus Coniers 238 Heyward versus Guppee 191 Hicks versus Gore 84 Hyley versus Hyley 228 Hinton versus Roffey 35 Hitchins versus Bassett 203 Hobbs qui tam versus Young 313 Hoile versus Clerke 218 Holcomb versus Petit 113 Holloway's Case 42 Horner's Company versus Barlow 158 I. JAckson versus Warren 78 Jefferies Mil ' versus Watkyns 161 Jennings versus Hankeys 114 Joyner versus Pritchard 103 K. KEllow versus Rowden 253 King versus Dilliston 221 Knight versus Cole 277 Knight Mil ' Case 117 Kingston versus Herbert 119 The King against Ayloffe 72 The King against Armstrong Mil ' 47 The King against Atkyns Mil ' 3 The King against Barns 42 The King against Baxter 68 The King against Beale 124 The King against Bunny 238 The King against Cony al' 37 The King against Colson al' 72 The King against Dangerfield 68 The King against Darby 139 The King against Fairfax 269 The King against G l. 97 The King against Griffith 201 The King against Grimes al' 220 The King against Hethersel 80 The King against Hinton al' 122 The King against Hockenhal 167 The King against Inhabitants of Malden The King against Johnson 241 The King against Kingsmill 199 The King against Lenthal 143 The King against Marsh al' 66 The King against Plowright al' 94 The King against Rosewell 52 The King against Saloway 100 The King against Sellars 167 The King against Silcox 280 The King against Sparks 78 The King against Warden of the Fleet 335 L. LAngford versus Webber 132 Lambert versus Thurston 275 Lea versus Libb 262 Leigh's Case 332 Letchmere versus Thorowgood 236 Lidcott versus Willows 229 Lock versus Norborne 141 Lutwich versus Piggot 268 M. MAcklesfield Earl 41 Malloon versus Fitzgerald 28 Marsh versus Cutler 41 Mason versus Beldham 73 Mather versus Mills 252 Matthews versus Cary 137 Mayor and Cominalty of Norwich versus Johnson 90 Merchants Adventurers versus Rebow 126 Mordant versus Thorold 281 Moss versus Archer 135 N. NEwton al' versus Stubbs 71 Newton Mil ' versus Creswick 165 Newton versus Trigg 327 Norwich Mayor c. versus Johnson 90 O. OBrian versus Ram 170 Okel versus Hodgkinson 99 Osborn versus Steward 230 P. PAine versus Partrich 289 Palmer versus Allicock 58 Panton versus Earl of Bath 227 Parkinson's Case 265 Pawley versus Ludlow 87 Peak versus Mather 103 Perkins versus Titus 132 Pitt versus Brereton 70 Plimouth Countess versus Throgmorton 153 Pool versus Trumbull 56 Price versus Davies 152 Prince's Case 295 Proctor versus Burdet 69 Prodgers versus Frazier 43 Proud versus Piper 268 Prowse versus Wilcox 163 Putt versus Rawsterne 1 R. REves versus Phelpes 264 Reeves versus Winnington 45 Roberts versus Pain 67 Rodney versus Strode 101 Roe versus Clargis Mil ' 26 Rowsby versus Manning 330 S. SAvier versus Lenthall 273 Shipley versus Chappel 232 Shotter versus Friend 283 Shuttleworth versus Garnat 239 Smith versus Goodier 36 Smith versus Peirce 195 T. TAyler versus Brindley 136 Thirsby versus Helbott 272 Thompson versus Leach 296 Idem versus Eundem 301 Tippet versus Hawkey 263 U. UPton versus Dawkin 97 W. WHitehal versus Squire 276 Wytham Mil ' versus Dutton Mil ' 159 Woodward's Case 211 Y. YArmouth Earl versus Dorrell 75 Young versus Inhabitants of Tottenham 258 DE Term. Sancti Mich. Anno 34 Car. II. in Banco Regis 1682. Sir Francis Pemberton Chief Justice Sir Thomas Jones Justices Sir William Dolben Justices Sir Thomas Raymond Justices Putt versus Rawstern Mil ' AN Action of Trespass was formerly brought for taking of Goods c. and upon Not-guilty pleaded Trespass is no Barr to Trover for the same Goods Raymond 472 the Defendant had a Verdict The same Plaintiff now brought Trover against the same Defendant for those Goods The Defendant pleads in Barr the Iudgment in the former Action of Trespass and upon a Demurrer the Question was Whether a Iudgment in Trespass vi armis may be pleaded in Bar to an Action of Trover for the same Goods This Case was argued by Mr. Saunders for the Plaintiff and by Mr. Pollexfen for the Defendant And to prove that it was no Bar Lacon versus Bernard Cro. Car. 35. Hutt 81. Stiles 202. a Case was cited to be adjudged in the Common Pleas in the 20th year of King James which was an Action of Trover and Conversion of one hundred Sheep The Defendant pleaded a former Iudgment in Trespass brought against him quare cepit abduxit those Sheep and that the Plaintiff in that Action recovered 2 d. damages and that both Actions were for the same thing The Plaintiff replied that the two pence damages were recoverd for the chasing and not for the value of the Cattle and upon a Demurrer had Iudgment For the smalness of the damages implies it was for the chasing and it shall therefore be intended that he had his Cattle again and that the Conversion was afterwards My Lord Coke in Ferrer's Case tells us Ferrer 's Case 6 Co. 7. Cro. Eliz. 676. Co. Ent. 39. Cro. Jac. 15. that a Recovery by Verdict Confession or upon a Demurrer in a personal Action is a good Bar to an Action of the like nature and for the same thing but that must be understood where the same Evidence will maintain both the Actions Iustice Croke reports the same Case to be ended by Arbitration but that it was the Opinion of my Lord Anderson and Iustice Glanvil that Trover and Trespass are Actions of different natures and one may be brought where the other cannot be maintained as upon a demand and denial Trover will lie but not Trespass vi armis because the taking was not tortious And therefore it may be well intended that when the Plaintiff brought Trespass he was
mistaken in that Action and being in the wrong was barred but that will be no Bar where a right Action is brought as if I deliver a Bond to another for advice who refusing to redeliver it I bring an Action of Trespass and am barred either by Verdict or Demurrer yet I may bring Detinue Trespass and Detinue are not the same Actions Pro Def. and therefore a Iudgment in one shall be no bar to the other but where two Actions are brought for one thing to be recovered in such case a Recovery in one shall be a bar to the other There is no substantial difference between Trespass and Trover for the disposing of the Goods in the one case is the same with the Conversion in the other the taking vi armis and likewise the Conversion are both tortious and therefore either Action may be well brought But for the Reasons given by the Plaintiffs Council he had Iudgment by the Opinion of the Chief Iustice and the other two Iudges Jones and Raymond of which Iustice Dolben did very much doubt Dominus Rex versus Sir Robert Atkins Knight of the Bath al' AN Indictment was found at the Quarter Sessions held for the County of the City of Bristol 4 Octob. 33 Car. 2. The County of the City of Bristolâ— against Sir Robert Atkins Knight of the Bath and Recorder and Senior Alderman of the said City Sir John Knight Alderman John Lawford Alderman and Joseph Creswick Alderman setting forth 1. That King Henry the VII th by his Charter dated 17 Decemb 15 Regni sui granted to the Mayor and Commonalty of the Town of Bristol the now City of Bristol being then a Town and to their Successors That if any shall procure abett or maintain any Debate and Discord upon the Election of the Mayor or other Minister he shall be punished instantly by the Mayor and two Aldermen to be chosen and named by the Mayor after the quantity and quality of his offence according to the Laws and Custom of the Realm 2. That according to the Priviledges granted by Queen Elizabeth to the Mayor and Commonalty of the said City and their Successors by Charter dated 28 June 23d of her Reign After which time as the Indictment sets forth the said Town was made a City there have been or ought to have been from the time of the making the said Charter twelve Aldermen whereof the Recorder was to be and now is one 3. That according to the Priviledges so as aforesaid granted by all the time aforesaid which is from the time of the Charter after the death of every Alderman the Mayor and the rest of the surviving Aldermen eorum major pars ad summonitionem of the said Mayor being called together have accustomed to choose another person of the circumspect Citizens to be an Alderman in the place of him so deceased and the Mayor and Aldermen by the same Privileges so granted have been and ought to be Iustices of the Peace for the said City 4. That continually after the time of the said Charter of Queen Elizabeth the Recorder and the rest of the Aldermen were and ought to be of the Privy Council de privato Concilio of the Mayor in particular Cases concerning the Government of the City whensoever the Mayor shall call them together And such Privy Council by all the time aforesaid which still is from the said Charter of Queen Elizabeth have not accustomed nor ought not to be called together to transact any Business belonging to that Council unless by the Summons and in the presence of the Mayor That after the death of one Sir John Lloyd being at his death an Alderman of the said City the said Sir Robert Atkins then being Recorder Sir John Knight John Lawford Esquire and Joseph Creswick being all Aldermen then of the City and free Burgesses of the City to make debate and discord upon the Election of an Alderman in the place of the Alderman so dead 8 March 33 Car. 2. in the Parish and Ward of St. Andrew within the said City did conspire to hold a Privy Council of the Aldermen of the said City and therein to choose an Alderman sine summonitione in absentia contra voluntatem Richardi Hart Militis then being Mayor of the City And in pursuance of their said wicked Conspiracy the day and year aforesaid entred by force and arms into the Tolzey and in the Chamber of the Council of the Mayor and Commonalty of the said City commonly called The Council House and there riotously c. did assemble and the same day and year they the said four Aldermen una cum aliis Aldermannis which must be two more Aldermen at the least which makes six and there were but five more in all then in being taking the Mayor in the said rest of the Aldermen not knowing their purposes held a Privy Council of Aldermen and then and there as much as in them lay chose Thomas Day for an Alderman in the place of Sir John Lloyd sine aliqua summonitione per praedictum Richardum Hart then Mayor to meet and in his absence and against his Will And they farther caused to be entred in the Common Council-Book the said Election as an Order of the Privy Council in which Book the Acts of the Mayor and Aldermen in their Privy Council are commonly written from whence great Discord hath risen c. Which Indictment was tryed at the Assises at Bristol by Nisi Prius and the Defendants found guilty and thereupon Sir Robert Atkins one of the Defendants having then lately before this Case been one of the Judges of the Common Pleas but then discharged of his Place after eight years sitting there secure came into the Court of Kings Bench and in Arrest of Iudgment argued his own Case not as Council nor at the Bar but in the Court in his Cloak having a Chair set for him by the Order of the Lord Chief Iustice and said as followeth 1. The Indictment in the first place mentions the Letters Patents of King H. 7. made to the Mayor and Commonalty of Bristol that the Mayor with two Aldermen such as he should choose should by their discretions according to Law punish such as should make debate and discord at the Elections of Officers They have not pursued this course against us but gone the ordinary way of Indictment and therefore I shall not need to speak to it 2. The Indictment in the next place proceeds to mention Letters Patents of Queen Elizabeth granted to the Mayor and Commonalty in the 23d year of her Reign which provides that there shall be twelve Aldermen and how upon the death or removal of an Alderman a new one should be chosen that is by the Mayor and the surviving Aldermen and the greater number of them being call'd together as the Indictment suggests by the Summons of the Mayor The whole Indictment and the Offence we are charged with being
hath been the constant course for many years in such Actions to set forth the Antiquity of the thing either in express terms or in words which amount to it In 8 Eliz. such an Action was brought Dyer 248. B. Quod defendens divertit multum aquae cursum per levationem constructionem Waerae c. per quod multum aquae quae ad molendinum of the Plaintiff currere consuevit e contra recurrit Which word consuevit doth imply that it was an ancient Mill for otherwise the Water could not be accustomed to run to it Anno 25 Eliz. the like Action was brought 1 Leon. 273. Russel versus Handford wherein the Plaintiff declared Quod cum molendinum quoddam ab antiquo fuit erectum whereof he was seized and the Defendant erected a new Mill per quod cursus aquae pred coarctatus fuit And eighteen years afterwards was Lutterell 's Case in this Court 4 Co. 86. wherein the Plaintiff shewed that he was seized of two old and ruinous Fulling Mills and that time out of Mind magna pars aquae cujusdam rivoli did run from a certain place to the said Mills and that during all that time there had been a certain Bank to keep the current of the said Water within its bounds c. That the Plaintiff did pull down those old Mills and erected two new Mills and the Defendant digged down the Bank c. The like Action happened 14 Car. I. Cro. Car. 499. Palm 290. it was for diverting an ancient Watercourse Qui currere consuevisset debuisset to the Plaintiffs Mill. In all which Cases 1 Roll. Abr. 107. tho' there are various ways of declaring yet they all shew that the constant course was to alledge that the Mills were ancient for 't is that which intitles the Party to his Action 'T is for this reason also that if two Men have contiguous Houses and one stops the other's Lights if they are not ancient an Action will not lye for stopping of them up There may be some seeming difference between a Right to a Watercourse and to Lights in a Window for no Man can prescribe to Light Quatenus such because 't is of common Right to all Men and cannot be claimed but as affixed to a particular thing or purpose A Watercourse may be claimed to several purposes but Water is of as universal use and benefit to Mankind as Light and therefore no particular Man hath a Right to either but as belonging to an antient House or ruunning to an ancient Mill or for some other antient Vse Anno 15 Car. Cro. Car. 575. Sands versus Trefusis I. The Plaintiff Sands declared that he was seised in Fee of a Mill and had a Watercourse running thro' the Defendants Lands to the said Mill and that he stopped it up There was a Demurrer to this Declaration and the same Objection as now was then taken to it viz. that he had not shewed that it was an ancient Mill. And though the Court seemed to over-rule that Objection yet no Iudgment was given The Case of Sly and Mordant was there cited which is Reported by Mr. 1 Leon. 247. id 1 Rol. Abr. 104. Leonard and is this viz. That the Plaintiff was seised in Fee of certain Lands c. and the Defendant had stopped a Watercourse by which his Land was drowned it was adjudged that the Action would lie for this Injury but that is no Authority to support this Declaration 2. The Plaintiff hath not entituled himself to this Water-course either by Prescription or that the Water debuit vel consuevit currere to his Mill for so is the Pleading in Lutterell 's Case and in all the other Cases before cited 3. Therefore the Plea in Bar is good the Defendant having sufficiently justified his Right and the Plaintiff having not Prescribed to it here can be no Trespass done and so concluded that Iudgment ought to be reversed This Case depends upon the Declaration Ex parte Quer. for the Plea in Bar is only argumentative 't is no direct answer to it and the Replication and Rejoynder are not material The Plaintiff hath a good cause of Action for it cannot be denied but where an injury is done to another and Damages ensue 't is sufficient to maintain an Action of Trespass or upon the Case 'T is plain that an Injury was done to the Plaintiff and the Damage is as manifest by diverting of the Watercourse and the loss of his Mill and the Fact is laid to be injuste malitiose The Defendant gives no reason why he injured him but only that he had no use of the Water because his Mill was burnt This is an Action brought by the Plaintiff upon his Possession against a wrong doer Roll. 339 394. Palm 290. in which it is not necessary to be so particular as where one prescribes for a Right A Man may have a Watercourse * Bracton lib. 4. cap. 32. by Grant as well as by Prescription and in such case be need not set forth any particular use of the Water as that it ought to run to his Mill neither is it absolutely necessary to mention the Mill for that is only to inform the Court of the Damages In the Printed Entries there are many Forms of Declarations without any Prescription Rast Ent. 9. B. or setting forth that the Mill was antient as where an Action was brought against the Defendant De placito quare vi armis stagnum molendini ipsius the Plaintiff fregit and this was only upon the Possession Antea The Case in Dyer is a good Authority to support this Action for 't is as general as this viz. for diverting a Watercourse per Constructionem Waerae and doth not shew where it was erected or what Title he had to it So where the Action was for disturbing the Plaintiff 2 Cro. 43. Dent vers Oliver Nota This was after Verdict in collecting of Toll and doth not shew what Title he had to it either by Prescription or Grant but declared only that he was seised in Fee of a Manor and Fair and held good And it was the Opinion of my Lord Hobert That a Declaration for breaking down of a Bank generally includentem aquam Hob. 193. Biccot versus Ward running to the Plaintiffs Mill was good The Authorities cited on the other side do rather maintain this way of Pleading than the contrary for those Cases are wherein the Plaintiff declared that the Water currere consuevit debuisset to the Plaintiffs Mill time out of mind Cro. Car. 499. which words are of the same signification as if he had shewed it to be an antient Mill and that agrees in substance with this Case for the Water cannot be diverted ab antiquo solito cursu if the Mill was not ancient The word solet implies Antiquity Reg. 153. The Writ De secta admolendinum is
quam ad illud facere debet solet And it was the Opinion of a * Justice Doderidge in Surry and Piggots Case Pop. 171.27 Assise placito 8. Br. Prescription 49. Rast Entr. 441 Tit. Nusance learned Iudge that the words currere consuevit solebat did supply a Prescription or Custom Thus it was in an Assise of Nusance wherein the Plaintiff set forth that he had a Fountain of Water currentem usque ad rotam molendini c. and that the Defendant divertit cursum aquae and this was held good The Cases of stopping up of Lights and diverting of Water-courses are not parallel the Prescription to Lights must be ratione loci and therefore if a Man will erect a new House and a Stranger will stop the Lights 't is an injury done and the Action may be maintained upon the Possession Lutterel 's Case was grounded upon the Possession for upon the Plaintiff Cottell 's own shewing the Prescription was gone because he set forth that he had pulled down the old Mills and that the Defendant Lutterel diverted the Water from running to those Mills which the Plaintiff newly built All which prove that a Prescription goes to the Right but a possession is sufficient to support an Action against a Tort-fesor Lastly Slackman vers West Palmer 387. 2 Cro. 673. in the Case of a Common or a Rent which cannot pass without Deed if the Plaintiff shews a Que Estate he must produce the Deed by which it was granted but where he prescribes for a Way he may set forth his Estate without shewing how he came by it because 't is but a Conveyance to the Action which is grounded upon the disturbance done to the Possession Cur. The word solet implies Antiquity and will amount to a Prescription and solitus cursus aquae running to a Mill makes the Mill to be antient for if it be newly erected there cannot be solitus cursus aquae towards that Mill For which Reasons the Iudgment in the Original Action was affirmed in Hillary Term Primo Willielmi But the Chief Iustice was of Opinion that if the Cause had been tried upon such a Oeclaration that the Plaintiff ought to prove his Prescription or else he must be Nonsuit Anonymus ONE was Indicted for drinking of an Health to the Pious Memory of Stephen Colledge who was Executed at Oxford for High Treason He was Fined 1000 l. and had Sentence to stand in the Pillory and was ordered to find Sureties for his good Behaviour Rex versus Rosewel THE Defendant was a Non-conformist Minister and Indicted for High-Treason in Preaching of these words viz. Why do the People innuendo the People of England make a flocking to the King innuendo Carolum Secundum under pretence of curing the Kings Evil which the King cannot do but we are the Priests and Prophets to whom they ought to flock who by our Prayers can heal them We have had two Wicked Kings now together innuendo Carolum Primum Carolum Secundum who have suffered Popery to be introduced under their Noses whom I can liken to none but wicked Jeroboam and if they innuendo the People c. would stand to their Principles I make no doubt but to COnquer our Enemies innuendo the King and all his Loyal Subjects with Rams Horns broken Pitchers and a Stone in a Sling as in the time of old Vpon this Indictment he was arraigned and pleaded Not Guilty and was Tried at Bar and found Guilty of High Treason upon the Evidence of two Women And the Court having assigned Mr. Wallop Mr. Pollexfen and Mr. Bampfield to be his Council they moved in Arrest of Iudgment First That the Words discharged of the Innuendo's if taken seperate or altogether have no tendency to Treason The first Paragraph doth not import any Crime and to say that we have had two wicked Kings may be a Misdemeanor but 't is not Treason either by intendment of the Death of the King or by levying War against him The Crime seems to consist in the next Words which are if they would stand to their Principles c. This seems to stir up the People to Rebellion but as they are placed in the Indictment they will not admit of such a Construction neither as they have reference to the words precedent or as they stand by themselves The words which go before are viz. We have had two wicked Kings together 'T is not expressed what Kings or when they Reigned which is very uncertain Et si ipsi ad fundamentalia sua starent which word ipsi is relative and must refer ad proximum antecedens and then it must be ipsi Reges which is the proper and natural sense of the words But now if the Innuendo's must be incerted 4 Co. 17. it must be under some Authority of Law either to design the person or the thing which was not certain before that the intention of the Party speaking may be more easily collected and this is the most proper Office of an Innuendo It will not change the meaning of the words Hob. 45. 2 Cro. 126. for that is to make them still more incertain Now most of the Innuendo's in this Indictment are naught because they do not ascertain the subject matter First by the word People innuendo the People of England may be as well intended any other People because there was no previous Discourse of the People of England Then follow these words We have had two wicked Kings now together innuendo King Charles the First and Second which may be as well intended of King Ethelred and Alfred because the words denote a time past and therefore cannot possibly intend the King of whom there was no precedent Discourse And the Rule is De dubiis generalibus benignior Sententia recipienda est Besides those words are insensible and indeed impossible for we cannot have two wicked Kings together it ought to be successively Then to say we shall Conquer our Enemies cannot be intended the Enemies of the King because the word Enemies is of a large sense for Man by reason of his Sins and Infirmities hath many Enemies and possibly such might be intended If therefore it be doubtful what Enemies were meant if it shall not be in the power of a Clerk by an innuendo to make Words of another sense than what they will naturally bear nor to help where they are insensible as in this Case If there was no precedent Discourse either of Kings People or Enemies which must be proved by the Evidence then is this Indictment naught and therefore Iudgment ought to be arrested Mr. Attorney and Solliciter contra 'T is laid in this Indictment that the words were spoken to stir up Rebellion and to depose the King and 't is so found by the Verdict of twelve Men. That which aggravates the offence is That it was spoken in a publick Assembly to the People which must be intended the People of England
