Mesne Process but an Action upon the Case only Vaughan Loyd IN an Audita Querela the Party appeared upon the Sciri Facias and demurred for that the Sciri Facias bore Date the 23 day of October and the Audita Querela the 3 of November after To which it was said that this fault in the Mesne Process is aided by Appearance but if an Original should bear Date upon a Sunday or the like the Appearance of the Party would not help it But on the other side it was said That the Party had no day in Court by the Audita Querela and this was a default in the first Process against him and compared it to a Sciri Facias upon a Judgment in which such a fault will not be cured by Appearance To which the Court agreed For there the Sciri Facias is the Foundation and quasi an Original and the Judgment is given upon it 2 Cro. 424. but here the Sciri Facias is only to bring in the Party to answer and in the nature of a Mesne Process and the Judgment is given upon the Audita Querela wherefore they disallowed the Demurrer Barnes versus Hughes DEbt tam pro Domino Rege quam pro seipso upon the Stat. of 5 Eliz. cap. 4. for exercising of the Trade of a Grocer in Salisbury not being bound Apprentice thereunto The Defendant pleads Nil debet and being tried by Nisi prius and a Verdict for the Plaintiff it was moved in Arrest of Judgment that this Action could not be brought in this Court for by the Stat. 21 Jac. cap. 4. It is Enacted that all offences against any penal Statute for which an Informer may lawfully ground any popular Action Bill Plaint Suit or Information before Justices of Assize Nisi prius or Gaol-delivery Justices of Oyer and Terminer or of the Peace in their General quarter-Quarter-Sessions shall be Commenced Sued c. before the said Justices they having power to hear and determine the same and not elsewhere which Negative words as it was said take away the Iurisdiction of this Court And whereas 31 Eliz. restrained not the Kings Attorney because it only made mention of Common Informers the Kings Attorney is expressely named in this Statute and the Cases in 2 Cro. 85. between Beane and Druge and Moyl and Taylours Case 2 Cro. 178. were quoted And the Statute would be to little purpose if it did not extend to Actions of Debt as well as Informations and Indictments But it was said on the other side That it could not extend to Actions of Debt for they could not be brought before Iustices of Assize or the other Iustices named in the Act and it shall only extend to such Suits as an Informer might lawfully Commence before them And it hath been resolved that this Act did give no new Iurisdiction as 1 Cro. 112 Farrington and Keymer's Case in an Information upon the Statute of 23 H. 8. cap. 4. for selling of Beer at an unlawful price which gives the forfeiture to be Recovered in Courts where no Protection or Wager of Law shall be allowed in any Suit grounded upon it extends only to the Courts at Westminster as 6 Co. in Gregory's Case it was resolved That no Information for an offence against this Statute could be commenced before the Iustices of Assize or Peace at the Sessions notwithstanding the Act in 21 Jac. which ordains That Suits for offences against Penal Laws shall be before them and the rest there mentioned for the Act only extends to those offences for the which an Informer might lawfully ground any popular Action before them and it was never held that that Act gave any new Iurisdiction Now if this Action cannot be brought in this Court the Statute must Repeal a great part of the Remedies given by 5 Eliz. against this offence and only leave it to be punished by Indictments and Informations which certainly was never the intent of the Statute and would be very mischievous for if the Offender goes out of the Country after the offence committed he cannot be punished for the Iustices named in the Statute cannot award Process out of the County and therefore for that reason there should be remedy in a Court of General Jurisdiction and since 21 Jac. there have béen many Presidents of like Actions all which would be Reversed if that Act should take away Actions of Debt in this Court. And for these Reasons the Case being moved divers times the Court gave Iudgment for the Plaintiff Styl 340. Anonymus IN Debt upon an Obligation the Defendant pleads That he delivered it as an Escrow hoc paratus est verificare This Plea is vicious for he ought to shew to whom he delivered it and also he ought to conclude his Plea issint nient son fait Anonymus A Lease for Years is made to A. and then another Lease is made for Twenty years to commence after the Expiration of the former Lease if B. and C. shall so long live with a reservation of several things and reddend ' 3 l nom ' Hariotte after the death of B. or C. B. dies during the continuance of the first Lease The 3 l must be paid for it is not in the nature of a Rent but a Sum in gross Clipsham and Morris THe Plaintiff in an Assumpsit declared That J. S. being indebted unto him in 50 l gave him a Note directed to the Defendant requiring him to pay the Plaintiff the said Sum of 50 l then he saith That the Defendant upon view of the Note in Consideration that the Plaintiff would accept of his Promise for the Mony and stay a Fortnight for the same he did assume to pay him To which the Defendant demurs for the Insufficiency of the Consideration it being nothing of trouble or prejudice to the Plaintiff or benefit to the Defendant for he might Sue his Debtor in the mean time neither is it alledged that the Defendant was indebted to J. S. But if it had been in Consideration That the Plaintiff would accept of the Defendant for his Debtor that might have béen good for that is an implied Discharge of the other whom if he had sued the Defendant might have had an Action Roll's 1st Part 29. And for this Reason the Opinion of the Court was against the Plaintiff And this Point was said to be Adjudged between Newcomen and Lee in this Court Paschae 1650. Rot. 62. Styl 249. Anonymus A Man was Indicted for saying The Justices of the Peace had nothing to do with the Excise And it was quashed by the Opnion of the Court for such an Information could not make a man Criminal Nurstie versus Hall THe Grantee of a Reversion brings a Writ of Covenant against the Lessee for years for non-payment of Rent The Question was Whether it ought to be laid where the Lease is alledged to be made or where the Land lies It was said That the Statute of 32 H. 8. cap. 34. which
existens liberum tenementum ipsius Janae manu forti ingressi sunt c. Exception was taken to it because it was not adtunc existens liberum tenementum ipsius Janae To which it was Answered That altho' in an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with Force because upon the finding of it a Restitution is to be awarded and where 't is generally existens liberum tenementum it may be referred as well to the time of the Indictment as to the Entry yet here 't is not material because no Restitution is to be awarded but the Malefactors being convicted by the View of the Iustices are to be Fined and Imprisoned And the President in Mr. Dalton's Book of Justice of the Peace fo 356. makes no mention of whose Freehold at all But however here existens liberum tenementum shall be referred to the Complainant tho' there be not adtunc and of that Opinion were the Court But Twisden was of Opinion that it was not necessary to be alledged in this Case at all Postea Sir Andrew Henley versus Dr. Burstall IN an Action upon the Case the Plaintiff declared That he being a Justice of Peace the Defendant had Indicted him for rescuing of a Vagabond out of the Constables hands who brought him before him so that the Law could not be executed against him It was said To Indict a man for such a Crime in the Execution of his Office was Actionable and it has been often Resolved That an Action would lye for Indicting a man of Barretry and in the Book of Assize 13. for Indicting one for Trespass And to this the Court did incline but they would further Advise Postea The King versus Ring ERror to Reverse a Judgment in an Indictment of Forgery against Ring upon the Statute of 5 Eliz. cap. 4. for that he Scienter subdole falsò fabricavit quoddam falsum factum scriptum Indentatum Barganiae venditionis which was said to be Inrolled per quod Harrison Keymer Henry Keymer did sell to J.S. such Lands and then sets forth the Indenture verbatim quod postea praedict ' Ring praedict ' Chartam esse falsam contrafactam vi armis pronunciavit publicavit and this was ea intentione ad perturbandum statum titulum interesse of Harrison and Henry Keymer and their Heirs The first Error assigned was That the Indictment was for Forging of a Deed of Bargain and Sale and the Indentures set forth were a Lease and Release Also it did not appear in what Court it was Inrolled and it must be Inrolled at one of the Four Courts at Westminster or before the Justices of the Peace at the Sessions to be a Bargain and Sale and whereas the Indictment is for Forgery of a Deed per quod Harrison and Henry Keymer did sell only one of them was party to the Deed set forth And it ought to have been in quo continetur that they did sell and not They did sell whereas the Deed was Forged which as was said is oppositum in objecto And where it is that Sciens praedictam Chartam esse falsam vi Armis pronunciavit publicavit it was said it ought to have been Vi armis praedictam Chartam pronunciavit publicavit And for this Vauxes Case in 4 Co. was cited where it is Nich. nesciens praedictum potum cum veneno fore intoxicatum sed fidem adhibens dictae persuasioni dicti W. recepit bibit and because it was not praedictum venenum recepit bibit it was held insufficient for Indictments must have precise certainty fo 44. Another Exception was That this Forgery was said to be ea intentione ad perturbandum statum titulum interesse of them and their Heirs and it did not appear that they had a Freehold and the punishment inflicted by the Statute is more severe when the Forgery is to disturb the Freehold than when it only concerns a Chattel Also it ought to appear in whom the Freehold was at the time of the Forgery as an Indictment of Forcible Entry upon the Statute of 8 H. 6. must express in whom the Freehold was at the time of the Force Et Adjornatur Anonymus UPon Process against one the Sheriff returned a Non est inventus and an Affidavit was made That the Defendant was one of the Sheriffs Bailiffs and the Sheriff was amerced Anonymus IN Trover and Conversion against Baron and Feme the Plaintiff declared Quod ad usum proprium converterunt which was naught because it must only be ad usum of the Husband and yet it may be converterunt if she were present yet whatever she doth is the act of her Husband 1 Cro. Sir Andrew Henley and Dr. Burstall THe Case was move◠again and spoken to in Arrest of Judgment That no Action would lye for proceeding against a man by Indictment and it would discourage all legal Prosecutions of Offences and 4 Co. 14 b. was cited where it is resolved That no Action lies for Exhibiting of Articles to a Justice of the Peace against one tho' the matter he false nor for preferring a Scandalous Bill in the Star Chamber concerning things whereof the Court had Iurisdiction But an Action upon the Case or Conspiracy lies where Life or Member are brought in jeopardy by a malicious Indictment But notwithstanding the Court Resolved That the Plaintiff should have Judgment Tho' 't was further alledged That there was no Issue joyned for in the Pleading and Ioyning of the Issue the Defendants Christian Name was mistaken but the Court would amend that it being rightly named before in the Record Ante. The King and Serjent AN Indictment of Forcible Entry and Detainer was preferred against Serjent and the Iury found as to the Detainer with Force Billa vera but as to the Entry Ignoramus And it was moved to quash this Indictment because they ought to have found all or none and of that Opinion was the Court Ante. Rumsey and Rawson THe Case was moved again by Mr. Solicitor That the Plaintiff having Intituled the Parson to Common for 200 Sheep levant and couchant and that these Beasts were levant and couchant and that he put them in by the Licence of the Parson He ought to have shewn That the Licence was by Deed being to take a Profit in alieno solo and the Statute which gives remedy after Verdict when he doth not say Hic in Curia prolat ' doth not aid this And 't is necessary to plead a thing by Deed whose nature requires it But to this it was Answered by Jones 2 Cro. 424 That a Parol Licence was sufficient in this Case being only to take the Profit unica vice there passing no Estate in it And the Plantiff had Iudgment Pomfret versus Ricroft IN Covenant the Plaintiff declares That the Defendant demised unto him a certain Messuage excepting a piece
Covenant the Plaintiff declared That the Defendant demised to him a House with the use of a Pump and that he suffered it to be so out of Repair that it became Useless To this Declaration the Defendant demurs and Counsel being heard on either side divers times the Court delivered their Opinions severally Keeling Rainsford and Moreton held that the Action did lye the Use of the Pump being part of the things demised which Words make a Covenant as in 4 Co. Noke's Case and in 5 Co. Spencer's Case If a man let an House together with Estovers to be taken in the Wood of the Lessor and afterwards the Wood is stubbed up there Covenant lies for the Lessee And Rainsford put this Case If a mans Lets the Middle Rooms of his House to one and the Vpper to another and lets the Roof of the House decay he conceived Covenant would lie for the Lessee of the middle Rooms And if a Parson makes a Lease and then Resigns he is liable to Covenant as in 12 H. 4. And the Lessee would be at a mischief for he should be a Trespasser to Enter and Repair and if the Lessor ousts the Lessee of any of the things demised 't is clear the Covenant lies and this is as much an ouster as can be in this case where the Lessor is possessed himself And so Iudgment was given for the Plaintiff against the Opinion of Twisden who held strongly to the contrary for he said he might have an Action upon the Case and so remedy for his Damage Also he held clearly That he might Enter and Repair as if one Licence another to lay Pipes in his Ground to convey Water he may justifie an Entry to Repair the Pipes And he cited a Case adjudged in 9 Jac. where one by Licence erected a Cock of Hay in anothers Ground And it was held That the Owner of the Soil might put in his Beasts into that Ground but he that had the Licence might by vertue of that Licence also fence in his Hay Quando aliquid conceditur conceditur id sine quo res ipsa uti non potest and he said that he never met with a Case where Covenant would lie but upon an actual ouster either by a Stranger that hath eigne Title or the Lessor himself And this was a non feasans and in that he differenced it from the Case of Estovers being an actual Tort to stub the Wood up and in Covenant upon an ouster of a Term if it be not incurred Iudgment shall be to recover the Term it self as F. N. B. 145. which cannot be in this Case for the Sheriff cannot put him into possession of the use of the Pump neither is it fit that he should recover Damages for all the Term for it may be the Pump will be presently repaired And he conceived that if the Lessor Cuts down Trées growing upon the Land Demised no Covenant lies yet the Trees are Demised with the rest Ante. Anonymus A Draws a Bill upon B. to the use of C. and Vpon Non-payment C. Protests the Bill he cannot Sue A. unless he gives him notice that the Bill is Protested for A. may have the Effects of B. in his Hands by which he may satisfie himself Note It was said if an Action to recover Lands of which a Fine was Levied were brought and discontinued by the Demandant this would not amount to a Claim Glyn versus Smith A Scire facias upon a Record in the Kings Bench where the Action is brought by Original must alledge a place where the Court was holden because 't is Ambulatory and the Writs returnable there are coram nobis ubicunque tunc fuerimus in Angliâ But it is otherwise upon Records in the Common Pleas for that is confined to a certain place by Magna Charta Anonymus IT was moved to quash a Return of a Rescous because it was Mandavi Ballivis who took him virtute Warr ' praed ' And it was said Mandavi did not imply that it was in Writing But the Exception was disallowed by the Court. Anonymus IF the Party that brings an Audita Querela be out of Prison the Court will Bail him though grounded upon a surmise of a matter of Fact as payment c. But if he be in Prison not unless there be a Specialty Parries Case DIvers Deeds and Evidences were shewn to Counsel for his Opinion of the Title to certain Lands which were to be sold He delivers them to one Parry a Scrivener by the consent of the Parties Parry finding a Deed to concern the interest of a third person gives it to him and upon complaint to the Court they commanded him to produce the Deed that it might be delivered back again to the Parties they conceiving it an abuse in his practice which was under the Regulation of this Court Anonymus IN Replevin in the Court at Canterbury the Defendant avowed for Rent Afterward this was removed by the Plaintiff into the Kings-Bench and the Defendant prayed a Procedendo because Canterbury was a County of it self and no Assizes there and so the Cause could not be tried But the Court denied it saying it was their own fault that they had not the Assizes there and every Subject had the liberty of removing his Suit into a Superiour Court Twisden said He had formerly known it to be denied in an Ejectment Girlington versus Pitfield IN an Action upon the Case for malitiously prosecuting of an Indictment of Perjury against him of which he was acquitted upon Not guilty pleaded it appeared upon the Evidence that the Defendant was a Justice of the Peace and procured some as Witnesses to appear against him and his own name was endorsed upon the Indictment to give Evidence The Court agreed that this did not make him a Prosecutor for if a Iustice of the Peace knows any person that can give Evidence against one that is indicted he ought to cause him to do it But it was proved on the Defendant's side That this Indictment was drawn up by an Order of the Sessions Wherefore Keeling Chief Justice said That the Plaintiff deserved to be bound to his Good Behaviour for bringing of this Action Horne versus Ivie IN Trespass for taking of a Ship and Sails the Defendant justified by a command from the Governours and Society of the Trade into the Canaries who were Incorporated by that name and had the sole Trade granted to them with a Forfeiture of all such Goods as should be imported hither from thence by any person not of their Company and that the Ship of the Plaintiff brought Goods from thence To this the Plaintiff Demurred His Counsel did not much insist upon the validity of the Patent because it was a Monopoly though it was said to be also against divers Statutes to Prohibit Merchants frèe trading to forein parts as 9 E. 3. cap. 1. 25 Ed. 3. cap. 2. 11 R. 2. cap. 7 and that there could grow no Forfeiture of
Berwick is part of Scotland and bound by our Acts of Parliament because Conquered in Edward the Fourth's time But the course is to name it expresly because 't is out of the Realm and not like to Wales where the Trials in such Cases shall be out of the prochein County 19 Hen. 6.12 for that is a Member of England Vid. 7 Co. Calvin's Case But two Presidents being shewn where the Trials were as it is here and one of them affirmed in a Writ of Error also the Case in Rolls tit Trial 597. A Writ of Error was brought to Reverse a Judgment given in Ireland and an Error in Fact was assigned and tryed in a County next to Ireland The Court Ruled the Venire to be well awarded Twisden said The Reason why an Ejectment would not lye of Lands in Jamaica or any of the Kings foreign Territories was Because the Courts here could not command them to do Execution there for they have no Sheriffs This Case having remained two or three Terms since the Postea was Returned and no Continuances Entred one of the Plaintiffs died and it was doubted whether Judgment could be now Entred And the Secondary said That they did Enter up Judgments two Terms after the Day in Bank as at the Day in Bank without any Continuances And of this Matter the Court would be Advised Postea Anonymus IF one upon Complaint to two Justices 1 Cro. Prigeon's Case be Ordered to keep a Bastard Child and this upon an Appeal to the Sessions is revoked that Person is absolutely discharged and unless a Father can be found the Court said the Justices of Peace must keep it themselves The Earl of Peterborough versus Sir John Mordant IN an Action upon the Statute de Scandalis Magnatum for speaking these Words of the Plaintiff I do not know but my Lord of Peterborough sent Gybbs to take my Purse After Judgment by Default and a Writ of Enquiry of Damages returned it was moved in Arrest of Judgment that no Action would lye for these Words First He doth not positively charge him with it Again The Words do not import a Felonious taking Hob. 326. Mason's Case I charge him with Felony for taking Money out of the Pocket of H. Stacie adjudged not Actionable And in 1 Cro. 312. Thou didst set upon me and take my Purse go before a Justice and I will charge you with Felony It was held there that no Action would lye But the Court gave Iudgment for the Plaintiff As to the first it was held as much as a direct Affirmation for otherwise one might slander another and by such a slight Evasion escape an Action Twisden said He knew these Words adjudged Actionable He hides himself for Debt and for ought I know is a Bankrupt And for the Words the Court said Three was difference between an Action grounded upon the Statute de Scandalis Magnatum and a Common Action of Slander The Chief Justice said The Words in the one case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of such Great Persons may be preserved More 55. The Earl of Leicester had Judgment for these words My Lord of Leicester is a Cruel Man an Oppressor and an Enemy to Reformation Leon. 33. The Lord Abergavenny sued for these words My Lord Abergavenny sent for us and put some of us into the Stocks some to the Coal-house and some to the Prison in his House called Little Ease And Recovered Vide Crompton's Jurisdiction of Courts 13. and Leonard 336. Anonymus AN Indictment was Compertum fuit per Sacramentum duodecim proborum legalium hominum c. and quashed because it was not jurat ' onerat ' And the Clerk of the Crown-Office Informed the Court that that was always the Course also it must be Adtunc ibidem jurat ' where the Caption is recited to be taken Williams versus Gwyn ERror to Reverse a Judgment given in Dower in the Grand Sessions in Wales It appeared by the Record that the Tenant appeared upon the Summons Returned and Day was given over adtunc venit per Attornatum nihil dicit in barram Whereupon Consideratum est quod tertia pars terr' tenemen ' capiatur in man ' Domini Regis and Day was given ad audiend ' Judicium at which Day Iudgment was given quod recuperet It was Assigned for Error that the Court here had awarded a Petit Cape and yet the Defendant appeared whereas they should have given Iudgment upon the Nient dedire for a Petit Cape is always upon default after appearance and only to answer the Default The Grand Cape is before appearance to answer the Default and the Demand Vet. N. B. 97. So it was said the Court had erred in Judgment and tho' it were in advantage of the Tenant by the delay yet not being by his Prier as an Essoign granted where none ought to be is not Error but the act of the Court as if they should Enter a Misericordia for a Capiatur it were Erroneous But the Court answered That the reason of that was Because it is parcel of the Judgment and the King should lose his Fine But this was only the awarding of Process more than should be and in advantage of the Tenant wherefore they resolved that they could not Reverse it for Error And Twisden said Admitting it were Erroneous they might then give Iudgment in this Court Anonymus A Prohibition was prayed to the Arches for Libelling against one there for calling Whore and Baud because they were but words of Heat also the Party lived in the Diocess of London so against 23 H. 8. to Cite him there But the Court would not grant it for though formerly there hath been divers Opinions touching these words yet Twisden said ever since 8 Car. the Law hath been taken that they may punish such words pro reformatione morum And for the other it appeared Sentence was given and that it was too late to pray a Prohibition when it appears they have Iurisdiction of the Cause as the Superiour Court and he that would have the benefit of the Statute against citing out of the Diocess must come before Sentence 1 Cro. Anonymus FInch Solicitor moved for a Prohibition to the Ecclesiastical Court to stay a Suit for Tythes of Hopps commenced there by the Vicar upon a Suggestion that they had paid for all Tythe Hopps so much an Acre to the Parson time out of mind But it was denied for there could be no such Composition time out of mind Hopps not being known in England until Queen Elizabeths time for then they were first brought out of Holland though Beer is mentioned in a Statute in Henry the Fourth's time But it was said by the Court That perhaps the Vicaridge was Endowed time out of mind of the small Tythes of which nature Hopps were Then the prescription of paying of Modus to
