that the Plea is not good Harris argued for the Defendant for three reasons 1. Because by the Lease this was included vide 21 H 6. 61. grant of Conuzance c. gives power to make a Steward tempore E. 1. Fitz. 41. 2 E. 2. Bar 237. grant to fish in a Pond yet he cannot make a Trench 2. The Coles are the Inheritance and the bettering of them is the bettering of the Inheritance 3. For the profit of the Common-wealth 14 H 8. 18. 20 Eliz Dyer 361. Altams case Trench to make a Meadow the better is no wast vide 22 H 6. 6. digging of certain Loads of Gravell for the amending of the Land vide 12 H 4 5. And for telling this ought not to be answered any other way then by justifying of the Imployment and the Plaintiff may reply upon the sale if he will and the case is long debated 5 E 4. 10. vide Dyer 37. Malenders case And the last day of this Term the Lord Hobart declared that we were all of opinion that the Plea is not good for there though the Lease be of Mines and by vertue therof the Lessee might open new Mines as in Sanders case Coke lib 5. fol. 12. there it shall be intended of new Mines which in themselves is wast if it had not been by speciall words And the digging of a Mine is an impairing of the Inheritance and a great benefit to the Lesses and therfore if Lessee for years build a new house if he cut Trees off the same Lands for the making therof it is wast 17 E 2. Fit wast 118. And no more then one may make a Brick Kilne and burn Brick or a Lyme Kilne and burn Lyme with wood growing upon the ground and sell the Brick or Lyme no more may the Defendants in this case cut down wood for the making and supporting of these Mines for Coles which they sell vide 41 E 3. 17. And so Iudgment was given for the Plaintiff Edmonds Case MEmorand That at the Assises holden at Winchester in Lent 15 Jac. one William Edmonds was indicted of Burglary because that he Burglariter and feloniously did break the house of one Richard Heydon in the night at Ramsey Burglary and the Iury gave a speciall Verdict We find that Richard Heydon and Christian his Wife were both in Bed and at rest in an upper Chamber in the Mansion house of the said Richard Heydon and that the said William Edmonds then was and yet is the Servant and Apprentice of the said Richard and that he then lay in another Chamber of the said house remote from the Bed-chamber of his said Master and Dame and that there was a Door with a Latch at the Stairs foot of the said Bed-chamber of the said Heydon but none at the Stair-head being the entrance into the said Bed-chamber of the said Heyedon We find that the said William at the said time in the Indictment drew the Latch of the Stair-foot door and opened the said door being then latched and went up the Stairs and entred into the Bed-chamber of his said Master with an intent to murther the said Heydon and that he did then and there with an Hatchet with an intent to murther his said Master strike and grievously wound him and gave him fifteen wounds on the head and other parts of his body And if upon the whole matter c. And this speciall Verdict was shewn by the Lord chief Baron Tanfield unto all the Iudges of Serjeants Inne in Chancery Lane viz. Iustice Warburton Crook Baron Bromely Iustice Dodderidge Houghton Winch and Hutton And they all besides Winch which doubted agreed that it was Burglary and afterwards in the same Term at a meeting in Serjeants Inne in Fleetstreet it was shewn to Mountague Hobart and Denham which concurred Mich 16 Jac. Staffords Case FAlse Imprisonment was brought by Sir John Stafford the Defendant justifie Matter of Record tryed by the Country that Bristoll is an ancient City and that time wherof memory c. there hath been a Court holden there before the Sheriffs c. and justifie that there was a Plaint levied and Iudgment and that the now Plaintiff was taken in execution The Plaintiff replyed Quod non fuit aliqua querela levata according to the custom and requires this Quod inquiratur c. And it was tryed at Bristoll and found for the Plaintiff and damages twenty six pounds And it was moved in Arrest of Iudgment that this being matter of Record viz. the entry of the Plaint in a Court of Record it shall be tryed by the Record and not by the Country And it was adjudged that the tryall was good because that it is not meerly Record but whether it was according to the Custom And Non prosecutus est ullum breve is tryable by the Country Quaere if the King grant by Patent to hold plea under forty shillings if it be a Court of Record Sir Walter Rawleys Case MEmorand that on Friday the 23. of October upon conference between all the Iustices of England whether a privy Seal was sufficient it being directed to the Iustices of the Kings Bench to command them to award execution against Sir Walter Rawley which was attainted of Treason at Winchester Mich. 1 Jacobi How Prisoners which are attainted of Treason set at large shall be brought to execution before Commissioners of Oyer and Terminer or how they should proceed before execution be awarded It was resolved by all that he ought to be brought to Bar by Habeas Corpus to the Lieutenant of the Tower and then demanded if he could say any thing why execution should not be awarded for the proceedings against him being before Commissioners they are delivered only into the Court of Kings bench or they might have remained in a Bag or a Chest and no Roll made therof and so long time passing it is not a Legall course that he should be commanded by a privy Seal or great Seal to be executed without being demanded what he hath to say for he might have a pardon or he might say that he is not the same person As if one be Outlawed of Felony and taken he shall not be presently hanged but he shall be brought to Bar and so demanded c. And upon this resolution a privy Seal came to the Iustices of the Kings Bench commanding them to proceed against him according to Law And therupon a Habeas Corpus was awarded and Octob 28. he came to the Bar being brought by the Lievtenant and there he was demanded of whether he had any thing to say why c. and there he shewed that the King had imployed him as Generall of a Voyage and hath given him power De vita membris upon others And whether this did amount to a pardon or no he knew not The Attorney-generall said that the King pardoned no Treasons by any Implication but it ought to be by speciall words Then he said