for to such the Defendant Preached and to them he declared the power given unto him by God to heal them by Prayer Then he tells them that their King is wicked and having insinuated this Doctrine into their Minds he then bids them stand to their Principles in opposing and subduing wicked Kings 'T is objected that there ought to have been a precedent Discourse of the King but the Presidents are otherwise In 33 H. 8. Rot. 17. There was an Indictment against the Lord Grey for words spoken against the King without setting forth any precedent Discourse of him So was my Lord Cobham 's Case in 12 Jac. for that he proditorie dixit pro palavit haec verba viz. It will never be well for England until the King and his Cubbs are killed without an Avernient that the words were spoken de Rege And in William 's Case 2 Roll Rep. 88. Reported by my Lord Rolls who was Indicted for High Treason for writing two Books in which were many Traiterous Assertions but no Averment of any previous Discourse concerning the King all these Indictments were thus viz. Dixit such words de Domino Rege Therefore the Indictment is good in form if the words therein contained amount to Treason now they do import Treason or not if they do import it then 't is unnecessary to aver that they were spoken de Rege because it cannot be intended to be Treason against any other King If a Man should say that he would go to Whitehal and kill the King 't is not necessary to averr any precedent Discourse de Rege In Actions on the Case for Words there must be an Averment of the person because many men are of the same Name but in Indictments the form will govern the Case Several Traitors have suffered Death in such Cases as this at Bar and many learned Men in all Ages have attended this Court and this Objection was never made till now and therefore the Presidents being without this Averment de Rege where the overt Act is by words Iudgment was prayed against the Prisoner Curia Words may be an overt Act but then they must be so certain and positive as plainly to denote the intention of the speaker If a Man should tell another that he would drive the King out of England there needs no averment that such words were spoken de Rege because they tend immediately to depose the King but if he had said that he would go to Whitehal and destroy his Enemies that is not Treason without an Averment c. Iudgment was arrested DE Term. Sancti Hill Anno 36 Car. II. in Banco Regis 1684. Pool versus Trumbal THE Defendant was sued in the Spiritual Court for Dilapidations 25 Car. 2. cap. 5. and pleaded the general Pardon by which all Offences Contempts Penalties c. were pardoned and for this reason he prayed a Prohibition but it was denied because the Statute never intended to pardon any satisfaction for Damages but only to take away Temporal Punishments Dorrington versus Edwin Mich. 36 Car. II. Rot. 277. SCire Facias against Pledges in a Replevin brought by Pleint Sci. Fac. will lye against pledges in Replevin by pleint setting forth that John Temple did levy a Pleint in the Sheriffs Court of London for the taking of three Baggs of Mony in which Suit he found Pledges de prosequendo de retorno habendo if it should be awarded That this Pleint was transmitted out of that Court into the Hustings and by * If it had not been a Court of Record it might have been remov'd by Re falo Dalt 425. 9 Hob. 6.58 13 Ed. 1. cap. 2. F. N. B. 74. F. Dalt 273. Certiorari removed into the Kings-Bench where the Plaintiff declared as aforesaid c. Dorrington avowed the taking c. and Temple was Non-suited and thereupon a Retorn ' Habend ' was awarded to the Sheriff who returned elongat ' c. Then a Sci. Fa. was brought against the Pledges upon the Statute of Westm 2. which provides that where Lords upon Replevins cannot obtain Justice in Inferiour Courts against their Tenants when such Lords are attached at their Tenants Suits they may have a Recordari to remove the Plea before the Justices c. and the Sheriff shall not only take Pledges of the Plaintiff to prosecute his Suit but also to return the Cattle if a Return be awarded c. The Defendants appeared and prayed Oyer of the Certiorari which was returned by the Mayor and Sheriffs only without the Aldermen And upon a Demurrer the Question was Whether a Scire Facias will lie against them by virtue of this Statute they being only Pledges in Replevin brought by Pleint without Writ This Case was argued by Mr. Pollexfen for the Defendants And for the Defendants it was said that they could not be charged by this Scire Facias because the Pleint was removed by Certiorari and thereby the Plaintiff Dorrington had lost the benefit he had against the Pledges in the Sheriffs Court This Case was compared to other Actions in inferior Courts which if removed by Habeas Corpus the Bail below are discharged of course By the Common Law there were no Pledges of Retorn ' habend Dyer 246. for before this Statute the Sheriff could not make a Replevin without the King 's Writ Now he hath power to take Pledges but if he will make deliverance of the Goods ad querelam alicujus sine brevi the fault is still in him for he may * Dalt 434. compel the Party to bring a Writ and then the Pledges will be liable because it will appear who they are And therefore it hath been adjudged Cro. Car. 446. that where a Replevin is brought by Writ the Sheriff cannot make deliverance without taking Pledges because if the Plaintiff should recover he hath a remedy against them by Scire Facias but if he recover upon a Replevin brought by Pleint Cro. Car. 594. the Iudgment shall not be avoided by assigning the want of Pledges for Error because in such Case the Sheriff is not by Law obliged to take Pledges 2. This Scire Facias is brought too soon for there ought to go an Alias Pluries Retorn ' habend before the Return of Elongata and then and not before the Scire Facias is properly brought The Pledges are answerable E contra and the Scire Facias is well brought and this grounded upon the Statute of W. 2. which directs Pledges to be taken before the delivery of the Goods It takes notice that Replevins were sued in inferior Courts by the Tenants against their Lords who had distrained for Rents due for Services or Customs and that such Lords could not have Iustice done in those Courts and therefore to remedy this mischief the Statute gives the Writ Recordare c. to remove the Pleint before the Iustices and because such Tenants after they had replevied their Cattle did usually
the Court of Arches the Case was Prohibition not granted where a temporal loss may ensue The Plaintiff was presented by the Mayor and Aldermen of Bristol to the Parish Church of Christ-Church in the said City and the Defendant libelled against him because he was not 23 years of Age when made Deacon nor 24 when he entred into the Orders of a Priest 13 Eliz. c. 12. and the Statute requires that none shall be made a Minister or admitted to preach being under that Age. The reason now alledged for a Prohibition was because this Matter was triable at Law and not in the Spiritual Court because if true a Temporal Loss viz Deprivacion might follow But the Court denied the Prohibition and compared this Case to that of a Drunkard or ill Liver who are usually punished in the Ecclesiastical Courts though a temporal loss may ensue and if Prohibitions should be granted in all Cases where Deprivation is the consequence of the Crime it would very much lessen the Practice of those Courts David Burgh 's Case THE Parishioners of St. Leonard Foster Lane gave this Man who had a Wife and five Children 5 l. in Mony to remove into another Parish upon Condition that if he returned in 40 days that he should repay the Mony he removed accordingly and stayed away by the space of 40 days the Parish to which he removed obtained an Order upon an Appeal for his settlement in the last Parish where he was lawfully an Inhabitant which Order being removed into this Court and the Matter appearing thus upon Affidavits they declared their Opinion only upon the Order to remove viz. That the Man had gained a Settlement in the Parish to which he removed for he being an Inhabitant there for so long time as was required by Law to make a Settlement and not disturbed by the Officers they were remiss in their Duty and the Court would not help their negligence DE Term. Sanctae Trin. Anno 1 Jac. II. in Banco Regis 1685. Dominus Rex versus Dangerfield THE Defendant was convicted of publishing a Libel wherein he had accused the King when Duke of York that he had hired him to kill the late King Charles c. And on Fryday June 20. He was brought to the Barr where he received this Sentence viz. That he should pay the Fine of 500 l. That he should stand twice in the Pillory and go about the Hall with a Paper in his Har signifying his Crime That on Thursday next he should be whipped from Algate to Newgate and on Saturday following from Newgate to Tyburn which Sentence was executed accordingly and as he was returning in a Coach on Saturday from Tyburn one Mr. Robert Frances a Barrister of Greys-Inn asked him in a jeering manner whether he had run his Heat that day who replied again to him in scurrilous words whereupon Mr. Frances run him into the Eye with a small Cane which he had then in his Hand of which wound the said Mr. Dangerfield died on the Monday following Mr. Frances was indicted for this Murder and upon Not-guilty pleaded was tried at the Old-Bayly and found guilty and executed at Tyburn on Fryday July the 24th in the same year Mr. Baxter's Case HE was a Nonconformist Minister against whom an Information was exhibited for writing of a Book which he Entituled A Paraphrase upon the New Testament and the Crime alledged against him in the said Information was That he intending to bring the Protestant Religion into contempt and likewise the Bishops innuendo the Bishops of England did publish the Libel in which was contained such words c. setting forth the words He was convicted And Mr. Williams moved in arrest of Iudgment that the words in the Information and the Bishops therein mentioned were misapplied to the Protestant Religion and the Bishops of England by such Innuendoes which could not support this Charge against the Defendant That the Distringas and Habeas Corpora were inter nos Richardum Baxter which could not be because the Information was exhibited in the name of the Attorney General But the Court over-ruled these Exceptions and said that by the word Bishops in this Information no other could be reasonably intended but the English Bishops thereupon the Court fined him 500 l. and ordered him to give Security for his Good Behavior for seven years Procter versus Burdet AN Action of Covenant was brought by an Apprentice setting forth the Indenture by which the Defendant In Covenant the Breach was generally assigned and held good his Master had covenanted to find and allow the Plaintiff Meat Drink Lodging and all other things necessary during such a time and the Breach was as general as the Covenant viz. That he did not find hind him Meat Drink Lodging alia necessaria The Plaintiff had Iudgment by Nil dicit and upon a Writ of Enquity brought entire Damages were given against the Defendant And in a Writ of Error upon this Iudgment the Error assigned was that the Breach was too general and that entire Damages were given amongst other things for alia necessaria and doth not say for what 2 Cro. 436. Astel versus Mills and a Case was cited in the Point in Trinity-Term 16 Jacobi where the Iudgment was reversed for this very reason The Council contra argued that that which is required in an Action of Covenant is that there may be such a certainty as the Defendant may plead a former Recovery in Barr if he be sued again and therefore one need not be so particular in assigning of the Breach upon a Covenant as upon a Bond for in a Bond for performance of Covenants where there is a Covenant to repiar if it be put in suit 't is not sufficient to say That the House is out of repair but you must shew how but in a Covenant 't is enough to say That it was out of repair If in this Case the Plaintiff had shewed what necessaries were not provided for him Kelway 85. it would have made the Record too long and therefore 't is sufficient for him to say that the Defendant did not find alia necessaria That Case in 2 Cro. 2 Cro. 304 367. 1 Rol. Rep. 173. 3 Bulst 31. 2 Saund. 373. has since been adjudged not to be Law for many contrary Iudgments have weakened the Authority of it viz. That the Breach may be assigned as general as the Covenant as where a Man covenanted that he had a lawful Estate and Right to let c. the Breach assigned was that he had no lawful Estate and Right to let c. and doth not shew that the Lessor had not such Right or that he was evicted yet it was held good Curia In a Quantum meruit they formerly set out the Matter at length but now of late in that Action in general Words and also in Trover and Conversion pro diversis aliis bonis hath been held good which is as
day of Appearance he is to see that he appear at the day either by keeping of him in Custody or letting of him to Bail the end of the Arrest is to have his Body here If he had not been bailed then he had still remained in Custody and the Plaintiff would have his proper remedy but being once let to Bail and not appearing in Court according to the Condition of the Bond that seems to be the fault of the Defendant who had his Body before the day of Appearance Iudgment for the Defendant DE Term. Sancti Hill Anno 1 Jac. II. in Banco Regis 1685. Serjeant Hampson's Case BY the Statute of Queen Elizabeth 't is Enacted 5 Eliz. c. 23. That if the person excommunicated have not a sufficient Addition or if 't is not contained in the Significavit that the Excommunication proceeds for some cause or contempt or of some original Matter of Heresie refusing to have his Child baptized to receive the Sacrament to come to Divine Service or Errors in Matters of Religion or Doctrine Incontinency Usury Simony Perjury in the Ecclesiastical Court or Idolatry he shall not incurr the Penalties in the Act. Serjeant Hampson was excommunicated for Alimony and now Mr. Girdler moved that he might be discharged because none of the aforesaid Causes were contained in the Significavit Curia He may be discharged of the Forfeiture for that reason but not of the Excommunication Anonymus ONE who was outlawed for the Murder of Sir Edmund Bury Godfrey now brought a Writ of Error in his Hand to the Bar praying that it might be read and allowed It was read by Mr. Astry Clerk of the Crown The Errors assigned were viz. That it did not appear upon the Return of the Exigent in the first Exact ' that the Court was held pro Comitatu That the Outlawry being against him and two other persons 't is said in the last Exact ' that Non comperuit but doth not say nec eorum aliquis comperuit For these Reasons the Outlawry was reversed and he held up his Hand at the Barr and pleaded Not-guilty to his Indictment and was admitted to Bail and afterwards he was brought to his Trial and no Witness in behalf of the King appearing against him he was acquitted The Mayor and Commonalty of Norwich versus Johnson A Writ of Error was brought to reverse a Iudgment given for the Plaintiff in the Common-Pleas in an Action of Waste Waste lies against an Executor de son tort of a Term. The Declaration was that the Plaintiff demised a Barn to one Took for a certain Term by vertue whereof he was possessed and being so possessed died that the Defendant was his Executor who entred and made Waste by pulling down of the said Barn The Defendant pleaded that Took died intestate and that he did not administer The Plaintiff replyed that he entred as Executor of his own Wrong and to this Plea the Defendant demurred and the Plaintiff joined in the Demurrer This Case was argued by Mr. Appleton of Lincolns-Inn for the Plaintiff who said That an Action of Waste would not lie against the Defendant because the Mayor and Commonalty c. had a remedy by an Assise to recover the Land upon which the Barn stood and a Trover to recover the Goods or Materials and that such an Action would not lie against him at the Common Law because he neither was Tenant by the Curtesie nor in Dower against whom Waste only lay So that if the Plaintiff is entituled to this Action it must be by vertue of the Statute of Gloucester 6 Ed. 1. c. 5. but it will not lie against the Defendant even by that Statute because the Action is thereby given against the Tenant by the Curtesie in Dower for Life or Years and treble Damages c. But the Defendant is neither of those and this being a penal Law which not only gives treble damages but likewise the Recovery of the place wasted ought therefore not to be taken strictly but according to Equity Tenants at sufferance or at Will by Elegit or Tenants by Statute Staple 11 H. 6. c. 5. and also Pernors of Profits were never construed to be within this Statute and therefore a particular Act was made to give him in Reversion an Action of Waste where Tenant for life or years had granted over their Estates and yet took the Profits and committed Waste Then the Question will be Co. Lit. 371. what Estate this Executor de sontort hath gained by his Entry And as to that he argued that he had got a Fee-simple by Disseisin and that for this reason the Plaintiff was barred from this Action for if the Son purchase Lands in Fee and is disseised by his Father who maketh a Feoffment in Fee to another with Warranty and dieth the Son is for ever barred for though the Disseisin was not done with any intention to make such a Feoffment 1 Roll. Abr. 662. yet he is bound by this Alienation So where a man made a Lease for life and died and then his Heir suffered a Recovery of the same Land without making an actual Entry this is an absolute Disseisin because the Lessee had an Estate for life but if he had been Tenant at Will it might be otherwise But admitting that the Defendant is not a Disseisor then the Plaintiffs must bring their Case to be within the Statute of Gloucester as that he is either Tenant for life or years If he is Tenant for Life he must be so either by right or by wrong He cannot be so by right because he had no lawful Conveyance made to him of this Estate besides 't is quite contrary to the Pleading which is that he entred wrongfully Neither can he be so by wrong for such particular Estates 6 Co. 25. as for life or years cannot be gained by Disseisin and so is Heliar's Case in 6 Co. Then if this should be construed an Estate for years it must be gained either by the Act of the Party or by the Act of the Law but such an Estate cannot be gained by either of those means First it cannot be gained by the Act of the Party Moor 126. Kendrick versus Burges because an Executor de son tort cannot have any interest in a Term and for this there is an express Authority in this Court which was thus viz. A Lease in Reversion for years was granted to a man who died intestate his Wife before she had administred sold this Term to the Defendant and afterwards she obtained Letters of Administration and made a Conveiance of the same Term to the Plaintiff and Iudgment was given for the last Vendee because it was in the case of a Reversion of a Term for years upon which no Entry could be made and of which there could be no Executor de son tort though it was admitted by the Court that such an Executor might make a good sale of
the Goods before Administration granted Neither can any Entry or Claim make the Defendant an Executor de son tort of a Term for years because a wrongful Entry can never gain any Estate but a Fee-simple for 't is not to be satisfied with any particular or certain Estate as for life or years It cannot be gained by Act of Law because that abhors all manner of wrong If it should be objected that though this Executor doth not gain any Estate for his own benefit yet he in the Reversion may take him for a Disseisor and it shall be in his election either to make him so or a Tenant for years To this it may be answered that the Defendant doth not claim by colour of any Grant if he did then he might be a Disseisor at the Election of him in the Reversion and this was the very difference taken in the Case of Blunden and Baugh Cro. Car. 302. 1 Roll. Abr. 661. Jones 115. Latch 53. So likewise if it be objected that the Defendant is an Occupant and therefore punishable for Waste but the reason is not the same because the Entry of an Occupant is lawful and he gains an Estate for life which is not this Case An Executor de son tort is not a person taken notice of in the Law in respect to him in the Reversion but in respect of the Creditors of the Intestate and therefore if what he doth may be advantageous to them the Law will make a Construction upon it for their benefit but if such a person should be within the intention or meaning of this Statute then the natural Consequences will be 1. That the place wasted would be recovered 2. That the Plaintiff would also have treble damages Both which would be a manifest means to defeat the Creditors of their Debts for which reasons he prayed Iudgment for the Plaintiff in the Errors It was argued by the Council on the other side E contra That it is plain that the Defendant was Executor de son tort for such must that person be who intermeddles with the Intestates Estate where there is no rightful Executor or Administrator Now a Man may be Executor of his own wrong of a Term for years as appears even in that case cited out of Moor on the other side and if so the Defendant must be liable to this Action The Statute may be expounded as well against a wrongful as a rightful Executor 't is plain here is a Dissesin and the Law is now settled that it shall be in the election of him in the Reversion to make it so This Defendant would justifie one wrong by another for he confesseth that he hath committed a Disseisin and therefore will not be answerable for committing of Waste As to the Objection that an Executor de son tort is liable only in respect of Creditors and that if he should be punished for Waste it would be an injury to them because of the treble damages recovered against him Resp Such damages must be answered out of his own Estate for even in the Case of a rightful Executor if he commit Waste 5 Co. Poulter's Case he will be chargeable in a Devastavit de bonis propriis This is not properly a penal but a remedial Law and as such may be construed according to Equity 'T is true Tenants by Elegit or by Statute are not within this Statute because Waste by them committed is no wrong for if they should fell the Timber it sinks the Debt and the Cognizor may have a Scire Facias ad computandum Curia It would be an infinite trouble for him in the Reversion to seek his remedy for Waste done if the Law did oblige him to stay till there was a rightful Administrator and 't is not to be doubted but that there may be an Executor de son tort of a Term for years This is a remedial and yet a penal Law and therefore shall have a favourable Construction The Iudgment was affirmed Bridgham versus Frontee DEBT upon a Bond for performance of Covenants in a Lease of a House for a certain Term of years rendring Rent c. And the Breach assigned was That there was 66 l. Rent in arrear The Defendant pleaded the Statute of H. 32 H. 8. c. 16. 8. That all Leases of Dwelling-Houses or Shops made to any Stranger or Alien Artificer shall be void and sets forth that the Defendant was a Vintner and an Alien Artificer And upon a Demurrer Mr. Thompson for the Defendant said that a Vintner was an Artificer within the meaning of the Act which was made to prevent a mischief by Foreigners encroaching upon the Trades of the King's Subjects by which they gained their Livelihood and therefore shall be expounded largely and beneficially for them A Mercer a Draper or Grocer are not properly Artificers yet they are within the meaning of this Act. Chief Iustice 1 R. 2. cap. 9. This Statute refers to another of R. 2. Which prohibits Alien Artificers to exercise any Handycraft in England unless as a Servant to a Subject skilful in the same Art upon pain to forfeit his Goods so that 't is plain that such who used any Art or manual Occupation were restrained from using it here to the prejudice of the King's Subjects Now the Mystery of a Vintner chiefly consists in mingling of Wines and that is not properly an Art but a Cheat so the Plaintiff had his Iudgment Rex versus Plowright and others A Distress was taken for Chimny-Mony and the Parties distrained apply themselves to the two next Iustices of the Peace before whom it did appear that Plowright let a Cottage to Hunt which was not of the yearly value of 10 s. The Collectors of this Duty distrained upon the Land-Lord which the said Iustices thought to be illegal and therefore they ordered a Restitution And a Certiorari being brought to remove the Order into this Court Mr. Attorny prayed that it might be â—â—â—d But it was opposed by Mr. Pollexfen for that the Statute of King Charles II. enacts 16 Car. 2. c. 3. That no person inhabiting an House which hath more than two Chimnies shall be exempted from the payment of the Duty c. and then these Words do follow viz. That if any question shall arise about the taking of any distress the same shall be heard and finally determined by one or more Justices of the Peace near adjoining c. Now here was Mony levyed by virtue of this Act and a Controversie did arise by reason of the Distress and an Order was made by the Iustices which according to the letter and meaning of the Act ought to be final the intention whereof was to prevent the charge and trouble of poor Men in Suits at Law about small Matters and therefore it gave the Iustices power to determine particular Offences and Oppressions Mr. Attorney contra If the Iustices of Peace have power to determine c.