legitimum Granting of Administrations was originally Temporal an came to the Churchmen by the Indulgence of Princes and therefore must in some sort be governed by the Temporal Laws In Administrations the Whole Blood ought to be preferred before the Half Blood for Next of Kin shall be taken to be meant by the Statute such as our Laws judge to be so Rolls tit Prohibition 303. and so it was held in one Brown's Case before the Delegates in 8 Car. This being a New Case the Court gave no Opinion but Adjourned it to the next Term. Postea Termino Paschae Anno 29 Car. II. In Banco Regis NOte Where Justices of the Peace find a Force and make a Record of it upon their View they are to Commit the Offenders but cannot restore the Possession Anonymus A Prohibition was prayed to a Suit in the Spiritual Court for Money taxed for the Reparation of the Church upon a Surmize that the Tax was imposed upon one part of the Parish omitting the rest And for this was cited Rolls tit Prohibition 291. in the Point But the Court doubted in regard it was not alledged That they had offered that Plea in the Ecclesiastical Court because Reparation of Churches is proper for their Cognizance But the Prohibition was granted and the other might Demur if they thought fit But afterwards in this Term it was Countermanded Anonymus A Prohibition was prayed to the Admiralty where there was a Libel for a Ship taken by Pirates and carried to Tunis and there Sold for that it did not appertain to the Court to try the Property of the Ship being sold upon Land Curia In regard it was taken by Pirates it is originally within the Admiral Jurisdiction and so continues notwithstanding the Sale afterwards upon the Land Otherwise where a Ship is taken by Enemies for that alters the Property And this was the Opinion of the Court in Eglesfield's Case in my Lord Hales's time contrary to my Lord Hobart in the Spanish Ambassador's Case 78. in the 1. Cro. 685. they have Cognizance of the Case of the Pirate because incident to the Principal Matter But afterwards it was observed upon the Libel that there was no mention made That the Ship was taken super altum Mare And tho' there was contained therein very much to imply it yet the Court held that to be absolutely necessary to support their Jurisdiction Note One taken upon an Excom ' Cap ' was Discharged because the Writ de Excom ' Cap ' was not delivered into this Court and Enrolled as is required by the Statute Robinson versus Woolly IN an Ejectment upon a Special Verdict the Case appeared to be thus A Clerk was Admitted and Instituted to a Benefice within the Diocess of Gloucester whilst the Bishoprick was Vacant and a Mandate from the Archbishop for Induction but before it was Executed by the Archdeacon a new Bishop of Gloucester was Consecrated and whether the Induction coming after was sufficient was the Question That it was It was Argued that after the Mandate made it was Executed so far as the Bishop had to intermeddle in the matter For if no Induction does follow the Remedy lies not against the Bishop F.N.B. 47. h. But an Action upon the Case against the Archdeacon for the Induction is said to be a Temporal Act 1 Rolls 125 195. Neither can such Mandate be Revoked by the Bishop or be Inhibited by the King 1 Rolls 294. Again the Archbishop hath a concurrent Jurisdiction with the Bishops throughout his Province and may Admit and Institute until the Inferiour Bishoprick is full And the Statute of 23 H. 8. cap. 9. takes away the Jurisdiction of the Metropolitan only as to Proceedings in that Court In case the Inferiour Ordinary refuses to Admit the Archbishop may do it as appears Hob. 15. Hutton's Case and Mo. 879. It was said on the other side That this was but an Authority derived from the Bishop and therefore ceasing before it was Executed is determined The Bishop may direct his Mandate to another as well as the Archdeacon It was compared to a Letter of Attorney to make Livery which cannot be done after the Death of him that gave it Et Adjornatur Postea Anonymus IN an Information of Forgery the Defendant Challenged one of the Jury for that the Prosecutor had been late Entertained at his House This was admitted to the Favour tho' against the King Vid. for that in the 1 Cro. 663. And then the Counsel for the King challenged another and being pressed to alledge the Cause for 33 Ed. 1. does take away the General Challenge quia non sunt boni pro Rege But all the Court save Wild who seemed to be of another Opinion ordered the Panel to be first gone through and if there were enough the King is not to shew any Cause Vertue versus Bird. IN an Action upon the Case the Plaintiff declared that it was agreed between him and the Defendant That he should carry the Defendants Timber from a certain place to the Defendants House then and there to deliver at such place as the Defendant should appoint and that such a Day and Year he did carry with certain of his Carts to the place aforesaid the said Timber there ready to be delivered but that the Defendant delayed by the space of six Hours the Appointment of the place insomuch that his Horses being so Hot with Carrying of the Timber aforesaid and standing in aperto Acre they died soon after After Not Guilty pleaded and a Verdict for the Plaintiff Ventris moved in Arrest of Judgment that here did not appear any Cause of Action for it was the Plaintiffs Folly to let the Horses stand Neither was the Defendant under the Penalty of an Action bound to receive the Timber or appoint a place but in case of Refusal the other might recover what he Contracted for the Carriage having done all on his part but not to bring an Action for not appointing a Place And by the Opinion of all the Court the Judgment was stayed Vid. 2 Cro. 386. Roll. Rep. 275. Baily and Merritt Anonymus IT was moved for the setting aside of an Order of Sessions for the Setling a Poor person in a Town which had been sent thither by a Warrant of two Justices and it was Confirmed upon an Appeal to the Sessions But the Court would hear nothing of the Merits of the Cause the Order of the Sessions being in such case Final unless there were an Error in the Form Note A man gives a Warrant of Attorney to Confess a Judgment and dies before the Judgment is Confessed This is a Countermand Anonymus JUstices of the Peace at the Sessions Ordered the Father of him which had the Bastard Child to provide for it under the pretence of the reputed Grandfather for the Statute doth enable them to Tax the Grandfather of a Legitimate Child But in this Case the Court held there was no Colour and therefore quashed the
the Statute are to King James and in administring the Oath King Charles is named 171 172 The Ecclesiastical Court may make Defendants answer upon Oath as the Chancery doth 339 Obligation If two be bound joyntly and one be sued he cannot demur unless he aver the other is living And if there be two Obligees one cannot sue unless he avers the other is dead 34 A Release of one Joint Obligee of all Actions c. upon his own account does not discharge the Obligation 35 I do acknowledge to E. H. by me 20 l upon demand for doing the Work in my Garden Adjudged upon Demurrer to be a good Bond 238 Office and Officer Whether acceptance of a second Grant of an Office be a surrender of the first 297 An Act begun by one Officer and left imperfect what remains for his Successor 319 320. Outlawry Reverst for want of the Words pro Comitatu and why 108 P. Pardon See Witness WHere good without mentioning the Indictment 207 Parliament See Error The Three Estates See King Pasture Custom for Copyholders to have sole Feeding in a Certain Waste it is not needful to alledge that the Beasts were Levant and Couchant Here also a Copyholder may license others without Deed to put on their Beasts 165 Peace See Indictments Ac. Case Formality of Words where necessary in the Proceedings of Justices of Peace 39 Justices of Peace their Proceedings in relation to Bastard Children 48 59 210 310 336 Upon a Forcible Entry 308 Order of Sessions final in relation to a settlement of the Poor 310 King's Bench may judge of Fines imposed at Sessions and mitigate them 336 Perjury See Indictment One gave Evidence at a Trial and afterwards made Affidavit that he was perjured and suborn'd for which Affidavit an Information of Perjury was exhibited against him and he found guilty of Perjury in swearing he was perjured 182 Pleading See Escape Trespass In Debt upon Obligation the Defendant pleads that he delivered it as an Escrow plea nought 9 Where the Defendant pleads in Abatement and the Plaintiff Demurs if it be adjudged against the Defendant it shall be quod respondeat ulterius But if any thing be alledged in Abatement where upon Issue joyned it goes for the Plaintiff there he shall have Judgment to recover his Debt 22 In Actions laid by way of Reciprocal Promise there needs no Averment of Performance 41 178 Double Plea what 48 272 Trespass quare Arbores succidit Declaration insufficient because not exprest what kind of Trees 53 The like of Fishes 272 329 In Battery absque hoc quod moderate castigavit no direct Traverse to the Defendants Justification 70. Yet good after a Verdict ibid. A Plea in Abatement shall not be admitted after Imparlance 76 136 184. Exception 236 A Traverse designed to bring a Colateral matter in question not allowed 77 Executor pleads plene Administravit the Plaintiff confesseth the Plea and prays Judgment de bonis Testatoris quae in futuro ad manus defendentis devenerint 94 Where the Plaintiff denies what the Defendant affirms whether he ought to traverse or conclude to the Country 101 In Trespass where the Defendant claims a Way what Justification is sufficient what not 13 Incertainty in the Declaration or Plea where naught 106 114 120 278. What shall be said a Departure in Pleading what not 121 Where one Declares against one upon a Deed and it appears that another was bound with him it shall not be intended that the other sealed unless averr'd on the Defendants side 136 137 Deed delivered as an Escrow how to be pleaded 210 An apt Issue is not formed without an Affirmative and a Negative 213 To declare that a Bishop was seized in fee and not say in Jure Episcopatus not binds Successor 223 In Debt for Rent semper paratus is no good plea without saying quod obtulit 322 The effect of an Innuendo 337 The Statute for discharge of poor Prisoners how to be pleaded 356 Several Freeholders cannot joyn or be joyned in a Prescription to claim an Intire Interest in another mans Soyl 384. Nor can Freeholders and Copyholders joyn 390 Powers See Rocovery Of Power to Lease where well persued 294 340 Of Power of Revocation See Revocation Whether the Power of Revocation is extinguished by a Fine 368 371 Prescription See Appurtenant Common Grant The Nature and Rules of Prescription 386 Diversity between Prescription and Custom 389 The Owner of the Soyl can by no Prescription or Custom be excluded out of his own Soyl at all times of the year 390. But he may be excluded for a certain time and as to some kind of Profits 391 Prohibition Where it lies to the Admiralty 1 146 To the Ecclesiastical Court where a Parson sues for calling him Knave 2 Whether it lies where a Bishop sues for a Pension in his own Court 3 Whether it lies upon Suggestion that the Proprietors and Occupiers of such a Mannor or any parcel thereof pay a Groat to the Parson for Herbage-Tythes ibid. Lies for citing a man to answer in the Ecclesiastical Court and not delivering a Coppy of the Articles 5. And if the Party be excommunicate a Prohibition with a Mandamus to absolve him ibid. 252 Not lies to the Ecclesiastical Court for calling Impudent Whore 7. Or Whore and Bawd 61 220. Denied to the Ecclesiastical Court for calling Old Theif and Old Whore 10. Secus in London 343 352 In Prohibition on a Suit for Tythes what Suggestion is to be proved within six months 107 To the Ecclesiastical Court to stay a Suit there for Apparators Fees Suggesting there were no such Fees due by Custom 165 To Woodstreet Compter London for refusing to admit a Plea to their Jurisdiction before Imparlance 180 The Defendant in the Ecclesiastical Court pleads that the Tythes belong to another which Plea is refused Prohibition lies 248 335 Granted to the Ecclesiastical Court where Custom and Prescription comes in question tho the Principal Cause belongs properly to that Court as Church-Wardens Rates Tythes Mortuaries 274 Whether it lies to the Ecclesiastical Court for refusing to admit a Proof by one Witness 291 No Precedent for a Prohibition quia timet 313 To the Council of the Marches 330 Proof See Record Where Proof is to be made upon a Writ of Enquiry and where not 347 Q. Queen A Reservation to the Queen of England does not exclude a Queen Dowager 151 One who hath been a Queen not properly called nuper Regina in her Life time 152 Qui tam. See Error Action Judgment arrested because Issue was joyned only on behalf of the Informer and not also for the King 122 Quo Warranto Against certain Persons of the City of Worcester claiming to be Aldermen 366 R. Record If a Record be lost it may be proved to Jury by Testimony 257 Recorder See Mandamus What Causes may be sufficient to remove a Recorder 144 145 Recovery Where a Fine is Levyed to Lessee for years with an Intent
B. for causing to be framed printed and published a Scandalous Libel Entituled c. thereby scandilizing of one C. D. Vpon Not guilty pleaded It appeared upon the Evidence that after the discovery of the Libel there were Warrants from the Lord Arlington Principal Secretary of State to search the Lodgings of the Defendant who was suspected to be the contriver of it where were found two of these Libels printed The Opinion of the Court was That this was no Crime within the Information though he gave no account how they came there 5 Co. 125. B. and the having of a Libel and not delivering of it to a Magistrate was only punishable in the Sarchamber unless the Party maliciously published it Anonymus Hob. 192 300 301. IF the Jury upon an Issue joyned in a Prohibition upon a Modus Decimandi find a different Modus yet the Defendant shall not have a Consultation for it appears he ought not to Sue for Tythes in Specie there being a Modus found Termino Sanctae Trinitatis Anno 21 Car. II. In Banco Regis Jurado versus Gregory THe Case was this There was a Contract of Malaga concerning the Lading of a Ship and for breach of this which was laid to upon be the Sea viz. That he would not receive 40 Butts of Wine into the Ship according to the Agreement there was a Libel in a Foreign Admiralty and Sentence that the Wine should be received into the Ship which being refused another Libel was commenced in the Admiralty here in England Reciting the former Sentence and charging the Defendant with the breach of it and a Prohibition was prayed because it appears the Contract was made upon the Land Vid. Latch 234. Against which it was objected by Finch Solicitor that where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here because all the Courts of Admiralty in Europe are governed by the Civil Law and are to be assistant one to another though the matter were not Originally determinable in our Court of Admiralty and for this he cited a Judgment 5 Jac. Rolls Tit. Courts Sect admiralty And this the Court agreed But here was no compleat Sentence in the Foreign Admiralty but only an Award that the Wine should be received and now for breach thereof he Sues here which is in the nature of an Original Suit and to have Execution of the Sentence and this ought not to be though the breach were at Sea it being of a Contract made upon the Land wherefore they granted a Prohibition The King Grants bona catalla felonum the Grantée shall not have Felons Debts nor bona catalla Felonum de se Anonymus A Conviction was certified of one for carrying of a Gun not being qualified according to the Statute where the words in the Statute are Upon due Examination and proof before a Justice of the Peace The Court resolved That that was not intended by Jury but by Witnesses and no Writ of Error lies upon such Conviction And an Exception was taken because it was before such an one Iustice of the Peace without adding Nec non ad diversas Felonias Transgressiones c. audiend assign ' And the Court agreed so it ought to be in Returns upon Certiorari's to remove Indictments taken at Sessions But otherwise of Convictions of this nature for 't is known to the Court that the Statute gives them Authority in this Case The King versus Benson IN an Information against him for Extortion an Issue was joyned the day the Jury were returned and the King sent a Writing under his Sign manual to Sir Thomas Fanshaw Clerk of the Crown to enter a Cesser of Prosecution And Palmer Attorney General affirmed that the King might stay proceedings yet notwithstanding the Court proceeded to swear the Jury and said they were not to delay for the great or little Seal whereupon the Attorney entred a Noli prosequi Anonymus TRover against Baron and Feme and laid quod ad usum proprium converterunt and it was alledged proprium might be applied only to the Husband so also if it had been ad usum suum But the Court held neither had been good so it was prayed that Judgment might be entred quod Querens nihil capiat per billam For if it had been quod Defendens eat inde sine die the Plaintiff could not have brought an Action de novo Note A man is Outlawed in Middlesex A Capias utlagatum may be sued out against him into any other County without a Testatum Anonymus IN Trespass the Defendant justifies by reason of Common in the place where for Cattel Levant and Couchant upon his Land and doth not aver the Beasts were Levant and Couchant This is aided after a Verdict A Judgment in Debt is had in the Kings Bench and a Writ of Error is brought it still remains a Record of the Kings Bench and an Action of Debt may be brought upon the Judgment In a Writ of Error if the Defendant dyed the Writ is not abated Otherwise if the Plaintiff die And the Secondary informed the Court of a Case betwéen Sir H. Thyn and Corie where a Scire facias ad audiend Errores went against the Executors when the Defendant in the Writ of Error dyed Note The Exchequer Chamber doth not award a Scire facias ad audiend Errores but notice is given to the Parties concerned Skirr and Sikes IN Trespass upon the Stat. of 8 H. 6. the Plaintiff had Iudgment It was moved whether a Writ of Error would lie of this into the Exchequer Chamber For though Trespass be one of the seven Cases where the Statute gives it yet it might intend Common Trespasses only and not where the Action is founded upon a Statute as Actio de Scandalis Magnatum is not within the Statute And the Court would advise Cabell and Vaughan 5 Co. Whelphdales Case He cannot plead non est factum IN an Action of Debt upon a Bond against one and it appears another was joyntly bound with him wherefore the Defendant Demurrs But it was adjuged for the Plaintiff for the Defendant cannot Demurr in such case unless the other Obligor be averred to be living and also that he sealed and delivered the Bond 3 Cro. 494 544. Ascue and Hollingworth's Case 28 H. 6. 3. And if one be bound to two one Obligee cannot Sue unless he Averrs the other is dead In B.R. 1651 1068. Levit Staneforth Perries Case IN an Information of Forgery against him there was a Mis-trial And it was moved That this was aided by the Statute of 21 Jac. the general Purview whereof is extended to any Action Suit Bill or Plaint Then there is a Proviso which excepts Indictments and Informations upon Penal Statutes and this being an Information at Common Law was not within the Proviso and it may be taken within the word Suit for it is Secta Domini Regis But the Court held it not
Goods by Patent at least not before Conviction Neither were the words of the Patent very full to this purpose for they were only That they should forfeit such Ships and Goods and be imprisoned as by Law could be inflicted upon the Contemners of the Kings Authority 8 Co. 125. Noy 183. And the Court said the question was Whether the King could Prohibit the Importation of Foreign Goods for if he might the Importation of them would cause them to be forfeited And the Chief Justice said The Ship also in which they were shipped But no Forfeiture of English Goods could grow by Letters Patents And admitting all this for the Defendant yet it was said the Plea was naught First Because he justified by a Command from a Corporation and did not alledge it to be by Deed And it was agreed that a Corporation might employ one in ordinary Services without Deed as to be Butler 18 Ed. 4. 8. Br. Corp. 59. or the like But one could not appear in an Assize as a Bailiff to a Corporation without Deed Pl. Com. 797. 12 H. 7. 27. Neither can they Licence one to take their Trees without Deed nor send one to make a Claim to Lands 9 Ed. 4. 39. They cannot make themselves Disseisours by their assent without Deed or Command one to Enter for a Condition broken 7 H. 7. 9. Rolls Tit. Corp. 514. Again it was said The Plea was double for that the Patent Prohibits the Trading thither and also Importing from thence and 't is laid that he loaded Wines there and brought them hither so an offence respecting both Parts and one would have served But of these matters the Court would be advised Burwells Case UPon complaint to two Justices about a Bastard Child they by the 18 Eliz. order one Reynolds to keep the Child Vpon this Reynolds appeared at Sessions where they vacated the Order and referred it back again to the Justices who do nothing The next Sessions after Burwell is judged the reputed Father and ordered to pay so much a Week to the Parish until the Child was 12 year old This was removed into the Kings Bench by Certiorari And they resolved That the referring back again to the Justices by the Justices at the Sessions was not warranted and that the last Order was insufficient because it was that he should pay the Parish due time until the Child was 12 year old whereas the Father might take it away when he pleased but it ought to have béen that he should allow so long as it should be chargeable to the Parish wherefore they bound the Parties to appear at the next Sessions by Recognizance Anonymus A Man hath a Messuage and a Way to it through anothers Freehoold and 't is stopped then the House is aliened the Alienee can bring no Action for this Nusance before request If a Man lets a House reserving a Way thorough it to a Backhouse he cannot come thorough the House without request and that too at seasonable times Anonymus IF the Husband and Wife be Arrested in an Action that requires Special Bail and the Husband puts in Bail for himself he must put in Bail for his Wife also but if he lyes in Prison the Wife cannot be let out upon Common Bail But it is otherwise if the Husband absconds himself and cannot be Arrested Anonymus IF a Man brings Debt for Rent and upon his own shewing he demands more than is due and upon non debet pleaded the Jury find for him he may remit the overplus and have Judgment for the residue Note One was Committed for sending of a Note to a Juryman after a privy Verdict was given to know what Verdict they gave Parris's Case AN Information was brought against him for that he fraudulenter deceptivè procured one Ann Wigmore to give a Warrant of Attorney to confess a Judgment To this he pleaded Not guilty and upon the Tryal it was debated whether she might be admitted to give Evidence against the Defendant for if he were Convicted the Court said they should set aside the Judgment Nevertheless she was sworn by the Opinion of 3 Judges against Twisden This Suit being for the King Vpon his Tryal he was found Guilty and fined 100 Marks and ordered to come with a Paper on his Hat expressing the offence Note No Writ of Error to reverse a Judgment given in an Action qui tam c. lyes into the Exchequer-Chamber because the King is Party so also upon the Statute de Scandalis Magnactum 1 Cro. Lord Says Case Perill versus Shaw A Scire facias was brought against the Bail who pleade that before the Return a Capias was issued out against the Principal and that he was taken at D. and detained in Prison quousque postea he paid the Money The Plaintiff pleads non solvit Then the Defendant Demurrs And it was adjudged for the Plaintiff for the Defendants Plea was vitious because there is no place alledged where the Money was paid and it is not necessary to be intended to be paid where he was Imprisoned And though the Plaintiff did not Demurr but replied yet when there is a Demurrer the first fault is fatal Sir John Kerle versus Osgood AN Action was brought for these words spoken of him being Justice of the Peace He is a forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him it so to his Face After Verdict for the Plaintiff it was moved in Arrest of Judgment That these words were not actionable because forsworn doth not necessarily intend any judicial Perjury and there was no Communication of his Office One said of a Justice of Peace He is a Blood-sucker and seeks after Blood if one will give him a couple of Capons he will do any thing and held not actionable because there was nothing to make them relate to his Office Rolls 56 29. Nevertheless the Plaintiff had his Iudgment by the Opinion of all the Court for the calling of him forsworn Justice shews he intended Perjury relating to his Office to which an Oath is annexed Manwood brought an Action for calling of him A corrupt Judge 4 Co. Cases of Slander 1 Cro. for calling of an Attorney A cheating Attorney And Sir John Masham recovered for calling of him Half-eared Justice Vid. Rolls 53. pl. 4. and 4 Co. Stucleys Case And here the latter words viz. That he is not fit to sit upon a Bench Shews that he intended the Scandal in his Office and words shall not be taken in mitiori sensu so far as to draw them from the general Acceptation and sermo refert ad conditionem personae Twisden cited a Case where a Man brought an Action for saying He was a Debaucht Man and not fit to be a Justice of the Peace and not maintainable because spoken of the time past If it had been He is Debauched he said the Action would lie Hill versus Langley DEbt upon a Bond to perform an