are not Affirmative or Positive but a supposition only as if he had said Nowels case I will indite him for such a matter it was vouched to be adjudged 51 Eliz. in Nowels case that to say of an Attornaâ—â— That he was Cooped for forging Writs maintain an action And 14 Eliz. He is infected of the Robbery and he smelleth of the Robbary adjudged actionable In balls case There is never a Purse cut in Northamptonshire but Ball hath a part of it will not bear action But the Court would not declare their opinion Quia sub spe Concordiae Griggs Case GRigg which is the Examiner at Chester preferred there this Bill in the Chancery vocat the Exchequer Prohibition â—i Chester against one which inhabite within the same County and another which inhabite in London being executors to one to whom the said Grigg was indebted by Obligation which Obligation was put in suit in the Court of Common Pleas and there proceed to processe before the Bill exhibited and the Bill concern equity of an Agreement that the Testator had promised that one Robert Grigg should assign a lease of Tithes to the Plaintiff in consideration of his entry into the said Obligation and if he could not procure it that then the Obligation should not be prejudiciall to him and he which was distributing in Chester answered therto And an Order was made by Sir Thomas Ireland Vice-Chamberlain that Processe should be awarded to him which dwelleth in London And an Inquisition was granted to stay the proceedings at Common Law And afterwards upon the motion of Serjeant Hitcharâ— Sir Thomas Ireland was in Court and shew all that he could to maintain the Iurisdiction viz. That the Contract was made in the County Palatine and that the priviledge pursued the Plaintiff and ipse qui est reus non potest eligere c. Yet it was resembled to ancient Demesn and Guildable And by Lord Hobart he which inhabit at Doveâ— by this way may be inforced to come and answer to a Bill in Chester which would be infinite trouble and the matter is transitory And it was resolved that the Court of Chester had not power in this case but it belonged to the Chancery of England And a Prohibition was granted Hil. 20 Jac. ONe case was in the Kings Bench viz. Trespasse Baron and Feme brought in action of Trespasse Quare clausum fregit Trespasse by Baron and Feme for breaking the Close of the Baron for the Battery of the Wife and for Battery of the Feme the Defendant pleaded a License to enter into the Close made by the Baron and not guilty as to the Battery And the Court was moved in Arrest of Iudgment because the Husband and Writ could not ioyn for the weaking of the Close of the Baron the Writ shall abate for all But the Lord chief Iustice and Iustice Dodderidge were of opinion that the Plaintiff should have Iudgment And it seems that the Law is clear accordingly vide 9 E 4. 51. Trespasse by the Husband and Wife for the Battery of them both the Iury found so much for the Battery of the Husband and so much for the Battery of the Wife and so Damages assessed severally because the Wife could not soon with the Husband in an action for the Battery of the Husband for that part the Writ shall abate and for the Battery of the Wife they shall recover for for that they ought or joyn in an action vide 46 E 3. 3. Baron and Feme brought Trespasse for the Battery and Imprisonment of the Wife and the Writ was ad damnum ipsorum and yet good vide 9 H 7. in the case of Rescous and 22 E 4. 4. there is a good diversity when the Writ is falsified by the shewing of the party himself and when it is found by Verdict And Iustice Haughton and Iustice Chamberlain were of opinion that the Writ should abate for it is apparent that as to the Trespasse Quare clausum fregit the Wife had no cause of action But this case being debated at Serjeants Inn in Chancery Lane at the Table the Lord chief Baron was of opinion that Plaintiff should have Iudgment for that part and he held the Writ good in part and Reddenda singula singulie Meâ—enest issint as it seems no more then in the case of 9 E 4. for there the Writ shall avate for part And if an action of forgery of Deeds be brought against two for forging and publishing and found that one forged and the other published the Plaintiff shall have Iudgment Howell versus Auger Trespasse IN an action of Trespasse brought by Noy Howell against Auger for breaking of a house and five acres of Land in Fresham upon Non Culp pleaded the Iury gave a speciall Verdict Devise of a Fee after a Fee Robert Howell seised of the Land in Question and of other Land by his Will in writing devised this Land to Dorothy his Wife for life and devised this Land to Thomas Howell his younger Son to him and his Heirs in Fee under the Condition which shall be afterwards declared And the other Land was also devised to Dorothy for life and to the Plaintiff and his Heirs in Fee under the Condition hereafter limited If Dorothy died before