that is to make them Iudges whether this Duty is payable or not and so the Courts of Westminster who are the proper Iudges of the Revenue of the King who by this means will be without an Appeal will be excluded Curia This Court may take Cognizance of this Matter as well as in Cases of Bastardy 't is frequent to remove those Orders into this Court though the Act says That the two next Justices may take order as well for the punishment of the Mother as also for the relief of the Parish where it was born except he give Security to appear the next Quarter Sessions The Statute doth not mention any Certiorari which shews that the intention of the Law-makers was that a Certiorari might he brought otherwise they would have enacted as they have done by several other Statutes that no Certiorari shall lie Therefore the meaning of the Act must be that the determination of the Iustices of the Peace shall be final in Matters of Fact only as if a Collector should affirm that a person hath four Chimnies when he hath but two or when the Goods distrained are sold under the value and the Overplus not returned but the Right of the Duty arising by virtue of this Act was never intended to be determined by them Then the Order was filed and Mr. Pollexfen moved that it might be quashed for that by the Statute of 14 Car. 2. 14 Car. 2. c. 10. the Occupier was only chargeable and the Land-Lord exempted Now by the Proviso in that Act such a Cottage as is expressed in this Order is likewise exempted because 't is not of greater value than 20 s. by the year and 't is not expressed that the person inhabiting the same hath any Lands of his own of the value of 20 s. per annum nor any Lands or Goods to the value of 10 l. Now there having been several abuses made of this Law to deceive the King of this Duty occasioned the making of this subsequent Act. The abuses were these viz. The taking a great House and dividing it into several Tenements and then letting them to Tenants who by reason of their poverty might pretend to be exempted from this Duty The dividing Lands from Houses so that the King was by these Practices deceived and therefore in such Cases the charge was laid upon the Land-Lord but nothing of this appearing upon the Order it was therefore quashed Brett versus Whitchot IN Replevin Lands not exempted from repairing of the High-ways by grant of the King The Defendant avowed the taking of a Cup as a Fine for a Distress towards the repairing of the High-way The Plaintiff replyed and set forth a Grant from the King by which the Lands which were chargeable to send Men for the repairing c. were exempted from that Duty And upon a Demurrer the Question was Whether the Kings Letters Patents are sufficient to exempt Lands from the Charge of the repairing of the High-ways 2 3 Ph. Mar. c. 8. which by the Statute of Philip and Mary and other subsequent Statutes are chargeable to send Men for that purpose And it was argued that such Letters Patents were not sufficient because they were granted in this Case before the making of the Statute and so by consequence before any cause of Action and to prove this a Case was cited to this purpose In 2 E. 2 Inst 569. 3. an Action was brought against an Hundred for a Robbery upon the Statute of 13 E. 1. The Bishop of Litchfield pleaded a Charter of R. 1. by which that Hundred which was held in Right of his Church was exempted c. But it was held that this Charter could not discharge the Action because no such Action was given when the Letters Patents were made but long afterwards Iudgment was given for the Avowant Upton versus Dawkin TRespass quare vi armis liberam piscariam he did break and enter and one hundred Trouts ipsius Quer. Trespass for taking Fish ipsius querentis in libera piscaria not good in the Fishery aforesaid did take and carry away Vpon Not guilty pleaded there was a Verdict for the Plaintiff and this Exception was taken in arrest of Iudgment viz. For that the Plaintiff declared in Trespass for taking so many Fish ipsius Quer. in libera piscaria which cannot be because he hath not such a property in libera piscaria to call the Fish his own Pollexfen contra If there had not been a Verdict such a Construction might have been made of this Declaration upon a Demurrer but now 't is helped and the rather because a Man may call them pisces ipsius in a free Fishery for they may be in a Trunk so a Man may have a property though not in himself as in the Case of Iointenants where 't is not in one but in both yet if one declare against the other unless he plead the Iointenancy in Abatement the Plaintiff shall recover But notwithstanding the Iudgment was reversed Dominus Rex versus ...... THE Defendant was indicted for Barretry Barretry the Evidence against him was that one G. was arrested at the Suit of C. in an Action of 4000 l. and was brought before a Iudge to give Bail to the Action and that the Defendant who was a Barrister at Law was then present and did sollicite this Suit when in truth at the same time C. was indebted to G. in 200 l. and that he did not owe the said C. one farthing The Chief Iustice was first of Opinion that this might be Maintenance but that it was not Barretry unless it appeared that the Defendant did know that C. had no cause of Action after it was brought If a Man should be arrested for a trifling Cause or for no Cause this is no Barretry though 't is a sign of a very ill Christian it being against the express Word of God But a Man may arrest another thinking he hath a just cause so to do when as in truth he hath none for he may be mistaken especially where there hath been great dealings between the Parties But if the design was not to recover his own Right but only to ruine and oppress his Neighbour that is Barretry A Man may lay out mony in behalf of another in Suits at Law to recover a just Right and this may be done in respect of the Poverty of the Party but if he lend mony to promote and stirr up Suits then he is a Barretor Now it appearing upon the Evidence that the Defendant did entertain C. in his House and brought several Actions in his Name where nothing was due that he was therefore guilty of that Crime But if an Action be first brought and then profecuted by another he is no Barretor though there is no cause of Action The Defendant was found guilty DE Termino Paschae Anno 2 Jac. II. in Banco Regis 1686. Coram Edwardo Herbert Mil ' Capital ' Justic
the person who made Oath before them The Commissioners sign the Depositions and they ought to produce them so signed to the Court and prove it for Depositions are often suppressed by Order of the Court. If a true Copy of an Affidavit made before the Chief Iustice of this Court be produced at a Trial 't is not sufficient to convict a Man of Perjury This is not like the Case of Perjury assigned in an Answer in Chancery taken in the Country for that is under the Parties Hand but here is nothing under the Defendant's Hand and therefore the Commissioners ought to be in the Court to prove him to be the Man The Court were equally divided The Chief Iustice and Wythens Iustice were of Opinion that it was not Evidence to convict the Defendant of Perjury it might have been otherwise upon the Return of a Master of Chancery for he is upon his Oath and is therefore presumed to make a good Return but Commissioners are not upon Oath they pen the Depositions according to the best of their skill and a man may call himself by another name before them without any offence The Commissioners cannot be mistaken in the Oath tho' they may not know the person for this Court may be so mistaken in those who make Affidavits here but not in the Oath if the Commissioners or the Clerk to the Commission had been here they would have been good Evidence If an Affidavit be made before a Iustice of the Peace of a Robbery as enjoyned by the Statute if you will convict the person of Perjury you must prove the swearing of the Affidavit The Attorney General perceiving the Opinion of the Court rather than the Plaintiff should be nonsuit because no Evidence could be given offered to enter a Nolle prosequi which the Court said could not be done because the Iury were sworn but he insisted upon it and said he would cause it to be entred Sir John Knight's Case AN Information was exhibited against him by the Attorney General upon the Statute of 2 E. 3. Information upon the Statute for going armed 2 E. 3. c. 3. Which prohibits all persons from coming with Force and Arms before the King's Justices c. and from going or riding armed in affray of Peace on pain to forfeit his Armour and suffer Imprisonment at the King's Pleasure This Statute is confirmed by that of R. 2. 20 R. 2.1 with an Addition of a farther punishment which is to make a Fine to the King The Information sets forth that the Defendant did walk about the Streets armed with Guns and that he went into the Church of St. Michael in Bristol in the time of Divine Service with a Gun to terrifie the King's Subjects contra formam Statuti This Case was tryed at the Bar and the Defendant was acquitted The Chief Iustice said that the meaning of the Statute of Ed. 3. was to punish People who go armed to terrifie the Kings Subjects 'T is likewise a great Offence at the Common Law as if the King was not able or willing to protect his Subjects and therefore this Act is but an affirmance of that Law and it having appointed a Penalty this Court can inflict no other Punishment than what is therein directed DE Term. Sancti Hill Anno 2 3 Jac. II. in Banco Regis 1686 7. Kingston versus Herbert A Common Recovery was suffered Anno 22 Jacobi primi Where a Scire Facias must go to the Tertenants before Judgment be reversed and a Writ of Error was brought about five years since to reverse it and Iudgment was given for the Reversal and it was now moved to set aside that Reversal because there was no Scire Facias against the Tertenants Mr. Williams who argued for the Reversal said that the want of a Scire Facias must be either in Law or in Fact it cannot be Error in Law for that must appear upon the Record it self which it doth not here It cannot be Error in Fact because there is no necessity of such a Writ 't is only discretionary in the Court and not ex necessitate juris But on the other side it was insisted that the Court cannot proceed to examine Errors before a Scire Facias is awarded to the Tertenants Dyer 320 331. for they may have a Matter to plead in Barr to the Writ as a Release c. and the Party cannot be restored to all which he hath lost by the suffering of the Recovery unless the Defendant be brought in upon the Scire Facias Curia The only Question is whether this Iudgment be well given without a Scire Facias The Secondary hath reported that the Practice is so Then as to the Ojection that such a Scire Facias is not ex necessitate juris but only discretionary 't is quite otherwise for 't is not only a cautionary Writ as all other Scire Facias but 't is a legal caution which in a manner makes it necessary 'T is true if there had been a Iudgment corruptly obtained this Court might have set it aside but if Erronice 't is a doubt whether it may be vacated but according to the Forms and Methods of Law Adjornatur Baldwin versus Flower BAron and Feme brought an Action on the Case for Words spoken of the Wife Words where actionable without special damage The Declaration was that the Defendant having some discourse with another person called the Wife Whore and that she was his Whore and concluded ad dampnum ipsorum c. The Plaintiff had a Verdict and it was now moved in arrest of Iudgment for that the Words were not actionable without alledging special damage But it was answered Rol. Abr. 35. placit 7. that the Action was well brought To say A Man is rotted with the Pox is actionable without alledging special damage because the person by such means will lose the Communication and Society of his Neighbours As to the Conclusion ad dampnum ipsorum 't is good for if she survive the Husband the Damages will go to her and so are all the Presidents Curia The Words are actionable And three Iustices were of Opinion that the Conclusion of the Declaration was as it ought to be which Iustice Wythens denied for if an Innkeepers Wife be called a Cheat and the House loses the Trade the Husband hath an injury by the Words spoken of his Wife but the Declaration must not conclude ad dampnum ipsorum Sir Thomas Grantham's Case HE bought a Monster in the Indies which was a Man of that Country who had the perfect Shape of a Child growing out of his Breast as an Excrescency all but the Head This Man he brought hither and exposed to the sight of the People for Profit The Indian turns Christian and was baptized and was detained from his Master who brought a Homine Repleg ' the Sheriff returned that he had replevied the Body but doth not say the Body in which
my Lord Coke to be an allowance by the King 's Grant to any person for the sole buying or selling of any thing restraining all others of that Liberty which they had before the making of such a Grant 3 Inst 181. and this he tells us is against the ancient and fundamental Rights of this Kingdom This Patent agreeth exactly with that Definition 9 E. 3. cap. 1. 18 E. 3. c. 3. 25 E. 3. c. 2. Roll. Abr. 180. 2 R. 2. c. 1. 11 R. 2. c. 7. and therefore it must be against Law 't is against an Act of Parliament which gives Liberty to Merchants to buy and to sell in this Realm without disturbance and 't is expresly against the Statute of 21 Jac. cap. 3. which declares all such Letters Patents to be void That which may give some colour to make such Grants good 2 Inst 540. 11 Rep. is a pretence of Order and Government in Trade but my Lord Coke was of Opinion that it was a hinderance to both and in the end it produced Monopolies There is a great difference between the King's Grant and his Prohibition for the one vests an Interest which is not done by the other and all Prohibitions determine by the King's death but Grants still remain in force Adjornatur Langford versus Webber IN Trespass for the taking of a Horse Justification upon a bare possession good against a wrong doer the Defendant justified for that Joseph Ash was possessed of a Close c. and that the Defendant as his Servant took the Horse in that Close Damage fesant And upon a Demurrer to this Plea for that the Defendant did not shew what Title Ash had to this Close The Councel for the Defendant insisted that it being in Trespass 't is sufficent to say that Ash was possessed because in this Case possession is a good Title against all others But it might have been otherwise in Replevin The Title of the Close is not in question Cro. Car. 138. Yelv. 74. Cro. Car. 571. pl. 10. the possession is only an inducement to the Plea and not the substance thereof which is the taking of the Horse and the Law is plain that where the interest of the Land is not in question a Man may justifie upon his own possession against a wrong-doer Mr. Pollexfen on the other side alledged that damage fesant would bring the Title of the Land in question But the Court gave Iudgment for the Defendant Perkins versus Titus A Writ of Error was brought to reverse a Iudgment given in the Common-Pleas Fine upon an Admittance where it must be certain in Replevin for taking of the Plaintiff's Sheep The Defendant avowed the taking damage fesant The Plaintiff replied that the Lands where c. were Copy-hold held of the Manor of Bushy in Com. Hertf. the Custom whereof was that every Tenant of the said Manor qui admissus foret to any Copyhold Estate should pay a years Value of the Land for a Fine as the said Land is worth tempore Admissionis And upon a Demurrer the Question was 1. Whether this be a good Plea or not as 't is pleaded 2. If it be good as pleaded then whether such a Custom may be supported by Law 1. It was for the Plaintiff in the Writ of Error now and in Michaelmas Term following argued that it was not a good Custom The substance of whose Arguments were that Fines are either certain or incertain those which are incertain are arbitrary and therefore cannot be due of Common Right nor by Custom for there can be no Custom for an incertain Fine and such is this Fine for the value of the Land cannot be known because as this Custom is pleaded it doth not appear whether it shall be a years value past or to come at the time of the admittance of the Tenant A Custom to assess rationabilem denariorum summam for a Fine upon an admittance that is to say 13 Rep. 1. being two years Rent of a Tenant of the yearly value of 53 s. 4 d. is no good Custom A Lease is made for so many years as a third person shall name this is altogether incertain 13 Edw. 3. Fitz. Abr. 273. but when the Term is named then 't is a good Lease but this can be done but once How can this Fine be assessed It cannot be by Iury for then it stands in need of the Common Law and will be therefore void for a Custom must have nothing to support it but usage 1. Neither can this be a good Custom as 't is pleaded because all Customs are made up of repeated Acts and Vsages and therefore in pleading them it must be laid time out of mind which is not done here for admissus foret hath a respect to future admissions and are not to those which are past 2. Here is no time laid when this Fine shall be paid for 't is said Quilibet tenens qui admissus foret c. solvet tantam denariorum summam quantum terra valebat per Annum tempore admissionis c. which last words must be taken to relate to the value of the Land and not to the time when the Fine shall be paid so that if there be such a Custom which is Lex loci and not fully set forth and expressed the Common Law will not help it by any Construction 2. Point Whether such a Custom can be good by Law And they argued that it cannot Where the Fine is certain the Lord may refuse to admit without a tender of it upon the prayer of the person to be admitted 4 Rep. 27. b. but where 't is incertain the Lord is first to admit the Tenant and then to set the Fine the reasonableness whereof is to be determined by Iudges before whom the Case shall depend or upon Demurrer or by a Iury upon proofs of the yearly value of the Land but for non payment of an unreasonable Fine the Lord cannot enter Cro. Eliz. 779. Cro. Car. 196. The Law admits of no Custom to be good but such as is very certain for incertainty in a Custom as well as in a Grant makes both void and therefore 't is held a void Custom for an Infant to make a Feoffment when he can measure an Ell of Cloth Rol. Abr. 565. 6 Rep. 60. Davies Rep. 37. It may be objected that certum est quod certum reddi potest the meaning of which saying must be quod certum reddi potest by something which is certain for if this Rule should be taken to be an answer to incertainties it would destroy all the Books which say a Custom must be certain The Law is very clear Fitz. Bar. 177. 2 Rol. Abr. 264. that a Custom is void for the incertainty therefore this Custom must be void for the value of Land is the most incertain thing in nature and therefore Perjury will not lye for swearing to the value Serjeant Fuller and Mr.