went out upon such particular direction and recommendation 'T is some mitigation that they had such advice of Counsel otherwise I should not stick to fine them 100 l apiece We are bound to take care of the support of the Government I agree the Fines Keeling Chief Justice It is provided by 23 H. 8. cap. 5. that the Laws Acts c. to be made by the Commissioners of Sewers should stand good and effectual c. no longer than the Commission endured except they were Engrossed in Parchment and certified under their Seals into the Kings Court of Chancery and then the Kings Royal Assent to be had to the same c. But that was altered by this of 13 Eliz. whereby it is Enacted That their Laws c. should stand and continue in force without any such Certificate to be made thereof into the Chancery and then a little after in this Statute follows the Clause which hath been read and that refers wholly to Certificates or Returns to be made into the Chancery for the purpose aforementioned 'T is plain the Clause refers not to this Court for it speaks of returning their Comissions now their Commissions were never returnable into this Court this Court cannot be ousted of its Jurisdiction without special words here is the last Appeal the King himself sits here and that in person if the pleases and its Predecessors have so done and the King ought to have an account of what is done below in inferiour Jurisdictions 'T is for the avoiding of oppressions and other mischiefs To deny and oppose this and to set up uncontrolable Jurisdictions below tends manifestly to a Commonwealth and we ought and we shall take care that there be no such thing in ours days I know there is a great clamour so soon as an inferiour Jurisdiction is touched and t is thought we deal hardly with them But unless we will suffer this Court to be dissolved and the Prerogative of the King to be encroached upon we must oppose our selves to these Proceedings I have a great respect for these persons the Commissioners but 't is but usque ad aras When the Jurisdiction of the Crown the Justice of the Kingdom and the Duty of my place is concerned I ought not to spare my best Friends Some Presidents have been cited in this Case and many more might there are two memorable Records cited 1 Cro. concerning persons which contemned the Kings Writ and their Penalties I agree the Fines and hereby we do not go so high as our Predessours have gone Hundreds of years ago Nota This Proceeding and Sentence of the Court was upon Confession of the Commissioners the Court forthwith making an Entry and Record of their Confession In an Assize only where the Writ is Returnable into this Court it is apud Westmonaster ' but in all other cases where Writs are Returnable out of Chancery into this Court they are Returnable Ubicunque c. The King versus Jane D SHe was Indicted for Stealing of several things and pleading Not Guilty and a Jury sworn to try her the Witnesses not appearing were suspected to be tampered with by the Prisoner and the Jury were discharged and the Trial put off Vid. 1 Inst 227. b. Wise's Case AN Order of the Justices of the Peace for the maintenance of a Poor Woman was Confirmed tho' it appeared she was able of Body to work But the Justices of the Peace are Iudges of that Cousin's Case ERror to Reverse a Fine for Infancy Now 't was moved that the party being in Court she might be inspected and the Inspection Recorded and there was produced and read a Copy of the Register Book sworn to be a true one and several Affidavits of her Age. Curia Let the Inspection be now Recorded the Issue of her Infancy may be tryed at any time hereafter tho' she comes of Age. Nota A Prisoner in the Kings-Bench that lyes in the Common Side pays no Fees for his Lodging Anonymus IT was said by Twisden That if two submit to an Award this contains not a Reciprocal Promise to perform but there must be an Express Promise to ground an Action upon Nota A Fine which was set two or three Terms since was this Term set aside because of some surreptitious Practice and Misinformation to the Judge Auberie versus James ASsault Battery and Wounding The Defendant Iustified for that he being Master of a Ship commanded the Plaintiff to do some Service in the Ship which he refusing to do he moderate castigavit the Plaintiff prout ei bene licuit The Plaintiff maintains his Declaration absque hoc quod moderate castigavit and Issue was taken thereupon Negativum infinitum After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Issue was not well joyned for non moderate castigavit doth not necessarily imply that he did Beat him at all and so no direct Traverse to the Defendants Iustification which immoderate castigavit would have been But De injuria sua propria absque aliqua tali causa would have been the most formal Replication But the Justices held that it would serve as it was after a Verdict tho' the Statute at Oxford 16 Car. 2. the last and most aiding Act of Jeofails be * Which was a mistake expired and that de injuria sua propria not adding absque aliqua tali causa hath been held good after a Verdict Green versus Cubit ERror to Reverse a Judgment given in the Court at Norwich in Debt upon a Bond where the Plaintiff declared that the Defendant per scriptum suum Obligatorium at a certain place there became bound c. The Defendant pleaded that he was in Prison scriptum praedictum was obtained by Duress which was found against the Defendant and Judgment given accordingly The Errors assigned were first Because he declares of a Writing Obligatory and both not say sigillo Defendentis sigillat ' 3 Cro. 571. Declaration in Covenant was held Insufficient for the same cause Secondly There is no place where the Defendant alledgeth himself to be in Prison and being in an Inferiour Court it shall not have any aid of Intendment But the Court Over-ruled the first because the Plea of the Defendant confesses the Deed and the second because the Imprisonment must of necessity refer to the place where the Plaintiff declares the Bond to be made For the Defendant pleaded that he was then in Prison wherefore they affirmed the Judgment 3 Cro. 55. 2 Cro. 420. 3 Cro. 737. 19 H. 6. 15. 19. Baldway and Ouston DEbt upon a Bond the Condition was That the Defendant should pay such Costs as should be stated by two Arbitrators by them chosen He pleaded that none were Stated The Plaintiff Replied That the Defendant did not bring in his Bill To which it was Demurred For tho' if the Defendant were the cause that no Award was made it was as much a forfeiture of his Bond as not to perform
Action for saying Go tell the black Knave Roberts That I will teach him or any Attorney in England to sue out a Writ against me and he had Judgment for it was as much as to call him Knave Attorney Hill 22 23 Car. 2. Rot. 1426. Methin and the Hundred of Thistleworth AN Action was brought upon the Statute of Winton The Defendants pleaded that they made Hue and Cry and that within 40 Days they took one Dudley which was one of them that did the Robbery and had him in custody The Plaintiff Replied That Dudley was not taken upon their fresh pursuit modo forma And upon this Issue the Jury find a Special Verdict to this effect That the Hundred made Hue and Cry and that Sir Joseph Ash finding Dudley in the presence of Sir Philip Howard a Justice of the Peace of Westminster at his House in Westminster the said Sir Joseph being an Inhabitant in the Hundred of Thistleworth charged Dudley with this Robbery before Sir Philip who promised he should appear at the Sessions at the Old Baily And whether this be such a Taking as is put in Issue they referred to the Iudgment of the Court. Jones for the Plaintiff Argued That in this Case there doth not appear to be any Taking at all but only a Discourse between Sir Joseph Ash and Sir Philip Howard As admitting the Issue were Whether a man were Arrested or no and it should appear upon Evidence that one should come to the Sheriff and declare That he had a Writ against such a man then present and upon this the Sheriff should say I will take his word for his Appearance this clearly could not be taken for an Arrest Again The Issue is Whether he were taken upon the fresh pursuit of the Hundred and it doth not appear by the Verdict that there was any Hue and Cry made this way and it might be ceased before this time But it seems rather that Sir Joseph Ash found him by accident But the Opinion of Hales Chief Justice Twisden Rainsford and Moreton was that Judgment ought to be given for the Defendant For the charging of Dudley with the Robbery in the presence of a Justice of the Peace was clearly a Taking within the Statute For being in the presence which the Law construes to be under the Power or Custody of the Magistrate it would have been vain and impertinent to have laid hold of him and it shall be intented that this was upon Fresh pursuit For when the Verdict refers one Special Point to the Iudgment of the Court all other matters shall be intended And the Chief Justice said That if the Hue and Cry was made towards one part of the County and an Inhabitant of the Hundred apprehended one of the Robbers within another yet this was a Taking within the Statute Hornsey Administrator of Jane Lane versus Dimocke THe Plaintiff as Administrator of Jane Lane brought an Assumpsit and declared that he had formerly deposited such a Sum in the Defendants hands for the use of the Intestate Jane Lane in Consideration whereof the Defendant promised to the Plaintiff that he would pay it her or if she died before 18 years of Age that he would pay it to her Executors And shews that she died before 18 and that he had not paid it to the Plaintiff her Administrator licet saepius requisitus Vpon non Assumpsit a Verdict was for the Plaintiff It was moved in Arrest of Judgment that the Plaintiff brought this Action as Administrator which ought to have been in his own right for the Promise was made to him Sed non allocatur For if a man names himself Executor or Administrator and it apears the Cause of Action is in his own right it shall be well enough and he calling himself Executor c. is but Surplusage But here it seemeth Jane Lane might have brought an Assumpsit because she was the party to whom the Money was to be paid So it is good either way It was further Objected That it was not averred that the Defendant did not pay the Money to Jane Lane during her Life Sed non allocatur For 't is aided by the Verdict As the Chief Justice said a Case was Adjudged where an Assumpsit was brought upon a Promise to pay Money to two or either of them and declared that the Money was not paid to the two and not said or either of them yet Resolved to be good after Verdict Matthewes versus Crosse IN Debt for Rent the Plaintiff Declared That by an Indenture made in the Parish of St. Mary Undershaft London he Let an House to the Defendant situate in parvo Turris monte reserving so much Rent c. The Defendant pleads That before the Rent incurred the Plaintiff entred into a certain Room of the said House apud parvum Turris montem praedict ' and so suspended his Rent upon which it was Demurred And it was shewn for Cause That no place was alledged where the Entry was but said to be at Little Tower-Hill which cannot be intended a Vill. And a Case was cited of an Indictment in this Court of a Fact laid to be done at White-Hall and quashed for want of Place And to this the Court inclined but the Matter was ended by Comprimise ' Anonymus A Prohibition was prayed to a Suit for a Pension in the Ecclesiastical Court surmising that the Lands out of which it was demanded were Monastery Lands which came to the King and that he granted the Lands c. under which Grant the Plaintiff claims and that he Covenanted to discharge the said Lands of all Pensions c. and this upon the Statute of 34 H. 8. cap. 19. which appoints the Suit to be for Pensions in such cases in the Court of Augmentations and not elsewhere But the Court would not grant it until the Letters Patents of Discharge were produced being a matter of Record But where the Surmise is of matter of Fact it is sufficient to suggest it And it was said by the Court That Pensions whether by Prescription or otherwise might be sued for in the Ecclesiastical Court but if by Prescription then there was also Remedy at the Common Law F.N.B. 50. 1 Cro. 675. Davis versus Wright al' HIll 22 23 Car. 2. Rot. 701. In an Assumpsit the Plaintiff declared That his Father gave him by his Will 3 l per annum during his Life and that he was about to Sue for it and that the Defendants being Executors to the Father in Consideration that the Plaintiff would forbear to commence a Suit against him for it promised to pay him The Defendants plead That the Testator was indebted in divers Sums and ultra to pay them he had no Assets To this the Plaintiff demurred for that by this Promise the Defendants have made it their proper Debt But it was said on the other side That if there were no Assets there was no cause for the Plaintiff to have commenced
might be given in Evidence tho' upon Non est factum it could not The King versus Alway and Dixon ERror to Reverse a Judgment upon an Indictment because the Award of the Venire was Entred Praeceptum fuit Vicecomiti c. which is more like an Hystory of the Record than the Record it self for it ought to be Praeceptum est and so are the Presidents And for this Cause it was Reversed Waldron versus Ruscarit Hill ult Rot. 225. In an Ejectment a Special Verdict was found That one levied a Fine of all his Lands in Saint Inderion in Cornwal and that he had Lands in Portgwyn and that the Constables of Saint Inderion exercised their Authority in Portgwyn and that Porgwyn had a Tythingman And whether this Fine conveyed the Lands in Portgwyn was left to the Iudgment of the Court and Resolved that it did A Parish may contain ten Vills and if a Fine be levied of the Lands in the Parish this carries whatsoever is in any of those Vills So where there are divers Vills if the Constablewick of the one goes over all the rest that is the Superiour or Mother Vill and the Land which is in the other shall pass per nomen of all the Lands in that And tho' it be found that Portgwyn had a Tythingman Decenarius which prima facie is the same with a Constable and differed little in the Execution of that Office concerning Keeping the Peace Yet Hale said He was not the same Officer and 't is found that the Constables of St. Inderion have a superintendency over Portgwyn and therefore 't is but as an Hamlet of St. Inderion But if found that they had distinct Constables and could not interfere in their Authority it would be otherwise Owen 60. Note It was said by the Court That if there be a Conviction of a Forcible Entry upon the View of the Justices of the Peace no Writ of Error lyes upon it but it may be Examined upon a Certiorari The King versus Green al' THey were Indicted for refusing to take the Oath of Allegigiance contained in the Statute of 3 Jac. tendred to them at the Sessions of the Peace One appeared and the Entry was Nihil decit c. ideo remansit Dom ' Rex versus eundem indenfensus And the other were Convicted and Judgment given quod forisfaciant omnia bona catalla terr' tenementa Domino Regi extra protectionem Dom ' Regis ponantur committuntur quilibet eorum committitur Gaolae They brought Error And First It was moved that the Indictment was for refusing the Oath contained in the Statute of 3 Jac. in his Anglicanis Verbis Viz. I do truly and sincerely acknowledge c. that our Sovereign Lord King Charles the Second is Rightful King of this Realm c. Whereas the Statute is King James and the words of the Statute are That the Justices of the Peace shall demand of such persons there mentioned to take the Oath hereafter following So that 't is tyed up to that Oath in terminis and then it cannot be Administred after the Death of King James And the diversity of the Penning of this Act of 3 Jac. and the Act of 7 Jac. was observed in the last the words are Shall take and receive an Oath according to the Tenour and Effect of the Oath contained in 3 Jac which is as much as to say the same Oath in substance So the Act of 1 Eliz. cap. 1. is That the Oath shall be taken according to the Tenour and Effect hereafter following Therefore it was Objected that the Indictment might have been upon the Act of 7 Jac. but not upon 3 Jac. which it was conceived was tyed up to the Person of King James and therefore determined by his Death As if a Lease be made durante bene placito Regis nunc it doth end by the Dimise of that King that made it Otherwise if it be durante bene placito Regis Moor pl. 311. And though these Statutes for the Oath of Allegiance be General Laws and need not have been recited yet when an Indictment is grounded upon an Act therein mentioned which will not maintain it it shall not be made good upon any other General Act. Secondly Another Matter insisted upon for Error was in the Entry of the Nihil dicit which was Ideo remansit Dom ' Rex versus eundem indefensus whereas it ought to have been remanet and so the Record it self must express But as it is 't is but an History of the Record and therefore upon Indictments where the Award of the Venire is Praeceptum fuit 't is not good but should he Praeceptum est Thirdly An Exception was taken to the Venire which Commands the Sheriff to Return 12 probos legales homines qui nec Dom ' Regem nec aliquam partem aliqua affinitate attingunt whereas in the King's Cases his Kindred may be Returned and therein no Challenge to the Favour neither ought the Sheriff to be restrained from Returning them Fourthly The Judgment is Committuntur quilibet eorum committitur which is an Execution of the Judgment that should have been given and not the Judgment it self which ought to have been Committantur c. as 't is extra protectionem Domini Regis ponantur and not ponuntur Fifthly It was alledged that the Statute was mis-recited in two places 1. For See of Rome it is written Sea of Rome so instead of sedes Romana it is mare Romanum which makes it to be no Sense 2. The Words of the Statute are I do declare in my Conscience before God whereas the Indictment is I do declare c. in Conscience and leaves out my It was also Objected That the words of the Act being That such as refuse the Oath shall incur the danger and penalty of Praemunire mentioned in the Statute of 16 R. 2. which Enacts That Process shall be made against the Offenders therein mentioned by Praemunire facias in manner as 't is Ordained in other Statutes And it appears that no such Process was made upon this Indictment wherefore the Statute is not observed Curia The first Error was disallowed by all the Court and held clearly that the Judgment was well grounded upon the Statute of 3 Jac. For the naming of the King is but an instance of the thing as it stands at present and it might as well be objected that the Oath in the Statute is I A.B. do swear c. And tho' some Statutes say according to the Tenour and Effect and this is the Oath hereafter following it was held to be all one for according to the Tenour and Effect and according to the words are all one as where a Certiorari is to certifie Tenorem Recordi The second was held to be Error and that the Iudgment given upon the nihil dicit must be reversed for there were several Iudgments given viz. One upon that and another given
of Wood he hath the effect of his Grant But Trees differ in value exceedingly from each other Bolton versus Cannon IN Debt against an Executor for Rent Arrere in his own time in the debet detinet The Defendant pleads that the Rent is more worth than the Land and that he tendred a Surrender before the time for which the Rent is demanded and that the Plaintiff refused to accept the Surrender and that he had fully administred and so demands Iudgment of the Action The Plaintiff replies that there was Rent Arrear to him and that therefore he was not bound to accept of the Surrender and to this the Defendant Demurrs The Court said First That an Executor that does intermeddle cannot wave a Lease or any other part of the Testators Estate for he cannot assume the Executorship for part and refuse for part Secondly That in case the Land be not more worth than the Rent it is a good Plea to an Action of Debt in the debet and detinet for he is to be charged in the detinet only tho' where the Rent is of less value he may be charged in the debet detinet for that which is accrued in his own time according to Hargraves Case 5 Co. Thirdly The doubt here is that the Defendant having waved the material part of his Plea viz. That the Rent exceeded the value of the Land and relied upon his tender of a Surrender which is nothing to the purpose whether Judgment can be here for him and that otherwise his Plea is double but because the Plaintiff hath not demurred to that but answered only to one part of it the Defendant might well Demurr upon the Replication because it does not answer all contained in the Plea for unless the party Demurrs for doubleness he is bound to answer all the matters alledged Et Adjornatur But being this Term moved again Iudgment was given for the Plaintiff because the Defendant relinquished the material part of his Bar and offered matter meerly frivolous Cartwright versus Pinkney TEnant for years Surrenders to the Lessor reserving a Rent the question was Whether it was a good Reservation And held that it was upon the Contract and that Debt lay after the first day was incurred wherein it was reserved to be paid for it was in the nature of a Rent and not of a Sum in Gross Ante Wilson and Pinckney Anonymus IN Trespass for Fishing in his several Fishery pisces cepit After a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff ought to have alledged what kind of Fishes and the number of them as in Playters Case 5 Co. is But for that it was said on the other side that at that time they were more strict in the certainty of pleading than since for now and indebitat ' Assumpsit for Work done or Goods sold is allowed without further certainty And that however the Oxford Act 15 Car. 2. here helped it for tho' this be none of the defects there enumerated yet the words of the Act being That Judgment shall not be arrested for any other exception that doth not alter the nature of the Action or Tryal of the Issue shall extend to this Case But the Court were of Opinion that none of the Acts had aided this Case in regard that there was not so much as the number of the Fishes expressed as if a Man should bring Trespass for taking of his Beasts and not say what But Hale said Trover for a Ship cum velis had been allowed because all made but one aggregate Body both the Ship and Sails But Trover pro velis would not be good Vid. 2 Cro. 435. Trespass quare clausum fregit Spinas cepit and 3 Cro. 553. Child and Greenhills Case Dr. Webb versus Batchelour al' IN Trespass for taking so many Cowes upon Not guilty a Special Verdict was found That an Act of this King for repairing of the High-ways appoints that such persons as keep Carts and Horses c. should send them at certain times to assist in the repairing of the Ways not having a reasonable excuse and that warning was given to the Parishioners of the Parish whereof the Plaintiff was Parson to send in their Carts and that the Plaintiff omitting to do it a Justice of Peace made a Warrant to the Defendant to distrain him according to the Authority given by the Act c. It was alledged for the Plaintiff First That Clergymen were not obliged by this Act for Ecclesiastical Persons have always had immunities from such charges as Pontage Murage c. and shall not be comprehended in the general words Parishioners Secondly That in regard the Act allows an excuse the Justice of the Peace ought to have caused the Plaintiff to have appeared before him to have seen whether he had an excuse before he could have made his Warrant and tho' the Officer that executes the Process of a Court of Record be indemnified where the proceeding is Erroneous yet 't is not so where the proceeding is not of Record as the 10 Co. in the case of the Marshalsey 3 Cro. 394. Nicholls versus Walker and Carter Where a Warrant was made by a Justice of the Peace to distrain for a Poors Rate Trespass was maintained against the Officer that executed the VVarrant because the Plaintiff was not chargeable as an Inhabitant of the Parish for whose Poor the Rate was made Curia contra 1. The Clergy are liable to all publick charges imposed by Act of Parliament and that hath been resolved as Hale said upon debate before all the Judges 2. The Officer that executes the VVarrant though unduely made for the cause alledged is not answerable for he is not to judge but to execute the matter it being within the Jurisdiction of the Justice of the Peace and 't is not like the Case in the 3 Cro. for there the Churchwardens And Overseers of one Parish distrained in another Parish which was out of the limits of their Authority but in 14 H. 8. 16. where a Justice of the Peace made a VVarrant to Arrest a Man for Felony which in those times was held beyond his power tho' otherwise since unless there had been some Indictment of Record yet 't is there held the Officer that executes such VVarrant is not punishable Wherefore Judgment was given here for the Defendants Termino Sanctae Michaelis Anno 27 Car. II. In Banco Regis Anonymus A Judgment was removed by Error into this Court and affirmed the Capias that is Awarded thereupon must mention it and not be general as upon a Judgment originally in this Court and if such a Writ issues out the Court will upon motion grant a Supersedeas and there needs no Writ of Error in Adjudicatione Executionis tho' it was taken out in a former Term. Anonymus LIbel was by the Churchwardens of c. in the Ecclesiastical Court for 1 l 6 s 8 d upon a Custom
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