the Legacies paid then he will that they shall be paid by Noy and Thomas his Sons portion-like out of the Houses and Lands given them And if either of my Sons dye before they enter or before the Legacies paid or before either of them enter Then I will that the longer liver shall enjoy both parts to him and his Heirs And if both dye before they enter then his Executors or one of them to pay the Legacies and to take the profits till they be paid and a year after and made Dorothy his Wife and Christopher Roys his Executors and died Dorothy entred the Plaintiff Noy by his Deed In 33 Eliz. in the life of Dorothy released to Thomas all his right c. with Warranty Release of Lands devised before they be vested Thomas by his Will devised the Land for which the action is brought to Agnes his Wife and died in the life of Dorothy and before Legacies paid Dorothy died and Agnes entred and took to Husband Henry Ayleyard who leased to the Defendant upon whom Noy entred and the Defendant re-entred And Si super totam Materiam c. And this Case was well argued at Bar in two Terms and the first question was If this Devise of a Fes after a Limitation be good or not much was said for it and they relyed upon a case which was adjudged in the Kings Bench between Pell and Brown of such a limitable Fee Pell and Brown And many Cases put that this operate as a future Devise Executory as well as one may by his Will Devise that if his Son and Heir dye before he marry or before that he come to the age of
And the proof therof see Coke lib 6. fol 19. Gregories case and Dyer 236. a. Then the principall and sole point will be if this Offence will be by the act of 33 H 8. cap 10. made presentable and punishable by the Iustices of Peace at their six weeks Sessions and it was unanimously agreed that it is not First because the preamble of the act recite that the Offences recited therin escape punishment and for their more speedy and effectuall punishment and repeat the particulars but therin name not Brewers by expresse words and it cannot be intended that the intent of the Statute was to give them at their six weeks Sessions to intermeddle with things not determinable at their generall Sessions And it was objected by Aâ—tho that Lambert and Crompton had put it as an Article of their charge To which it was answered that it was in some respect inquirable at Common Law viz. Misdemeanors in Bear-brewers Conspiracies and agreements to sell at such prises and the making of wholsome Beer Also it might be that they â—ake the Law to be upon the Statute of 23 H 8. that the Sessions being a Court of Record was within this act that saies in any Court of Record And then if it be not suable by Information before the Iusticeâ— of Peace the consequence is plain that the Statute of 21 Jac. cap 4. extends not therto and the Statute of 37 of H 8. makes not any thing in this case but tolls the six weeks Sessions and makes it inquirable at the generall Sessions Ideo Iudgment for the Informer June 19. An. 22. Jac. MEmorand That upon a Conference at Serjeants Inn in Fleet-street it was resolved and agreed by the Lord chief Iustice Sir James â—ea the Lord Hobart Baron Bromley Baron Denham Iustice Hutton and Iustice Jones That any one may erect an Inn for lodging of Travellers without any allowance or License Resolutions concerning Innes and who may keep an Inne and how they may be suppressed as well as any one before the Statute of 2 E 6. might have kept a Common Alehouse or as at this day one may set up to keep hackney Horses or Coaches to be hired by such as will use them And all men may convert Barley into Mault untill they be restrained by the act of Parliament made for that purpose And as all men may set up Trades not restrained by the Act of 5 Eliz. which directeth no man that hath not been bound or served as an Apprentice by the space of seven years or by restraint of setting up Trades in Corporations by such as be not free by the like reason all men may use the Trade of Inne-keeping unlesse it could be brought to be within the Statute of 2 E 6. which hath never been taken to be subject to that Statute in point of license And vide that an Hostler is chargable to the party which is his Guest for the restoring of that which is lost in his House and that by the Common Law of the Realm vide 11 H 4. fol 45. see also 11 H 4. fol 47. That in an action upon the case brought by the School-master of Glocester for erecting another School to his prejudice adjudged that no action lies and also it is there said that if I have a Mill and another erect another Mill by which I lose my Custom no action lies unlesse he disturb the water And it was said by the chief Iustice that it was so resolved before by the Iudges and that Iustice Doderidge Iustice Haughton and Iustice Chamberlain were of the same opinion and so now was my Brother Crew the Kings Serjeant who went the Circuit of Surrey Kent and Essex but the chief Baron Tanfield was of a contrary opinion And it seemed to him that Innes were licensed at first and Originally by the Iustices in Eire but nothing could be shewne to that purpose But all the Iustices were of a contrary opinion and said that that was the ground that begot the Patent and Commission to Mounperson viz. That the King might licence them if the Iudges might And it was said by the Lord chief Iustice that there was not any such thing in the Eires but because that strangers which were aliens were abused and evilly intreated in the Inns it was upon complaint therof provided that they should be well lodged and Inns were assigned to them by the Iustices in Eire The second question was if an Inn be