to Sir Edward Biggs against the Countess as Administratrix of the Earl of Plymouth wherein the Plaintiff sets forth a Writing by which the Earl had given power to Sir Edward to be the Collector and Receiver of his Mony and Rents and that he promised to allow him 100 l. per Annum for his pains and in default of payment thereof that Sir Edward should detein the same which Writing was in these Words following viz. I do direct and appoint Sir Edward Biggs to take and receive to his own use 100 l. of lawful Mony of England out of the first Mony which he shall receive of mine The Action was brought for 75 l. being his Salary for three quarters of a year and Iudgment by Nil dicit It was argued this Term and in Easter Term by Councel on both sides It was agreed on all sides that the Earl left sufficient Assets to satisfie all his Bond Creditors but not enough to pay Debts upon simple Contract First it was said for the Plaintiff in the Errors that no Action of Debt will lie against an Executor upon a Mutuatus 11 Co. Godfreys Case because the Testator might have waged his Law but this was not much insisted on 2. That admitting an Action would lye yet this is an erronious Iudgment because the Suit was for 75 l. for three quarters Salary when by the Writing Sir Edward was to serve the Earl a whole year and this being an entire Contract shall not be seperated Therefore he cannot be well entituled to the Actionn unless his Testator had served a year and he had averred it so in his Declaration As where a Covenant was to pay 2 s. Yelv. 133. 7 Co. 10. Allen 9. for copying every Quire of Paper and the Breach assigned that he copyed 4 Quire and 3 sheets for which 8 s. and 3 d. was due to the Plaintiff 't is true he had Iudgment but it was reversed because it was an entire Covenant of which no apportionment could be made pro rata 3. That which was chiefly insisted on was to make these words amount to an Obligation that so it might be satisfied amongst the Bond Creditors But those who argued for the Plaintiff in the Errors said that it cannot be an Obligation for it was only a bare Letter of Attorney and an Authority and no more for there were no words to oblige the Earl or which can make a Warranty and therefore if the Mony was not received the Party to whom the Note was given could not resort back to him who made it had they been both living neither shall the Plaintiff now to his Administratrix Like the common Cases of the assigning of Iudgment if the Assignee doth not receive the Mony he cannot have an Action against the Assignor who only directs and appoints him so to do But on the other side Ex parte Def. the second Objection was thus answered viz. That this being only an Executory thing the Plaintiff may now bring an Action for so long time as his Testator served and this may be apportioned secundum ratam if the Law should be otherwise the Case of all Servants would be bad for they are generally hired for a year and not usually serve so long In an Assumpsit to pay for a years board Sid. 225. and the Plaintiff had declared only for three quarters of a year but yet had Iudgment because as the Book saith if there be any variance in the Agreement 't is for the advantage of the Defendant The 3d. Vaughan 92 93. Pl. Com. 182. Dyer 21. Objection answered viz. When a Man is indebted to another by simple Contract which is aknowledged by Deed an Action of Debt will lie against his Executor for any thing which is under Hand and Seal will amount to an Obligation especially where the Debt is confessed Now there are words in this Deed to shew that Mony was due and that makes it a Bond. But the Court was of Opinion that this was an entire Agreement and therefore the Action not well brought for three quarters Salary and for this reason the Iudgment was reversed Nisi c. Chapman versus Lamphire AN Action on the Case was brought for scandalous words spoken of the Plaintiff Words spoken of a Carpenter where actionable who declared that he was a Carpenter and a Freeman of the City of London and that he got great Sums of Mony by buying of Timber and Materials and by building of Houses and that the Defendant having discourse of him and of his Trade spoke these words viz. He is broken and run away and will never return again There was a Verdict for the Plaintiff and a Motion was now made in arrest of Iudgment for that a Carpenter was not a Trade within the Statute of Bankrupts and a day being given to speak to it again Mr. Pollexfen argued that before the Statutes made against Bankrupts words spoken reflecting upon a man in his Trade were actionable even at the Common Law because it might be the occasion of the loss of his Livelyhood 1 Rol. Abr. 59. pl. 6. Hutton 60. and therefore it was actionable to say of a Scrivener that he is broken and run away and dares not shew his Face and yet a Scrivener was not within the Statutes of Bankrupcy before the Act of 21 Jac. therefore the Action must lie at the Common Law because words disparage him in his Trade But the Councel for the Defendant said that these words were not actionable for they do not tend to his disparagement he may be broke and yet as good a Carpenter as before The Case of one Hill in 2 Car. Latch 114. in this Court was much stronger than this the words spoken of him were viz. Hill is a base broken Rascal and hath broken twice already and I will make him break the third time the Plaintiff had Iudgment but it was arrested A Carpenter builds upon the Credit of other men and so long as the words do not touch him in the skill and knowledge of his Profession they cannot injure him Chief Iustice The Credit which the Defendant hath in the World may be a means to support his skill for he may not have an opportunity to shew his Workmanship without those Materials for which he is entrusted The Iudges were divided in Opinion two against two and so the Plaintiff had his Iudgment there being no Rule made to stay it so that he had his Iudgment upon his general Rule for Iudgment but if it had been upon a Demurrer or Special Verdict then it would have been adjourned to the Exchequer Chamber Goring versus Deering IN an Appeal for the Murder of Henry Goring Esq Auterfoits convict of Manslaughter no good Plea in an Appeal for Murder brought by his Widow The Defendant pleaded that he was indicted for the said Murder at the Sessions-house in the Old Bayly in Middlesex that he was found guilty of Manslaughter
the said Master c. for the use of the Company and that no Member of the Company should buy rough Horn within four and twenty miles of London but of those two Men so appointed under a Penalty to be imposed by the said Master Warden c. That the Defendant did buy a quantity of rough Horn contrary to the said Law c. There was Iudgment in this Case by default And for the Defendant it was argued that this was not a good By-Law 1. Because it doth restrain Trade 11 Co. 54. Hob. 210. for the Company are to use no Horns but such as those two Men shall buy and if they should have occasion for more than those Men should buy then 't is plain that Trade is thereby restrained 2. The Master c. hath reserved a power which they may use to oppress the Poor because they may make what Agreements they will amongst themselves and set unreasonable prices upon those Commodities and let the younger sort of Tradesmen have what quantity and at what rates they please To which it was answered by Serjeant Thompson First This By-Law is for the encouragement of Trade because the Horns are equally to be distributed when brought to the Hall for the benefit of the whole Company But the material Objection was that this being a Company incorporated within the City of London they have not Iurisdiction elsewhere but are restrained to the City and by consequence cannot make a By-Law which shall bind at the distance of four and twenty miles for if they could make a Law so extensive they might by the same reason enlarge it all over England and so make it as binding as an Act of Parliament and for this reason it was adjudged no good By-Law Sir John Wytham versus Sir Richard Dutton ASsault and False Imprisonment 14 Octob. 36 Car. 2. c. The Defendant as to the Assault before the 6th day of November pleads Not-Guilty and as to the False Imprisonment on the said 6th day of November in the same year he made a special Iustification viz. That 28 Octob. 32 Car. 2. c. the King by his Letters Patents did appoint the Defendant to be Captain general and Chief Governour of Barbadoes and so sets forth the Grant at large by which he appoints twelve Men to be of the King's Council during pleasure of which the Plaintiff Wytham was one that the Defendant had also power by the advice of that Council to appoint and establish Courts Iudges and Iustices and that the Copies of such Establishments must be sent hither for the King's Assent with power also to establish a Deputy-Governour that by vertue of these Letters Patents the Defendant had appointed Sir John Wytham to be Deputy-Governour of the said Island in his absence and that he being so constituted did male arbitrarie execute the said Office That when the Defendant returned to Barbadoes viz. 6 Novemb 35 Car. 2. he called a Council before whom the Plaintiff was charged with male Administration in the absence of the Defendant viz. That he did not take the usual Oath for observing of Trade and Navigation that he assumed the Title of Lieutenant Governour and that Decrees made in Court were altered by him in his Chamber Vpon which it was then ordered that he should be committed to the Provost Marshal until discharged by Law which was done accordingly in whose Custody he remained from the 6th day of November to the 20th of December following which is the same Imprisonment c. To this Plea the Plaintiff demurred and the Defendant joyned in Demurrer Mr. Pollexfen argued for the Plaintiff and Serjeant Thompson for the Defendant 1. It was said for the Plaintiff that the Causes of his Commitment if any yet were such which they ought not meddle withal because they relate to his Mis-behaviour in his Government for which he is answerable to the King alone But supposing they might have some cause for the committing of him this ought to be set forth in the Plea that the Plaintiff might answer it for to say he did not take the Oath of Deputy Governour in what concerned Trade and Navigation is no cause of Commitment because there was no Body to administer that Oath to him for he was Governour himself Then to alledge that he did alter in his Chamber some Decrees made in the Court of Chancery that can be no cause of Commitment for the Governour is Chancellor there Besides the Defendant doth not shew that any Body was injured by such alterations neither doth he mention any particular Order but only in general so 't is impossible to give an Answer to it 2. He doth not alledge that the Plaintiff had made or done any of these things but that he was charged to have done it and non constat whether upon Oath or not The Governour hath a large power given by these Letters Patents to make Laws such as he by consent of a general Council shall enact Ex parte Def. The Fact is set forth in the Plea the Plaintiff was committed by vertue of an Order of Council until he was brought to a general Court of Oyer and Terminer by which Court he was again committed That the Court had power to commit him is not denied for the King is not restrained by the Laws of England to govern that Island by any particular Law whatsoever and therefore not by the Common Law but by what Law he pleaseth For those Islands were gotten by Conquest or by some of his Subjects going in search of some prize and planting themselves there Calvin 's Case The Plaintiff being then committed by an Order of Council till he should be discharged by due course of Law this Court will presume that his Commitment was legal The Court were all of Opinion that the Plea was not good so Iudgment was given for the Plaintiff but afterwards 5 Willielmi Mariae this Iudgment was reversed by the House of Peers Sir Robert Jefferies versus Watkins THIS was an Action brought for a Duty to be paid for weighing of Goods at the Common Beam of London Verdict cures a defective Declaration setting forth that the Lord Mayor c. time out of mind kept a common Beam and Weights and Servants to attend the weighing of Goods That the Defendant bought Goods c. but did not bring them to the Beam to be weighed per quod proficuum amisit Vpon Not-Guilty pleaded there was a Verdict for the Plaintiff and it was moved in arrest of Iudgment that the Plaintiff had not brought himself within the Prescription for he doth not say that the Defendant sold the Goods by Weight and this is a fault which is not helped by a Verdict This had been certainly naught upon a Demurrer and being substance is not aided by this Verdict This is Substance for the Duty appears to be wholly in respect of the Weights which are kept now Weighing being the Principal and it
Case Plea where it amounts to the general Issue wherein the Plaintiff declared that the Defendant exhibited a Peittion against him and Sir R. H. before the King in Council by reason whereof he was compelled to appear at his great Expence and that he was afterwards discharged of the matter alledged against him which was the erecting of Cottages in Kingswood Chase in the County of Gloucester This Action was first laid in Gloucestershire and the Defendant moved that it might be laid in Middlesex where the Petition was exhibited But it was insisted for the Plaintiff that where a cause of Action ariseth in two places he hath his Election to lay it in either The Court held that the exhibiting of the Petition was the ground of the Action and though it conteined matter done in another place yet it shall be tried in the County where the Petition was delivered for suppose the Petition had contained Matter done beyond Sea c. Now in this Case the Action being brought in Middlesex the Defendant pleaded that the Chase was injured by the erecting the said Cottages by the digging of Pits and by the making of a Warren by Sir John Newton and that the other person Sir R. H. being then a Iustice of the Peace for the County of Gloucester upon Complaint to him made did not impose Penalties upon the Offenders but did abet the said Plaintiff by reason whereof the Deer were decreased from 1000 head to 400. To this Plea the Plaintiff demurred Mr. Pollexfen argued against the Plea first that it charged Sir R. H. with no particular Crime but enlargeth the Matter upon the Plaintiff and amounts to no more than the general Issue for the Question is whether the Defendant hath fasly prosecuted the Plaintiff before the King in Council which is only matter of fact and which is charged upon the Defendant and therefore he ought to have pleaded Not-Guilty 'T is true where the Defence consists in matters of Law there the Defendant may plead specially but where 't is purely fact the general Issue must be pleaded E contra E contra It was insisted upon that what is alledged in this Plea might be given in Evidence upon the general Issue but the Defendant may likewise plead it specially and not trust the Matter to the Lay-gents As in Conspiracy for procuring of the Plaintiff to be falsly and maliciously indicted of a Robbery Cro. Eliz. 871 900. 21 E. 3.17 27 Ass 12. Kelway 81. Moor 600. Rast Ent. 123. Sed nota This Defence was matter of Law the Defendants plead that they were robbed and suspecting the Plaintiff to be guilty procured a Warrant in order to have the Plaintiff examined before a Iustice of the Peace of which he had notice and absented himself but was afterwards committed to the Gaol by a Iudge of this Court who advised them to preferr a Bill of Indictment c. quae est eadem conspiratio this was adjudged a good Plea though it amounted to no more than the general Issue and all this matter might have been given in Evidence at the Trial. The Court except Iustice Allybon advised the Plaintiff to waive his Demurrer and the Defendant to plead the general Issue But Iustice Allybon took an Exception to the Declaration for that the Plaintiff had not alledged any damnification but only that he was compelled to appear and doth not shew how either by the Petition of the Defendant or by Summons c. He ought to set forth that he was summoned to appear before the King in Order to his discharge but to say coactus fuit comparere is incertain for that might be in the vindication of his Honour or Reputation He complains of a Petition exhibited against him which the Defendant hath answered by shewing to the Court sufficient matter which might reasonably induce him so to to and for that reason he held the Plea to be good Sed adjornatur Rex versus Hockenhul AN Information was exhibited against him for a Riot Misprision of a Clerk amended of which he was found guilty and this Exception was taken in arrest of Iudgment Memorandum quod ad general ' quarterial ' Session ' Pacis tent ' c. die Sabbati prox ' post quindenam Sancti Martini praesentat ' existit quod the Defendant 27 die Januarii in such a year vi armis c. So the Fact is laid after the Indictment which was exhibited against the Defendant at the Michaelmas Sessions and the Fact is laid to be in January following in the same year But the Attorny General said this was only a Misprision of the Clerk in titling the Record viz. in the Memorandum 8 Co. 156. 4 H. 6.16 10 Ass 26. Cro. Car. 144. and there was no fault in the Body of the Information and that it was amendable at the Common Law He cited some Cases to prove where amendments have been in the Cases of Subjects of greater Mistakes than here a fortiori it ought to be amended in the King's Case 'T is not only amendable at the Common Law 4 H. 6. c. 3. 8 H. 6. c. 12. Jones 421. but by several Statutes which extend to all Misprisions of Clerks except Treason Felony and Outlawry wherefore this mistake of Quinden ' Martini was amended and made Quinden ' Hillarii Rex versus Sellars THE Defendant was indicted at the Sessions in London for not attending at the Wardmote Inquest being chosen of the Iury for such a year Indictment quashed To this Indictment he pleaded the King's Grant to the Company of Cooks of which he was a Member by which Grant that Company is exempted from being put or summoned upon a Iury or Inquest before the Mayor or Sheriffs or Coroner of London c. And upon a Demurrer the Question was whether the Cooks are discharged by this Grant from their Attendance at the said Wardmote Inquest And for the King it was argued that they are not discharged Before the Iudgment upon the Quo Warranto brought against the City of London these Courts there were like the Hundred Courts in the County for as these were derived out of the County 4 Inst 249. so those were derived from the Lord Mayor's Court which is a Court of Record and erected for the better Government of the City and the Aldermen of every Ward had right to hold Leets there 1. But now the words of this Grant do not extend to this Case for the Cooks are thereby discharged only from being of a Iury before the Mayor Sheriffs or Coroner c. but the Court of Wardmote is held before neither for 't is held before the Alderman of the Ward 2. Dyer 269. The words in this Grant ought to be taken strictly viz. that Cooks shall be exempted if there be other sufficient Men in the Ward to serve besides and if this doth not appear the Grant is void but this is not alledged E contra E
moration in lege super placitum ill idem Abel ostend Cur. hic monstrat causam subsequen videlicet eo qd dict' Donat. in placito praed allegat qd praed Abel per cons Special Causes Cur. Domine Regis hic obtinuit executionem versus praefat Donat Elizabetham de debito dampnis praed non dicit se illud probatur per Record ' prout dicere debuit Et praed Donatus Obrian per Attorn suum praed dic ' qd Joynder in Demurrer placitum praed materiaque ineodem content bon ' sufficien ' in lege existunt a ipsum Abel ad exedutionem suam versus ipsum Donat. habend precludi quamquidem materiam praed Abel non dedicit nec ad eam a liqualit respond Et hoc pat est verificare unde ut prius praed Donatus petit judicium qd praed Continuances Abel ab executione sua praed versus ipsum Donat. habend ' precludatur c. Et quia Cur. Domini Regis hic de Judicio suo de super praemissis reddend ' nondum advisatur dies inde dat est partibus praed coram dicto Domino Rege apud the Kings Courts usque diem Veneris prox ' post Crastin Sanctae Trinitat extunc prox ' sequen ' de Judicio suo de super premissis audiend ' c. Eo qd Cur. dicti Domini Regis hic inde nondum c. Ad quem diem coram dicto Domino Rege apud the Kings Courts ven ' partes praed per Attorn suos praed Et quia Cur. dicti Domini Regis de Judicio suo de super praemissis reddend ' nondum advisatur dies inde dat est partibus praed coram dicto Domino Rege apud le Kings Courts usque diem Sabbati prox ' post Crastin ' Animarum extunc prox ' sequen ' de Judicio de super praemissis audiend ' c. eo qd Cur. Domini Regis hic inde nondum c. Ad quem diem coram dicto Domino Rege apud le Kings Courts ven partes praed per Attorn ' suos praed Et quia Cur. dicti Domini Regis hic de Judicio suo de super prmissis reddend ' nondum advisatur dies inde dat est partibus praed coram dicto Domino Rege apud le Kings Courts usque diem Lunae prox ' post Octab. Sancti Hillarij extunc prox ' sequen ' de Judicio suo de super praemissis audiend ' eo qd Cur ' dicti Domini Regis hic inde nondum c. Ad quem diem coram dicto Domino Rege apud le Kings Courts vener ' partes praed per Attorn ' suos praed super pro visis per Cur ' dicti Domini Regis hic plen Judgment qd habeat executionem intellectis omnibus singulis praemiss maturaque deliberatione inde habita videtur Cur ' dicti Domini Regis hic qd placitum praed praedicti Donat. modo forma praed placitat materia in eodem content minus sufficien ' in lege existunt ad ipsum Abel Ram ab executione sua praed versus ipsum Donat. habend ' praecludend ' Ideo cons est qd praed Abel Ram habeat executionem suam versus praefat ' Donat. de debito dampnis praed juxta vim formam effectum recuperationis adjudicationis praed c. ss Error assigned Postea scilicet die Lunae prox ' post tres septimanas Sancti Michaelis isto eodem Termino coram Domino Rege apud Westm ven ' praed Donat. Obrian per Johannem Hancock Attorn ' suum Et dic ' pd in Record ' Process praed acetiam in adjudicatione execution Judicij praed manifest est errat in hoc videlt ' quod per Recordum praed ' apparet qd adjudicatio executionis in Record ' praed in forma praed reddit reddit fuit pro praefat ' Abel versus eundem Donat. ubi per legem Hiberniae praed nulla adjudicatio execution Judicij illius reddi debuisset pro praefat ' Abel versus eundem Donat. ideo in eo manifest est Errat Errat est etiam in his qd Diminution alleged per Record ' praed tunc hic missum duminut existist in non certificando duo Brevia dicti Domini Caroli Secundi nuper Regis Angli c. Vic. dicti nuper Regis Com. Civit. Dublin direct ad praemuniend ' praed Donat. Obrian praed Elizabetham Uxor ejus ad essend coram ipso nuper Rege apud le Kings Courts Dublin praed ad ostend causam quare praefat Abel executionem versus eos de debito dampnis praed non haberet aceciam in non certificando process Judic superinde quia in adjudicatione executionis superinde adjudicatio ill reddit fuit pro praefat Abel versus praed Donat. Elizabetham Uxorem ejus ubi per legem Hiberniae nulla adjudicatio execution ' Judicij praed reddi debuisset pro preaefat ' Abel versus ipsos Donatum Elizabetham Uxorem ejus aceciam in non certificando causam vel rationem super Recordnm allegat quare Brevia praed emanarent versus praefat Donatum Elizabetham Et in his manifest est erratum Et pet idem Donat. breve Domini Regis praedilecto fideli Consiliario dicti Domini Regis Thome Nugent Ar. A Cerciorari prayed Capital ' Justic dicti Domini Regis ad placita in Cur. ipsius Domini Regis coram ipso Rege in Regno suo Hiberniae tenend And granted Assign ' dirigend ' ad certificand ' dicto Domino Regi nunc plenius inde viritatem Et ei conceditur c. quod quidem Breve dictus Dominus Rex mandavit praedilecto fideli Consiliario suo Thomae Nugent Armigero Capitali Justiciario suo ad placita in Cur. The Cerciorari to certifie the Dimunition ipsius Domini Regis coram ipso Rege in Regno suo Hiberniae tenend ' Assign ' Breve suum clausum in hec verba ss Jacobus Secundus Dei gratia Angliae Scotiae Franciae Hiberniae Rex Fidei Defensor c. Praedilecto fideli Consiliario nostro Thomae Nugent Ar. Capital Justic nostro ad placita in Curia nostra coram nobis in Regno nostro Hiberniae tenend ' Assign Salutem Volentes de certis causis certiorari de duobus Brevibus Domini Caroli Secundi nuper Regis Angliae c. é Cur. dicti nuper Domini Regis coram ipso Rege vocat ' the Kings Courts Dublin nuper emanen ' Vic. dicti nuper Regis Com. Civit. Dublin direct ' ad praemuniend ' Donat. Obrian Elizabeth Uxor ' ejus tunc nuper dict' Elizabetham Grey dc Civitat Dublin vid. ad essend coram ipso nuper Rege apud le Kings Courts Dublin praed ad ostend ' causam quare Abel Ram modo Mil. sed tempore emanationis