Heir in England or to have one My third and last Reason is indeed more general tho' not so conclusive as the two former were upon the particular Reason of the Case tho' not altogether to be neglected viz. The Law of England which is the only ground and must be the only measure of the incapacity of an Alien and of those consequential results that arise from it hath been always very gentle in the construction of the disability and rather contracting than extending it so severely For Instance The Statute de natis ultra Mare 25 E. 3. declares that the Issue born beyond Sea of an English Man upon an English Woman shall be a Denizen yet the construction hath been tho' an English Merchant marries a Foreigner and hath Issue by her beyond the Sea that Issue is a natural born Subject In 16 Cro. Car. in the Dutchy Bacons Case per omnes Justic ' Angl ' And accordingly it hath been more than once Resolved in my Remembrance Pround's Case of Rent The Case of the Postnati commonly called Calvin's Case the Report is grounded upon this gentle Interpretation of the Law tho' there were very witty Reasons urged to the contrary and surely if ever there were reason for a gentle Construction even in the Case in question it concerns us to be guided by such an Interpretation since the Vnion of the two Kingdoms by which many perthance very Considerable and Noble Families of a Scottish Extract may be concerned in the consequence of this Question both in England and Ireland that enjoy their Inheritances in peace I spare to mention particulars So far therefore as the parallel Cases of Attainder warrant this extent of this Ability I shall not dispute but further than that I dare not extend Now as touching the Authorities that favour my Opinion I shall not mention them because they have been fully Repeated and the later Authorities in this very Case are not in my Iudgment to be neglected Touching the Case of Godfrey and Dixon it is true it doth differ from the Case in question and in that the Father was made a Denizen and then had Issue a younger Son who inherited the elder Son an Alien born but Naturalized after the death of his Father yet there is to be observed in that Case either the Naturalization of the elder Son relates to his Birth or relates only to the Time of his Naturalization whether it did relate or not depends upon the words of the Act of Naturalization which I have not seen If it did relate the Cause in effect will be no more but an Alien hath Issue a Natural born Son for so he is as I have Argued by his Naturalization and then is made a Denizen and hath Issue and dies the elder Son purchaseth Lands and dies without Issue the younger Son shall inherit the elder should not have inherited his Father by reason of the Incapacity of the Father But it doth not relate further than the Time of his Naturalization which was after the time of the Death of his Father and consequently he could not divest the Heirship of his younger Brother yet if he purchaseth and dies without Issue his younger Brother shall inherit him tho' there was never Inheritable Blood between the elder Son and his Father so much as in fiction or relation Vpon the whole Case I conclude First That there be two Brochers Natural born in England the Sons of an Alien the one shall inherit the other Secondly That the Naturalization puts them in the same Condition as if born here tho' it does not more Thirdly That John the Son of George stands in the same Condition of inheriting his Vncle the Earl as George should have done had he survived the Earl Fourthly But if the Disability of Robert the Father had disabled the Brothers to have inherited one the other the Naturalization of the Earl or George had not removed that Disability Fifthly But no such Disability of the Father doth disable the Brother George to inherit the Earl it neither doth Consequentially disable John the Son of George to inherit the Earl Consequently as to the Point referred to our Iudgment John the Son of George is Inheritable to the Land of John his Vncle. The End of the First Volume A TABLE OF THE Principal Points Argued and Resolved in the First PART OF THESE REPORTS A. Abatement See Pleadings IN the Ecclesiastical Court a Suit does not abate by the Death of either Party Pag. 134 A Baronet is Sued by the Addition of Knight and Baronet the Action shall abate 154 In all Actions where one Plaintiff of several Dyes the Writ shall abate save in an Action brought by an Executor 235 Acceptance Where Acceptance of Rent from the Assignee shall discharge the Lessee 99 Action See Bail Whether an Action of Debt qui tam upon the Stat. 5 El. c. 4. lies in B. R. 8 Action brought de uxore abducta and concludes contra forman Statuti where there is no Statute in the case yet good 104 Action for a Nusance in stopping of the Lights of his House p. 139 237 248 Action upon the Stat. 13 Car. 2. by one Bookseller against another for Printing his Coppy p. 253 Where the Matter consists of two parts in several Counties the Plaintiff may bring his Action in which he pleases p. 344 Where several Causes may be joyned in one Action and where not 365 366 Action upon the Case See Jurisdiction Way In the Nature of Conspiracy a-against three for Arresting without Cause and only one found Guilty 12 Such an Action lies against one p. 19 Lies for a Justice of Peace against one who Indicts him for Matters in the Execution of his Office p. 23 25 For taking his Wife from him brought against the Womans Father p. 37 Lies not against a Justice of Peace for causing one to be Indicted who was after accquitted 47 Where it lies for Suing one in the Ecclesiastical Court and where not 86 For erecting a Market 7 miles off 98 Upon the Custom of Merchants for a Bill of Exchange accepted 152 For not Grinding at his Mill 167 Where it lies against a Master of a Ship for Goods lost out of the same 138 190 191 Against the Mayor of L. for not Granting a Poll upon a doubtful Election 206 For not repairing a Fence 264 Against a Taylor for Spoiling his Coat in making 268 For Riding over the Plaintiff with an unruly Horse 295 Where Action lies for Defaming the Wife whereby the Husband loses his Customers 348 Action upon the Case For Slander You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds These last Words not Actionable 3 She was with Child by J. S. whereof she miscarried 4 Thou hast received stoln Goods and knew they were stolen J. S. Stole them and thou wert Partner with her 18 Of a Midwife She is an Ignorant Woman and of small Practice and very unfortunate in her Way there
in an Inferiour Court for want of infra Jurisdictionem Curiae 2 For variance between the Count and Plaint 6 But it lies not for some Omissions 5 A Writ of Error is a Supersedeas to an Execution 30. Yet the Judgment remains a Record 34 Exception 353 355 A Writ of Error returnable ad proximum Parliamentum not good Secus if to the day of Prorogation 31 266 No Writ of Error lies upon a Conviction before a Justice of Peace 33 In a Writ of Error if the Defendant dies the Writ is not abated Secus if the Plaintiff dies 34 Lies not to reverse a Judgment in a Qui tam nor upon the Statute de Scandalis Magnatis 49 What Records to be returned upon a Writ of Error 96 97 Where it lies upon a Judgment in a Scire facias and where not 168 Error in fact not assignable in the Exchequer Chamber 207 A Writ of Error that bears Teste before the Judgment good to remove the Record if Judgment be given before the Return 255 Escape See Baron and Feme VVhere a Prisoner Escapes by permission of the Sheriff he may be taken again by the Party Plaintiff 4 Debt against the Sheriff for a Voluntary Escape the Sheriff pleads that he took him again upon fresh Suit Good 211 217 Against the VVarden of the Fleet 269 The Lessor of the Custody of a Prison answerable for an Escape where his Lessee is insufficient 314 Escrow See Pleading Evidence See Statutes The party suffering admitted to give Evidence for the King to detect a Fraud 49 Exception See Feoffment Excommunication In Excommunication ipso facto no necessity of any Sentence of Excommunication 146 Excommunication pleaded to an Action per Literas testamentarias Good 222 How discharged where the Capias is not inroled according to the Statute 338 Execution Upon an Elegit the Sheriff ought to deliver Possession by Metes and Bounds or otherwise it may be quasht 259 Executor See Abatement Costs Return Of Infant Executors where to Sue by Guardian 40 54. VVhere by Attorney 40 102 103 If a Man names himself in an Action Executor or Administrator and it appears the Cause of Action was in his own right it shall be well enough and the calling himself Executor is but surplusage 119 VVhere the Executors promise in relation to the Testators Debt shall make the Debt his own 120 268 VVhere Interest is due for a Debt partly in the Testators life time and partly since and one Action brought and Judgment given for the whole this is manifestly Erroneous 199 VVhere chargeable in the Debet detinet and where in the detinet only 271 321 355 Cannot assume the Executorship for part and refuse for part 271 Debt doth not lie against the Executor of an Executor upon a Surmise of a Devastavit of the first Executor 292 Of the Executors renouncing 303 cannot refuse after Oath 335 Of Executor de son tort 349 VVhat Acts an Executor may do before Probat 370 Exposition of Words Obstrupabat 4 Or 62 148 Pair of Curtains and Vallence 71 106 Ad sequendum 74 Vt 73 74 Aliter vel alio modo 92 Mutuasset and mutuatus esset 109 Aromatarij 142 Centena 211 Issue 229 Land 260 Crates 304 Gubernatio Regimen 324 Exilium 326 Vestura terrae 393 Extinguishment Where two Closes are in the same Possession the Duty of Fencing is Extinguished and shall not Revive thô the Closes come after into several hands 97 F. False Latine DE sex bovibus instead of bobus no sufficient Cause to Arrest Judgment 17 Feoffment A Man makes a Feoffment of a Mannor excepting two Closes for the Life of the Feoffor only The two Closes descend to the Heir 106 Fine The Delivery of a Declaration in Ejectment upon the Lands is no Entry or Claim to avoid a Fine 42. So where an Action is brought and discontinued 45 A Fine cannot bar any Interest which was divested at the time of the Fine 56 Whether a Fine and Non-Claim bars the Interest of a Lessee in Trust 80 No Bar to a Mortgage 82 A Parish may contain many Vills and if a Fine may be levied of Lands in the Parish it carries whatsoever is in any of those Vills 170 Lessee for years makes a Feoffment and levies a Fine the Lessor shall have five years to Claim after the Term expired 241 Forcible Entry In an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with force because upon the finding a Restitution is to be awarded 23 Foreign Attachment See London Of Foreign Attachments by Custom how to be pleaded 236 G. Gaming See Statutes Guardian See Baron and Feme Executor Grant See Hundred GRant without Consideration hinders not the arising of a Contingent use 189 In Prescriptions or Usage time beyond Memory the Law presumes a Grant at first and the Grant lost 387. And therefore nothing can be prescribed for that cannot at this day be raised by Grant ibid. Of the Kings Grant 408 409 A Grant to a Town to be a County and no Grant of having a Sheriff void 407 H. Habeas Corpus See Statutes THo' the Return be Filed yet the Court may remand the Prisoner to the same Prison and not to the Marshalsey 330 346 Whether it lies to remove a Prisoner in Ireland 357 Half Blood The Sister of the Half Blood shall come in for distribution upon the Stat. 22 23 Car. 2. chap. 10. 316 317 323 Half Blood no Impediment to Administration 424 Harriot Where a Lease is made to commence on the Determination of another if the new Lessee dyes before his Term Commences whether a Harriot shall be due 91 Heir An implied Estate of Land shall not pass in a Will for an Heir shall not be defeated but upon a necessary Implication 323 376 A Man cannot by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser 372 379 Yet Heirs of the Body of his second Wife having a Son by the first is a good name of Purchase 381 Hospital Mastership of a Hospital not grantable in Reversion 151 Hundred A Hundred what it is and the Bayliff of a Hundred 403 The Grant of a Hundred good notwithstanding the Statutes 2 E. 3. 12. 14 E. 3. 9. 410 412. I. Imprisonment Where an Offence is Fineable if the Fine be tenderd there ought to be no Imprisonment 116 Indictment Where a Statute makes an Offence at Common Law more penal yet the Conclusion of the Indictment is not contra formam Statuti 13 A Man cannot be Indicted for saying of a Justice of Peace he understands not the Statutes of Excise but may be bound to Good Behoviour 10 16 Indictment of Forgery upon the Stat. 5 El. 4. where good and where not 23 24 Strictness of words not required in in an Order of Sessions thô it ought in an Indictment 37 For Manslaughter not quasht upon Motion 110.
then it has a Proviso That if any Subject of this Realm has committed any Capital Crime in Scotland or other Foreign parts of the King's Dominions he may be sent from hence to be Tryed in such Foreign place Vpon Consideration of which Proviso the Judges unanimously gave their Opinion That there was nothing in the Habeas Corpus Act supposing he had committed a Capital Crime by Law Martial in Ireland to hinder his being sent thither to be tryed thereupon and subscribed their Names to the said Opinion and certified the same to the Privy Council Note That it was said while my Lord Hale was Chief Justice of the King-Bench that one who had committed Murther in the Barbadoes and taken here was sent over to be Tryed there But was before the Habeas Corpus Act. Patrick Harding's Case HE was Indicted at the Sessions in the Old Baily Anno primo Willielmi Mariae for High Treason The Indictment sets forth that the said Patrick Harding machinans proditorie intendens pacem communem tranquillitatem hujus regni Angl ' destruere Gubernationem dictorum domini Regis dominae Reginae infra hoc regnum Angl ' subvertere ac caedes destructiones desolationes infra hoc regnum procurare 23 Novembr ' anno regni domini nostri Willielmi Mariae c. primo apud paroch ' sanctai Martini in Campis in Com' Middlesex ' praedict ' malitiose proditorie compassavit imaginat ' fuit intendebat dict' dom ' Regem dom ' Reginam adtunc supremos veros indub ' dom ' suos non solum à statu titulo potestate imperio regimine regni sui Angl ' penitus deponere deprivare verum etiam eosdem dom ' Regem dom ' Reginam interficere ad mortem finalem destructionem ponere adducere stragem miserabilem inter subditos per totum hoc regnum alia Dominia sua causare quodque ipse praedict ' Patrick Harding ad nequissimas proditiones proditiosas intentiones suas praedict ' perimplend ' eodem vicesimo tertio die Novembr ' apud paroch ' praedict ' proditorie vi armis c. bellum rebellionem contra dictos dom ' Regem dom ' Reginam nunc ordinavit levavit gerebat ac diversos milites viros armatos armaturos ad mil ' ac bellum contra dictos Regem Reginam nunc gerend ' congregavit levavit procuravit ac viros milites sic ut praefertur levat ' extra hoc regnum Angl ' misit iter suum suscipere procuravit ad sese jungen ' aliis hostibus inimicis rebellionibus dictorum Regis Reginae bellum contra eosdem gerend ' ulterius quod ipse Patricius Harding ad nequissimas suas proditiones perimplend ' perficiend ' eodem 23 Novembr ' apud paroch ' praedict ' ut falsissimus proditor dictor ' Regis Regin ' cum quodam Johanne Taaf adtunc subdito dictor ' Regis Reginae existen ' proditorie se assembl ' consultavit ac easdem proditiones suas praed ' adtunc ibid ' eidem Johanni Taaff malitiose proditorie advisat ' loquend in auditu divers subditor ' dictor ' Regis Reginae publicavit declaravit ad suadend ' eundem Johannem Taaff adjutan ' assisten ' esse in iisdem proditionibus magnum praemium stipend ' eidem Johanni Taaff adtunc ibidem obtulit Si ipse praed ' Johannes Taaff adjutans assistens in iisdem esse vellet contra ligeantiae suae debitum contra pacem dictor ' dom ' Regis dom ' Regin ' nunc coron ' dignitat ' suas necnon contra formam Statut ' in hujusmodi casu edit ' provis ' c. Vpon Not guilty pleaded the Jury found a Special Verdict Viz. That Patrick Harding to the intent to Depose the King and Queen and deprive them of their Royal Dignity and restore the late King James to the Government of this Kingdom did for Money by the said Patrick paid list hire raise and procure Sixteen men Subjects of this Kingdom at the time and place in the Indictment mentioned to fight and wage war against the King and Queen and those Sixteen men so listed hired raised and procured did send out of this Kingdom into the Kingdom of France to assist and aid the French King then and yet an Enemy to the King and Queen and in open war with Their Majesties and to joyn themselves with the Enemies and Rebels of and against the King and Queen in waging war against the King and Queen And if upon this matter the said Patrick Harding be guilty of Treason prout the Indictment then we find him Guilty prout c. and if Not guilty c then not Guilty c. Vpon this Special Verdict found the Lord Chief Justice Justice Gregory and Justice Ventris who were then present at the Sessions conceived some Doubt for they were of Opinion that it did not come within the Clause of the Statute of 25 Ed. 3. of Levying War For that Clause is That if a man levy War against our Sovereign Lord the King in his Realm and by the Matter found in the Special Verdict it appears that these Men were listed and sent beyond Sea to aid the French King It was also Doubted whether it were a good Indictment within the Clause of the Statute of adhering to the King's Enemies the Fact found in the Verdict comes fully within that Clause viz. the sending Men to aid the French King then an Enemy to the King and Queen in open War against them But the Indictment is short as to this matter for 't is quod milites sic ut praefertur levatos extra hoc regnum Angl ' misit ad sese jungend ' aliis hostibus inimicis rebellat ' dict' Regis Regin ' whereas it should set have forth who the Enemies were that the Court might take notice whether they were Enemies as the Law intends 33 H. 6. 1. b. If the Indictment had been That he sent them to the French King then in open War c. it had been well And upon these Doubts the Case was Adjourned for further Consideration In Michaelmass Vacation the greater part of the Judges were assembled at the Lord Chief Justices Chamber and having debated the Matter amongst themselves they all except Justice Dolben agreed that the said Patrick Harding was guilty of High Treason within the Clause of the Statute for Compassing the Death of the King it being found by the Verdict That the said Patrick Harding to the intent to depose the King and Queen and deprive them of their Dignity c. did for Money hire list c. and an intent to Depose the King proved by an Overt act hath been always taken to be within the Clause of Compassing the Death of the King So is Hales's Pleas
Dighton 's Case 77 82 Dionise v. Curtis 211 Dorrel v. Jay 149 Drue v. Baily 275 Duncomb v. Walter 370 Dunwel v. Bullocke 304 Dutton v. Poole 318 332 E EAton v. Barker 133 134 Elpicke v. Acton 114 Ely v. Ward 55 Emerson v. Emerson 187 Ent v. Withers 315 321 Error 108 113 256 Evans c. 211 Exeter Bishop of v. Starr 166 F FAwkener v. Annis 264 Fisher v. Batten 155 Fitzgerald v. Marshall 206 Fitzharris 's Case 354 Foot v. Berkley 83 88 Fortescue v. Holt 213 Foxwith v. Tremaine 102 Freeman v. Barnes 55 80 Freeman v. Boddington 185 Fry 's Lady Anne Case 199 G GAmage 's Case 368 Gavell and his Wife v. Burket 53 Gifford v. Perkins 77 Gilman and Wright 11 Gilmore v. 330 Girling v. Alders 73 Girlington v. Pitfield 47 Glyn v. Smith 46 Goff v. Loyd 191 Goffe 's Case 216 Green v. Cubit 70 Gregory v. Eads 27 39 Griesley 's Sir Thomas Case 4 Gybbons v. North 75 H. HAll v. Phillips 62 Hall 's Jacob Case 167 Hanslap v. Cater 243 Hanway v. Merrey 28 Harrington 's Case 324 327 Harvey v. James 92 Harwood 's Case 178 Hawley 's Lord Case 143 Hayman v. Trewant 101 Heath v. Pryn 14 Hedgeborrow v. Rosenden 253 Heeley v. Ward 2 Henley Sir Andrew v. Dr. Burstal 23 25 Herbert v. Merrit 7 Herne v. Brown 339 Herring v. Brown 368 371 Heskett v. Lee 73 Hicke 's Sir William Case 154 Hill v. Langley 50 Hinchman v. Iles 247 Hocking v. Matthews 86 Hodgkins v. Robson and Thornborow 276 Hodson v. Cooke 369 Holland v. Ellis 278 Horne v. Ivie 47 Hornsey Administrator of Jane Lane and Dimmocke 119 Horsam v. Turget 111 Hoskins v. Robbins 123 163 How Sir John v. Woolley 1 How 's Case 209 How v. Whitfield 338 339 Howlet v. Carpenter 311 I. J 's Case 323 Jackson v. Gabree 51 James v. Pierce 269 James v. Richardson 334 Jay v. Bond 222 Jay 's Case 302 Jemey v. Norris 105 Jenning v. Hunking 263 Ile 's Case 143 153 John St. v. Moody 274 Jones v. Powell 98 Jones Sir Samuel v. The Countess of Manchester 197 Jordan v. Forett 76 Ironmongers Company of v. Nailer 311 Isaac v. Ledgingham 167 Juâ—ado v. Gregory 32 K KAtharines Case of St. Hospital 149 Kent v. Harpool 306 Kent v. Derby 311 Kerle Sir John v. Osgood 50 King v. Melling 214 225 The KING v. Alway and Dixon 170 v. Armstrong Harrison al' 304 v. Atkins 35 78 v. Bates 85 v. Benson 33 v. Burford 16 v. Clapham 110 v. Sir Thomas Fanshaw 331 v. Green al' 171 v. Humphreys al' 302 v. Jane D 69 v. Ledgingham 97 104 v. Marlow 316 v. Mead 328 v. Monk al' 43 v. Nelson 37 v. Plume 326 346 v. Ring 23 v. Saunders 39 v. Serjeant 23 25 v. Serjeant and Annis 181 The KING v. Webb 17 v. Wright 169 L LAmpereve Adrian and other Frenchmens Case 63 Large v. Cheshire 147 Lee v. Edwards 44 Lee 's Dr. Case 105 Leech v. Widsley 54 Leicester 's Earl of Case 278 Lewyn v. Forth 185 Lincoln the Bishop of v. Smith 3 Lion v. Carew 91 Littleton 's Sir Thomas Case 270 Lomax v. Armorer 267 LONDON Case of the City of and Coates 115 Mayor and Comminalty v. Dupester 261 the City of v. Goree 298 LONDON Case of the City of concerning the Duty of Water and Bailage 351 Love v. Wyndham 79 Loyd v. Brooking 188 Lucy v. Levington 175 M. MAddy 's Case 158 Maleverer and Redshaw 39 Martyn v. Delboe 89 Matthews v. Crosse 119 Maynard 's Case 182 Mekins v. Minshaw 212 Meredith 's Case 217 Methyn and the Hundred of Thistleworth 118 235 Mewes Sir William v. Mewes 66 Miller v. Ward 92 Molyn v. Cooke al' 298 Monk v. Morris and Clayton 193 Monk 's Case 221 Monnington v. William 108 More v. Lewis 27 Moreton 's Mr. Justice Case 30 Morris 's Theodore Case 146 Morse Simon v. W. Sluce 190 238 Mosdel the Marshal of the Court v. Middleton 237 Matteram v. Jolly 271 N NOell v. Nelson 94 Nokes and Stokes v. 35 Norris and Cuffuil 14 Norton v. Harvey 259 Nurstie v. Hall 10 O OEle v. Dittlesfield 153 Osborn v. Beversham 322 Owen v. Lewyn 223 P PAge v. Denton 354 Paget v. Dr. Vossius 325 Parker v. Welby 85 Parker 's Case 331 Parrie 's Case 46 Parris 's Case 49 Parsons v. Perus 186 Pellow v. Kingsford 126 Pepis 's Case 342 Perill v. Shaw 49 Perrie 's Case 17 35 Perrot v. Bridges 221 Peters v. Opie 177 214 Peterborough Earl of v. Sir John Mordant 59 Pettus 's Sir Thomas Case 110 Peyton 's Sir Robert Case 346 Phillips v. Kingston 117 Pibus v. Mitford 372 Pierce v. Win 321 Pierson v. Ridge 105 Pigot v. Bridge 292 Player Sir Thomas Chamberlain of London and Jones 21 Playters v. Sheering 64 Plomer Sir Walter v. Sir Jeremy Whitchcot 314 Polexfen and Ashford v. Crispin 122 Polexphen v. Polexphen 133 Polus v. Henstock 97 Pomfret v. Ricroft 26 44 Potter and Sir Henry North 383 Prettyman 's Lady Case 208 Prior v. Shears 100 Prior v. 207 Proctor v. Newton 184 Prydyerd v. Thomas 96 Puckle v Moor 191 Putt v. Vincent 76 Putt v. Nosworthy 135 R RAdly and Delbow v. Eglesfield and Whital 173 Read v. Wilmot 220 Reive v. Cropley 347 Reynell v. Heale 122 Richardson v. Disborow 291 Richmond Duke of v. Wise 124 Robinson v. Pulford 43 Robinson v. Woolly 306 319 Robson 's Case 107 Rumsey v. Rawson 18 25 Rushden v. Collins 44 S SAcheverel v. Frogate 148 161 Sands v. Rudd 186 Sard v. Ford 98 Saunders v. Williams 319 Seaman v. Dee 198 Shaftsbury Earl of v. Cradock 363 v. Graham al' 364 Sherman 's Case 210 Silly v. Silly 260 262 Skier v. Atkinson 22 Skinner and Gunter c. 12 18 Skinner v. Webb 168 Skirr and Sikes 34 Smith 's Case 66 Smith Sir William v. Wheeler 128 Smith v. Butterfield 184 Smith v. Tracy 307 316 323 Southampton Case of the Heirs of the Earls of 142 Sparkes v. Martyn 1 Stanlack 's Case 181 Steed v. Berrier 341 Sterling Sir Samuel v. Turner 206 Stone 's Case 16 29 Suffil 's Case 2 Sympson and Quinley 88 T TAilour v. Fitzgerald 137 Tarlour and Rous v. Parner 88 Taylor 's Case 293 Thodie 's Case 234 Thomas v. Butler 217 Thomlinson v. Hunter 53 Thrower 's Case 208 Thynne Sir Henry Frederick v. Sir James Thynne 51 Toll v. Dawson 184 Tothill v. Ingram 314 Twisleton v. Hobbs 3 V VAughan and Loyd 7 Vere v. Smith 121 Vertue v. Bird 310 W WAldron v. Ruscarit 170 Walker v. Wakeman 294 Walter v. Channer 21 Ward v. Rich 103 Ward v. Forth 210 Watkins v. Edwards 174 Watson v. Snead 238 Webb Doctor v. Batchelour al' 273 Wells v. Wells 40 Welsh v. Bell 36 Weyman v. Smith 88 Whaley v. Tancred 241 Wharton and Brooke 21 Wilbraham and Snow 52 Wildman v. Norton 249 Williams v. Gwyn 60 Wilson v. Armorer 77 87 106 Wilston and Pilkney 242