erected in a remote and inconvenient place so that it is dangerous to Travellers and there harbour men of bad same which are apt to commit Robbery whether that might be suppressed And as to that all agreed that it is a common Nusance and may be suppressed and that to be by Indictment and presentment to which the party may have his Traverse The third question was whether when one which had erected an Inn be a man of bad behaviour and such a person as is not fit to keep an Inn how it should be aided and helped And it was agreed by all that upon Indictment or presentment therof he may have his Traverse and if he be convicted then to be suppressed viz. that he which had so misdemeaned himself should not keep it as an Inn nor use it But that it being an Inn it may be used afterwards by another Fourthly how and by what way or means the multitude of Inns might be prevented by being suppressed or redressed upon complaint or how the number might be stinted This Point seemed to be difficult and to contradict the resolution upon the first question And therfore it was agreed that they should advise concerning it and the best way is that they be strictly inforced to keep the Assise and not to suffer any to tipple in their Inns and by this way they would desist from their Trade Mich. 4 Car. Mackerney versus Ewrin RIchard Mackerney brought an action upon the case against Jeffrey Ewrin and count Case That whereaâ— one I. S. was indebted to the Plaintiff in seven pounds four shillings for pasture feeding and Oates for an Horse kept in the Stable of the Plaintiff Consideration in an Assumpsit The Defendant in consideration that the Plaintiff at his request would deliver the Horse to him to the use of the said John S. promised to pay the said seven pounds four shillings And upon Non Assumpsit pleaded and Verdict for the Plaintiff Serjeant Callis moved in Arrest of Iudgment that it is no good consideration for the Plaintiff had not any property in the Horse and he is not is do any other thing then the Law injoyn him to do As if I lose my goods and another find them and in consideration that he will deliver them to me I promise to pay him two hundred pounds that is not sufficient matter to ground an Assumpsit therupon But if a Taylor had made a Sute of Apparell for I. S. and I. D. request him to deliver it
if Rent he reserved at the time of the Distresse and it be refused and a Distresse taken that is Tortious 30 Ass 36. 20 H 6. 31. 48 E 3. 9. 2 H 6. 4. And in this case it was said that Reddenda singula singulis that the demand shall be used when the Penalty of the Rent comes in question and not for the Rent And though it be reserved payable at another place thal changeth not the Rent but it is issuable out of the Land and distrainable upon the Lands And lastly it hath been divers times adjudged that the Rent is payable upon the Land 1 Jac Rot 1818. Nich and Langford Skinner and Amery Borman and Bower In Replevin between Nich and Langford Trin 16 Jac. Rot. 954. Between Skinner and Amery vide before between Crawley and Kingswell Trin 3 Car Rot 2865. Rent reserved payable out of the Land And although that the Iudgment is by confession after demurrer yet it was for the reason afore recited Iudgment for the Defendant The Lord Audley's Case Wilts JUratores pro Domino rege super sacramentum suum present Quod Martinus Dominus Audley nuper de Fountell Gifford in Comitatu Wilts Aegideus Broadway de Fountell Gifford praedict in Comitatu praedicto generosus timorem Dei prae oculis suis non habentes Indictment for Rape sed Instigatione Diabolica moti seducti vicessimo die Junii Anno regni Domini nostri Caroli dei Gratia Angliae Scotiae Franciae Hiberniae fidei defensoris sexto Apud Fountell Gifford praedict Comitatu praedicto vi armis c. in super Annam Dominam Audley Uxorem praefati Domini Martini Audley in pace Dei dicti Domini Regis ibidem Existent insult fecerunt Et praedictus Aegidius Br. praedictam Annam Dominam Audley vi armis contra voluntatem ipsius Annae ad tunc ibidem violenter felonicae rapuit ac ipsam Annam ad tunc ibidem contra voluntatem suam violenter felonice carnaliter cognovit contra pacem Domini Regis nunc coron dignitat suas contra formam statuti in hujusmodi casu edit provis Et ultim Juratores praedicti dicunt super sacramentum suum praedict Quod praedictus Martinus Dominus Audley praedicto vicesimo die Junii An. sexto supradicto Apud Fountell Glifford praedictam in Comitatu praedicto felonice fuit presens auxilians Confortans abettans procurans â—adjuvans manutenens praedictum Egidium Br. ad feloniam praedictum in forma praedicta felonice faciend perpetrand contra pacem dicti Domini Regis nunc Coronam dignitatem suas ac contra formam statuti praedicti Wilts IUratores pro Domino Rege super sacramentum suum present Quod Martinus Dominus Audley nuper de Fountell Gifford in Comitatu Wilts Deum prae oculis non habens nec naturae ordinem respiciens Indictment for Buggery sed instigatione Diabolica motus seductus primo die Junii An. Regni Domini nostri Caroli c. sexto Apud Fountell Gifford praedictam in dicto Comitatu Wilts in domo Mansionali ejusdem Martini Domini Audley ibidem vi armis in quendam Florence Fitz-Patrick Yeoman insult fecit cum eodem Florente F. ad tunc ibidem nequit Diabolice felonice contra naturam rem veneream habuit ipsumque F. ad tunc ibidem carnaliter cognovit peccatumque illud Sodomiticum detestabile abominandum Anglice vocat Buggery inter Christianos non nominandum ad tunc ibidem cum eodem Florence F. nequit Diabolice felonice contra naturam Commisit perpetravit in magnam Dei Omnipotentis displicentiam ac totius humani generis dedecus