' ac qd ' Record ' ill ' in nullo vitiosum aut defectivum existit Ideo considerat ' est qd ' Judicium praed ' adjudication ' executionis superinde in omnibus affirmetur ac in omni suo robore stet effectu dict' causis materiis superius pro Error ' assign ' in aliquo non obstante Et ulterius per Cur. Judgment affirmed Domini Regis Dominae Reginae nunc hic cons est qd ' praedict ' Abel Ram recuperet versus praefatum Donatum Obrian octodecim libras eidem Abel per Curiam Domini Regis Dominae Reginae nunc hic secundum formam Statuti in hujusmodi casu edit ' provis adjudicat ' pro mis custag ' dampn ' suis quae sustin ' occasione dilationis executionis Judicij praedict ' praetextu prosecutionis praedict ' Brevis de Errore Et qd ' praedictus Abel habeat inde executionem c. Obrian versus Ram. ERror to reverse a Iudgment given in Ireland Whether a Sci. fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her dum sola upon a Scire Fac. brought against the Plaintiff in the Errors setting forth that Debt was brought upon a Bond against Elizabeth Grey and a Iudgment was thereupon obtained for 800 l. dum sola That the said Elizabeth afterwards intermarried with Mr. Obrian That a Scire Facias was brought upon that Iudgment against Husband and Wife to shew cause why the Plaintiff should not have execution That upon this Scire Facias there were two Nichils returned and thereupon Iudgment was had against Husband and Wife It rested for a year and a day and then the Wife died and the Plaintiff brought a new Scire Fac. against the Husband alone to shew cause why he should not have Execution upon the first Iudgmont The Defendant pleaded that there was another Scire Fac. brought against him and his Wife for the same Cause c. And upon a Demurrer to this Plea Iudgment was given in Ireland against him The Question now was whether this Scire Fa. will lye against the Husband alone after the death of his Wife This Case was argued by Mr. Finch and Mr. Pollexfen that the Husband was not chargable It was admitted on all sides that if a Feme sole is indebted and marries that an Action will lye against the Husband and Wife and he is lyable to the payment of her Debts It was agreed also that if a Iudgment be had against a Feme sole and she marries and afterwards dies that the Husband is not chargable because her Debts before Coverture shall not charge him unless recovered in her Life-time In like manner no Debts which are due to her dum sola shall go to the Husband by virtue of the inter-marriage if she dye before those are recovered but her Administrator will be entituled to them which may be the Husband but then he hath a Right only as Administrator 1 Roll Abr. 351. and the reason is because such Debts before they are recoverd are only choses in Action And from hence the Council did inferr that the Iudgment in this Case against the Wife dum sola did not charge the Husband Then the Question will be if the Husband is not chargeable by the Original Iudgment whether the Iudgment on the Scire Fac. had not made an alteration and charged him after the death of his Wife And as to that it was said that this Iudgment upon the Scire Fac. made no new charge for 't is only quod habeat executionem c. and carries the first Iudgment no farther than it was before for 't is introduced by the Sci. Fac. At the Common Law no Execution could be had upon a Iudgment after a year and a day and there was then no remedy but to bring an Action of Debt upon that Iudgment This Inconvenience was remedied by the Statute of Westm W. 2. cap. 45. the 2. which gives a Scire Fac. upon the Iudgment to shew cause why Execution should not be had which can be no more than a liberty to take Execution upon the Original Iudgment which cannot charge the Husband in this case because 't is only a consequence of that Iudgment and creates no new charge for a Release of all Actions will discharge this award of Execution But the Reasons why the original Iudgment shall not be carried farther by the Iudgment in the Scire Fac. are as follow 1. By considering the nature of a Scire Fac. which lay not at the Common Law but is given by the Statute in all persosonal Actions the words whereof are these Viz. 2 Inst 469. Sid. 351. Observandum est de caetero quod ea quae inveniuntur irrotulat c. Vpon which words it is evident that the execution of the first Iudgment on Record is all which is given by this Act after the year and day and it takes off that bar which was incurred by the lapse of time and gives a speedy Execution of the Iudgment recorded 2. The Proceedings upon a Scire Facias shew the same thing for the Writ recites the first Iudgment and then demands the Defendant to shew cause why the Plaintiff should not have Execution thereon juxta vim formam effectum recuperationis praed but prays no new thing 3. A Scire Facias is not an Original but a Iudicial Writ which depends purely upon the first Iudgment 1 Roll. Abr. 777. pl. 6. 8 Co. 143 Dr. Drurie's Case and a Writ of Error suspends the execution of both so likewise if the Original Iudgment be reversed even a Iudgment obtained upon a Scire Facias will be reversed in like manner 4. The Law doth not charge a Man without an Appearance but here is none and the Statute can never operate upon this Case because that extends only to such Iudgments upon which there has been a Recovery and here is nothing recovered upon this Scire Facias for 't is only to have Execution upon the first Iudgment If the Law should be otherwise this absurdity would follow Viz. There would be a Recovery without a Record for the purport of the Scire Facias is only to have Execution according to the form and effect of the Record and the very Record it self doth not charge the Husband Besides the first Iudgment did charge the Lands of the Wife which are still liable to satisfie the Debt why therefore must the Lands of the Husband be charged Cannot the Administrator of the Wife bring a Writ of Error to reverse this Iudgment and if it should be reversed shall the Husband pay the Debt and the Administrator of the Wife be restored The Objections made by the Council on the other side against this Opinion were viz. That if an Action of Debt will lie upon a Iudgment in a Scire Facias the Original Iudgment is by this means carried farther for without
a new Recovery Debt will not lie F.N.B. 122. E. and to prove this there is and Authority in Fitzherbert where a Prior had Iudgment for an Annuity and brought a Scire Fac. upon that Iudgment against the Successor of the parson who was to pay it and obtained a Iudgment upon that Scire Fac. to recover the arrearages and afterwards brought an Action of Debt upon the last Iudgment and the Book says fuit maintein There is another Case in 2 Leon. 2 Leon. 14. 4 Leon. 186. 15 H. 7.16 where 't is held that an Action of Debt will lye upon a Iudgment in a Scire Facias upon a Recognizance Which Objections may receive this Answer First As to the Case in Fitzherbert 't is admitted to be Law but 't is not an Authority to be objected to this purpose because the first Iudgment for the Annuity charges the Successor but the Original Iudgment in this Case doth not charge the Husband so the Cases are not parallel The like answer may be given to the Case in Leonard for a Recognizance is a Iudgment in it self and Debt will lie upon it without a Sci. Fa. upon that Iudgment But on the other side it was argued E contra that the award of execution is absolute against Husband and Wife for 't is a Recovery against both whereas before it was only the Debt of the Wife but now 't is joynt against the one as well as the other The Iudgment upon the Sci. Fa. is a distinct Action It cannot be denied but that if a Woman be indebted and marrieth the Husband is chargable during the Coverture Bro. Ab. tit Baron and Feme pl. 27. 49 E. 3.35 b. which shews that by the Marriage he is become the principal Creditor As to the Sci. Fa. t is true at the Common Law if a Man had recovered in Debt and did not sue forth Execution within a year and a day he must then bring a new Original 1 H. 5. 5. a 43 Ed. 3.2 b. and the Iudgment thereon had been a new Recovery but now a Sci. Fa. is given by the Statute instead of an Original and therefore a Iudgment thereon shall also be a new Iudgment for tho' t is a Iudicial Writ yet 't is in the nature of an Action because the Defendant may plead any matter in Bar of the Execution upon the first Iudgment 1 Inst 290. b. and 't is for this reason that a Release of all Actions is a good bar to it Besides Rast Ent. 193. 4 Leon. 186. Dyer 214. b. an Action of Debt will lie upon a Iudgment on a Sci. Fa. which shews that 't is an Action distinct from the Original and upon such a Iudgment the Defendant may be comitted to Prison several years afterwards without a new Sci. Fa. The Husband may have execution of a Iudgment recovered by him and his Wife after the death of his Wife without a Sci. Fa. 1 Mod. Rep. 179. for the Iudgment hath made it a proper Debt due to him and he alone may bring an Action of Debt upon that Iudgment and it seems to be very reasonable that he should have the benefit of such a Iudgment and yet not be charged after the death of his Wife when there hath been a Recovery against both in her life-time This is like the Case where a Devastavit is returned against Husband and Wife as Executrix Moor 299. 3 Cro. 216. Cro. Car. 603. Sid. 337. and a Iudgment thereon quod querens habeat executionem de bonis propriis the Wife dies yet the Husband shall be charged for the Debt is altered If it should be otherwise this inconvenience would follow that if the Wife should die F.N.B. 121. c. 1 Rol. Abr. 351. 10 H. 6.11 the Husband will possess himself of her Estate and defraud the Creditors so that he takes her but not cum onere But the Law is otherwise for if a Feme being Lessee for years doth marry and the Rent is behind and she dies the Husband shall be charged with the Rent arrear because he is entituled to the Profits of the Land by his marriage To which it was answered that if a Man should marry an Exerecutrix and then he and his Wife are sued and Iudgment obtained against them to recover de bonis testatoris and thereupon a Fi. Fa. is awarded to levie the Debt and Damages and the Sheriff returns a Devastavit and then the Wife dies the Husband is not chargeable because the Iudgment is not properly against him who is joyned only for conformity but if upon the return of the Devastavit there had been an award of execution De bonis propriis that would have been a new Iudgment and the old one De bonis testatoris had been discharged 1 Roll. Abr. 351. and then the Husband must be charged for the new wrong Adjornatur Afterwards in 1 Will. Mar. the Iudgment was affirmed Bowyer versus Lenthal INdebitatus Assumpsit quantum meruit ad insimul computasset Valerent for Valebant good after Verdict The Plaintiff had a Iudgment by default in the Court of Common-Pleas and a Writ of Enquiry was brought and entire Damages given and now the Defendant brought a Writ of Error and it was argued that if any of the Promises be ill Iudgment shall be reversed the Error now assigned was in the second Promise Viz. That in consideration that the Plaintiff would let the Defendant have Meat Drink and Lodging he promised to pay so much Quantum rationabiliter valerent it should have been valebant at the time of the Promise made Sed non allocatur So the Iudgment was affirmed DE Termino Paschae Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Powis Attorny General Wm. Williams Sollicitor General NOTA Wednesday May 2. being the first day of this Term Sir Bartholomew Shower Recorder of London was called within the Bar. Heyward versus Suppie IN an Action of Covenant which was to make such an Assignment to the Plaintiff Covenant to make an Assignment as Council should advise according to an Agreement made between him and the Defendant as Council should direct and advise and for non-performance thereof this Action was brought the Defendant pleaded non est factum and Iudgment was obtained against him Vpon which a Writ of Error was brought and the common Error assgned It was objected that the Plaintiffs Council should give the advice because he is the person interested This Objection was answered by Mr. Pollexfen who said that the Defendant had likewise an interest in this matter for 't is an advantage to him to make the Assignment that his Covenant might be saved 't is true it had been otherwise if the Covenant had been to make such a Conveyance as Council should advise for then the person to whom the Covenant is made may chuse whether he will have a Feoffment
Defendant Elizabeth The Question in which Case was whether by the Entry of the Son who was Tenant at Will and his making of this Lease the Father was disseised of the Freehold And it was held not for it was found in that Verdict that he occupying at Will and entring by his Fathers Assent the Lease was also intended to be made by his Assent But on the other side it was said that this Fine was a Barr by the express Words of the Statute of H. 7. E contra which excludes in all Cases but where there is Fraud or the person is incapable 4 H. 7. c. 24. or where the Right to be barred is not divested In this Case John Basket had an Interest and present Right and though it be closed with a Trust yet that will not make any difference 1. Cro. Car. 550. 10 Co. 56. Here is no Fraud for the Fine was levyed by Tenant in Tail in possession but if there had been Fraud it ought to be found otherwise it shall not be presumed This is not like Blunden's Case for there the Son was Tenant at Will but 't is not found by this Verdict that John occupied at Will There is no difference between this Term and a Trust of a Term to attend the Inheritance whose Interest shall be barred by such a Fine and Nonclaim because the Trust is included in the Fine and therefore the Trustees not making of their Claim within the five years are for ever excluded It cannot be denied but a Term for years is such an Interest which may be barred by Fine 5 Co. 123. 't is Saffin's Case expresly which was a Lease for years to commence in futuro after a Lease then in being should be determined the first Lease ended the second Lessee did not enter but the Reversioner did and made a Feoffment and levyed a Fine and five years passed without Entry or Claim by the second Lessee it was adjudged that this Fine was a Barr to him for when his future Interest commenced then and not before he had such a present Interest in the Land which might be divested and turned to a Right To which it was answered that this differs from Saffin's Case which was an interesse Termini and the Case of Alport which was an Executory Devise If John Basket had still continued in Possession it might have altred the Case but he died and his Wife entred and then the five years passed without any Claim Adjournatur Evans versus Crocker A Special Verdict in Ejectment was found in Ireland In Ejectment where the Entry seems to be before the Title yet the Declaration is good and Iudgment given there for the Plaintiff and now a Writ of Errour was brought in this Court and the Common Error assigned The Objection was to the Declaration which was That the Plaintiff declared upon a Demise made 12 Junii c. Habendum a praedicto duodecimo die Junij which must be the 13th day of the same Month usque c. virtute cujus quidem dimissionis he entred c. and that the Defendant postea scilicet eodem duodecimo die Junij did eject him c. So that it appears upon the Face of the Declaration that the Defendant entred before the Plaintiff had a Title for the Lease commenced on the 23th of June and the Entry was on the 12th of that Month. And it was said that this agrees with a former Resolution in this Court where the Lease was made the 24th of June for five years Habendum a die datus Siderfin 8. 2 Cro. 96. which must be the 25th by vertue whereof the Plaintiff entred and that the Defendant postea scilicet 24th Junij did eject him which must be before the commencement of the Lease Curia The Plaintiff entred as a Disseisor by his own shewing and thereupon Iudgment was reversed Rex versus Kingsmill QUO Warranto against the Defendant to shew cause why he executed the Office of a Bayliff of the Hundred of Barnstaple Grant of an Hundred where good c. The Defendant pleaded that the said Hundred was an ancient Hundred and that the Office of Bayliff was an ancient Office and that the Hundred Court was an ancient Court held from three Weeks to three Weeks before the Steward thereof that the Return of Writs was an ancient Liberty and Franchise which did belong to the said Bayliff that King Charles I. was seized of the said Franchise jure Coronae in Fee who by Letters Patents dated c. did grant the same to one North Habendum the said Hundred to him and his Heirs and that by several mesne Assignments it came to and was vested in the Defendant and so he justified to have Retorna Brevium To this Plea the Plaintiff demurred And for the King it was argued that this Claim was not good First as to the manner of the Grant as 't is here pleaded viz. that the King was seized in Fee c. and that he granted the Franchise Habendum the said Hundred That such a Grant can never include the Hundred for nothing can pass in the Habendum but what was mentioned in the Premisses 2. The Defendant hath derived a Title from the Crown to this Office of a Bayliff which must be either by Grant or Prescription It cannot be by Grant for 't is a Question whether the Hundred Court can now be separated from the County Court it hath been derivative from it in former times when the Sheriffs did let those Hundreds to farm to several persons who put in Bayliffs errant to the great oppression of the People which was the occasion of the making of the Statute of Ed. 14 E. 3. c. 9. 3. by which such Hundreds were united and rejoyned to the Counties as to the Bailiwicks thereof 4 Inst 267. except such as were then granted in Fee by the King or his Ancestors Now these Hundreds were usually granted to Abbots and other religious persons 31 H. 8. c. 13. and their Possessions coming afterwards to the King by the dissolution of their Abbies and Monasteries are now merged in the Crown and cannot be regranted after the making of that Statute And as the Defendnat cannot have a Title by Grant so he hath not prescribed to have this Office 't is true the Plea sets forth that 't is an ancient Office but that is not a Prescription but a bare Averment of its Antiquity But admitting he had alledged it by way of Prescription 14 H. 4.89 he could not do it by a Que Estate to have Retorna Brevium A man cannot preserive to have Cognizance of Pleas in an Hundred Court he may in a County Palatine because 't is of a mixed Iurisdiction Neither can he prescribe to have Return of the King's Writs Abbot de Strata Marcella because they are matter of Record Here is a good Title pleaded E contra It was never yet denied but that
which he claims he ought to shew the other Will by which it must appear that nothing is contradictory to it or that it doth confirm the first but if Presumptions shall be admitted it must be in favour of the Heir for nothing shall be presumed to disinherit him Afterwards in Trinity-Term 5 Willielmi Iudgment was given for the Plaintiff and a Writ of Error was brought in the House of Peers to reverse that Iudgment but it was affirmed Anonymus A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Ejectment for Lands in the County of Essex in which a Special Verdict was found viz. That R. F. What Words in a Will make Tenants in Common was seized in Fee of the Lands in question who had Issue two Daughters Frances Jane Frances had Issue Philp Frances Anne R. F. the Father devised unto Philip Frances and Anne the Children of his Daughter Frances and to Jane his other Daughter the Rents and Profits of his Mannor of Spain for thirty years to hold by equal parts viz. the three Grandchildren to have one Moiety and his Daughter Jane the other Moiety And if it happen that either of them should die before the thirty years expired then the said Term should be for the benefit of the Survivor and if they all die then the same was devised over to other Relations Afterwards he made a Codicil in these words viz. I give Power and Authority to my Executors to let my whole Lands for the Term of thirty years for the benefit and behalf of my Children Anne one of the Granchildren died without Issue Frances another of the Grandchildren died but left Issue The first Question was whether the Power given to the Executors by the Codicil will take away that Interest which was vested in the Grandchildren by the Will Mr. Appleton argued that it would not because the Executors had only a bare Authority to let it or improve it for the benefit of the Children there was no Devise of the Land to them If Power be given to Executors to sell Lands 't is only an Authority and not an Interest in them but a bare Authority only to let is of much less importance 2. After the Testator had devised the Profits of these Lands to his Grandchildren and Daughter equally to be divided during the term and had provided that if any dye without Issue that then it should survive and if all dye then to remain over to collateral Relations c. Whether Frances being dead but leaving Issue her Interest shall survive to Philip or go to such her Issue As to that he held that the Testator made them Tenants in Common by equal parts and therefore he devised it by Moieties in which there can be no Survivorship 'T is like a Devise to the Wife for life 2 Cro. 448. 1 Roll. Abr. 833. King versus Rumbal Cro. Car. 185. and after her decease to his three Daughters equally to be divided and if any of them die before the other then the Survivors to be her Heirs equally to be divided and if they all die without Issue then to others c. the Daughters had an Estate Tail and there was no Survivorship So in this Case it shall never go to the third Grandchild as long as any Issue of the second are living On the other side it was argued that they are Ioyntenants and not Tenants in Common E contra for the Testator having devised one Moiety to his three Grandchildren joyntly by equal parts that will make them Ioyntenants But the Court were all of Opinion that the words in the Will shew them to be Tenants in Common for equally to be divided runs to the Moieties So the Iudgment was affirmed Woodward 's Case THE Statute of 23 H. 8. c. 9. Church Ornaments are a personal Charge upon the Inhabitants and not upon those who live else where though they occupy Lands in that Parish Godb. 134. pl. 4. 152. pl. 29. 154. pl. prohibites a Citation out of the Diocess wherein the Party dwelleth except in certain Cases therein mentioned one whereof is viz. Except for any Spiritual Cause neglected to be done within the Diocess whereunto the Party shall be lawfully cited One Woodward and others who lived in the Diocess of Litchfield and Coventry but occupied Lands in the Diocess of Peterborough were taxed by the Parishioners where they used those Lands for the Bells of the Church and they refusing to pay this Tax a Suit was commenced against them in the Bishop of Peterborough's Court who thereupon suggested this Matter and prayed a Prohibition because they were not to be charged with this Tax it being only for Church Ornaments And a Prohibition was granted the reason given was because 't is a personal charge to which the Inhabitants only are liable and not those who only occupy in that Parish and live in another but the repairing of the Church is a real Charge upon the Land let the Owner live where he will DE Term. Sanct. Trin. Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices The Bishop 's Case Friday June 15th THE King having set forth a Declaration for Liberty of Conscience did on the 4th day of May last by Order of Council enjoyn that the same should be read twice in all Churches c. and that the Bishops should distribute it through their respective Diocesses that it might be read accordingly The Archbishop of Canterbury who then was together with six other Bishops petitioned the King setting forth that this Declaration was founded upon a dispensing Power which had been declared illegal in Parliament and therefore they could not in Honour or Conscience make themselves Parties to the Distribution and Publication of this Declaration who thereupon were summoned before the King in Council and refusing there to give Recognizance to appear before the Court of Kings Bench they were committed to the Tower by Warrant of the Council-Board The Attorney General moved for a Habeas Corpus retornable immediate and the same Morning in which that Motion was made Sir Edward Hales Lieutenant of the Tower returned the same and they were all brought into the Court. The Substance of the Return was viz. That they were committed to his Custody by Warrant under the Hands and Seals of the Lord Chanchellor Jefferies and also naming more of the Lords of the Privy-Council Dominos Concilij for contriving making and publishing a Seditious Libel against the King c. Then it was prayed that the Return might be filed and that the Information which was then exhibited against them for this Crime might be read and that they might all plead instanter Serjeant Pemberton Mr. Finch and Mr. Pollexfen oppsed the reading of it and moved that the Bishops might be discharged because they were not legally before the Court for it appears upon the Return that there is no lawful cause of