Wingate and Stanton the Bail of William Stanton 38 Wise 's Case 69 Wood v. Coat 195 Woodward v. Aston 296 Wortley the Lady v. Holt 31 Wright v. Johnson 64 Z ZOuch v. Clay 185 ADVERTISEMENT Note That the Author of these Reports has referr'd to Croke's Elizabeth as the first Part and Croke's Charles as the third Part of those Reports except in the first thirty Sheets of the First Volume in which thirty Sheets he referr'd to Croke's Charles of the first Edition as the first Part and Croke's Elizabeth as the third Part of those Reports TERMINO Sancti Michaelis Anno 20 Car. II. in Banco Regis Sparks c. versus Martyn JONES moved for a Prohibition to the Court of the Admiralty for that they Libelled against one for Rescuing of a Ship and taking away the Sails of it from one that was executing the Process of the Court against the said Ship and for that in the presence of the Iudge and face of the Court he Assaulted and Beat one and spake many opprobious Words against him Now seeing that these Matters were determinable at Law the Ship being infra corpus Comitatus and they could not adjudge Damages to the party or Fine or Imprison He prayed a Prohibition But the Court denied it absentibus Windham Moreton 1 Cro. 216. For they may punish one that resists the Process of their Court and may Fine and Imprison for a Contempt to their Court acteâ— in the face of it tho' they are no Court of Record but if they should proceed to give the party Damages they would grant a Prohibition quoad that And of that Opinion was Wyndham the Case being afterwards put to him by the Chief Justice But the parties afterwards put into their Suggestion That the original Cause upon which the Process was grounded was a Matter whereof the Court of Admiralty had no cognisance Wherefore a Prohibition was granted For then the Rescous could be no Contempt Sir John How versus Woolley an Attorney of the Court. IT was Moved That Woolley should put in special Bail being an Attorney at large and having dicontinued his Practice But the Court said Attorneys at Large have the same priviledge with the Clerks of the Court and are to appear de die in diem And they were not satisfied that he had discontinued his Practice Suffil's Case IT was Moved to quash the Return of a Rescous against Suffil and divers others who rescued a person taken upon Mesne Process because the Rescuers being particularly named 'tis said rescusserunt and not added quilibet corum rescussit And for that Case was cited in the 2 Cro. where the Sheriff returns an Exigent against divers quod non comperuerunt upon the Quinto exacti and doth not add nec aliquis corum comperuit and for that cause it was Reversed in a Writ of Error notwithstanding Twisden being only in Court held it to be well enough it being in the Affirmative Anonymus A Prohibition was prayed to the Ecclesiastical Court for that a Parson Libelled against one there for talking of him Knave and 't was granted it not appearing to relate to any thing concerning his Function And a Case was cited to be Adjudged 24 of the Queen the Suit being in the Ecclesiastical Court for these words viz. Sir Priest you are a Knave and a Prohibition was granted Note If a man be taken in Execution he cannot be bailed tho' he brings a Writ of Error Anonymous IN Debt upon a Lease for years the Defendant may plead Entry into part upon which follows Suspension and it doth not amount to the General Issue Heely versus Ward ERror to Reverse a Iudgment given in the Court at Hull where the Plaintiff in an Assumpsit did declare That at such a place infra Jurisdictionem Curiae the Defendant in consideration that the Plaintiff had assumed to pay him so much a yard promised to deliver him so many yards of Kersey and it was assigned for Error That the delivery is not laid to be at a place infra Jurisdictionem Curiae and indeed there is no place at all And of that Opinion was Twisden he being only in Court and cited a Case where in an Assumpsit in the Marshalsey upon a Promise to make a Lease of a House in Middle Row and after Iudgment it was held Erroneous because Middle Row was not laid to be infra Jurisdictionem Curiae The Bishop of Lincoln versus Smith THe Bishop of Lincoln sued in the Court holden before his Chancellor for a Pension to which he intituled himself by Prescription and a Prohibition was prayed for Smith the Defendant there for that being by Prescription that Court had no cognisance of it And for that my Lord Coke's Opinion was cited 2 Inst 491. especially he could not sue for it in his own Court But it was resolved by Keeling and Twisden the other Iustices being absent that Pensions tho' they were by Prescription might be sued for in that Court for having cognisance of the Principal that shall draw in the Accessory As if one Libel for a Modus decimandi if they allow it they may try it and Coke's Opinion they said was not warranted by the Books and Fitzh N.B. 524. is against it 2 Cro. 483. and the Court being held before the Chancellor and not the Bishop himself he might sue there Vide Hob. 87. Conusans of Pleas granted to be holden before the Steward of the Grantee licet the Grantee fuerit pars Anonymus AN Attachment was prayed against one who being arrested upon a Latitat gave a Warrant of Attorney to Confess a Judgment and presently after snatched it out of his hand to whom it was delivered and tore off the Seal And the Court seemed to incline in regard it was to Confess a Judgment in this Court that it was a Contempt upon which an Attachment might be granted Anonymus A Prohibition was prayed to stay a Suit in the Court Christian for Tythes upon the suggestion of a Modus which was alledged in this manner That the Proprietors and Occupiers of such a Mannor or any parcel thereof should pay a Groat to the Parson for Herbage Tythes The Court held his this could not be for if a man had but two or three Foot of Ground in the Mannor he should pay a Groat but it ought to have been laid That the Proprietors and Occupiers of such a Mannor for themselves and their Farmers had paid Four pence Twisleton versus Hobbs ACtion for these Words You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds The Iury found the Defendant Not Guilty as to the first Words and resolved the last Words were not Actionable if not being laid that he knew of the Forgery Sir Thomas Griesley's Case INformation against him for stopping the High-way the word was Obstupabat It was proved in Evidence that he plowed it up and Resolved it did well maintain the Information Anonymus IN Debt If
the Defendant wage his Law the Oath of the Eleven which are Sworn de credulitate may be dispensed with by the Plaintiffs assent Vid. Mag. Charta c. 28. Note It was Adjudged in the King's Bench 19 Car. II. That if a Prisoner escape by the permission of the Sheriff yet he may be taken by the party at whose Suit he was condemned for it may be the Sheriff is Insufficient and it is no reason that his own Act should damnifie the Plaintiff Vide Hob. 202. Termino Sancti Hillarij Anno 20 21 Car. II. In Banco Regis Barnes versus Bruddel ACtion for these Words alledged to be spoken of the Plaintiff viz. She was with Child by J. S. whereof she Miscarried and concludes That by reason thereof she was so brought into her Fathers displeasure that he turned her out of Doors and that she was brought within the Penalty of the Statute of 18 Eliz. And in Maintenance of this Action a Case was cited out of Roll's 1st Part 35. inter Meadows Boyneham an Action was brought for calling of one Whore Per quod consortium amisit Vicin ' suorum and held it would lye And in Anne Davie's Case 4 Co. 17. it is held That since the Statute of the 18 Eliz. cap. 3. to say One had a Bastard would bear an Action But notwithstanding the Opinion of the Court was That such an Action would not lye unless a special Damage had been alledged as to say She had lost her Marriage as in Anne Davies's Case and the Reason upon the Statute alledged in the Case was said by Twisden to be of my Lord Coke's putting in for Iustice Jones affirmed to him there was nothing said thereof in the Case Anonymus IF a Tradesman contract Debts and after gives over Trading he may be afterwards a Bankrupt within the Statute in respect of the Debts contracted before And so it was said to be Ruled in Sir Job Harvies Case Anonymus A Warren may pay Tythes by Custom So of Doves in a Dove-house or Fish in a River Note It was said by Twisden That if a Libel be in the Ecclesiastical Court for a thing whereof they have cognisance altho' the party intitles himself to it by Custom no Prohibition lies Anonymus A Prohibition was prayed for that they Cited him to answer Articles in the Ecclesiastical Court and did not deliver a Copy of the Articles and it was granted quousque they should deliver the Copy But the Prohibition which was taken out was absolute which the Court being informed of they did not think fit to grant a Consultation but to discharge that Prohibition by a Supersedeas Whereupon they proceeded and Excommunicated the party for default of Answering Who again moved the Court for a Prohibition and one was granted with a Mandamus in it to absolve him if it were for not Answering before they gave him a Copy of the Articles Bains Biggersdale ERror to Reverse a Judgment in an Action of Debt upon a Bond in Rippon Court because it was entred upon the Record Assid ' damna ultra misas custagia ad 10 l and doth not say Occasione detentionis debiti or Occasione praedicta and the Iudgment was Quod recuperet damna praedicta and doth not say Per Juratores assessa Yet notwithstanding the Judgment was affirmed Billingham Vavasor ERror to Reverse a Judgment in Debt in the Court of York Assigned First In the Variance between the Count and Plaint for the Plaint was Entred Ad hanc Curiam venit queritur de Placito deb ' super demand ' 14 l and the Count was for 12 l but it was Answered That the certainty of the Sum needed not to be expressed in the Plaint and so Surplusage But otherwise it is of a Variance between the Original and the Count for the Writ must comprehend the certainty of the Debt and 2 Cro. 311. was cited where Debt was brought in the Common Bench for 40 s and after the Return of the Pluries Capias the Entry was Quod Querens obtulit se in plito deb ' 40 l and assigned for Error and disallowed But to that it was said That that was but a Misprision in the Entry of a Continuance which had a former Record to warrant it And here tho' the certainty of the Sum need not to have been expressed Vid. 3 Cro. 619. yet when it is the Plaint must not vary from it Et adjornatur Bourne versus Mason al' IN an Assumpsit the Plaintiff declares That whereas one Parrie was indebted to the Plaintiff and Defendants in two several Sums of Mony and that a Stranger was indebted in another Sum to Parrie that there being a Communication between them the Defendants in Consideration that Parrie would permit them to sue in his Name the Stranger for the Sum due to him they promised they would pay the Sum which Parrie owed to the Plaintiff and alledged that Parrie permitted them to Sue and that they Recovered After Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff could not bring this Action for he was a Stranger to the Consideration But in maintenance thereof a Judgment was cited in 1658. between Sprat and Agar Vid. 3 Cro. 619. in the Kings-Bench where one promised to the Father in Consideration that he would give his Daughter in Marriage with his Son he would settle so much Land After the Marriage the Son brought the Action and it was Adjudged maintainable And another Case was cited of a Promise to a Physician That if he did such a Cure he would give such a Sum of Mony to himself and another to his Daughter and it was Resolved the Daughter might bring an Assumpsit Which Cases the Court Agreed For in the one Case the parties that brought the Assumpsit did the Meritorious act tho' the Promise was made to another and in the other Case the nearness of the relation gives the Daughter the benefit of the consideration performed by her Father but here the Plaintiff did nothing of trouble to himself or benefit to the Defendant but is a mere Stranger to the Consideration wherefore it was adjudged quod nihil capiat per billam Herbert versus Merit A Prohibition was prayed to the Ecclesiastical Court for that the Defendant Libelled against the Plaintiff there for calling of her Impudent Whore which was said to be only a word of Passion and the later Opinions have been that unless some Act of Fornication were expressed that Prohibitions should be granted But the Court denied it in this case it being an offence of a Spiritual Cognizance and Eaton and Ailoffes Case 1 Cro. 78. and Pewes Case 329 were cited The Sheriff may Sell Goods he takes in Execution by a Fieri facias at any Rates if the Defendant denies to pay the Money Nota No Action of Debt lies against the Sheriff when the Party escapes who is taken upon a
remedied either by the words or intention of the Act. Vid. Ante. Nokes and Stokes versus .... THey two brought an Action of Debt upon a Bond. The Defendant pleads the Release of one of the Plaintiffs They pray Oyer of the Release which was of all Actions Suits c. that he had against the Defendant upon his own account and pleads that this Bond was not upon his own account and upon this Issue is taken and found for the Plaintiff Now it was moved in Arrest of Judgment That this Issue was frivolous And upon the whole matter it appears that the Plaintiffs have no cause of Action for the Release of one Obligée dischargeth the Bond and it must be upon his own account But the Court Seriatim delivered their Opinions for the Plaintiffs for he might take this Bond as a security of a Debt with which he was intrusted for another And the truth of the case upon the Evidence was That the Defendant being charged with the payment of divers Legacies to Strangers was requested by one of the Plaintiffs to enter into Bond to him and the other Plaintiff who afterwards made the Release that should be Conditioned for the payment of the Money Bequeathed to the Obligees to the use of the Strangers which not being done the Defendant was Arrested at the Suit of the Plaintiffs this being made known to the Plaintiff who was absent at the taking of the Bond and knowing nothing of the Suit was contented to Release all Actions he had against the Defendant upon his own account King versus Atkins DEbt upon a Bond of 2000 l The Defendant demands Oyer of the Condition which was That whereas the Plaintiff was bound with the Defendant to the King that the Defendant should give a true account of such Moneys as he should receive for the Excise and Chimney Money And that the Defendant should save him harmless from all Payments or Suits upon that Bond and pleads that no Suits Process or Execution was against the Plaintiff upon that Bond issint he saved him harmless The Plaintiff replies a Scire facias issued against him out of the Exchequer upon the Bond and that he was forced to retain an Attorney and that he paid 1 s for his Appearance To this the Defendant Demurrs Because he did not alledge that he gave him notice And this was said not to be like Broughtons Case 5 Co. For there the Defendant knew the Money was to be paid at the day and it was to save him harmless from the single thing but here from a great many so that it was requisite he should have notice Where the Mesne is bound to acquit the Tenant the Tenant shall not recover Damages unless he gives the Mesne notice that he is distrained so that he may Replevy the Beasts But it was said That no notice ought to be given where the thing is an Act of a third person as to pay Money when J. S. comes into England To which it was answered That did not lie in the Conusance of either Party but this was in the notice of the Obligée But that which séemed most against the Demurrer in this case was That the Defendant having pleaded no Process c. he takes upon him the knowledge of it Vid. 1 Cro. 54. And if in the Replication the Plaintiff had alledged notice and the Defendant had Traversed it it would have been a departure and the Court advised until the next Term. Postea Welsh versus Bell. TRespass quare clausum fregit and taking of two Horses out of his Cart The Defendant justifies the taking of them as a Distress for Rent due to him And to this the Plaintiff Demurrs First He could not sever the Horses but ought to have distreined Cart and all according to the Book of 20 Edw. 4. 3. Distress of a Cart loaden with Corn Rolls 270. 3 Cro. 783. and four Horses in it adjudged not excessive because he could not sever the Horses And in 3 Cro. 7. a Difference is taken between Distress for Rent and Damage Feasant to this purpose And the common ground is that a Distress must be taken so as it may be returned in the same plight 1 Inst 47. a. Secondly It appeared also in the Declaration That there was a Servant of the Plaintiffs in the Cart by reason of which it was alledged that the Cart and Horses were priviledged for a Horse cannot be distrained upon which a Man is Riding 3 Cro. 549 596. Ed Adjornatur Twisden cited a Case adjudged before Rolls Chief Justice in Trespass for taking of his Trunk The Case was the Defendant distrained it for Rent and being Informed that there were things of Value in it he caused it to be Corded to prevent damage And for that he was adjudged a Trespasser ab initio Anonymus AN Action on the Case was brought against the Defendant for taking and keeping of the Plaintiffs Wife from him And upon Issue joyned the Court was moved to defer the Trial the Case being that the Wife was Daughter of the Defendant and taken from him by the Plaintiff without his Consent and as the Plaintiff affirmed Married to him Now this Marriage was questioned in the Court Christian And the Court thought it reasonable that the Trial should be delayed until the Marriage was determined there But they were Informed on the other side that the Court were ready to give Sentence That the Marriage was good and the Defendant had Appealed Wherefore they thought fit that the Trial of the Cause should proceed The King versus Nelson AN Order for the keeping of a Bastard Child being removed by Certiorari it was moved to have it quashed because it was ad Sessionem pacis in Com' praed ' and doth not say Tent ' pro ' Com' praedict ' Sed non allocatur For such strictness is not required in an Order But Twisden said it ought to be so in an Indictment It was further alledged that it ought to appear That the Child was likely to be chargeable to the Parish which was agreed But that was sufficiently set forth in the Order for upon Reading of it it appeared that he was ordered to pay such Charges as the Parish had been at Wherefore the Court confirmed the Order and awarded that he should pay such Costs as the Parish had been at for Contesting of it as was done formerly in one Haslefoot's Case And besides the Court Committed Nelson Anonymus DEbt upon a Bond Conditioned to perform Covenants If the Defendant pleads performance without demanding Oyer of the Indenture it is a good cause of Demurrer Anonymus IN Covenant the Plaintiff declares That he let the Defendant a House and that he Covenanted to Repair it The Defendant pleads That it was sufficiently Repaired before the Action brought The Plaintiff Demurs because he doth not plead That he Repaired it for it may be the Plaintiff himself did it Keeling and Raynsford inclined against the Demurrer because
the Parson shall not take them from him for it shall be taken to have commenced since the Endowment Note If the Matter concerns the whole County it is to be Tryed in another County which is indifferent Hall versus Philips AN Information was brought for the forfeiture of a certain quantity of Brandy and sets forth the two Acts 13 14 Car. 2. c. 23 and 24. of Excise upon that and other Liquors and then the additional Act of 15 Car. cap. 11. wherein it is Enacted That no Foreign imported excisable Liquours shall be Landed c. before due Entry be first made thereof c. or before the Duty of Excise due and payable for the same be fully satisfied and paid and that every Warrant for the Landing or Delivery of any such Foreign Liquors shall be Signed by the Hand of the said Officer c. upon pain that all such Foreign Liquors as shall be landed c. contrary to the true intent and meaning thereof or without the presence of an Officer or Wayter for the Excise or the value thereof shall be forfeited and lost the one Moiety to the King the other to him which shall seize inform c. And avers that this Brandy was Landed the Duty not fully satisfied and paid and without the presence of an Officer or Wayter for the Excise but doth not aver that a due Entry was not first made thereof Whereupon it was moved after a Verdict for the Informer in Arrest of Judgment that if either the Duty were paid or Entry made or the Landing were in the presence of an Officer it satisfied the Act which is in the Disjunctive and or shall not be taken Conjunctive unless the words are of like nature as 1 Mar. cap. 3. Maliciously or Contemptuously disturb Preachers especially in a Penal Law Besides if the Act required these three things should be done then payment would not suffice without the presence of an Officer at the Landing the like words are taken Disjunctively in Renigers Case Pl. Com. But it was said on the other side That the word or must be taken here in the Conjunctive and that for the apparent inconvenience that would follow and that the Statute intended all thrée should be performed and that an Entry should not suffice without payment or agreement with the Officer which Tantamounts For otherwise this Act which was made to be further remedial to the King would rather disappoint this Revenue of Excise given by former Acts which did also require an Entry to be made but this Act adds the Penalty for Non-entry and this Entry is to be made for a check upon the Officer that he accounts right to the King 2 Cro. 322. Also it appoints Landing in the presence of the Officer that it may be observed whether more be Landed than is contained in the Warrant for Landing but never meant that Entry should suffice without payment for so if Party be a Foreigner or Insolvent the King loseth his Duty And the Court gave Iudgment for the Informer But said they would have staied until the next Term but that great mischief might be done in the interim if it should be known that such a doubt sticks here and they would not give any incouragement to the lessening of the Kings Revenue Anonymus IN an Indictment upon the Act for coming within five Miles of a Corporation It was moved that no Indictment lay upon it because the Act appoints a Penalty of 40 l to be recovered by Action of Debt Bill Plaint or Information Sed non allocatur For when a Statute makes an Offence the King may punish it by Indictment but an Information will not lye when a Statute doth barely prohibit a thing vid. 2 Cro. 643. 3 Cro. 544. Note It was resolved at Serjeants Inn That when a Penalty is to be divided viz. To the King the Poor and the Informer If the King along Sue so that there is no Informer yet the Poor shall have their part Adrian Lampereve and other Frenchmens Case A Motion was made by the Solicitor upon a Special Direction from the King in behalf of the said Lampereve and others Frenchmen to have a Certiorari to Bedford Gaol where they were committed for Robbery Keeling Chief Justice I lately attended his Majesty about this matter and I thought he had been satisfied with what I then said and now repeat viz. That if we should remove them now we should discharge his Majesties Justice for there is no Indictment found and none can be found but at Bedford and the Prosecutors and Witnesses are there but he might have it Tryed at the Bar if he pleased so the only way is to let them stay at Bedford till the Assizes and then if Prosecutors appear not or an Ignoramus be found they will be discharged by Proclamation and if the Indictment be found then the Judge may take a new Recognizance of the Prosecutors to appear and Prosecute here and you may have a Certiorari now to deliver there or you may have it there from my Brother Rainsford who goes that Circuit to remove all up hither Sollicitor I suppose this will satisfie Curia We must acquit our selves of the Kings Justice In Easter Term following they were brought up hither and being Arraigned upon the Indictment they pleaded Not guilty and some of them desired to be Bailed and the Court said they might but it must be done in the Court because the Bail must be bound Body for Body and they required 4 Men to be Bail each worth 300 l Body for Body and in no sum certain They were afterwards Tryed per medierat ' linguae and some of the Aliens were not Frenchmen and most of them dwelt in Middlesex Lady Baltinglass's Case THe Court denied a Tryal at the Barr because the Costs were not paid upon other Tryals which went against her in other Courts which the Court here would take notice of Articles were exhibited against a Register of an Ecclesiastical Court for Misdemeanours done by him in his Office He moved for a Prohibition but it would not be granted unless they examin him concerning the Articles upon his Oath Wright and Johnson Assmpsit To deliver a Gelding in as good plight as he borrowed him and Avers that he did not deliver him at all A Verdict was had for the Plaintiff yet Iudgment was given against him because the Breach was not laid as the Promise is Playters versus Sheering IN a Replevin removed by Recordari There was a Non-suit for want of a Declaration and thereupon the Defendant made a Suggestion and took out a Writ of Enquiry upon 17 Car. 2. cap. 7. The Plaintiff moved that this might be set aside because the Non-suit hapened through the sudden Sickness of the person emploied to Prosecute Curia This new Statute having taken away the Writ of Second Deliverance hath made the Plaintiff remediless unless we help him therefore we will endeavour it as far as we can Let