ac contra pacem dicti Domini Regis nunc Coronam dignitatem suâ—s contra formam statuti in hujusmodi casu edit provis The like Indictment for the same Offence with the same person 10 June the same year at new Sarum in the Mansion house of the said Martin c. Memorand That these Indictments were sound 6 April An. 7 Car. at new Sarum by vertue of a Commission before Edward Lord Georges Nich. Hide Knight chief Iustice ad placita c. Thomas Richardson chief Iustice de Banco John Denham Knight one of the Barons c. Edward Hungerford Knight Walter Vaughan Knight Laurence Hide Knight Thomas Fanshaw Knight by Letters Patents Ipsius Domini Regis pro eis quibuscunque tribus vel pluribus eorum inde Confect ad Inquirendum c. Memorand That the 25. day of April An. 7 Car. A Commission was made for the Arraignment of the said Lord Audley upon the said severall Indictments by his Peers in which the Lord Coventry Lord Keeper of the Great Seal was made high Steward And the Peers were in number twenty seven And he pleaded Not guilty And one question was propounded to the Iudges which did attend viz. The Lord chief Iustice of the Kings Bench the Lord chief Iustice of the Common Pleas the Lord chief Baron Baron Denham Iustice Jones Iustice Whitlock Iustice Harvey and Iustice Crook If the Wife might be produced as a Witnesse against her Husband Where a Wife may give Evidence against her Huâ—band And it was resolved that in case of a common person between party and party she could not according to the opinion in Cokes first Institutes fol 6. but between the King and the party upon an Indictment she may although it concerns the Feme her self as she may have the Peace against her Husband Buggary sans Penetration Also it was reported to the Lords by the Lord chief Iustice when they were demanded whether this matter of Fact being as it was proved that Pollution and using of a man upon his Belly Sodomitically without penetration was Buggery by the Statute of 25 H 8. the Lord Richardson was of a contrary opinion upon the Conference yet his opinion was involved in the generall But as he said to me their opinions we delivered only upon this case and upon these examinations if the Lords gave credit to the matter in fact that it was Buggery but they gave not a generall opinion that may be a rule in other cases but upon the foulnesse and abominablenesse of this Fact And afterwards the Lords were not unanimously resolved that it was Buggery but this Point was resolved that they ought to believe and give credit to the Law as the Iudges had declared it And it seems that they could not give a speciall Verdict upon this tryall for it never was seen Also the Commission determines after Iudgment given And the Staff of the high Steward shall be broken And after long debate they seriatim laying their hands upon their hearts as the Mannor is said that he was guilty of Rape beside the Lord North. And for the Buggaries twelve of the Lords acquitted him and fifteen found him guilty and so he had Iudgment And at
shall be indicted shall not have Councell And the Attorney Generall was commanded to report our opinion to the King And this hapned to be demanded upon the generall inconvenience that might after ensue in the Case of the Earl of Bristoll to whom the King had allowed Councell Mich. 3 Car. MEmorand That the fifth of November at Serjeants Inne in Fleet-street there assembled the Lord Hide Lord Richardson Lord Walter Iustice Doderidge Baron Denham Iustice Hutton Iustice Jones Resolves concerning Souldiers Iustice Whitlock Iustice Harvey Iustice Crook Iustice Yelverton and Baron Trevor to consider of a Case which was propounded which was One receives Presse-money to serve the King in his Wars and is in the Kings Wages and with others is delivered to a Conductor to be brought to the Sea-side and with-draweth himself and runneth away without license The Question was if it were Felony And time being given before to advise concerning it all agreed besides Yelverton and my self that it was Felony And the sole question is if a Conductor be a Captain within the 7 H 7. cap 1. and the 3 H 8. cap 5. And they said that it is not necessary that he should be such a Captain as is to lead and command them in the War or that hath skill to instruct But such as hath the leading of them by agreement between the Deputy Lievtenants and them and that ought to provide for the Billeting of them and to carry them to the place of Randesvous And one part of a Captain is to conduct although that Conduxit be properly to hire a Souldier yet this name Conductor with whom it is so agreed by Indenture to conduct the Souldiers is a Captain within the intent of those Statutes and if it should not be so these Statutes which are for the defence of the Realm shall be of little force But it was agreed by them that if these Conductors which are so called of late times be hired to carry them but to one place and there another Conductor to receive them this is not within the Statute And it ought to be such a Conductor that can give license upon just cause to proceed It was said that they used to send Captains into the Country but then they were so chargable to the Country and full of disorder that upon complaint of the Iustices of Peace about 43 Eliz. this course was invented viz. That the Deputy Lievtenants should provide for them that were pressed for Coats and Conduct and they sent their Souldiers to a place appointed to be delivered to certain persons whom the Queen appointed to receive them And it was said that though this Case as it is propounded might be cleer yet there are many Circumstances which ought to be proved and that