Revocation or not at all which revocation must depend upon the construction and exposition of the sixth Paragraph in the Statute of Frauds c. the words whereof are Viz. That no Devise of Lands c. or any clause thereof shall be Revoked otherwise than by some Codicil in Writing or other Writing declaring the same or by burning cancelling tearing or obliterating the same by the Testator himself or in his presence and by his direction or consent But all devises of Lands c. shall be good until burnt cancell'd torn c. by the Testator c. or unless the same be altered by some other Will or Codicil in Writing or other Writing of the Devisor signed in the presence of three Witnesses declaring the same So that the Question will be whether a Will which revokes a former Will ought to be signed by the Testator in the presence of three Witnesses 'T is clear that a Will by which Lands are devised ought to be so signed and why should not a Will which revokes another Will have the same formality The Statute seems to be plain that it should for it saies that a Will shall not be revoked but by some Will or Codicil in writing or other writing of the Devisor signed by him in the presence of three or four Witnesses declaring the same which last Clause is an entire sentence in the disjunctive and appoints that the Writing which revokes a Will must be signed in the presence of three Witnesses c. Before the making of this Act it was sufficient that the Testator gave directions to make his Will tho' he did never see it when made which mischief is now remedied not in writing the Will but that the Party himself should sign it in the presence of three Witnesses and this not being so signed but only published by the Testator in their presence 't is therefore no good Revocation Iustice Street was of a contrary Opinion that this was a good Revocation That the words in the fifth Paragraph of this Statute which altered the Law were Viz. That all Devises of Lands c. shall be in Writing and signed by the Party so devising or by some other person in his presence and by his express Directions and shall be attested and subscribed in the presence of the Devisor by three or four credible Witnesses In which Paragraph there are two parts 1. The act of the Devisor which is to sign the Will but not a word that he shall subscribe his Name in the presence of three Witnesses 2. The act of the Witnesses viz. that they shall attest and subscribe the Will in the presence of the Devisor or else the Will to be void But the sixth Paragraph is penn'd after another manner as to the Revocation of a Will which must be by some Codicil in writing or other Writing declaring the same signed in the presence of three Witnesses Now here is a Writing declaring that it shall be revoked not expresly but by implication and though that Clause in the disjunctive which says that the revocation must be by some Writing of the Devisor signed in the presence of three Witnesses c. yet in the same Paragraph 't is said that it may be revoked by a Codicil or Will in Writing and therefore an exposition ought to be made upon the whole Paragraph that the intention of the Law may more fully appear Such a construction hath been made upon a whole Sentence Sid. 328. 1 Sand. 58. where part thereof was in the disjunctive as for instance viz. A Man was possessed of a Lease by disseisin who assigned it to another and covenanted that at the time of the assignment it was a good true and indefeasable Lease and that the Plaintiff should enjoy it without interruption of the Disseisor Or any claiming under him in this Case the Diffeisee re-entred and though the Covenant was in the disjunctive to defend the Assignee from the Disseisor or any claiming under him yet he having undertaken for quiet enjoyment and that it was an indefeasable Lease it was adjudged that an exposition ought to be made upon the whole Sentence and so the Plaintiff had Iudgment The Chief Iustice Herbert was of the same Opinion with Iustice Street Rex versus Grimes and Thompson THE Defendants were indicted for being Common Pawn-Brokers Two are indicted for a Confederacy one is acquitted and that is the acquittal of the other and that Grimes had unlawfully obtained Goods of the Countess of c. and that he together with one Thompson per confoederationem astutiam did detain the said Goods until the Countess had paid him 12 Guineas Thompson was acquitted and Grimes was found Guilty which must be of the first part of the Indictment only for it could not be per confoederationem with Thompsom and therefore it was moved in arrest of Iudgment that to obtain Goods unlawfully was only a private injury for which the party ought not to be indicted To which it was answered that a plain Fraud was laid in this Indictment which was sufficient to maintain it and that tho one was acquitted yet the Iury had found the other guilty of the whole But the Court were of Opinion that the acquittal of one is the acquittal of both upon this Indictment and therefore it was quash'd King versus Dilliston Hill 2 3 Jacobi Rot. 494. A Writ of Error was brought to reverse a Iudgment in Ejectment given in the Common-Pleas Infant not bound by a Custom for one Messuage and twenty Acres of Land held of the Manor of Swafling There was a special Verdict found the substance of which was viz. That the Land in question was Copy-hold held of the said Manor of Swafling in the County of Suffolk and that Henry Warner and Elizabeth his Wife in right of the said Elizabeth were seized thereof for Life Remainder to John Ballat in Fee That the Custom of the said Manor was that if any Customary Tenant doth surrender his Estate out of Court that such Surrender shall be presented at the next Court of the said Manor and publick Proclamation shall be made three Court days afterwards for the Party to whose use the Surrender was made to come and be admitted Tenant and if he refuseth then after three Proclamations made in each of the said Courts the Steward of the said Manor issueth forth a Precept to the Bailiff thereof to seise the Copyhold as forfeited They find that Henry Warner and his Wife and John Ballat made this Surrender out of Court to the use of Robert Freeman and his Heirs who died before the next Court and that John Freeman an Infant was his Son and Heir That after the said Surrender three Proclamations were made at three several Courts held for the said Manor but that the said John Freeman did not come to be admitted Tenant thereupon the Steward of the said Manor made a Precept to the Bayliff who seized the Lands in
who makes a Lease of his Land shall forfeit it but this doth not conclude an Infant 4. There is not any necessity to construe an Infant to be within this Custom for 't is not found that the Lord was to have a Fine upon admittance and 't is no consequence to say that the Lord shall have a Fine because usually Fines are taken upon admittances 1 Leon. 100. 3 Leon. 221. for an Infant may be admitted to a Copyhold but not be bound to tender his Fine at any time during his Non-age Justice Gregory was of the same Opinion which he chiefly grounded upon Sir Richard Letchford's Case between which and the Case at the Barr he said there was no material difference only in that Case the Heir was beyond Sea and in this at the Barr 2 Cro. 226. Latch 199. Godb. 364. Jones 391. Dyer 104. he was an Infant 'T is very true that the Books mention a Seisure quousque 't is so said by Iustice Williams in Croke but he gives no reason for it 't is only an Opinion obiter but it is clear by many Authorities that Infants may be bound by Acts of necessity and so they may by a Custom Iustice Dolben of the same Opinion which he said was agreeable to the reason of the Law in parallel Cases An Infant is priviledged in a Fine for he is excepted by the Statute because he knows not how to make his Claim He said this was likewise agreeable to the Custom of 26 Mannors of which he was formerly Steward for in such Cases he always marked the Court Roll Nulla Proclamatio quia Infans It cannot be a Forfeiture quousque because an Infant is wholly exempted by the Custom and therefore 't is no Forfeiture at all 'T is an Objection of no moment to say that the Lord by this means will lose his Fine and that he hath no remedy to make the Infant when of Age to be admitted for no Fine is due to him before admittance But this Objection will be of less weight if the loss of the Infant be compared to that of the Lord who looseth only the Interest of a Fine before Admittance and shall this Infant who is now but three years of Age loose the Profits of his Estate for 18 years But there may be a way found out that neither may loose for if it should be that when the Infant comes of Age his Estate should be then forfeited if he doth not tender himself to be admitted after three Proclamations Now upon his admittance the Lord may set a reasonable Fine having respect to the length of time in which it was deteined from him Stowel's Case was no more but this viz. Pl. Com. 356. A Disseisor levied a Fine with Proclamations and lived three years his Heir being under Age and the five years incurred after the said Heir came of Age and then he entred within a year and his Entry was adjudged unlawful But that will not concern this Case because it was a Iudgment upon the Statute of H. 7. 4 H. 7. c. 24. for the five years being once attached and begun in the life of his Ancestor shall incurr and go on and bind the Infant if he do not pursue his Claim within that time after he comes of Age but 't is to be observed that my Lord Dyer in the Argument of that Case said nothing of a Seisure quousque The Chief Iustice was of a contrary Opinion from the other three Iustices and that the Iudgment ought to be reversed Because until the Infant is admitted the Estate remains in the Surrenderor and without an Admittance he cannot enter but by a special Custom to warrant it and for this reason 't is that the Surrenderor shall have an Action of Trespass against any person who enters because he shall be intended still in possession till the Admittance of another If so 2 Cro. 368. Yelv. 16. then Infancy cannot protect an Estate to which the Infant hath no Title till Admittance for till then he hath neither Jus in re nor Jus ad rem This is a Condition annexed to the Estate to be performed by the Infant by which he is bound notwithstanding his Non-age otherwise his Estate is forfeited The Custom which obligeth him to be admitted is to entitle the Lord of the Mannor to a Fine to which he hath a right Now Infancy was never yet extended to endanger that remedy which Men have to recover their Rights it has been often so far extended as to delay such a remedy but never to destroy it for if the Infant should die the Lord looseth the Fine and then another person is to be admitted but he cannot encrease the Fine upon him who is a Stranger for the neglect of the Infant 'T is true Bridg. 83. Yelv. 144. Poph. 127. where an Infant hath a Right it shall be preserved though a Fine be levied and the five years pass but in this Case he hath no Right before Admittance If a Feme Covert be an Heir to a Copyhold Estate where the like Custom is and she marrieth and the Husband after three Proclamations will not come and be admitted 't is a Forfeiture during the Coverture Now the reason in the Cases of Coverture and Infancy is the same for if there shall be a Seisure during the time the woman is Covert why not during the Infancy As to Sir Richard Letchford's Case the Heir was beyond Sea but when he came into England he desired to be admitted but this Infant never yet desired to be admitted he stands upon his Priviledge of Infancy But upon the Opinion of the other three Iustices the Iudgment was affirmed that the Custom doth not bind the Infant Carter versus Dowrich A Covenant to pay so much Mony to the Plaintiff or his Assigns as should be drawn upon the now Defendant by a Bill of Exchange Custom of Merchants where it must be particularly set forth c. The Breach was assigned in Non-payment The Defendant pleaded that the Plaintiff secundum legem Mercatorum did assign the Mony to be paid to A. who assigned it to B. to whom he paid 100 l. and tendred the rest drawn upon by Bill of Exchange c. And upon a Demurrer Mr. Pollexfen insisted that this was not a good Plea because the Defendant had not set forth the Custom of Merchants without which all these Assignments are void of which Custom the Court cannot take any judicial notice but it must be pleaded and 't is not sufficient to say that the Assignment was made secundum legem Mercatoriam but it must be secundum consuetudinem Mercatoriam otherwise 't is not good E contra E contra Litt. 182. It was argued that the Custom of Merchants is not a particular Custom and local but 't is of an universal extent and is a general Law of the Land The pleading it as 't is here is good for if an Action is brought against
an Inn-keeper or common Carrier 't is usual to declare secundum legem consuetudinem Angliae for 't is not a Custom confined to a particular place but 't is such which is extensive to all the King's People The word Consuetudo might have been added 1 Inst 182. but it imports no more than Lex for Custom it self is Law If the Custom of Merchants had been left out the Defendant had then pursued his Covenant for if a Man agrees to pay Mony to such a person or his Assigns and he appoints the payment to another a tender to that person is a good performance of the Covenant But the Court were of Opinion that this was not a good Plea Panton versus the Earl of Bath A Scire Facias to have Execution of a Iudgment obtained in the Court of Oliver late Protector of England and the Dominions and Territories thereunto belonging Where the Pleading is good in substance tho' there is a small variation it will not hurt and in reciting the Iudgment 't is said that it was obtained before Oliver Protector of England and the Dominions thereunto belonging leaving out the word Territories And upon a Demurrer Mr. Pollexfen held this to be a variance Yelv. 212. Orde versus Moreton and like the Case where a Writ of Error was brought to remove a Record in Ejectment directed to the Bishop of Durham setting forth that the Action was between such Parties and brought before the said Bishop and seven other persons naming them and the Record removed was an Ejectment before the Bishop and eight others so that it could not be the same Record which was intended to be removed by the Writ E contra E contra It was said suppose the word Scotland should be left out of the King's Title would that be a variance The Iudicature in this Case is still the same and the Pleading is good in Substance and of that Opinion was the whole Court Hyley versus Hyley HYley had Issue W. Where the Reversion in Fee shall pass in a Will by the words viz. Remaining part of my Estate his eldest Son who had Issue Peter Charles John He by Will devised 1000 l. to his eldest Son and several parcels of Land to other Legatees Then he gave to Peter Lands in Tail Male To John a Mansion House now in question in Tail Male He devised another House to his Grandson Charles in like manner And all the rest and remaining part of his Estate he devised to his three Grandsons equally to be divided amongst them that only excepted which he had given to Peter Charles and John and to the Heirs of their Bodies whom he made Executors Then by another Clause he devised viz. That if either of his Executors die without Issue then the part or parts of him so dying shall go to the Survivor or Survivors equally to be divided John the youngest Grandson dyed without Issue and the question was whether the Reversion of his House shall be divided between his surviving Brothers or descend to his Heir And it was adjudged that the Exception in the Will did comprehend the Reversion in Fee and that it did not pass but without such an Exception it had passed * Allen 28. as where a Man devised his Mannor to another for years and part of other Lands to B. and his Heirs and all the rest of his Lands to his Brother in Tail it was held that by these words the Reversion of the Mannor did pass Anonymus NOTA. An Infant having entred into a Statute brought an Audita Querela to avoid it he was brought into the Court and two Witnesses were sworn to prove his Age and then his Appearance and Inspection were recorded he was bound in this Case with two other persons for 1600 l. and had no more than 200 l. for his share Lydcott versus Willows IN Ejectment A special Verdict was found viz. Devise of an Hereditament carries the Reversion in Fee that the Testator being seized in Fee of certain Houses in Bedfor-Bury and in Parker's Lane did by Will devise his Houses in Parker's Lane to charitable Vses then he gave several specifick Legacies to several persons named in the said Will and then he devised his Houses in Bedford-Bury to Edward Harris and Mary his Wife for their Lives then follow these words viz. The better to enable my Wife to pay my Legacies I give and bequeath to her and her Heirs all my Mesuages Lands Tenements and Hereditaments in the Kingdom of England not before disposed of c. The Question was whether this Devise would carry the Reversion of the Houses in Bedford-Bury to his Wife Adjudged that it did not but that it ought to go to the Heir of the Testator who was Plaintiff in this Case It being found that Harris and his Wife were dead and that the Wife who was Executrix had sufficient Assets to pay the Legacies without the Reversion But Iustice Powel was of another Opinion for that the word Hereditament imports an Inheritance and if it had devised thus viz. the Inheritance not before disposed of the Reversion had passed Afterwards a Writ of Error was brought in the Exchequer-Chamber upon this Iudgment 2 Vent 285. and according to the Opinion of Iustice Powel the Iudgment was reversed Nota. A Rule of Court was made that no Certiorari should go to the Sessions of Ely without Motion in Court or signing of it by a Iudge in his Chamber But Mr. Pollexfen insisted that the Sessions there did not differ from other Courts and Franchises for the inferior Courts in London are of as large a Iurisdiction as any and yet a Certiorari goes to them and so it ought to go to Ely for 't is the Right of the Subject to remove his Cause hither Their course in the Royal Franchise of Ely is to hold the Sessions there twice a year viz. in March and September in which two Months the Iudges are seldom in Town and if this Court should deny a Certiorari the Court of Common Pleas would grant it Attorney General contra This Franchise of Ely is of greater Priviledge and Authority than any inferior Court for it hath many Regalia though 't is not a County Palatine A Certiorari will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes 't is true it lyeth to remove Indictments for Riots and this Franchise being truly called Royal hath equal priviledge with a County Palatine and therefore a Certiorari will not lie But no Rule was made Osborn versus Steward TRespass Distress for an Heriot where it may be taken The Case upon the Pleadings was this viz. A Lease was made of Land for 99 years if Margery and Dorothy Upton should so long live reserving a yearly Rent and an Heriot or 40 s. in lieu thereof after the death of either of them Provided that no Heriot shall be paid after the death of Margery living
Indebitatus Ass will lye for a Fine upon an Admission c. That a Fine was due to him for an admission That upon the death of the said Lord the Manor descended to W. as his Son and Heir who died and the Plaintiff as Executor to the Heir brought an Indebitatus Assumpsit for this Fine He declared also that the Defendant was indebted to him in 25 l. for a reasonable Fine c. The Plaintiff had a Verdict and entire Damages and it was now moved in arrest of Iudgment that an Indebitatus will not lie for a Customary Fine because it doth not arise upon any Contract of the Parties but upon the Tenure of the Land for upon the death of the Lord there is a Relief paid for there must be some personal Contract to maintain an Action of Debt or an Indebitatus Assumpsit 2 Cro. 599. Jones 339. and therefore it was held that where the Plaintiff locasset a Ware-house to the Defendant he promised to pay 8 s. per Week An Assumpsit was brought for this Rent and a Verdict for the Plaintiff And a Motion was made in Arrest of Iudgment that this was a Lease at Will and the weekly payment was in the nature of a Rent and it was agreed that an Assumpsit would not lie for a Rent reserved because it sounds in the Realty but because it was only a Promise in consideration of the occupying of the Warehouse the Action was held to be well brought 2. Where the Cause of an Action is not grounded upon a Contract but upon some special Matter there an Indebitatus Assumpsit will not lie and therefore it will not lie upon a Bill of Exchange or upon an Award or for Rent though there is a Privity both of Contract and Estate without a special Assumpsit E contra E contra It was argued that the Action lies for though a Fine savours of the Realty yet 't is a certain Duty In all Cases where Debt will lie upon a simple Contract there an Assumpsit will lie likewise 't is true this doth concern the Inheritance but yet 't is a Contract that the Tenant shall be admitted paying the Fine It hath been also maintained for Mony had and received out of the Office of Register for the Plaintiffs use and for Scavage Mony due to the Mayor and Commonalty of London 3 Keb. 677. which is also an Inheritance 'T is a Contract implyed by Law and therefore the Action is well brought Afterwards in Michaelmas Term 1 Willielmi Mariae by the Opinion of Iustice Dolben 2 Leon. 79. Eyre and Gregory Iudgment was given for the Plaintiff But the Chief Iustice was of another Opinion for he held that if the Defendant had died indebted to another by Bond and had not Assets besides what would fatisfie this Fine if the Executor had paid it to the Plaintiff it would have been a Devastavit in him Suppose the Defendant promiseth that in consideration that the Plaintiff would demise to him certain Lands that then he would pay the Rent If the Defendant pleads Non Assumpsit Cro. Car. Acton versus Symonds the Plaintiff must prove an express Promise or be Non suit Also here is no Tenure or Custom set out Yet by the Opinion of the other three Iustices the Plaintiff had his Iudgment Rex versus Johnson INformation upon the Statute of 29 30 Car. 2. cap. 1. Pardon after a Verdict for the King excuseth the Forfeiture prohibiting the Importation of several French Commodities and amongst the rest Lace under the Penalty of 100 l. to be paid by the Importer and 50 l. by the Vendor and the Goods to be forfeited The Information sets forth that a Packet containing so many yards of Lace was imported by the Defendant from France and that he did conceal it to hinder the Seisure and that he did privately sell it contra formam Statuti Vpon Not-Guilty pleaded the King had a Verdict and on the 2d of October there came forth a general Pardon in which were these Words viz. That the Subjects shall not be sued or vexed c. in their Bodies Goods or Chattels Lands or Tenements for any Matter Cause or Contempt Misdemeanour Forfeiture Offence or any other thing heretofore done committed or omitted against us Except all Concealments Frauds Corruptions Misdemanours and Offences whereby we or our late Brother have been deceived in the Collection payment or answering of our Revenues or any part thereof or any other Mony due or to be due to us or received for us or him and all Forfeitures Penalties and Nomine Poena's thereupon arising and all Indictments and Informations or other Process and Proceedings now depending or to be depending thereupon The Question now was whether this Forfeiture was excused by this Pardon The Attorney General argued that it was not because an Interest is vested in the King by the Iudgment and that no particular or general Pardon shall divest it without words of Restitution So was Tooms's Case who had Iudgment against another 1 Sand. 361. and then became Felo de se his Administrator brought a Scire Facias quare Executionem non haberet The Debtor pleaded that after the Iudgment the Intestate hanged himself which was found by the Coroners Enquest returned into this Court. The Plaintiff replied the Act of Pardon But it was adjudged for the Defendant for when the Inquisition was returned then the Debt was vested in the King which could not be divested without particular words of Restitution and which were wanting in that Act of Pardon The most proper word in the Body of this Pardon which seems to excuse the Defendant is the word Offence but the same word is likewise in the Exception viz. Except all Offences c. in collecting or paying of Mony due to us and all Forfeitures c. Now the concealing of forfeited Goods from Seisure is an Offence excepted for 't is a remedy for the King's Duty of which he was hindred by the Concealment 'T is true the first part of the Pardon excuseth all Misdemeanours comitted against the King in his standing Revenue but this Exception takes in all Concealments and Frauds in answering of the Revenue and this Information is principally grounded upon Fraud 5 Co. 56. so that the Exception ought to be taken as largely for the King as the Pardon it self to discharge the Subject No Fraud tending to the diminution of the Revenue is pardoned for it excepts not only all Concealments in collecting the Revenue but other Mony due or to be due to the King If therefore when the King is entituled by Inquisition Office or Record there must be express and not general words to pardon it and since this Fact was committed before the Pardon came out and so found by the Iury whose Verdict is of more value than an Enquest of Office so that the King by this means is entituled to the Goods by Record