c. and in Replevin the Avowant is Actor and in Suffering of a Recovery the Tenant is the main Agent being to his use in no other be declared And it was an Error assigned in the Lord Newport and Mildmay's Case as appeareth by the Record yet it seems it was taken to be so plain as not fit to be insisted on Wherefore there is nothing of it in the Report of the Case 1 Cro. 224. yet there was all endeavour imaginable used to Reverse that Recovery and divers other Presidents there are of the same manner of Entry And if it can appear to the Court that there was a Guardian admitted the Form of the Entry shall not be so severely Examined as in the 4 Rep. 53. where there was no Entry of any Admission of the Guardian by the Court at all yet it appearing quod venit per Guardianum the Court would not Reverse the Judgment for Error And for the Book of the 2 Cro. 641. there were other Reasons which Reversed the Judgment and the Admission ad prosequendum was not mentioned until the Court upon the other Matters had Resolved the Reversal And the Books there cited do not at all prove it to be Error And ad sequend ' ur Guardianum is not at all amiss for Ut many times notes an Identity Seisitus ut de feodo makes Conusans ut Ballivus c. And for the Entry of the Appearance it may be taken that the Guardian came in proper Person and so it ought to be But if propria persona refers to the Infant he must have Reversed the Recovery during his Nonage And so Twisden saith it hath been resolved in this Court lately Vid. Roll's 1st Part 171 and 2d Part. 573. Anonymus SCroggs the King's Serjeant moved to have at Trial at Bar in an Indictment of Perjury and for some further Time urging that it was the King's Case The Chief Justice said The King was no otherwise concerned in it than in maintenance of the Common Justice of the Realm It was usually the Subjects Interest and His Prosecution and therefore must not deviate from the Course in Civil Causes and not to be resembled with Causes wherein the King is concerned in point of Interest Anonymus A Prohibition was prayed to stay a Suit for Tythes of Wood. The Plaintiff suggested That he had a House in the Parish and that the Wood was cut for Fuel burnt in his House But the Court said that this would not serve unless it were expressed that the House was for maintenance of Husbandry by reason of which the Parson had Uberiores Decimas Barrett versus Milward al. A Scire facias was awarded against the Defendants upon a Recognizance which they entred into as Bail for a Plaintiff in a Writ of Error that he should prosecute it with effect or pay the Money if the Judgment were affirmed They plead That he did prosecute it with effect and that the Judgment was not yet affirmed The Plaintiff Replied Protestando that they did not Prosecute with effect Pro placito that the Judgment was affirmed by the Justices of the Common Bench and Barons of the Coif Et hoc paratus est verificare per Recordum To which the Defendants Demurred generally Because it was not alledged That there were Six Justices and Barons present when the Judgment was affirmed For 27 Eliz. c. 8. which gives them Authority requires that there should be Six at the least Sed non allocatur For the Defendant should then have pleaded Nul tiel Record ' for if there were not Six their Proceedings were coram non Judice Nota If a Certiorari be not Returned so that an Alias be awarded the Return must be as upon the first Writ and the other must be Returned quod ante adventum istius brevis the Matter was certified Gybbons versus North. IN an Assumpsit the Plaintiff Declared That whereas at the Defendants Request he was bound with him in a Bond of 200 l he in Consideratione inde promised to save him harmless and obliged himself his Heirs and Executors in 200 l to the performance of it and the Money not being paid the Defendant did not save him harmless But per debitum legis processum he was forced to pay the Money The Defendant Demurred because he did not alledge That he did not pay him 200 l For obliging of himself in the penalty of 200 l to save him harmless He hath election either to save him harmless or pay 200 l But the Court gave Judgment for the Plaintiff for there is no Election in this case being no more than an ordinary Promise to Save harmless And this Action is brought upon the Plaintiffs Dampnification which is a Breach and he doth not demand the 200 l Also a Verbal Contract cannot create a Penalty to oblige the Heir Jordan versus Forett ERror to Reverse a Judgment given against an Executor in Debt in the Common Pleas where the Executor pleaded divers Judgments formerly obtained against him and the last he pleads thus That one Eliz. H. in eadem Curia implacitasset c. and Recovered in Trinity Term but expresses not in what Year and there upon a general Demurrer Iudgment was given for the Plaintiff and it was assigned for Error That this Incertainty in respect of Time was good at least upon a general Demurrer But the Court affirmed the Judgment For if such Pleading should be allowed it would be very inconvenient to the Plaintiff and very difficult to find out the Record and then how should he plead that it was kept on foot by Fraud or such like But if it had been ascertained when the Plea commenced tho' no time alledged when the Judgment was obtained yet that would have been good for the Continuances would have directed to the finding of it Twisden said That the Course in this Court was a in Scire facias upon a Judgment to say quod cum recuperasset without alledging any Time But in the Common Pleas they set forth the Term. Putt versus Vincent IN Debt for 3900 l the Plaintiff declared upon Articles of Agreement wherein Putt Covenanted to Convey certain Lands to one Nosworthy and there are also certain Covenants from Nosworthy to the Plaintiff and from the Defendant Vincent who after Imparlance pleads that Nosworthy sealed the Deed and is still alive To which the Plaintiff Demurred And it was alledged by Jones That this being after Imparlance could not be pleaded it being only in Abatement and that he Commences his Plea Actio non as if it were a Plea in Bar. And the Court inclined that it was insufficient for both Causes But then it was said It appears by the Deed to which Nosworthy was a party that the Plaintiff could not sue the Defendant alone and so of his own shewing he could not have Iudgment But it was answered That it did not appear that Nosworthy ever Sealed the Deed. Et Adjournatur Postra Gifford versus
be good Now this being the way of Operation there is no reason why he may not Devise it to one after the death of two as well as after the death of one This would be so in Grants were it not that a certainty is required in them 1 Cro. 155. which is not required in Devises Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Freeman versus Barnes EError to Reverse a Judgment in an Ejectione firmae in the Common Pleas the Case upon a Special Verdict was thus The Marquess of Winchester being seised in Fee of the Lands in Question the 8 of July 9 Jac. Lets them to Sir An. Maynee for 100 years in Trust for the Marquess and his Heirs and to wait upon the Inheritance The Lessee enters afterwards the Marquess enters and Lets it to the Lord Darcy for 7 years and then Le ts to the Spanish Embassador for 7 years which Leases being expired Sir A.M. Demises to Freeman for a Term yet unexpired this Demise is not found to be upon the Land Afterwards the Lord Marquess Demises to Germin for 54 years upon Consideration of Money and Reserves a Rent and Covenants to Levy a Fine for the assurance of the Term which was afterwards done with Proclamation Germin enters and five years passed without any Claim made which Lease by mean Assignment came to Wicherly the Lessor of the Defendant who was Plaintiff in the Common Pleas and there had Iudgment The only Question upon this Special Verdict was Whether the Fine and Non Claim should barr the interest of Sir A. M. the Lessee in Trust This Case having béen argued thrée several times at the Bar The Court did this Term deliver their Opinons and did all agrée that the Iudgment ought to be affirmed It was considered quid operatur by the entry of the Marquess and they all except Moreton held that Prima facie he was Tenant at Will as Littleton Sect. 463. is where the Feoffor enters upon the Feoffée to his use but that the Entry of Germin his Lessée did ouft Freeman the Assignee of Sir A.M. which Assignment though not found to be upon the Land 2 Cro. 660. was good as the Chief Justice held because the two former Leases made by the Marquess were expired so he became Tenant at Will again but them he making of another Lease and the Lessee entring this must work an ouster and so the Fine would bar the Right For they agreed that a Fine regularly shall not work upon an Interest which is not divested though in some Cases it doth as upon the Interest of a Term according to Safins Case 5 Co. which yet cannot be divested but though the first Entry make but a Tenancy at Will yet taking upon him to make Leases that is enough to declare his intent to dispossess his Lessee in Trust Besides he reserves a Rent and Covenants for quiet Enjoyment and to make further assurance which could not stand with the Interest of the Lessee in Trust And for the Cases that were objected as Blunden and Baughs 1 Cro. 220. Where it is adjudged That the Entry of the Lessée for years of Tenant at Will should be no disseisin nolens volens to him that had the Freehold for there was no intention of the Parties to make it so and here the Law shall rather give the Election to him which had the Inheritance to make it a devësting than the Lessee or rather as the Chief Justice said the Law construes such Acts to amount to a divesting or not divesting as is most agreeable to the intention of the Parties and the right of the thing which distinguishes it also from the Case of Powsley and Blackman cited in Blunden and Baughs Case where the Mortgageor held at the Will of the Motrgageē and let for years the Lessee entred and held notwithstanding that the Mortgagee might Devest So Sir Tho. Fishes Case in Latches Rep. Where Tenant for years Le ts at Will and the Lessée makes a Lease for years and then the remainder is granted over This Grant is held to be good which whether by the remainder there be understood the interest of the Lessee or the Fee-simple yet it is no more than my Lord Nottinghams Case and not like the Case in Question For there the Lessee held the interest in his own Right and here but in Trust and for the Case in Noyes Reports 23. Twisden said he wholly rejected that Authority for it was but an Abridgment of Cases by Serjeant Size who when he was a Student borrowed Noyes Reports and abridged them for his own use The Case was this Tenant in Fée makes a Lease for years then Levies a Fine before Entry of the Lessee It is held there though five years pass the Lessée is not barred which is directly against the Resolution of Saffins Case and for Authority in this Case they relied upon the Case of Isham and Morris in 1 Cro. 781. Where upon Evidence it was resolved by the Justices That if the cesty quo Trust of a Lease for years Purchaseth the Inheritance and Occupies the Land and Levies a Fine that this after five years shall bar the Term which is not so strong as this Case because there were no Leases made and Entry thereupon and the Trust must pass inclusively by the Fine as is resolved in divers Books especially in this Case where it is to wait upon the Inheritance which though it arises but out of a Term yet it shall follow the Land and go to the Heir And for the inconveniences which were objected That if any Man purchased Land by Fine that he could not keep on Foot Mortgages and Leases which it is often convenient to do The Chief Justice declared his Opinion That in that Case the Fine should not bar there not being any intention of the Parties to that purpose And as to the other that where the Mortgageor continuing in Possession Levies a Fine this should bar the Mortgagee he denied that also and grounded himself upon Fermours Case in 3 Cro. And Twisden agreed Dighton's Case HE brought a Mandamus to be restored to his place of Town Clerk of Stratford super Avon The Corporation returned Letters Patents whereby they were empowered to chuse one into the Office of Town Clerk Durante bene placito and that they removed him from his Office Jones prayed that he might be restored notwithstanding because no Cause of his removal was returned nor that they had ever Summoned him whereas if they had he might peradventure have shewed such Reasons as would have moved them to have continued him and he cited Warrens Case 2 Cro. 540. who was restored to his Aldermanship where the Return was as here But the Court held that they could not in this Case although they confessed they knew the Merits of the Person help him And the Chief Justice said The Case of the Alderman differed for he is a part of the Corporation which
is a continuing Body and no Member thereof can be displaced at the will of the rest but it is otherwise in Case of such an Office as this the Cases cited agree if it had béen a Common Council Man as was returned at first And here they said it were fit a Scire facias went out of Chancery to Repeal these Letters Patents as unreasonable If they had béen to chuse a Town Clerk generally it had béen for his life or if to chuse one provided they might turn him out at their Will and Pleasure yet they could not have done so without Cause as Twisden said But here the Authority is absolute to chuse him Durante bene placito which it was said was not so much to be admired at for the Offices of Judicature in the Courts at Westminster are so determinable Foot versus Berkley Pas 19 Car. 2. Rot. 1618. In a Writ of Error to Reverse a Judgment given in an Ejectione firmae in C. Banco The Case upon a Special Verdict was this The Prior of Bodmin was seized in Fee and 29 H. 8. demised to John Monday and others for 96 years at the Rent of 60 l per annum The Possessions of the Priory afterwards came to the Crown and descended to Queen Eliz. Who in the 42 year of her Reign granted to John Monday for 30 years Habendum after the end of the former Term under the same yearly Rent The Inheritance was afterwards conveyed to divers in Trust for the late Queen Mother who in 14 Car. 1. demised to Francis Godolphin in this manner reciting that Queen Eliz. in the 32 year of her Reign whereas it was the 42 demised to J.M. and did not recite for what Term to Commence after the Expiration of the Term for 96 years granted by the Priour reserving 60 l Rent did Demise to the said Francis for 21 years to Commence after the end of the Term granted by the said recited Letters Patents of Queen Eliz. They find no Lease made in the 32 year of the Queen c. Now whether Godolphins Lease should begin from the making which if it should it is for some year expired or to expect while the Lease made in 42 Eliz. should determin was the sole Question And by the Opinion of the Court of Common-Pleas Tyrrel only to the contrary It was adjudged That the Lease should Commence presently upon the making And a Writ of Error being brought after divers Arguments at Bar it was this Term argued by the Court And resolved that the Iudgment should be affirmed They held that every Lease for years must have a certain beginning and a certain end either expressed or referred to something which they make it so And here it is referred to a Lease whereas there is not any such Lease therefore it is to begin presently as if it had been to Commence from an impossible date Co. Litt. 46. B. A Lease made from the 30 of February shall Commence presently and it is the same thing when to begin from the end of a Lease misrecited for it is no more than to refer it to nothing Br. Leases 62. 1 Cro. 220. Miller and Johns Case Dier 116. 2 Roll 55. 4 Rep. 53. Palmers Case Bendlowes Rep. 35. 1 Anderson 3. Leonard Mounts Case And whereas it was objected in this Case That the Date is not material and that there was enough expressed to ascertain what Lease the Parties intended and the Case in Hob. 129. was cited Where one made a Lease Habendum à festo purificationis and then reciting by his Deed that he had made a Lease to Commence à festo Annuntiationis granted the said Reversion The Court held this there a good Grant It was answered That the Lease here was tied up by such precise words to begin upon the Determination of the Lease granted by the said recited Letters Patents that this cannot be referred to a Lease which varies in the Date though agreeing in other Circumstances yet the certainty of the Term is not recited neither And though a Lease is good without a Date yet when a Lease is recited to be of one Date a Lease which bears another Date cannot be said to be the said recited Lease And the Case in Hobart is very different from this Case for in the Grant of the Reversion the misrecital of the particular Estate is not material in the case of a common person so long as he hath a Reversion in him But here on Term is recited to give a certainty of Commencement to another and if here be none such it must begin presently so that however the Grant is good also here either to pass the Reversion with Attornment or being by Indenture to take effect upon the forfeiture c. of the former Term Pl. Com. 433. Twisden said Walter Chief Baron reported this Case to be adjudged where one made a Lease to begin from the Nativity of our Lord last past It was resolved it should begin presently and not from Christmas for that was the feast of the Nativity and to take it from the Nativity the time would have béen effluxed many times over and that in the Kings Case such a Lease would be void But here if the Case were thus that A. had made a Lease to B. for 30 years to Commence from the 1st of March and then A. reciting the former Lease to be made the 1st of May for 30 years had made another Lease to Commence from the end of B's Lease the Lease should have Commenced after the former ended But it cannot be so in the Case in Question Because tied up to the said recited Deed. Another Objection was Because this being by Indenture the Parties should be estopped to say that there was no such Lease and this was much insisted on by Serjeant Maynard in his Argument for the Plaintiff To which it was answered That this being by Recital could work no Estopel Again the Question is not now between the Parties to the Lease and though they and their Assignees might be bound in pleading yet being in a Special Verdict the Court shall judge according to the Truth And so is Isham and Morrice's Case 1 Cro. 77. And Rawlins Case 4 Rep. is between the Parties themselves So they all resolved that Iudgment should be affirmed The King versus Bates ERror to Reverse a Judgment given in an Information at the Assizes in Norwich because the Information was Exhibited before Justice Moreton and Justice Rainsford and the Trial and Judgment was at the next Assizes before two other Judges And it was Objected by Pemberton That their Commission of Oyer and Terminer doth not empower them to determine any thing which was not Commenced before them and so is Bro. tit Commission 24. And in the 4th Inst my Lord Coke saith that the Statute of Edward the 6th extends only to Justices of Gaol-delivery sed non allocatur For the Court said the Statute extends to hath and so hath been the
principium inde One of the Lessees died before the Lease for Life determined whereupon the Lessor brings Covenant for the 3 l and sets forth this Matter in the Declaration To which the Defendant Demurred supposing that the 3 l was not to be paid unless the Death had hapned after the Term had commenced And the Court having heard it spoken to divers times by Counsel on both sides by the Opinion of Twisden Rainsford and Moreton Iudgment was given for the Defendant For all the other Reservations but this were expresly post principium termini and Clauses in Companies are to expound one another as it is said in the Earl of Clanrickard's Case in Hobart It is in the nature of a Rent and Reservation which it is not necessary that it should be Annual And in Randall and Scories Case 1 Cro. such a Duty was distrained for and it shall attend the Reversion Rolls 457. And he that hath but an interesse termini is not to pay the Rent reserved for there is no Term nor no Reversion until it commences If A. lets to B. for 10 years and B. redemises to A. for 6 years to commence in futuro in the mean time this works no suspension of either Rent or Condition The Intention of the Parties is to be taken That it should not be paid until then However Reservations are to be taken most strongly against the Reserver As Palmer and Prowses Case cited in Suffeild's Case 10 Co. is The Reversion of a Lease for years was granted for Life reserving certain Rent cum reversio acciderit a Distress was made for the Rent arrear ever since the Grant Resolved that it was good for no more than was incurred since it fell into possession Keeling Chief Justice held strongly to the contrary For he said the words were so express in this Case that they have left no place for Construction which other Clauses or the Intention of the Parties may direct when the Expression is doubtful He took it for a Sum in gross for Distrained for it could not be being reserved upon the Death of the Lessees or either of them which was also the limitation of their Lease And that Interpretations were not to be made against the plain sense of words He relied upon Edriches Case 5 Co. where the Judges said They would not make any Construction against the express Letter of the Statute yet there was much Equity in that Case to incline them to it And he said As well as a Fine is paid upon the taking of such Lease before it begins why may not something be paid also when their Interest determines And in some Countries they call such Payments A fair Leave Miller versus Ward TRespass for breaking of his Close on the 1st of August and putting in his Cattel The Defendant Iustifies for Common which he prescribes for in this manner viz. That two years together he used to have Common there after the Corn reaped and carried away until it was sown again and the Third year to have Common for the whole year and that that Year the Plaintiff declares for the Trespass was one of the years the Field was own quod post grana messa c. he put in his Cattle absque hoc that he put them in aliter vel alio modo The Plaintiff Demurs which it was Ruled he might for the Defendant doth not answer to the Time wherein the Trespass was alledged and the Traverse will not help it for aliter vel alio modo doth not refer to the time Anonymus AN Administrator brings Debt upon an Obligation The Defendant pleads payment to himself Vpon which it was found for the Defendant Coleman prayed that he might have Costs As where an Executor brings an Action sur Trover and Conversion in his own time and found against him it was Ruled in Atkyes Case 1 Cro. that he should pay Costs and hereof his own knowledge he had no cause of Action the Money being paid to himself But the Court Resolved That there ought to be no Costs in this Case for the Action of Trover in his own time might have been brought in his own Name so it was needless to name himself Executor or Administrator but the Action here is meerly in right of the Intestate Harvey versus James AFter Verdict at the Assizes the Clerk delivered the Postea to the Attorney by whose negligent keeping it came to be eaten with Rats But the Court Examining the Clerk of Assize it appeared that he had Entred the Jurors Names Verdict and Tales in his Book and according to that the Court suffered the Verdict to be entred on Record Anonymus IN an Action of Battery against Baron and Feme the Jury find the Feme only Guilty and not the Baron It was moved in Arrest of Judgment That this Verdict was against the Plaintiff for he ought in this Case to have joyned the Baron only for conformity and he declaring of a Battery by both the Baron being acquitted he hath failed of his Action and so is Yelverton 106. in Drury and Dennys Case But here the Court gave Iudgment for the Plaintiff and said that that in Yelvetron was a strange Opinion Anonymus A Certiorari was prayed to remove an Indictment of Manslaughter out of Wales which the Court at first doubted whether they might grant in regard it could not be tryed in an English Country But an Indictment might have béen found thereof in an English County and that might be tryed by 26 H. 8. cap. 6. vid. 1 Cro. Soutley and Prices Case and Chedleys Case But it was made appear to the Court That there was a great cause to suspect Partiality if the Tryal proceeded in Wales for the Party was Bailed already by the Justices of Peace there which Twisden said it was doubtful whether they had power to do for Manslaughter They awarded a Certiorari and took Order that the Prosecutor should be bound by Recognizance to prefer an Indictment in the next English Country Collect versus Padwell IN Debt upon a Bond to perform an Award which was That one should make a Lease to another before the 21 of October which was 2 or 3 Months after the Award and that the other upon the making of the Lease should pay him 50 l The Question was Whether notice in this Case ought to be given when he would make the Lease for otherwise it was said the other must have 50 l always about him or be in danger to break the Award And it was resolved by the Court That no notice was necessary Noell versus Nelson MIch 21. Car. 2. Rot. 745. Error to Reverse a Judgment given in the Common Pleas where the case was thus Nelson brings Debt against Noel as Executor of Sir Martyn Noel who pleads plene administravit The Plaintiff confesseth the Plea and prayeth Iudgment de bonis Testatoris quae in futoro ad manus Defendentis devenirint and upon a Suggestion of Assets afterwards he