are loft to the discretion of them before that he should be tryed It was unanimously agreed that if one takes Presse-money and when he should be delivered over he withdraw himself that is not Felony although he is hired and retained to serve But my Brother Yelverton I were of opinion that this new name newly invented is not Captain within these penall Statutes which ought to be taken strictly vide Plowden 86. that penalties which concern life shall not be taken by equity but if they be within the words of the Statute then they shall As to kill his Mistresse is within the words for Mistresse is Master Another reason was that the Statutes provide punishment for Captains which want of their number or which pay not their Souldiers within six daies after they have received their pay upon pain of forfeiting all their Goods And the Statute did not intend other Captains in this point then was in the former and latter part therof But admitting that a Conductor is such a one to whom the Souldiers are delivered by Indenture with all Covenants usuall viz. To pay to them their Wages and to convey them to their appointed place and that he may give license to depart yet they agreed that it is the better and clearer way that they should be made Captains and so named in the Indentures for the King may change the Captain at his pleasure and then it should be no question It was agreed that 7 H 7. cap 1. extends only to them who are retained and pressed to serve the King upon the Sea or upon the Land beyond the Sea And the Statute of 3 H 8. cap 5. adds only the Land here And the Statute makes departure without license from the Captain Felony and the Statute 3 H 8. without license from the Lievtenant And the Statute of 7 H 7. makes the tryall to be in the County where they shall be taken before the Iustices of the Shire as they may try other Felonies within their Commission The Statute of 3 H 8. makes their tryall before the Iustices of the County where they are taken and this being a new Felony and made tryable against the Common Law which appoint tryals by Iurors of the County where the Fact is committed and appoint a speciall Iudge viz. Iustices of Peace that is only tryable before them and not before Commissioners of Oyer and Terminer who cannot try any thing but that which is done in the same County But this if all be not done in that County where they are taken makes it tryable only before the Iustices of Peace of the County where they are taken In this point all were not resolved but required longer-time vide 2 Inst 56. Sir Richard Champions Case A Writ of Covenant is prosecuted Jan 23. returnable Oct. Purisicat A Fine of Oct. Puris where the Caption was Feb. 14. 1. The Dedimus potestatem is tested 23 Jan the Iudge certifie the Concord takes Febr. 14. which is two daies after the Term at which time the Writ of Covenant is not depending the Fine is haec est finalis Concordia facta in Oct. Purif And after it is recorded in 15 Pasch and yet adjudged a good Fine vide the Statute of 23 Eliz. 3. Dyer 220. b. Carels Case Mich. 4 Car. Jones versus Powell JOhn Jones Plaintiff against James Powell Defendant in an action â—â— on the Case for a Nusance count That the Plaintiff 10. August 1 Caroli was and is and for forty years last past hath been possessed for divers years yet during of a Messuage Nusans 1. in which he and his family did by the time aforesaid dwell And by all that time hath been Register to the Bishop of Gloc. and kept his Office there that the said Defendant the tenth day of August and ever since hath held in possession another house over against the Plaintiffs And they being so possessed the Defendant the said 10. of Aug. erected a Brew-house and a Privy in the said house and burned Sea-coles in the said Brew-house so that by the Smoke stench and unwholsome vapors coming from the said Coles and Privy the Plaintiff and his family cannot dwell in the said house
font and twenty years that then I. S. shall have the Land and it shall be good vide Dyer 33. Coke lib 10.46 Lampets case But Tuesday the eleventh of February the Lord Hobart by our direction because that we were streightned of time and Howell was so importunate for Iustice that we could not argue delivered the opinion of the Court that Iudgment should be given for the Defendant And he declared that as to the point of a Fee-simple which he called the mounting of one Fee-simple upon another we now declared no opinion But we all without difficulty resolved that this release of Noy be it a Condition or not had discharged it And as to him it is an Interest used by the Devise but not executed untill it happen And therfore in Lampers case there the Release discharged it for there he had no Title executed but vested and commenced and so may have Noy Howell the Plaintiff in this case and it is not like to an Heir in the life of the Father for be is a stranger and he hath no Title at all and yet his Release with Warranty bars him and here this Release is accompanied with Warranty of which nothing was spoken Also as to Noy it is a Condition according to the words of the Will and therfore sans question that Noy had barred himself The Vacation after Hil. 20 Jac. MEmorand That on Munday the seventeenth of February at Serjeants Inn upon the assembly of all the Iustices to take consideration upon the Statute of 35 Eliz. cap. 1. for the Abjuration of Sectaries the Atturney-generall and Serjeant Crew being there Resolutions upon the Statute of Eliz. cap. 1. concerning Sectaries after the perusall of the Statute and the Continuances therof it was first upon debate considered whether this Statute was in force or