and that before the Pardon for these Reasons it cannot be revested in the party Serjeant Pemberton and Mr. E contra Finch contra The Question is what Interest the King hath by this Verdict for as to the Offence it self 't is within the Body of the Pardon for all Misdemeanours and Offences are pardoned and the Exception doth not reach this Case for that excepts Misdemeanours in answering of the Revenues Now that which arises by a Forfeiture can never be taken to be part of the King's Revenue because the Revenue is properly a stated Duty originally setled on the King and the Penalty to be inflicted for this Misdemeanour cannot be a Revenue because the Court have not yet given Iudgment so that 't is incertain what Fine they will set and this appears more plain because the King may assign his Revenue but cannot grant over a Penalty The Information is not grounded upon any Act of Parliament which establishes the Revenue but for concealing of a thing forfeited to prevent the Seisure thereof which indeed may be a casual Revenue as all Fines are so that if this should be taken as an Offence committed against the King in deceiving him of this Revenue then the first part of the Pardon dischargeth all such Offences and the Exception pardons none 'T is for these Reasons that the Case cannot fall under any of the words in the Exception no not under these Words viz. Mony due or to be due to the King because no Mony is yet due to him 'T is true the Iury have found it a Misdemeanour which is finable but until the Fine is set no Mony is due because the Court may set a greater or less Fine as they shall see cause And if any other Construction should be made of this Exception then every thing for which a Fine may be set is excepted and this will be to make the Pardon signifie nothing for what is meant by Offences and Misdemeanours if they should be pardoned and yet the Fine arising thereon should not But admitting that all Offences relating to the Concealment of collecting of the Revenue are excepted then this Revenue must be either antecedent or it must arise by the Fine 'T is no antecedent Revenue this appears by the Book of Rates wherein the King 's stated Revenue is set down and no mention of this so that the Revenue to which this relates must arise upon the Offence and what an absurd thing is it to say that all Offences are pardoned by one part of this general Pardon and by the Exception none are pardoned Besides the Information is not grounded upon that part of the Statute which inflicts a Penalty upon the person who exposeth prohibited Goods to Sale for then they would sue for the 50 l. therefore it must be upon the Forfeiture which is expresly pardoned and though there is a Conviction yet nothing is vested in the King before Iudgment because it may be arrested and therefore Tooms's Case is in no wise applicable to this for the Debt which was due to him was actually vested in the King by the Inquisition returned here which found him to be Felo de se Adjornatur Anonymus A Libel in the Admiralty against a Ship called the Sussex Ketch A Ship was pawned for necessaries and a Libel was exhibited in the Admiralty though the pawning was at the Land setting forth that the said Ship wanted Necessaries super altum Mare and that the Master took up several Sums of the Plaintiff at Roterdam for which he did hypothecate the said Ship and upon a Suggestion that this Contract was made at St. Katherines infra Corpus Comitatus Council moved for a Prohibition upon which a Question did arise whether a Master of a Vessel can pawn it on the Coast for Necessaries and the person to whom 't is pawned shall sue for the Mony in the Admiralty here By the Common Law a Master of a Ship had neither a general or special property in it Sid. 453. and therefore could not pawn it but by the Civil Law in cases of necessity he may rather than the Voyage should be lost and if any such cause appear 't is within the Iurisdiction of the Admiralty but then the pawning must be super altum Mare Now the Statute of 28 H. Cap. 15. H. 8. which abridgeth the Iurisdiction of the Admiralty in Trials of Pyrates and which appointeth Offences committed on the Sea to be tried by a Commission under the great Seal directed to the Admiral and others according to the course of the Common Law and not according to the Civil Law gives a remedy in this very Case Molloy de Jure maritimo 62. for it provides that it shall not be prejudicial to any person for taking of Victuals Gables Rapes c. in cases of necessity upon the Sea paying for the same So that this is an excepted Case because of the Necessity and 't is like the Cases of suing for Mariners Wages in this Court The Service was at Sea so that the Admiralty hath no proper Iurisdiction over this Matter 'T is true Prohibitions have been denied for Mariners Wages the first is reported by Iustice Winch Winch. f. 8. but the reason seems to be because they proceed in the Admiralty not upon any Contract at Land but upon the Merits of the Service at Sea and allow or deduct the Wages according to the good or bad performance of the Services in the Voyage Besides there is an Act of Parliament which warrants she Proceedings in the Court of Admiralty for Mariners Wages Cotton Abr. f. 340. nu 37. For in a Parliament held in the 14th year of Richard II. the Commons petititioned for remedy against great Wages taken by Masters of Ships and Mariners to which the King answered that the Admiral shall appoint them to take reasonable Wages or shall punish them Now the reason of the Civil Law which allows the pawning of a Ship for necessaries upon the high Sea seems to be plain because there may be an extraordinary and invincible necessity at Sea but not at Land So that this being a Contract beyond Sea and at Land the Court of Admiralty cannot have any Iurisdiction over it 4 Inst 134. Cro. Car. 603. Latch 11. 2 Brownl 37. for where the Common Law cannot relieve in such Cases the Admiralty shall not because they are limited to Acts done upon the Sea and in cases of necessity for if the Law should be otherwise the Master may take up as much Mony as he will Mr. Pollexfen contra 1 Rolls 530. That things arising upon Land may be sued for in the Admiralty is no new thing for so it is in all Cases of Stipulation Mariners Wages are also recoverable in that Court not by vertue of any Act of Parliament Exton Mant. Diraeologiae f. 192. but because it grows due for Services done at Sea which is properly a Maritime Cause though the
Executors one of them of Age 2 Sand. 212. and the other not one may make an Attorney for the other There is no difference between Executors and Infants in this Case for Executors recover in the right of the Testator and the Bayliffs in the Right of him who hath the Inheritance Besides the Avowants are in the nature of Plaintiffs and whereever a Plaintiff recovers the Defendant shall not assign Infancy for Error Adjornatur Capel versus Saltonstal INdebitatus assumpsit in the Common Pleas Where there are several Plaintiffs in a personal thing and one dyeth before Judgment the Action is abated in which Action there were four Plaintiffs one of them died before Iudgment the others recover and now the Defendant brought a Writ of Error in this Court to reverse that Iudgment and the Question was whether the Action was abated by the death of this person Those who argued for the Plaintiffs in the Action held that the Debt will survive and so will the Action for 't is not altered by the death of the party for where Damages only are to be recovered in an Action well commenced by several Plaintiffs and part of that Action is determined by the Act of God or by the Law and the like Action remaineth for the residue the Writ shall not abate As in Ejectment if the Term should expire pending the Suit 1 Inst 285. the Plaintiff shall go on to recover Damages for though the Action is at end quoad the possession yet it continues for the Damages after the Term ended So if the Lessor bring Waste against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for Damages but the Survivor So where Trover was brought by two 2 Bulst 262. 1 Inst 198. and after the Verdict one of them died the Iudgment shall not be arrested because the Action survives to the other Mr. Pollexfen contra He admitted the Law to be that where two Iointenants are Defendants the death of one would not abate the Writ because the Action is joint and several against them But in all Cases where two or more are to recover a personal thing there the Death or Release of one shall abate the Action as to the rest though 't is otherwise when they are Defendants and are to discharge themselves of a personalty 6 Co. 25. b. Ruddock's Case 2 Cro. 19. And therefore in an Audita Querela by two the death of one shall not abate the Writ because 't is in discharge Now in this Case Iudgment must be entred for a dead Man which cannot be for 't is not consistent with reason The Case of Wedgewood and Bayly is express in it which was this Trover was brought by six and Iudgment for them one of them died the Iudgment could not be entred 'T is true where so many are Defendants and one dies the Action is not abated but then it must be suggested on the Roll. Curia Actions grounded upon Torts will survive but those upon Contracts will not The Iudgment was reversed Fisher versus Wren In the Common-Pleas THE Plaintiff brought an Action of Trespass on the Case Prescription and Custom alledged together and declared that he was seized of an ancient Mesuage and of a Meadow and an Acre of Land parcel of the Demesnes of the Mannor of Crosthwait and sets forth a Custom to grant the same by Copy of Court Roll and that there are several Freehold Tenements parcel of the said Mannor and likewise several Customary Tenements parcel also thereof grantable ad voluntatem Domini and that all the Freeholders c. time out of Mind c. together with the Copyholders according to the Custom of the said Mannor have enjoyed solam seperalem Pasturam of the Ground called Garths parcel of the said Mannor for their Cattle Levant and Couchant c. and had liberty to cut the Willows growing there for the mending of their Houses and the Defendant put some Cattle into the said Ground called Garths which did eat the Willows by reason whereof the Plaintiff could have no benefit of them c. Vpon Not Guilty pleaded there was a Verdict for the Plaintiff And now Serjeant Pemberton moved in arrest of Iudgment and took these Exceptions 1. As to the manner of the Prescription which the Plaintiff had laid to be in the Freeholders and then alledged a Custom for the Copyholders c. and so made a joint Title in both which cannot be done in the same Declaration because a Prescription is always alledged to be in a person and a Custom must be limited to a place and therefore an entire thing cannot be claimed both by a Prescription and Custom Vaughan 215. Carter 200. 1 Sand. 351. because the Grant to the Freeholders and this Vsage amongst the Copiholders could not begin together 2. As to the Custom 't is not good as pleaded to exclude the Lord for it can never have a good Commencement because Copyholders have Common in the Lords Soil only by permission to improve their Estates which Common being spared by the Lord and used by the Tenant becomes a Custom but no Vsage amongst the Tenants or permission of the Lord can wholly divest him of his Soil and vest an Interest in them who in the beginning were only his Tenants at Will 2 Sand. 325. 3. The third Exception and which he chiefly relyed on was viz. That this is a Profit apprender in alieno Solo to which all the Tenants of the Mannor are entituled and that makes them Tenants in Common and therefore in this Action where Damages are to be recovered they ought all to join 'T is true in real Actions Tenants in Common always sever 1 Inst 197 198. Godb. 347. but in Trespasses quare Clasum fregit and in personal Actions they always join and the reason is plain because in those Actions though their Estates are several yet the Damages survive to all and it would be unreasonable to bring several Actions for one single Trespass E contra It was argued that it cannot be denied E contra but that there may be a Custom or Prescription to have solam seperalem pasturam but whether both Prescription and Custom can be joyned together is the doubt now before the Court and as to that he held it was well enough pleaded 1 Sand. 351. for where there is an unusual Right there must be the like remedy to recover that Right it was thus pleaded in North's Case But admitting it not to be well pleaded 't is then but a double Plea to which the Plaintiff ought to have demurred and this may serve for an Answer to the first Exceptions Then as to the last Objection that 't is a Profit apprender in alieno solo for which all the Tenants ought to join 't is true a Common is no more than a Profit apprender
forty years past Hob. 66. nor Burials or Baptism whereupon a Prohibition was denied Anonymus A Gentleman was convicted upon his own Confession for High Treason in the Rebellion of the Duke of Monmouth and executed Attainder for Treason reversed and it was moved that his Attainder might be reversed The Iudges were attended with Books and the Exceptions taken were viz. 1. There was no Arraignment or demanding of Iudgment Co. Ent. 358. 2. There was Process of Ven. Fac. which ought not to be in Treason but a Capias 3. Because after the Confession the Judgment followed and it doth not appear that the Party was asked what he could say why Sentence of Death should not pass upon him for possibly he might have pleaded a Pardon For these Reasons the Attainder was reversed Mr. Parkinson's Case IT was moved for a Mandamus to reffore him to a Fellowship of Lincoln Colledge in Oxford being a Member of a Lay Corporation and having a Freehold in it Mandamus denied for restoring of a person to a Fellowship 1 Mod. 82. 1 Sid. 71. Sid. 29. The like Mandamus had been granted to restore Dr. Goddard to the place of one of the Fellows of the Colledge of Physitians in London which is a Lay Corporation But it was denied by the Court for the Visitor is the proper Iudge and when a Man takes a Fellowship he submits to the Rules of the Colledge and to the private Laws of the Founder It was denyed by my Lord Hales in Dr. Robert'ss Case because in all Lay Corporations the Founder and his Heirs are Visitors and in all Ecclesiastical Corporations the Bishop of the Diocess is the proper Visitor who is Fidei Commissarius and from whose Sentence there is no Appeal to this Court especially in the case of a Fellowship of a Colledge which is a thing of private design and not at all concerning the publick Anonymus Hill 3 4 Jacobi Rot. 1018. A.B. nuper de Parochia Sancti Jacobi Westm ' in Comitatu Midd. Generosus attachiatus fuit per corpus suum ad respondend ' C. D. Viduae quae fuit uxor J. D. Generosi de morte praed J. quondam viri sui unde eum appellat Et sunt pleg ' de pros ' J. B. nuper de Parochia Sancti Jacobi Westm in Comitatu Midd. Gen ' Johannes Doe de eadem Gen ' unde eadem Elizabetha per E. F. Attornatum suum juxta formam Statut. in hujusmodi casu edit provis instanter appellat praed A. B. de eo quod ubi praed J. D. fuit in pace Dei dicti Domini Regis nunc apud Parochiam Sancti Jacobi infra Libertatem Westm in Comitatu Middlesex decimo die J. Anno Regni Domini Jacobi nuper Regis Angliae tertio hora prima post meridiem ejusdem diei ibidem scilicet apud Parochiam Sancti Jacobi infra Libertatem Westm in Com. Midd. venit praed A. B. felonice ac ut felo dicti Domini Regis nunc volutarie ex malicia sua praecogitat insidiis praemeditatis contra pacem dicti Domini Regis nunc hora nona post meridiem ejusdem diei in super praefat J.D. adtunc vi armis c. apud Parochiam Sancti Jacobi infra Libertatem Westm praedict in Comitatu praedicto insultum fecit praedict A.B. adtunc ibidem cum quodam gladio Anglice a Rapier ad valenciam quinque solidorum quod ipse idem A. B. in manu sua dextra adtunc ibidem scilicet praedicto decimo die J. Anno tertio supradicto apud Parochiam Sancti Jacobi infra Libertatem Westm praedict in Com. Midd. praed habuit tenuit ipse praedict J. D. in super sinistram partem ventris ipsius J. D. prope umbilicum Anglice the Navel ipsius J. D. adtunc ibidem felonice voluntarie ex malitia sua praecogitata percussit pupugit dedit eidem J. D. adtunc ibidem in super praedictam sinistram partem ventris ipsius J. D. prope dictum umbilicum ipsius J. D. cum gladio praedicto unam plagam mortalem longitud dimid unius pollicis profunditat sex pollicium de qua quidem plaga mortali idem J. D. a praedicto decimo die J. Anno tertio supradicto apud praedictam Parochiam Sancti Jacobi infra Libertatem Westm in Comitatu Midd. praedict languebat languidus vixit adtunc scilicet decimo sexto die Junii Anno tertio supradicto apud Parochiam Sancti Jacobi infra Libertatem Westm in Comitatu Midd. praedict ipse idem J. D. de plaga mortali praedicta obiit sic praefat A. B. praedictum J. D. apud Parochiam Sancti Jacobi infra Libertatem Westm praedict in Comitatu Midd. praedict modo forma praedict voluntarie ex malitia sua praecogitata interfecit murdravit contra pacem dicti Domini Regis nunc Coron ' Digitates suas quam cito idem A. B. Feloniam Murdrum praedict fecisset ipse idem A. B. fugit dictaque C. D. ipsum recenter insecut fuit de Villa in Villam usque ad quatuor Villas propinquior ' ulterius quousque c. Et si praedictus A. B. Feloniam Murdrum praedict ei in forma praed imposit velit dedicere praefat C. D. hoc parata est versus eum probare prout Curia c. The Defendant having prayed Iudgment de Brevi originali pleaded Quod ipse A. B. per Breve illud appellat ' existit per nomen A. B. nuper de Parochia Sancti Jacobi Westm in Comitatu Midd. Generosi ubi revera in facto infra Comitatum Midd. praedict est quaedam Parochia vocat cognit per nomen Parochiae Sancti Jacobi infra Libertatem Westm sed in eodem Comitatu Midd. non habetur nec die impetrationis Brevis originalis appelli praedict seu unquam habebatur aliqua Parochia sive locus cognit ' nuncupat ' per nomen Parochiae Sancti Jacobi Westm tanrum prout praed C. D. per breve suum superius supponit Et hoc ipse idem A. B. parat ' est verificare unde petit Judicium de Brevi illo Et quod praed Breve cassetur The Plaintiff demurred and the Appellee joyned in Demurrer An Appeal of Murder was brought against A. B. The Defendant pleaded in Abatement to an Appeal of Murder and did not plead over to the Felony of the Parish of St. James Westminster in the County of Middlesex Gent. for that he on the 10th day of June in the third year of King James did run the deceased into the left part of his Belly with a Rapier and that he died of that wound three days afterwards The Defendant demands Oyer of the Return and pleads that there is a Parish known by the name of the Parish of St. James within the Liberty of Westminster but no such
ought to be left out and of that Opinion was the Court and therefore a Rule was made that he might discontinue this Action without Costs Mordant versus Thorold Hill 1 2 Gulielmi Rotulo 340. THE Plaintiff brought a Scire Fac. upon a Iudgment The Case was thus Viz. Ann Thorold recovered in Dower against Sir John Thorold in which Action Damages are given by the Statute of Merton 20 H. 3. c. 1. Sir John Thorold brought a Writ of Error in B. R. and the Iudgment was affirmed Then the Plaintiff in Dower brought a Writ of Enquiry for the Damages and married Mr. Mordant and died before that Writ was executed Mr. Mordant takes out Letters of Administration to his Wife and brought a Sci. Fa. upon the Iudgment and the question was whether it would lie This depended upon the construction of the Statute of King Charles the II. which enacts That in all personal Actions 17 Car. 2. c. 8. and real and mixt the death of either party between the Verdict and the Iudgment shall not hereafter be alledged for Error so as such Iudgment be entred within two Terms after such Verdict Serjeant Pemberton insisted that this was a judicial Writ and that the Administrator had a right to it though the Wife died before the Profits were ascertained by the Writ of Enquiry 't is no more than a plain Sci. Fa. upon a Iudgment which an Executor may have and which was never yet denied though this seems to be a Case of the first Impression The Council on the other side argued that 't is true an Executor may have a Scire Facias upon a Iudgment recovered in the life of the Testator by reason only of such Recovery but this Scire Facias is brought for what never was recovered because the Wife died before any thing was vested in her for the Iudgment will stand so as to effect the Lands but not for the Damages Curia When a Statute which gives a remedy for mean Profits is expounded it ought to be according to the Common Law Now where entire Damages are to be recovered and the Demandant dies before a Writ of Enquiry executed the Executor cannot have any remedy by a Scire Facias upon that Iudgment because Damages are no duty till they are assessed Sed adjornatur DE Term. Sanctae Trin. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Shotter versus Friend Vxor ' Hill 2 Willielmi Rot. 39. THE Plaintiff and his Wife declared upon a Prohibition setting forth Proof by one Witness good in the Spiritual Court that John Friend on the 13th of October 22 Car. 2. made his Will by which he bequeathed to Mary Friend 10 l. to be paid to her within two years after his decease and that he made Jane the Wife of the Plaintiff Shotter Executrix and dyed that the said Executrix whilst sole and unmarried paid the said Legacy to Mary Friend who is since dead that Thomas Friend the Husband of the said Mary did after her death demand this Legacy in the Consistory Court of the Bishop of Winton that the Plaintiff pleaded payment and offered to prove it by one single Witness which Proof that Court refused though the Witness was a person without Exception and thereupon Sentence was given there against the Plaintiff which Sentence was now pleaded and upon Demurrer to the Plea The Question was whether upon the whole matter the Defendant should have a Consultation or whether a Prohibition should be granted because the proof by one Witness was denied by that Court. It was argued that the Defendant should not have a Consultation because Matters Testamentary ought to have no more favour than things relating to Tythes in which Cases the Proof by one Witness hath been always held good So 't is in a Release to discharge a Debt which is well proved by a single Testimony and it would be very inconvenient if it should be otherwise for Feoffments and Leases may come in question which must not be rejected because proved by one Witness A Modus decimandi comes up to this Case upon the Suggestion whereof Prohibitions are never denied and the chief reason is because the Spiritual Court will not allow a Modus to be any discharge of Tythes of Kind The Courts of Equity in Westminster-Hall give Relief upon a Proof by one Witness so likewise do the Courts of the Common Law if the Witness is a good and credible person 'T is true a Prohibition shall not go upon a Suggestion that the Ecclesiastical Court will not receive the Testimony of a single Witness If the Question is upon Proof of a Legacy devised or Marriage or not or any other thing which originally doth lie in the Cognizance of that Court but payment or not payment is a matter of Fact triable at the Law and not determinable there if therefore they deny to take the Evidence of a single Witness a Prohibition ought to go 2 Inst 608. 2. The Sentence is no obstacle in this Case because the Plaintiff had no Right to a Prohibition until the Testimony of his Witness was denied and Sentence thereupon given and this is agreeable to what hath been often done in cases of like nature As for instance Cro. Eliz. 88. Moor 907. Prohibitions have been granted where the Proof of a Release of a Legacy by one Witness was denyed So where the Proof of payment of Cythes for Pidgeons was denied upon the like Testimony Cro. Eliz. 666. Moor 413. 2 Rol. Rep. 439. 2 Rol Abr. 300. pl. 9. 299 pl. 14 17. Yelv. 92. Latch 117. 3 Bulst 242. Hutt 22. So where a Suit was for Subtraction of Cythes and the Defendant pleaded that he set them out and offered to prove it by by one Witness but was denied a Prohibition was granted And generally the Books are that if the Spiritual Court refuse such Proof which is allowed at the Common Law they shall be prohibited There is one Case against this Opinion which is that of Roberts in 12 Co. 12 Co. 65. Rep. but it was only a bare Surmise and of little Authority Those who argued on the other side held that a Consultation shall go E contra and that for two Reasons 1. Because a Prohibition is prayed after Sentence 2. Because the Ecclesiastical Court have an original Iurisdiction over all Testamentary things As to the first Point 'T is plain that if that Court proceed contrary to those Rules which are used and practised at the Common Law yet no Prohibition ought to go after Sentence but the proper remedy is an Appeal 2. It cannot be denied but that that Court had Cognizance of the principal matter in this Case which was a Legacy and Payment or not is a thing collateral Now wherever they have a proper Iurisdiction of a Cause both that and all its dependences shall be tried according to their Law which rejects the Proof by a single Witness