clearly Resolved that the King might grant it and that the Estate of the Grantee should continue tho' the King's Interest devolved upon the succeeding Queen And it was Resembled to the Case of the Dutchy of Cornwal If the King while there is no Prince of Wales makes a Lease of Lands belonging to that Dutchy this shall determine upon the Birth of that Prince but if he Presents to a Church the Incumbent shall not be removed as in case where the King presents to a Church by reason of the Temporalties of a Bishoprick the Bishop after Created shall not remove the Clerk And the Chief Justice said in this case that the Interest of the Mastership did not properly pass from the King so as it should have a dependance upon the King's Estate for the King doth but Nominate and the Master is Intituled as from the first Foundation and Constitution It was further agreed that a thing of this nature could not be granted in Reversion for 't is not like an Office but rather as a Prebendary or Incumbency of a Church and the Master as Head of the Corporation with his Brethren hath the whole Estate in him As to the Record in 4 Ed. 3. it was said Note For Evidence and so shewn out of Speeds Chronicles produced in Court That at that time Queen Isabel was under great Calamity and Oppression and what was then determined against her was not so much from the Right of the thing as the Iniquity of the Times neither hath it been heard that one who had been Queen of England should be called nuper Regina in her Life time So that that Authority was much invalidated from the Circumstance of the Time The Plaintiffs observing the Court thus clearly for the Defendants Title was Nonsuit Note It was not Resolved whether if there had been a Queen Consort at the time of this Grant it had been good to the Defendant But the Judges rather inclined that it should Davison versus Hoslip IN an Assumpsit the Plaintiff sets forth That J. S. owed him 20 l for the Arrear of an Annuity and that the Defendant was Receiver of the Rents of J. S. and appointed by J. S. to pay the Plaintiff his 20 l That the Defendant in Consideration that the Plaintiff would forbear him adtunc Receptor ' serv ' J.S. to such a time that then he would pay him if he lived and continued Receiver To this the Defendant pleaded non Assumpsit and a Verdict was found for the Plaintiff It was moved in Arrest of Judgment that it did not appear that the Defendant had at the time of the Promise any of the Rents of J. S. in his hands and then the forbearing of him could be no Consideration because not liable to any Suit And tho' in case of an Executor's Promise there need be no Averment of Assets for notwithstanding that he may be Sued and the Plaintiff may have Judgment to recover when Assets shall come yet 't is not so in this Case Sed non allocatur For it being shewn That he was Receiver at the time of the Promise and averred That he so continued 't is a strong Intendment that he had Effects in his hands especially after a Verdict It was also said That the taking of this Promise did not discharge the Principal Debtor but that there might be resort to him so long as the Money was unpaid Brown versus London IN an Action upon the Case the Plaintiff declared upon the Custom of Merchants that J. S. drew a Bill of Exchange upon the Defendant to pay to the Plaintiff which he accepted and hath not paid him And declared further sur Indebitat ' upon such a Sum for that the Defendant accepted a Bill of Exchange from him c. Vpon non Assumpsit a Verdict was fâ—und found for the Plaintiff and entire Damages given And it was moved in Arrest of Judgment that an Assumpsit sur Indebitat ' did not lye upon his matter but only an Action upon the Case as it was laid in the first part of the Declaration where the Custom of Merchants is set forth and that the Defendant by reason thereof is chargeable and this is not to be involved in a general Indebitatus assumpsit And of that Opinion were Hale and Rainsford who said it had been so Adjudged in the Exchequer since the King's Return But they said If A. delivers Money to B. to pay to C. and gives C. a Bill of Exchange drawn upon B. and B. accepts the Bill and doth not pay it C. may bring an Indebitatus assumpsit against B. as having received Money to his use But then he must not declare only upon a Bill of Exchange accepted as the Case at Bar is So by their Opinions the Judgment was stayed haesitante Twisden for he conceived that the Custom made it a Debt for him that accepted the Bill Ile's Case A Mandamus was prayed to restore a Sexton The Court at first doubted whether they should grant it because he was rather a Servant to the Parish than an Officer or one that had a Freehold in his Place But upon a Certificate shewn from the Minister and divers of the Parish That the Custom was there to choose a Sexton and that he held it for his Life and that he had 2 d a Year of every House within the Parish They granted a Mandamus and it was directed to the Churchwardens Twisden said that it was Ruled in 1652. in this Court That a Mandamus did not lye to be restored to a Stewardship of a Court Baron but of a Court Leet it did for there the Steward is Judge but of a Court Baron the Suitors are Judges But Hale said He was of another Opinion for the Steward is Judge of that part of the Court which concerns the Copyholds and is Register of the other Ante. Oble versus Dittlesfield IN an Assumpsit the Plaintiff sets forth That J.S. was Indebted to him in 40 l and that the Defendant was Indebted in the like Sum to J. S. and that J. S. did appoint him to receive this 40 l from the Defendant in satisfaction for the Debt due to him from J.S. Which he signifying to the Defendant he in consideratione praemissorum and that the Plaintiff would forbear him a Quarter of a year promised that he would then pay him To this the Defendant pleaded non Assumpsit and a Verdict was found for the Plaintiff It was moved in Arrest of Judgment that here was no sufficient Consideration for it doth not appear that the Defendant was party to this Agreement whereby he should become chargeable by the Plaintiff and then the Forbearance is not material and in the mean time he is Suable by J.S. his Creditor And Clipsham and Morris's Case was cited which was Adjudged in this Court Hill 20 21 Car. 2. where the Plaintiff in an Assumpsit declared that J. S. was Indebted to him in 50 l and gave him a
Chancery that where there is a Chancellor time out of mind a Court of Equity follows of consequence 4 Inst 212. It is said that the Chamberlain of Chester hath the Jurisdiction of a Chancellor within the County Palatine of Chester as the Chancellor of the Dutchy of Lancaster hath lawfully used and executed within the County Palatine of Lancaster Hale Chief Justice The County Palatine of Lancaster is by Act of Parliament and therefore Outlawry there is a good Plea in disability but an Outlawry in Chester is not pleadable here for that is a County Palatine by Prescription The Possessions of the Duke of Lancaster were not made a Ducatus until 2 H. 5. in the Parliament Roll for that year 't is entred Quod sigilla pro Ducatu Lancastriae allocentur and that it should be governed per Ministros Ducatus By the Parliament Roll 39 H. 6. amongst the Tower Records it appears that there was appointed a Chancellor of the Dutchy an Attorney Auditor a Steward and a General Receiver also a Chancellor and the like Officers for the County Palatine So that before the Statute of 1 Ed. 4. there was a Chancellor of the Dutchy I do not think the hare granting of a Chancellor will incidently give a Court of Equity nor is such a Court incident to a County Palatine tho' there is a general grant of Jura regalia but the main matter is upon the Statute of the 1 Ed. 4. which Enacts That the County of Lancaster be a County Palatine which perhaps would have otherwise determined by the Attainder and that it be parcel of the Dutchy and that there be Officers and Councellors for the guiding of the same Dutchy and of the particular Officers Ministers and Tenants and Inhabitants thereof in as great ample and large Form as Henry calling himself King Henry the 5 at any time herein had used and enjoyed lawfully and further That in the same Dutchy be used had and occupied all such Freedoms Liberties Franchises Priviledges Customs and Jurisdictions as were used therein lawfully These words would not of themselves give a Court of Equity but are relative to what was formerly and the Presidents that have been produced are an Evidence that there was such a Jurisdiction exercised before this Act which is confirmed and established by it We have no full account of its original but there are such Prints and Footsteps of it that we must presume it lawful or otherwise 't is not to be thought that the Act should refer to it Holts Case agrees that they have a Court of Equity and so as 't is reported in Rolls tho' there is a mistake in the Report where 't is said that the Dutchy have no Iurisdiction of such Lands as lye out of the County Palatine tho' holden of the King but possibly they may extend their Iurisdiction too far when they retain Bills concerning Lands lying out of the County Palatine within the precinct of the Dutchy but not holden But that matter is not now in question I think no Prohibition ought to go in this Case First Because the Statute of the 1 Ed. 4. makes the County Palatine parcel of the Dutchy Secondly For that the Statute refers to the Iurisdiction formerly exercised and appoints the Tenants and Inhabitants of the Dutchy to be under the same Regulation And for that there are such multitude of Presidents of Proceedings in this nature and allowing transmission of Causes yields them a Iurisdiction for the space of 200 years and so many Mens Estates depend upon their Decrees which have been made with the assistance of so many Learned Iudges which at all times have béen called to assist in this Court that it would be very unreasonable and inconvenient to unsettle them Vpon a Quo Warranto the matter might be more strictly examined than it is fit to do upon a Prohibition And Twisden and Rainsford concurred That no Prohibition ought to go It was then objected That this Bill was not well exhibited for it was directed Cancellario only whereas the Court is holden coram Cancellario Concilio Hale said That would not be material for in Ed. 1. time the Stile of the Kings Bench was coram Rege Concilio and the Writ de Ideota examinando commands the Ideor to be brought coram nobis Concilio nostro apud Westmon ' and anciently Bills were so directed in Chancery but since have been altered Maddys Case JOhn Maddy was indicted for that he ex malitia sua praecogitat ' felonice murdravit Franc ' Mavers upon which he was arraigned at the Assizes in Southwark and pleaded Not guilty and the Jury found a Special Verdict by the direction of Justice Twisden then Judge of Assize there which was to this effect That Maddy coming into his House found Mavers in the act of Adultery with his the said Maddys Wife and he immediately took up a Stool and struck Mavers on the Head so that he instantly died They found that Maddy had no precedent malice towards him and so left it to the Iudgment of the Court whether this were Murder or Manslaughter The Record was this Term removed into the Kings Bench by Certiorari and Maddy brought by Habeas Corpus And the Court were all of Opinion that it was but Manslaughter the provocation being exceeding great and found that there was no precedent Malice and it was taken to be a much stronger Case than Royley's Case 2 Cro. 296. Where the Son of Royley coming home with a Bloody Nose and telling his Father that such an one beat him in such a Field to which Field which was a mile off the Father immediately run and found him that had beat his Son there and killed him all which was found upon a Special Verdict and resolved to be but Manslaughter But Twisden said there was a Case found before Justice Jones which was the same with this only it was found that the Prisoner being informed of the Adulterers familiarity with his Wife said he would be revenged of him and after finding him in the Act killed him which was held by Jones to be Murder Which the Court said might be so by reason of the former declaration of his intent but no such thing is found in the present Case Barber versus Fox TRrin 22 Car. 2. Rot. 855. In an Assumpsit the Plaintiff declared That the Ancester of the Defendant became bounden to him in a certain Sum and afterwards died and that he demanded it of the Defendant being his Heir and the Defendant in consideration that the Plaintiff would forbear to Sue him for such a time promised he would pay him To this the Defendant pleaded Non Assumpsit and a Verdict was found for the Plaintiff It was moved in Arrest of Judgment for that at the time of the Promise there doth not appear that there was any cause of Suit agaist the Heir for 't is not set forth that the Ancester did bind his Heirs and the Consideration is not
76. 1 Inst 203. 1 Rolls 129. 9 Co. 79. where an Award was made that A. should pay B. 10 l and that B. super receptionem decem librarum should Release That he was bound to release it if the Money were offered tho' he should refuse it Wherefore they gave Judgment for the Plaintiff Sir John Goriton and Harvey versus Lithby PAsch 22 Car. 2. Rot. 331. In an Action upon the Case the Plaintiffs declared that there were Four ancient Mills within a Mannor And that J.C. was seised in Fee of Two of the Mills and J. H. of the other Two and laid a Prescription in each That they had kept the Mills in Repair and found Grinders to the intent that the Tenants of the Mannor might Grind at them and that Time out of mind the Tenants had Ground omne frumentum to be spent in their Houses at the Mills of J. C. or at the Mills of J. H. And for that the Defendant spent Corn which was ground at neither of the Mills they brought this Action To this Declaration the Defendant Demurred First For that they joyn in the Action and so the one shall recover Damages for not Grinding at the others Mill which is no loss to him Secondly The Prescription is for Grinding all the Corn to be spent in the Houses of the Tenants which is unreasonable for a great deal of Corn is used which is not proper to Grind. So it was said to be Adjudged between Aylett and Charlesworth 1654. in B.R. that the Prescription ought to be laid for all Corn triturandum consumendum in their Houses And this last Exception was held to be material by all the Court. But they conceived the Action might be brought by both for otherwise there could be no remedy upon the Prescription For singly they could not bring it because Grinding at any of the Mills would excuse the Defendant But Hale said the Declaration was naught because it is That the Defendant ought to Grind at the Mills of J. C. or J. H. which is true if either of them hath an ancient Mill altho' the other hath no pretence or right upon the Prescription And therefore it ought to have been laid thus That such Corn c. as was not Ground at the Mills of J C. ought to be Ground at the Mills of J. H. and then have Averted That the Defendants Corn was Ground at neither of them It was Adjudged for the Defendant Skinner versus Webb Scire facias THe Case was this A Judgment was recovered in this Court in an Action upon the Case upon a Bill of Exchange and a Scire facias was brought Quare execution ' c. and a Judgment upon that upon which a Writ of Error was brought in the Exchequer Chamber and the Judgment was affirmed after which the Defendant died and a Scire facias reciting the Judgment and Affirmance of it in the Exchequer Chamber was brought against the Administrator and Judgment had upon that and the Administrator brought Error upon the Judgment in the last Scire facias The Court were moved not to allow this Writ of Error or at least not to supersede Execution by reason of its being a second Writ of Error And the Court held that this Writ of Error did not lye into the Exchequer Chamber tho' it hath been Resolved that such Writ of Error lies in the Exchequer Chamber by the Statute of the 27th of Eliz. upon a Judgment in a Scire facias recovered upon a Judgment in an Action brought by Bill in this Court because 't is in Execution of the Judgment and is as it were a piece of the first Action Otherwise of a Judgment in a Scire facias upon a Recognizance or the like Now this Scire facias is brought upon a Judgment affirmed in the Exchequer Chamber which therefore is priviledged from any other Writ of Error to be brought upon it there So that this Writ of Error can be brought only upon the Judgment given in the Scire facias and therefore it doth not lye into the Exchequer Chamber Jacob Hall's Case COmplaint was made to the Lord Chief Justice by divers of the Inhabitants about Charing Cross that Jacob Hall was erecting of a great Booth in the Street there intending to shew his Feats of Activity and Dancing upon the Ropes there to their great Annoyance by reason of the Crown of idle and naughty People that would be drawn thither and their Apprentices inveigled from their Shops Vpon this the Chief Justice appointed him to be sent for into the Court and that an Indictment should be presented to the Grand Jury of this matter and withal the Court warned him that he should proceed no further But he being dismissed they were presently after informed that be caused his Workmen to go on Whereupon they Commanded the Marshal to fetch him into Court And being brought in and demanded How he durst go on in contempt of the Court He with great Impudence affirmed That he had the King's Warrant for it and Promise to bear him harmless Then they requited of him a Recognizance of 300 l that he should cease further Building which he obstinately refused and was Committed And the Court caused a Record to be made of this Nusans as upon their own view it being in their way to Westminster and awarded a Writ thereupon to the Sheriff of Middlesex Commanding him to prostrate the Building And the Court said Things of this nature ought not to be placed amongst Peoples Habitations and that it was a Nusans to the King 's Royal Palace besides that it straitned the Way and was insufferable in that respect The King versus Wright AN Indictment was against him for suffering of two persons to escape qui commissi fuerunt by the Justices of the Peace for an Offence against the Statute of 8 H. 6. of Forcible Entry After Verdict for the Plaintiff and Judgment a Writ of Error was brought and assigned for Error That it was not expressed how the Commitment was whether upon View of the Justices or Verdict upon an Indictment so that it doth not appear that they were legally Committed nothing of the Proceedings being set forth and 't is not so much as said debito aut legitimo modo commissi fuerunt If a man be Indicted of Perjury in his Oath sworn before a Master in Chancery it must be shewn that the Master had an Authority to take an Oath And the Court doubted at first and commanded the Clerk of the Crown to search Presidents and he found that they were most debito modo commissi but some without that Clause And the Court held it being but inducement to the Offence whereupon this Indictment is that it was well enough alledged and after the Verdict they must intend the Commitment was legal Vide Crompton's Justice of the Peace 252. a. and 255. there are two Presidents like this Note It was said by Hale that upon non Assumpsit Infancy
against the rest which therefore was not affected by the Error The fourth was overruled for where the Party is present the Iudgment is always quod committitur as appeared by the Presidents Fifthly the Variances from the Statute were not held to be material for in Old writings 't is written Sea of Rome and declaring in Conscience and in my Conscience are the same The sixth Error was also disallowed for the words of the Statute are shall incur the danger and penalty of Praemunire mentioned in 16 R. 2. which doth not necessarily bind up to the Process Vid. 16 R. 2. 5. which makes this very clear but means that such Iudgment and Forfeiture shall be and it appearing that the Parties were present there was no need of any Process But as to the third Exception which was taken to the Venire they said they would be advised until the next Term and they told the Prisoners who were Quakers and had brought a Paper which they said contained their acknowledgment of the Kings Authority and Profession to submit to his Government and that they had no exception to the matter contained in the Oath but to the Circumstance only and that they durst not take an Oath in any Cause which they prayed might be read but it could not be permitted that their best course were to supplicate his Majesty in the mean time for his Gracious Pardon Radly and Delbow versus Eglesfield and Whital IN an Action sur 13 R. 2. cap. 5. 2. H. 4. cap. 11. for suing the Plaintiff in the Admiralty for a Ship called the Malmoise pretending she was taken piratice whereas the Plaintiff bought her infra corpus Com. It seems there was a Sentence of Adjudication of her to be lawful Prize in Scotland in April 1667. as having carried bellicos apparatus i.e. Contraband Goods in the late Dutch War and the Plaintiff bought her here under that Title The Libel was That the Ship belonged to the Defendants and about January 1665 was laden with Masts c. and had Letters of safe conduct from the Duke of York to protect her from Concussion c. and that certain Scottish Privateers did practise to take the said Ship and after the Defendants took her and being requested refused to deliver her and that ratione lucri cessantis damni emergentis they suffred so much loss c. The Defendants pleaded Not guilty to this Action and upon the Tryal would not examin any Witnesses but prayed the Opinion of the Court who said there was good Cause upon the Libel which now they must take to be true in the first instance for the Admiralty to proceed In 43 Eliz. it was resolved 1 Cro. 685. Yelv. 125. Sty 418. If Goods are taken by Pirates on the Sea tho' they are sold afterwards at Land yet the Admiralty had Conusans thereof for that which is incident to the original matter shall not take away the Iurisdiction and that is Law tho' there were another Resolution in Bingleys Case 1 Rolls 531 Hob. 78. 3 Jac. 7 Ed. 4. 14. and 22. Ed. 4. If Goods are taken by an Enemy and retaken by an Englishman the property is changed Otherwise if by Pirates And if in this Case the taking were not Piraticè it ought to have béen alledged on the other side Had the Sentence in Scotland béen pleaded in the Admiralty the Court would have given deference to it as if a Man had a Judgment in Communi Banco and should begin a Suit for the same in Banco Regis This might be made a good Plea to the Suit but not to the Iurisdiction for for ought appeared this might have been the first Prosecution and no Proceedings might have béen in Scotland This came to be tryed at the Nisi prius before Hales who was of the Opinion ut supra then But because it was a cause of weight he ordered it to be tryed at the Bar. And because 't was for his satisfaction and for a full Resolution the Jury was paid between the Parties Note A Proctour sworn a Witness said when this Cause was in the Admiralty there was a provisionate Decree as they call it or primum Decretum which is a Decree of the Possession of the Ship and upon that an Appeal to the Delegates but my Lord Keeper being informed that no Appeal to them lay upon it because it was but an interlocutory Decree upon hearing of Counsel he superseded the Commission When a Ship is so seized upon security given 't is the course of the Admiralty to suffer her to be hired out Watkins versus Edwards PAsch 22 Car. 2. Rot. 408. An Action of Covenant was brought by an Infant per Guardianum suum for that he being bound Apprentice to the Defendant by Indenture c. the Defendant did not keep 5 Eliz. c. 4. maintain educate and teach him to his Trade of a Draper as he ought but turned him away The Defendant pleads That he was a Citizen and Freeman of Bristol and that at the General Sessions of the Peace there there was an Order made that he should be discharged of the Plaintiff for his disorderly living and beating of his Master and Mistress and that this Order was Enrolled by the Clerk of the Peace as it ought to be c. To this the Plaintiff Demurrs The First question was Whether the Statute extends to all Apprentices or only such as are imposed upon their Master by the Justicies and compellable to serve And Hale and Moreton inclined That it did not extend to all Apprentices Twisden and Rainford contrary Secondly Whether they had power to discharge the Master of his Apprentice as they might è Converso Hale conceived they could not But cause the Servant to have due Correction in case the Master complained of him Twisden Rainsford and Moreton Contra. Hankworthy's Case For he may be so incorrigible that the Master cannot keep him without standing in continual fear and in Mich. 21 and Hill 2. 22 Regis nunc upon the removal of an Order of Sessions from York it was resolved That the Master might be eased of his Apprenetice by the Sessions upon just cause And Twisden said Shelton Clerk of the Peace for Middlesex informed him that such Orders are frequently made Thirdly The great question was whether the Defendant ought not to have applied himself to one Justice first as the Statute directs that he he might if he could have settled the business and if not then to go to the Sessions and not to go thither per saltum as upon the Statute of the 18 Eliz. cap. 3. The Sessions cannot make an Order for keeping of a Bastard but upon an Appeal from the two Justices which are first to make an Order Hale This case differs for the 18 Eliz. gives the first Men power to make an Order which shall bind the Parties until it is avoided by Appeal but this Statute of 5 Eliz. gives no Iurisdiction to