discontinued and upon the perusall of the Proviso in the Statute of Subsidy and upon reasoning the matter these Points were resolved 1. If a Parliament be assembled and divers Orders made What shall be said a Session of Parliament and a Writ of Error brought and the Record delivered to the higher house and divers Bills agreed but no Bills signed That this is but a Convention and no Parliament or Session as it was An. 12 Jac. in which as it was affirmed by them which had seen the Roll it is entred that it is not any Session or Parliament because that no Bill was signed vide 33 H 6 Brook Parliament 86. every Session in which the King signes Bills is a Parliament 2. It was agreed that if divers Statutes be continued untill the next Parliament or next Session and there is a Parliament or a Session and nothing done therin as to continuance all the said Statutes are discontinued Beriatim Jones Chamberlain Hutton Denham Haughton Dodderidge Winch and Bromley declared their opinions that this Statute is discontinued And that the Statute of Subsidy is a Parliament and that every Parliament is a Session but not e converso for one Parliament may have divers Sessions as the Parliament 1 Jac had four and ended An 7 Jac. vide 33 H 6. Br. Parliament 86. And that this Proviso is not to any other purpose but to continue their proceedings in the same Estate as if this Act had not been made and if this Proviso had not been then this Statute had been discontinued by this act of Subsidy but when this ends and is determined then is the Session ended then it is a Session scilicet a Parliament which ought to be pleaded at the Parliament holden c. and all the Commissions of Subsidy are accordingly and the Proviso call it a Session Then this being done the Lord chief Baron did not deliver any opinion for he said that he had not considered the Statute and afterward it was desired that the Lords would deliver their opinions and therupon the Lord Hobart declared his opinion accordingly That it seemed to him that it was a Session and that it was not safe to meddle with such Law and that he would never refuse to declare his opinion with his Brethren After the Lord chiefe Iustice Ley made a long discourse concerning the purpose and intent of Parliament scilicet That it was not their purpose to destroy so good Lawes and therfore it was not any such Session as was within the intent of the preceding Parliament which was that these should determine when it is a Parliament or Session in which good Lawes are made And Doderidge said that it was fit to see the Commission and that that which hath been said was not to bind any one but every one spoke what then he was advised of and peradventure might change upon better consideration And afterwards upon Tuesday on an Assembly of the two chief Iustices the chief Baron Iustice Haughton Baron Denham Hutton Chamberlain and Jones the Attorney-generall brought the Commission de 12 El. June 1. and that had these words Pro eo quod nullus Regalis Assensus nec responsio per nos praestat fuit nullum Parliamentum nec aliqua Sessio Parliamenti lata aut tent fuit They have power to adjourn this Parliament thus begun And the Commission to dissolve this Parliament 38. Feb. An. 19 Jac. had the same words saving that he recite that he had given his Royall assent to an act of Subsidy by which was intended that it should not be a Session And upon view of the Commission the Lord chief Iustice moved that the King was mistaken in this that he had given power to dissolve this Parliament which had not any Session and if it be a Session then he had no power to dissolve it and then it is as it were a recesse and a Parliament cannot be discontinued or dissolved but by matter of Record and that by the King alone and if the Parliament yet continue then this Statute also continue during the Parliament by the Proviso but that would not serve for first it is against the intent of the King and against his Proclamation And also the case is truly put in the Commission as to the matter in fact and he is not mis-informed but mistaken in the Law and then the Commission for the dissolving is good semblable to the Lord Shandoi's Case and other Cases vide in Cholmleys case But because that all the Iudges were not at this Conference therfore it was deferred untill the next Term and in the interim the Grand Secretary and the Attorney-generall were to inform the King that the Statute is obscure and had not been put in ure and that we could not agree Mich. 20 Jac. Rot. 2805. Bawtry versus Skarlet Sussex JOhn Bawtry Clerk Case brought an action upon the case against Benjamen Skarlet one of the Attorneys of this Court by Bill and count In consideration that the Plaintiff will confesse Judgment the Attorney promise to defer the entry of the Judgment c. that wheras one William Carter Trin. 20 Jac.