the six Months by this means the Conusee of the Statute is defeated for after the inrollment the Land passeth ab initio and the Bargainee in Iudgment of Law was seised thereof from the delivery of the Deed but not by way of Relation but by immediate Conveyance of the Estate by vertue of the Statute of Vses But the Law will not suffer contingent Remainders to waver about and to be so incertain that no Man knows where to find them which they must be if this Doctrine of Relation should prevail Now suppose the Surrendree had made a Grant of his Estate to another person before he had accepted of the Surrender and the Grantee had entred would this subsequent assent have divested this Estate and made the Grant of no effect if it would then here is a plain way found out for any Man to avoid his own acts and to defeat Purchasors Therefore 't is with great reason that the Law provides that no person shall take a Surrender but he who hath the immediate Reversion and that the Estate shall still remain in the Surrenderor until all acts are done which are to compleat the Conveyance Those who argued against the Iudgment E contra held that the Estate passed immediately without the assent of the Surrenderor and that even in Conveyances at the Common-Law 't is divested out of the person and put in him to whom such Conveyance is made without his actual assent 'T is true in Exchanges the Freehold doth not pass without Entry nor a Grant of a Reversion without an Attornment but that stands upon different Reasons from this Case at the Bar for in Exchanges the Law requires the mutual acts of the Parties exchanging and in the other there must be the consent of a third person But in Surrenders the assent of the Surrendree is not required for the Estate must be in him immediately upon the execution of the Deed if he doth not shew some dissent to it If a Man should plead a Release without saying ad quam quidem relaxationem the Defendant agreavit yet this Plea is good because the Estate passeth to him upon the execution of the Deed. It may be a Question whether the actual assent must be at the very time that the Surrender was made for if it should be afterwards t is well enough and the Estate remaineth in the Surrendree till dis-agreement Presumption stands on this side for it shall never be intended that he did not give his Assent but on the contrary because t is for his benefit not to refuse an Estate Therefore where a Feme Sole had a Lease and married Hob. 203. the Husband and Wife surrendred it to another in consideration of a new Lease to be granted to the Wife and her Sons c. this Estate vests immediately in her tho' a Feme Covert and that without the assent of her Husband for the Law intends it to be her Estate till he dissent 't is true in that Case his assent was held necessary because the first Lease could not be divested out of him without his own consent So a Feoffment to three 2 Leon. 224. and Livery made to one the Freehold is in all 'till disagreement So if a Bond be given to a Stranger for my use and I should die before I had agreed to it my Executors are entituled to an Action of Debt and will recover A Feme Covert and another were Ioint-tenants for Life 1 Rol. Rep. 401 441. she and her Husband made a Lease for years of her moiety reserving a Rent during her Life and the Life of her partner then the Wife died this was held to be a good Lease against the surviving Ioint-tenant till disagreement which shews that the agreement of the Parties is not so much requisite to perfect a Conveyance of this nature as a disagreement is to make it void And this may serve as an answer to the second point which was not much insisted on that Mens Titles would be incertain and precarious if after the assent of the Surrendree the Estate should pass by Relation at the very time that the Deed was executed and that it was not known where the Free-hold was in the mean time for if he had agreed to it immediately it had been altogether as private Then as to the Pleadings 't is true that generally when a Surrender is pleaded 't is said ad quam quidem sursum redditionem the Party adtunc ibidem agreavit which implies that the Surrendree was then present and in such Case he ought to agree or refuse Besides those Actions to which an Agreement is thus pleaded were generally brought in disaffirmance of Surrenders and to support the Leases upon which the Plaintiffs declared and then the proper and most effectual Bar was to shew a Surrender and express Agreement before the Action brought It might have been insufficient pleading not to shew an Acceptance of the Surrendree but 't is not substance for if Issue should be taken whether a Surrender or not Cro. Eliz. 249. and a Verdict for the Plaintiff that defect of setting forth an Acceptance is aided by the Statute of Ieofails In this Case there is not only the Word Surrender but * Grant and Release which may be pleaded without any consent to it and a Grant by operation of Law turns to a Surrender because a Man cannot have two Estates of equal dignity in the Law at the same time Neither can it be said that there remained any Estate in Simon Leach after this Surrender executed for 't is an absurd thing to imagine that when he had done what was in his power to compleat a Conveyance and to divest himself of an Estate yet it should continue in him Therefore the Remainder in Contingency to the Lessor of the Plaintiff was destroyed by this Surrender of the Estate to him in reversion for by that means when it did afterwards happen there was no particular Estate to support it But notwithstanding the Iudgment was affirmed and afterwards Anno quarto Gulielmi Mariae upon a Writ of Error brought in the House of Lords it was reversed Idem versus Eundem THIS Point having received a legal determination the same Plaintiff brought another Action of Trespass and Ejectment against the same Defendant Surrender by a person Non compos is void and at a Trial at the Barr in Easter Term nono Gulielmi Regis another special Verdict was found upon which the Case more at large was viz. That Nicholas Leach being seised in Fee of the Lands in question made his Will in these Words viz. In the Name of God Amen c. I devise my Mannors of Bulkworth Whitebear and Vadacot in Devonshire and Cresby Goat and Cresby Grange in Northallerton in Yorkshire unto the Heirs Males of my Body begotten and for want of such Issue Male I devise the same unto my Brother Simon Leach for Life and after his decease to the
the Neglect in this Case was in the Servant the Action may be brought against all the Owners for it is grounded quasi ex contractu though there was no actual Agreement between the Plaintiff and them And as to this purpose 2 Sand. 345. Hob. 206. Hutt 121. 1 Mod. 198. 't is like the Case where a Sheriff levies Goods upon an Execution which are rescued out of the hands of his Bailiffs this appearing upon the Retorn an Action of Debt will lie against him though there was no actual Contract between the Plaintiff and him for he having taken the Goods in Execution there is quasi a Contract in Law to answer them to the Plaintiff 2. As to the second Point it was ruled that Not-Guilty was a good Plea to any Mis-feazance whatsoever and that a Plea in Abatement viz. that the rest of the Owners super se susceperunt simul cum Defendente absque hoc quod Defendens super se suscepit tantum had been no more than the general Issue 3 Cro. 554. Vering versus More but he hath not pleaded thus Iustice Dolben agreed that the Action ought to be brought against all the Proprietors it being upon a Promise created by Law but he was Opinion that this Matter might have been pleaded in Abatement Gold versus Strode AN Action was brought in Somersetshire and the Plaintiff recovered and had Iudgment and died Intestate Gold the now Plaintiff took out Letters of Administration to the said Intestate in the Court of the Bishop of Bath and Wells and afterwards brought a Scire Facias upon that Iudgment against the Defendant to shew Cause quare Executionem habere non debeat He had Iudgment upon this Scire Facias and the Defendant was taken in Execution and escaped An Action of Debt was brought by the said Gold against this Defendant Strode who was then Sheriff for the Escape and the Plaintiff had a Verdict It was moved in arrest of Iudgment and for Cause shewen that if the Administration was void then all the dependencies upon it are void also and so the Plaintiff can have no Title to this Action Now the Administration is void because the entring upon Record of the first Iudgment recovered by the Intestate in the County of Middlesex where the Records are kept made him have bona notabilia in several Counties and then by the Law Administration ought not to be committed to the Plaintiff in an inferior Diocess but in the Prerogative Court Curia The Sheriff shall not take advantage of this since the Iudgment was given upon the Scire Fac. and the Capias ad satisfaciendum issuing out against the then Defendant directed to the Sheriff made him an Officer of this Court and the Iudgment shall not be questioned by him for admitting it to be a Recovery without a Title yet he shall take no advantage of it till the Iudgment is reversed 'T is not a void but an erronious Iudgment and when a person is in execution upon such a Iudgment and Escapes and then an Action is brought against the Goaler or Sheriff 8 Co. 141. and Iudgment and Execution thereon though the first Iudgment upon which the party was in execution should be afterwards reversed yet the Iudgment against the Goaler being upon a collateral thing executed shall still remain in force The Ca. Sa. 21 E. 4. 23. b. Cro. El. 164. Moor 274. 2 Cro. 3. 1 Rol. Abr. 809 God b. 403. 2 Leon. 84. was a sufficient authority to the Sheriff to take the Body though grounded upon an erronious Iudgment and that Execution shall be good till avoided by Error and no false Imprisonment will lie against the Goaler or Sheriff upon such an Arrest Coghil versus Freelove In the Common-Pleas DEBT for Rent was brought against the Defendant as Administratrix of Thomas Freelove her late Husband deceased Debt for Rent incurred after an assignment by an Administrator for the privity of Contract is not determined by the death of the intestate 2 Vent 209. in which Action the Plaintiff declared That on the 1st of May 21 Car. 2. he did by Indenture demise to the said Thomas Freelove one Messuage and certain Lands in Bushey in Hertfordshire Habendum from Lady day then last past for and during the term of 21 years under a yearly Rent that by virtue thereof he entred and was possessed That on the 7th of March 1685. the said Thomas Freelove died Intestate and that the next day Administration of his Goods and Chattels was granted to the Defendant and that 78 l. was in arrear for Rent due at such a time for which this Action was now brought in the Detinet The Defendant confessed the Lease prout c. and the death of the Intestate and that the Administration was granted to her but saith that before the Rent was due she by Articles made between her of the one part and Samuel Freelove of the other part did assign the said Indenture and all her right title and interest thereunto and which she had in the Premisses unto the said Samuel Freelove who entred and was possessed that the Plaintiff had notice of this Assignment before he brought this Action but nothing was said of his acceptance To this Plea the Plaintiff demurred and the Defendant joined in Demurrer And Iudgment was given by the Opinion of the whole Court for the Plaintiff against the Authorities following Viz. Cro. Eliz. 555. 'T is true in Overton and Sydal 's Case it was resolved that if an Executor of Lessee for years assign his Interest Debt for Rent will not lye against him after such Assignment the reason there given was because the personal privity of the Contract is determined by the death of the Lessee as to the Debt it self and for the same reason the Executor shall not be lyable to the Rent after the death of the Lessee if such Lessee doth make an assignment of his Term in his life-time My Lord Coke mentioning this Case 3 Co. 24. a. in his third Report affirms that it was resolved by Popham Chief Iustice and the whole Court that if an Executor of a Lessee for years assign his Interest Debt will not lye against him for Rent due after such an Assignment Pop. 120. but my Lord Popham himself in Reporting that very Case tells us he was of another Opinion which was that so long as the Covenant in the Lease hath the nature and essence of a Contract it shall bind the Executor of the Lessee who as well to that as to many other purposes represents the person of the Testator and is privy to his Contracts T is true my Lord Popham held in that Case that the Action did not lye but because it was brought by the Successor of a Prebendary upon a Lease made by him in his life-time who being a single Corporation the personal Contract was determined by his death But the same Case reported by others Moor 251.
certain or 't is not good 134 4. Must be taken strictly when it goes to the destruction of an Estate 224 5. A Custom that every Copyholder who leases his Land shall forfeit it doth not bind an Infant 229 6. Amongst Merchants where it must be particularly set forth 226 7. It must be certain and therefore where it was laid for an Infant to sell his Land when he can measure an Ell of Cloth 't is void for the incertainty 290 8. To have solam separalem pasturam hath been held good 291 9. Prescription must have a lawful commencement but 't is sufficient for a Custom to be certain and reasonable 292 10. Whether a Custom likewise ought to have a lawful commencement 293 D. Damages See Ejectment 3. Ioint Action 2. Trespass 2. Baron and Feme brought an Action for words spoken of the Wife and concluded ad damnum ipsorum 't is good for if she survive the Damages will go to her 120 Det See Admittance 5. Assignment 1. Iudgment 1. Quantum meruit Where 't is brought upon a Specialty for less than the whole Sum it must be shewed how the other was discharged 41 2. Whether it lies for a Fine upon an admission to a Copyhold Estate for it doth not arise upon any Contract 240 3. There must be a personal Contract or a Contract implyed by Law to maintain an Action of Debt ibid. Deceit See Action on the Case Deputy See Office 6 7 9. Devise See Tail Where it shall not be extended by implication 82 2. Where the word Estate passeth a Fee where not 45 105. 3. I give All to my Mother passeth only an Estate for Life for the Particle All is a Relative without a Substantive 32 4. To A. and the Testator's Name is omitted in the Will yet 't is good by averring his Name and proving his Intention to devise it 217 5. The Testator after several Specifick Legacies and Devises of Lands gave all the rest and remaining part of his Estate c. by those Words the Reversion in Fee passed 228 6. By the Devise of an Hereditament the Reversion in Fee passeth 229 Disseisin See Election 1. Interest 2. The Son Purchased in Fee and was disseised by his Father who made a Feoffment with Warranty the Son is bound for ever 91 2. Lessor made a Lease for Life and died his Son suffered a Common Recovery this is a Disseisin ibid. 3. Where an Estate for Life or years cannot be gained by a Disseisin ibid. 4. A wrongful Entry is never satisfied with any particular Estate nor can gain any thing but a Fee-simple 92 Distribution Before the Statute if there was but one Child he had a right of Administration but it was only personal so that if he died before Administration his Executor could not have it 62 E. Ejectment THE Demise was laid to be the 12th of Junii habendum a praed duodecimo die Junii which must be the 13th day by vertue whereof he entred and that the Defendant Postea eod 12 die Junii did Eject him which must be before the Plaintiff had any Title for his Lease commenced on the 13th day not good 199 2. De uno Messuagio sive Tenemento not good because the word Tenementum is of an incertain signification but with this addition vocat ' the Black Swan 't is good 238 3. If the Term should expire pending the Suit the Plaintiff may proceed for his Damages for though the Action is expired quoad the possession yet it continues for the Damages 249 Election Where the Cause of Action ariseth in two places the Plaintiff may choose to try it where he pleases 165 2. Tenant at Will made a Lease for years the Lessee entreth this is no disseisin but at the Election of him who had the Interest in it 197 Entry In Feoffments Partitions and Exchanges which are Conveyances at the Common Law no Estate is changed until actual Entry 297 2. Lease for years not good without Entry 297 3. Tenant for Life Remainder in Tail Male levied a Fine and made a Feoffment having but one Son then born and afterwards had another Son the eldest died without Issue the Contingent Remainder to the second was not destroy'd by this Feoffment for it was preserved by the right of Entry which his elder Brother had at the time of the Feoffment made 305 Escape Debt upon an Escape would not lie at the Common Law against the Goaler it was given by the Statute of W. 2. 145 2. The superior Officer is liable to the voluntary Escapes suffered by his Deputy unless the Deputation is for life 146 3. If an Escape is by negligence it must be particularly found 151 4. A person was in Execution upon an erroneous Judgment and escaped and Judgment and Execution was had against the Gaoler and then the first Judgment was reversed yet that against the Gaoler shall stand 325 Evidence See Witness An Affidavit made in Chancery shall not be read as Evidence but only as a Letter unless Oath is made by a Witness that he was present when it was taken before the Master 36 2. What shall be Evidence of a fraudulent Settlement ibid. 3. An Answer of a Guardian in Chancery shall not be read as Evidence to conclude an Infant 259 4. Whether the return of the Commissioners in a Chancery Cause that the person made Oath before them is sufficient Evidence to convict of Perjury 116 5. Whether a true Copy of an Affidavit made before the Chief Justice is sufficient to convict the person for the like Offence 117 6. A Verdict may be given in Evidence between the same Parties but not where there are different persons unless they are all united in the same interest 142 7. Conviction for having two Wives shall not be given in Evidence to prove the unlawfulness of a Marriage but the Writ must go to the Bishop because at Law one Jury may find it no Marriage and another otherwise 164 Exchange Ought to be executed by each Party in their Life time otherwise 't is void 135 Excommunication Stat. 5 Eliz. For not coming to the Parish Church the Penalties shall not incurr if the person hears Divine Service in any other Church 42 2. The Causes are enumerated in the Statute which must be contained in the Significavit otherwise the Penalties are not to incurr 89 Executor See Grants Notice 5. Whether an Executor de son tort can have any interest in a Term for years 91 93 2. An Executor may sell the Goods before Probate 92 3. May pay Debt upon a simple Contract before a Bond of which he had no notice 115 4. Whether an Action of Debt will lie against an Executor upon a Mutuatus 5. By what words he hath an Authority only without an Interest in the thing devised 209 210 6. He had both Goods of his Testator and of his own and granted omnia bona sua that which he hath as Executor will not pass for
the Land 211 5. Not granted for Mariners Wages 244 6. Libel for a Tax upon the Parishioners for not repairing of their Church who suggest that they had a Chappel of Ease in the same Parish the Prohibition was denied for of common right they ought to repair the Mother Church 264 7. Proof of Matter of Fact by one Witness denied to be allowed in the Spiritual Court is a good cause for a Prohibition 284 8. Where the Release of a Legacy offered to be proved by one Witness was denied in the Spiritual Court ibid. 9. Proof of Payment or Subtraction of Tythes denied and a Prohibition granted ibid. 10. Whether a Prohibition ought to be allowed after Sentence an Appeal being then the more proper remedy 284 Property See Interest Q. Quorum MUst be one Justice of the Peace of the Quorum otherwise cannot be a Sessions 14 152 Quantum meruit Will lie for Rent reserved upon a real Contract where the Sum is not certain but if a Sum in gross is reserved then Debt must be brought 73 R. Record ERror shall not be assigned against the Essence of a Record 141 Recovery Common Reversed without a Scire Facias to the Tertenants but it seems not to be good 119 2. For there must be a Scire Facias against the Heir and Tertenants when a Writ of Error is brought to reverse it 274 Relation Where an Estate shall pass by Relation where not 299 300 Release Of a Legacy by one Executor and also of all Actions Suits and Demands whatsoever those general words which follow are tied up to the Legacy and release nothing else 277 2. Of a Demand will not discharge a growing Rent 278 3. A Receipt was given for 10 l. in which there was a Release of all Actions Debts Duties and Demands nothing is released but the 10 l. 277 4. Judgment against four Defendants who all joyned in a Writ of Error and the Plaintiff pleaded a Release of Errors by one it shall not discharge the rest of a personal thing but if there had been four Plaintiffs to recover the Release or death of one is a Barr to all 109 135 249 5. A Release of all Actions will discharge an Award of Execution upon a Scieri Facias 185 187 6. Of all Actions and Demands doth not discharge a Legacy it must be by particular words 279 7. One of the Defendants who made Conusance released the Plaintiff after the taking of the Cattle this was held void upon a Demurrer for he had no Demand or Suit against the Plaintiff having distrained in the right of another ibid. Remainder See Entry 3. Fines levied 4. Must take place eo instanti the particular Estate is determined or else it can never arise 309 2. By the Conveyance of the Reversion in Fee to him who had the Estate for Life before the Birth of a Son the particular Estate is merged and all contingent Remainders are thereby destroyed 311 Replevin Where 't is brought by Writ the Sheriff cannot make deliverance without the taking of Pledges de prosequendo retorn ' Habend ' 35 Replication Where the Plaintiff confesseth and avoideth he ought not to traverse for that would make his Replication double 318 Request When a thing is to be done upon Request the time when the person requires it to be done is the time of the performance 295 Reservation Of a Rent upon a Lease for three years payable at Michaelmas and Lady-Day Debt was brought for 2 years without shewing at which of the Feasts it was due 't is good after Verdict but ill upon a Demurrer 70 Resignation See Abeiance To the Ordinary and Patron presented 'ts void if the Ordinary did not accept the Resignation 297 Reversion See Bargain and Sale Surrender 2. Tenant in Tail who had likewise the Reversion in Fee if he acknowledge a Judgment the Reversion may be extended 256 2. But a Reversion in Fee expectant upon an Estate Tail is not Assets until it comes into possession 257 3. By what words a Reversion in Fee passeth in a Will 228 Revocation A Will shall not be revoked by doubtful words 206 2. It might be revoked by Word without Writing before the Statute of Frauds 207 3. Before that Statute a Will might be revoked by a subsequent Will which was void in it self yet good to revoke the former 207 218 4. A subsequent Will which doth not appear shall not be any Revocation of a written Will which doth appear 204 205 206 5. Whether a subsequent Will which is void in it self may revoke another since the Statute of Frauds 218 6. Such a Will must be good in all circumstances to revoke a former 260 261 Riot See Information Robbery The Hundred was sued and it did not appear that the Parish where the Fact was laid to be done was in the Hundred or that it was done upon the High way or in the day time this was helped after Verdict 258 2. A Servant delivered Mony to a Quaker to carry home for his Master they were both robbed viz. the Servant of 26 s. and the Quaker of 106 l. the Servant made Oath of the Robbery and the Quaker refused the Master brought the Action it doth not lie for him 287 288 S. Scire Facias See Bail 3 4. Baron and Feme 1 4 5. Iudgment 2. Pledges 1. Recovery MUst be to the Tertenants before the Common Recovery shall be reversed by Writ of Error 119 2. Scieri Facias quare Executionem non habet recites the first Judgment but prays no new thing only to have Execution upon that Judgment 187 3. 'T is not an original but a judicial Writ and depends upon the first Judgment 187 4. 'T is suspended by Writ of Error and if the original Judgment is reversed that is so also ibid. 5. Debt will lie upon a Judgment had on a Scire Facias 188 189 6. A Judgment upon a Scire Facias is a distinct Action from the original cause 189 7. Judgment in Dower and a Writ of Enquiry of Damages the Woman marries and dies before the Writ of Enquiry executed the Husband administred and brought a Scire Facias upon the Judgment whether it lieth or not 281 Serjeants at Law See Iudges Surplusage See Inquisition Steward See Court Supersedeas See Parliament Surrender See Assent 1 2. Where it may be pleaded without an acceptance 297 2. No man can take it but he who hath the immediate Reversion 299 3. If pleaded without an Acceptance 't is aided after Verdict which shews 'tis no Substance 301 4. By one Non compos mentis 't is void ab initio 303 T. Tail DEvise to D. for Life the Remainder to her first Son and the Heirs of the Body of such first Son endorsed thus viz. Memorandum that D. shall not alien from the Heirs Males of her Body she had a Son who had Issue a Daughter 't is not an Estate Tail Male for the Memorandum shall not alter the Limitation in the Will