to proceed vide 10 E 4. 6. 1 H 4. 1. vide Coke Lit fol 261. b. Or otherwise to prefer a Bill in the Parliament which ought to be passed by both houses and then it is Attainder by Parliament and so it was done 5 R 2. 54. But in this Case it being that part of the Treason objected against him was supposed to be done Oust le mere and made Treason by the Act of 3 Jac cap 4. that cannot be tryed but by Indictment to be taken before the Iustices of Assise and Gaol-delivery where the party was taken or before the Iustices of the Kings Bench and Law Custome Statute or usage to the contrary notwithstanding And so it cannot be tryed by the Statute of 35 H 8. cap 2. in what place or Shire that the Kings Bench shall be for this Statute had for this Treason prescribed a speciall form of Tryall and the place where he shall be taken shall be expounded the place where he is misprisoned as upon the Statute of Soldiers And he which is charged to have two Wives living shall be tryed in the place where he is taken which is the place where he is imprisoned vide 2. Inst 49. Trin. 12 Car. Quaeries concerning Aliens QUaeries upon the Statutes of 1 Riz cap 9. 1 H 7. cap 2. 14 H 8 cap 2. the Decrees in the Star-chamber made 20 H 8. and confirmed 21 H 8. cap 16. 22 H 8. cap 8. 32 H 8. 16. and other Statutes concerning Aliens and the Statute of 5 Eliz cap 4. 1. Whether the Statute of 5 Eliz. cap 4. doth repeal the former Statutes concerning Aliens taking Apprentices Iourny-men and Servants 2. Whether Aliens made Denizens may use any handycraft within the Realm otherwise then as Servants to the Kings Subjects Memorand That on the seventh day of July We met at Serjeants Inne in Fleetstreet Mr. Attorney-generall being there and We debated the matter and upon perusall of the Statute of 1 R 3. cap 9. and the other Statutes And upon some mis-recitall of the Statute 1 R 3. by the Statute 32 H 8. cap 16. And upon differences of the Printed Statute from the Parliament Roll as was supposed upon shewing of an old Book of Statutes which was in French and brought by my Brother Crook and upon the intricacy of the Statute We could not resolve on the suddain upon these Questions at this time nor unlesse the Parliament Roll might be seen But upon perusall of the Statute of 5 Eliz cap 4. We all resolved and agreed That all Aliens and Denizens are restrained by the Statute of 5 Eliz cap 4. That they may not use any Handycraft mentioned in the said Statute Resolves upon the Statute of 5 Eliz. cap. 4. concerning Aliens unlesse they have served seven years as Apprentices within this Realm according to the provision of this Statute This was set down in writing by Sir John Banks his Majesties Attorney Generall present Sir John Bramston chief Iustice of England Sir John Finch chief Iustice of the Common Bench Sir Humphrey Davenport chief Baron Baron Denham Iustice Hutton Iustice Crook Baron Trevor Iustice Crawley and Baron Weston the other Iudges being absent viz. Jones and Vernon Hil. 12 Car. Souser versus Burton ONe Widow Souser brought an action of the Case against Burton for these words Thou old Witch thou old Whore leave oft thy witching or else thou shalt be hanged or burned if I can do it And upon Not guilty pleaded and Verdict for the Plaintiff it was moved in Arrest of Iudgment And it seemed to Lord Finch Hutton and Vernon that the action lay not without shewing that she did any act of Witchcraft for which the pain of Pillory and Imprisonment for two years should be inflicted and the second time Felony And that the words Words Thou art an old Witch or go away thou old Witch are usuall words and old Whore bears no action And as to say Thou shalt be hanged if I can do it it is not possible that he could do it But Iustice Crawley doubted of it at first because that it was alledged that it had been adjudged in the Kings Bench that an action lies for calling one Witch But afterwards he said that he had spoken with the Iustices of the Kings Bench of their reason who said that they adiudged no such thing unlesse that he spoke further that the party had done any act of Witchcraft punishable by the Statute Hugles versus Drinkwater AN action of Account by William Hugles against Thomas Drink-water for receit of eighteen pounds In Account payment by appointment of the Plaintiff is no plea before the Auditors where the Issue was Ne unques receivor by the hands of one William Appowell to the use of the Plaintiff the Defendant plead Ne unquer receivor per manus c. and found or the Plaintiff And the Defendant before the Auditors plead that he by the appointment of William Appowell had paid it to one John Marsh for the Debt of the Plaintiff and therupon Demurrer And adjudged a bad Plea and against his former Issue And the said Appowell by whose hands he received the said summ had not any power to appoint the Defendant to pay it to John Marsh to whom the Plaintiff was indebted and if that had been pleaded in Bar of the Account to have been done by the appointment of the Defendant it had been a good Bar vide Dyer 29. 196. after ne unques receivor and the truth was that he had been Receiver and had paid it over by the appointment of the party and yet by this Plea be hath lost the advantage therof An. 2. Car. MEmorand That the 19. day of May An 2 Car. all the Iudges being assembled at Serjeants Inn in Chancery Lane by the commandment of the King the Attorney Generall propounded In what cases a prisoner arraigned shall have Councell that the King would be satisfied by our opinion Whether any person which is arraigned of Treason of Felony ought by the Fundamentall Lawes of this Realm to have Councell And We all una voce answered That when any one is indicted of Felony or Treason or any other such offence the party ought not to have any Councell unlesse it be upon matter in Law as where he demand Sanctuary or plead any speciall matter and that is agreed by Stamford fol. 151. Also this extends as well to Peers of the Realm as to others vide 1 H 7. 23. and the 9 E 4. 2. and so it was agreed by all that although the party shall have Councell in an Appeal of Murther yet if he be non-suited and the party be arraigned upon the Declaration then he shall have no Councell Also it was resolved that when the party who prosecute suppose that the Grand Iury will not find the Invictment and therfore requires that the Evidence should be given publickly to the Iury at Bar which is sometime done yet the party who