business to enquire of the Condition of her whom he will make his Wife Then the next thing to be considered is the Infancy of the Defendant and that is nothing in this Case Porter who was the probablest person to give notice is found to be an Infant too Conditions in Fact bind Infants Again the Condition here relates to an Act which she is capable of doing The Statute of Merton which Enacts Non currant usurae c. whereby Infants are exempted from Penalties yet in another Chapter gives the Forfeiture of the said double value to the Lord where his Ward Marries without his consent 'T is a restraint laid upon her in a matter proper for her Condition and with respect to her Condition that being and Infant she might advise with her Friends about her Marriage The Cases which have been objected do not come to this Case as the Opinion in Sanders and Carwells Case which might be good Law if it could be known what that case was for the words might either explicitly or implicitly require notice as if they were if he refused to pay c. or it may be no time might be set for payment for in Molineux Case there Rents were granted and after a Devise for the payment of them which naturally lie in demand Secondly There it concerned the younger Children to give notice for the Rents were not only to be paid to them but upon failer of payment the Land was Devised to them So that was a Concurrence of concern in them as to the performance of the Condition and the Estate they should acquire by the Breach Whereas the Plaintiff in this Case is not concerned in the performance of the Condition Thirdly The penning of the Condition were quite differs for 't is upon default of payment which implies notice must be first had In Frances Case there would have been no need of notice if the Devise had not béen to the Heir which is the only thing wherein it differs materially from this Case In Alfords Case the debate was occasioned by the special penning for it was thus that if thorough Obliviousness the Trusts should not happen to be performed Now there could be no Oblivion of that they never knew therefore there is some Opinion there that the Mayor and Citizens of L. ought to have had a precedent notice yet the Judgment is contrary for they could not have been barred by the Fine and Non-claim if notice had been necessary to the Commencement of their Title and 't is not found whether those to whom the Estate was devised before had notice so that this cause proves rather that there needs no notice in this case than otherwise Wherefore the Plaintiff must have his Judgment When my Lord Chief Justice had concluded Rainsford said he had spoken with Justice Moreton who declared to him that he was of the same Opinion Fitzgerald versus Marshall ERror of a Judgment given in the Kings Bench in Ireland in affirmance of a Judgment removed thither by Error out of the Common Pleas in Ireland By the Record it appeared that the Writ of Error to the Common Bench was directed Rob. Booth Militi Socijs suis quia in Recordo processu ac in redditione Judicij loquelae quae suit coram vobis Socijs vestris And the Judgment certified appeared to be in an Action commenced in the time of Sir R. Smith who died and Sir R. Booth made Chief Justice in his place before Judgment given And the Court here were of Opinion that the Record was not well removed into the Kings Bench there by that Writ which commanded them to remove Recordum loquelae coram R. Booth whereas the loquela commenced before R. Smith and the Titling of the Record is in such case placita coram R. Smith c. tho' some of the Continuances might be entred coram R. Booth and the Judgment given in his time and for this Cause the Judgment given in affirmance in the Kings Bench there was reversed Sir Samuel Sterling versus Turner ERror of a Judgment in the Common Bench in an Action upon the Case where the Plaintiff declared upon the Custom of London of Electing of two Men in the Office of Bridge-masters every year by the Citizens assembled in a Common Hall and a Custom that if two be Competitors he that is chosen by the greatest number of Votes is duely Elected and that if one in such case desire the Polls to be numbred the Mayor ought to grant the Poll. And shews that there was a Common Hall assembled the 18 of October 22. Regis nunc Sterling being Mayor and that then the Plaintiff and one Allet stood as Competitors to be chosen to that Office and avers that he had the greatest number of Voices and that he affirmed then and there that he had the greatest number which the other denying he requested the Mayor that according to the Custom they might go to the Poll and the Defendant not minding the Execution of his Office but violating the Law and Custom of the City then and there did maliciously refuse the numbering of the Polls but immediately made Proclamation and dismissed the Court by which he lost the Fees and Profits of the Place which he averred belonged unto it Vpon Not guilty pleaded and Verdict for the Plaintiff after it had béen several times argued in Arrest of Judgment that this Action did not lie it was adjudged for the Plaintiff by Tyrrel Archer and Wyld Vaughan dissenting And now Error was brought and assigned in the matter of Law and argued for that it was incertain whether the Plaintiff should have been Elected and that he could not bring an Action for a possibility of damage and this was no more not being decided who had the greatest number of Voices But the Court were clear of Opinion that the Judgment should be affirmed for the Defendant deprived the Plaintiff of the means whereby it should appear whether he had the greatest number of Electors or no. And Hale said it was a very good President and so it was adjudged by both Courts One D. of Bedfordshire Esquire was indicted of High Treason for coyning a great number of counterfeit pieces of Guinnies of Gold 23 Regis nunc and being Arraigned at the Bar he pleaded the Kings Pardon which was of all Treasons and of this in particluar but did not mention that he stood indicted Twisden said that my Lord Keeling was of Opinion that such a Pardon was not good But Hale said it might be well enough in this case but in case of Murther it is necessary to recite it because of the Statute of 27 E. 3. 2. vid. 10 E. 3. 2. 14 E. 3. 15. and so it was allowed The Lady Chesters Case A Prohibition was prayed to the Prerogative Court of Canterbury Sir Henry Wood having devised the Guardianship of his Daughter by his Will in VVriting according to the Act of this King to the Lady Chester his
only shewn upon the Declaration to enable the Plaintiff to bring his Action Note This is aided by a late Act of Parliament Jay versus Bond. IN Trespass the Defendant pleads that Ante Quinden ' Sancti Martini usque ad hunc diem praed ' Jay Excommunicatus fuit adhuc existit protulit hic in Cur ' literas Testamentarias Episcopi Sarum quae notum faciunt universis quod scrutatis Registeriis invenitur contineri quod Excommunicat ' fuit c. pro contumacia in non comparendo to a Suit for Tythes c. in cujus rei Testimonium praed ' Episcopus Sigillum apposuit It was objected that such a kind of Certificate of Excommunication as this is was not allowable for it ought to be positive and under the Seal of the Ordinary whereas this is only a relation of what is found in their Register Sed non allocatur for tho' such a form of pleading would be altogether insufficient in our Law yet their course is sometimes to certifie Excommunication sub sigillo Ordinarij and sometimes per literas Testamentarias as here Hale said to plead Letters Patents without saying sub magno sigillo is naught and that because the King has divers Seals Note The entry was here quod Defendens venit dicit c. Hale doubted whether he ought not to have made some kind of defence tho' no full defence is to be made when Excommengment in the Plaintiff is pleaded Owen versus Lewyn THe Plaintiff declared in Action upon the Case upon the Custom of the Realm against a Common Carrier and also sur Trover and Conversion Hale said so he might for Not guilty answers both but if a Carrier loseth Goods committed to him a General Action of Trover doth not lye against him Termino Sancti Michaelis Anno 24 Car. II. In Banco Regis Davenant against the Bishop of Salisbury IN Covenant The Plaintiff declared that the Bishop of Salisbury the Defendants Predecessor being seized in Fee demised unto him certain Lands for 21 years reserving the antient Rent c. and Covenanted for him and his Successors to discharge all publick Taxes assessed upon the Land and that since the Defendant was made Bishop a certain Tax was assessed upon the Land by vertue of an Act of Parliament and that the Plaintiff was forced to pay it the Defendant refusing to discharge it unde Actio accrevit c. The Defendant demurred first to the form for that 't is said that the Predecessor Bishop was seized and doth not say in jure Episcopatus But Hale said the Old Books were that where it was pleaded that J. S. Episcopus was seized that it implies seizin in the right of the Bishoprick which is true if he were a Corporation capable only in his politick capacity or as an Abbot c. but in regard he might also be seized in his natural capacity the Declaration was for this Cause held to be ill The matter in Law was whether this were such a Covenant as should bind the Successor as incident to a Lease which the Bishop is empowred to make by the 32 H. 8. For 't is clear if a Bishop had made a Covenant or Warranty this had not bound the Successor at the Common Law without the consent of the Dean and Chapter and if it should be now taken that every Covenant would bind the Successor then the Statute of 1 Eliz. would be of no effect But Hale said admitting this were an antient Covenant and if so it should have been averred to have been used in former Leases to discharge ordinary payments as Pentions or Tenths granted by the Clergy then it might bind the Successor by the 32 H. 8. But it were hard to extend it to new charges And we all know how lately this way of Taxes came in But the Court said that the Declaration being insufficent for the other matter they would not determine this But they held that however this Covenant should prove it would not avoid the Lease Vid. Gee Bishop of Chicester and Freedlands Case 3 Cro. 47. Note Hale said that antiently when the Sheriff returned a Rescous upon a Man he was admitted to plead to it as to an Indictment But the course of the Court of latter times has been not to admit any Plea to it but to drive the party to his Action upon the Case as upon the return of a Devastavit c. Cole versus Levingston IN Ejectment upon a long and intricate Special Verdict the Chief Justice said never was the like in Westminster Hall these following Points were resolved by the Court and declared by Hale as the Opinion of himself and the rest of the Judges First That where one Covenants to stand seized to the use of A. and B. and the Heirs of their Bodies of part of his Land and if they die without Issue of their Bodies then that it shall remain c. and of another part of his Land to the use of C.D. and E. and the Heirs of their Bodies and if they die without Issue of their Bodies then to remain c. that here there are no cross Remainders created by Implication for there shall never be such Remainders upon construction of a Deed tho' sometimes there are in case of a Will 1 Rolls 837. Secondly As this Case is there would be no cross Remainders if it were in a Will for cross Remainders shall not rise between three unless the words do very plainly express the intent of the Devisor to be so as where black Acre is devised to A. white Acre to B. and green Acre to C. and if they die without Issue of their Bodies vel alterius eor ' then to remain there by reason of the words alterius eor ' cross Remainders shall be Dier 303. But otherwise there would not Gilbert v. Witty and others 2 Cro. 655. And in this case tho' some of the Limitations are between two there shall be no cross Remainders in them because there are others between three and the intent shall be taken to the same in all The Dean and Chapter of Durham against the Lord Archbishop of York IN a Prohibition the Archbishop pleaded a Prescription that he and his Predecessors have time out of mind been Guardians of the Spiritualties of the Bishoprick of Durham Sede vacante and Issue joyned thereupon and tried at the Bar this Term. Hale said De jure communi the Dean and Chapter were Guardians of the Spiritualties during the vacancy as to matters of Jurisdiction but for Ordination they are to call in the aid of a Neighbouring Bishop and so is Linwood But the Usage here in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess and therefore it was proper here to joyn the Issue upon the Usage There was much Evidence given that antiently during the vacancy of Durham the Archbishop had exercised Jurisdiction both Sententious and other as Guardian of the Spiritualties
Condition was intended between the Parties to be but in lieu of the Rent which should have been chargeable with that Assessment Anonymus IN an Action upon the Statute of the 13th of this King which Imposes 6 s and 8 d Penalty upon any one that shall print anothers Copy whereof he hath made due Entry in the Register Book of the Company of Stationers without License of the Proprietor It was set forth that the Defendant had printed One thousand parts of a Book called The Young Clerk's Guide after that the Plaintiff had made an Entry thereof in the Register Book of the Company of Stationers After a Verdict for the Plaintiff as to One Book which was all the Plaintiff could prove printed since the late Act of General Pardon It was moved in Arrest of Judgment that the Plaintiff did not shew himself to be Proprietor of the Book before he made the Entry Sed non allocatur For the Statute gives the Action to him that has made an Entry in the Register Book Secondly It was Objected that the Plaintiff ought to have no Costs in this Action But for that the Court said the Plaintiff might release them But it was to be considered whether the Costs were well given or no Hedgeborrow versus Rosenden IN Debt for 100 l the Plaintiff Declared upon Articles of Agreement purporting that the Plaintiff and Defendant should Run an Horse for 100 l and if the Defendant lost that he should pay the 100 l c. The Defendant pleaded the Statute of this King concerning Gaming which provides that all Securities given for Money lost at Play exceeding 100 l shall be void And sets forth that in the Articles it was further agreed that the Plaintiff and Defendant should Run two three or four Heats more at 20 l a Heat if the Plaintiff required it so that the whole amounted to more than 100 l Holt Argued for the Plaintiff First The Statute as appears by the words intended to avoid Securities given for Money lost at Play but not where the Contract is precedent For tho' men when they have lost their Money are very rash in venturing further yet what is done before they enter into play may be supposed to be done considerately Sed non allocatur for that Construction would wholly elude the Statute and let Men loose to play for any great Sum provided they secured it before-hand Secondly It was objected that the Statute did not intend to avoid the security when there was but 100 l lost at a time and it does not appear here that the Plaintiff requested the Defendant to play any further Sed non allocatur for the bargain being to play for more than 100 l 't is void ab initio and tho' the Plaintiff did not request the Defendant 't is not material no more than if one should contract for more interest than the Statute allows if the Creditor requests it tho' he never requests yet 't is within the Statute of Usury and the Court said they would extend this Satute as largely as might be in suppressing of Gaming which was so mischievous Monsieur Bellew Norman Senior and Norman Junior THree Frenchmen were indicted of Treason in Coyning and Clipping the Kings Money by two several Indictments and the Court doubted whether Iudgment for the Clipping should be Drawing Hanging and Quartering or Drawing and Hanging only and having advised with all the Judges at Serjants Inn they resolved it should be Drawing and Hanging only tho' the Presidents are both ways And the Opinion of Coke 3 Inst 17. is that a Clipper should be Drawn Hanged and Quartered But in regard the Statute of 3 H. 5. declared Clipping and Diminishing the Kings Coyn to be within the Statute of the 25 E. 3. which mentions Coyning only that does not stand repealed by 1 Mar. that leaves all Treasons within the Statute of the 25 E. 5. as they were before and so 1 Eliz. against Coyning makes not a new Treason And then as Hale said Coyning was esteemed as an inferiour sort of Treason in comparison of such as concerned the Kings Person wherefore there was Drawing and Hanging only for that and then by the same reason for Clipping which seems a less degree of the same kind of Treason Then there was debate whether Twisden being the antient Judge or the Chief Justice should pronounce the Iudgment Twisden said in case of Treason it belonged to the Chief Justice tho not in Felonies and that the Lord Foster did it in Sir Henry Vanes Case in the 13 of this King Hale Thought the other was to do it and therefore Twisden gave the Judgment ut supra and to avoid scruple Hale pronounced it over again Baker versus Bulstrode IN Debt upon a Bond Conditioned to perform an Award the question did arise upon one part of the Award viz. That the Defendant should Seal and Execute such a Release to the Plaintiff as should be to the satisfaction of the Plaintiffs Counsel within the space of seven days and which of the Parties was to tender the Release was the question And it was resolved that the tender ought to come on the Defendants side and not like the Case where such Deed c. is to be made as the Counsel for the other Party shall advise for the Deed must be offered according as the Counsel does advise and he to whom 't is to be made is to do the first Act but the words here are of another import vid. Lambs Case 5 Co. 23.13 It was held by the Court that a Writ of Error that hears Teste before the Judgment given is good to remove the Record so as Iudgment be given before the Return of it And Hale said that about three years since at Norfolk Assizes the Defendant in an Indictment of Barretry brought a Writ of Error Teste before the Assizes and it was disallowed because if such practice should obtain it would disappoint all the Proceedings at the Assizes And if the Plaintiff does not shew his Writ of Error to the other Party or get it allowed by the Clerk by Endorsing Recipitur upon it within four days which time the Court gives as convenient time for putting in of Bayl according to the Statute the Writ of Error is no Supersedeas Also if before the Writ of Error the Sheriff Returns Fieri feci and non inveni emptores the Execution is not to be undone Termino Paschae Anno 26 Car. II. In Banco Regis Anonymus IN an Assault and Battery the Case upon the Evidence was this The Defendant drew a Sword and waved it in a menacing manner against the Plaintiff but did not touch him so the Jury were ordered to find him Guilty as to the Assault but not of the Battery And the Opinion of the Court was that the Plaintiff was to have no more Costs than Damages for the new Act excepts Actions of Assault and Battery so that both must be proved Anonymus IF a Parish
for payment of so much for being Buried in the Body of the Church and a Prohibition was prayed suggesting that there was no such Custom The Court held such a Custom must be good because the Parish is to be at the charge to make up the Church Floor but if the Custom be denied it must be tried at Law And therefore inclined that a Prohibition was to go tho' it was objected that this duty belongs properly to the Ecclesiastical Court and no remedy for it elsewhere for so is the Case of a modus decimandi which may be demanded in the Spiritual Court but if the Custom be denied there shall be a Prohibition and so the case of a Mortuary since the Statute of H. 8. And it afterwards being moved again Hale Chief Justice being present the Prohibition was granted Which Hale said was sometimes granted pro defectu Jurisdictionis and sometimes pro defectu Triationis as in this case and others where the ground of the Suit is Prescription for in their Law they have sometimes allowed Prescriptions of 20 years sometimes of 40 years but we admit none but what are de temps dont c. St. John versus Moody IN an Action upon the Case the Plaintiff declared That he was possessed of a Wood and that he had a way leading from such a place to the said Wood and that the Defendant had obstructed it Vpon not Not guilty it was found for the Plaintiff and moved in Arrest of Judgment that the Plaintiff had not set forth his Title to the way whether by Prescription or otherwise and this ought to be that the Defendant might be ascertained what to make defence unto Also 't is proper to the nature of an Action upon the Case to set forth the Case at large Curia contra The Action here is grounded upon the Possession indeed if Trespass were brought by the owner of the Soil in a justification for a way 't is necessary to express by what right 't is claimed but this for ought appears may be against a Stranger In Assize for a Rent against the Terre-tenant he may demand Judgment whether he ought to answer before Title made otherwise of an Assize brought against the Pernor of a Mans Rent Where 't is pleaded that the Party ought to keep the Fence it sufficeth to say occupatores reparare consueverunt for in Truth the greatest part of the Enclosures in England have been within time of Memory The Writ of Curia claudenda is only quod debet solet 't is true before 7 Jacobi the usage has been in Actions of this nature to prescribe but not since Vid. 2 Cro. 43 123 3 Cro. 499 575. Sands and Trefuses Case and 325 Symonds and Seabourn Whereupon Iudgment was given for Plaintiff Note This Case was afterwards affirmed upon a Writ of Error in the Exchequer Chamber Drue versus Baily THe Case was an Executor had a Term and let part of it reserving a Rent and made his Executor and died The question was Whether the Executor should have the Rent or the Administrator de bonis non And it was held that the Executor should have it Bell versus Thatcher IN Error upon a Judgment given in the Court of Common Pleas where the Plaintiff in an Action upon the Case declared That he had been retained by the under Postmaster to carry about post Letters of which he made a profit and had behaved himself honestly in that Employment And that the Defendant to defame him said He had broken up Letters and taken out Bills of Exchange which brought him to such discredit that he lost the said Employment And Iudgment was given for the Plaintiff and Error assigned upon the matter for that the words do not import but that he might break open the Letters by the direction of those to whom they were directed neither do they express that they were Post Letters and the innuendo will not help it unless there had been such a signification in the words Neither is it such an Employment that an Action should lie for Scandalizing Also the Plaintiff does not declare that he was retained for above a year and seems to be little more then a Common Porter And for these reasons by the Opinion of the Court the Iudgment was reversed and Hale principally from the quality of the Employment for he said a Man should not speak disparagingly of a mans Cook or Groom but an Action would be brought if such Actions as these should be maintained Anonymus IN an Action for words the case was that the Defendant speaking to the Plaintiff said thus I know my self and I know you I never buggered a Mare And the Opinion of the Court was that the words were Actionable or else there might be sly ways to defame any Man and evade an Action Hodgkins versus Robson and Thornborow IN Debt for Rent The Defendants pleaded in Bar to the Action that the Plaintiff had entred into a Back-yard part of the Land demised by Force and Arms c. The Plaintiff replied that he ought not to be foreclosed of his Action for that the Defendant had let that Back-yard to J.S. for a lesser Term reserving no Rent and that J. S. entred and after assigned unto the Plaintiff c. which is the same Entry in the Bar. The Defendants rejoyns that J. S. did not enter to which it was demurred And after it was several times spoken to at the Bar Iudgment was given this Term by the whole Court for the Plaintiff viz. Hale Chief Justice Twisden Rainsford and Wild. And First They all held that as the pleading was in this case there could be no Apportionment of the Rent for when there is to be an Apportionment either the Jury shall do it upon nil debet pleaded or the Defendant may in his pleading set forth the value of the Land and to what the Apportionment shall be Hale said if the Lessee redemise part to the Lessor reserving a Rent there shall be no Apportionment for the parties by the Reservation have ascertained what Rent shall be allowed for that part but where there is no Rent reserved upon the Redemise there shall be an Apportionment but if part be assigned by the Lessee to a Stranger who Assigns it to the Lessor and the Lessee had reserved no Rent in that case there shall be no Apportionment for the Lessor comes under the benefit of the Strangers Contract And Hale resembled it to the Case of Lord and Tenant by an entire Service if such Tenant aliens part the Service is multiplied and after it be conveyed to the Lord the entire Service still remains upon the Tenant that holds the residue A Rent upon a Lease is not within the Statute of Quia emptores terrarum yet in many Cases there shall be an apportionment at Common Law If the Lessor enters into part by Wrong this shall suspend the whole Rent for in such case he shall not so apportion his
Trover inter al' de uno Instrumento ferreo Anglicè an Iron Range After Verdict for the Plaintiff it was moved in Arrest of Judgment that Instrumentum ferreum was too uncertain and that a Range was the same with a Grate for which Crates was a proper Latin word Sed non allocatur For Crates is such a Grate as is before a Prison But a Fire Range was not in use in the Romans time and therefore Instrumentum ferreum is well enough with the Anglicè Twisden said Trover de septem libris has been held good without saying what they were Blackman's Case IT was assigned for Error that the Venire was to Summon probos legales homines instead of liberos and so a material Variance and alledged that many Judgments had been Reversed for it But the Court here being informed that the Presidents were generally probos instead of liberos would not allow the Exception The King versus Armstrong Harrison al' c. THey and others were Indicted for Conspiring to Charge one with the Keeping of a Bastard Child and thereby also to bring him to Disgrace After Verdict for the King it was moved in Arrest of Judgment that the bare Conspiring without Executing of it by some Overt act was not subject to Indictment according to the Poulterers Case in the 9 Co. And it doth not appear that he was actually Charged with the Keeping of a Child nay 't is alledged 't was but a pretended Child neither was he by Warrant brought before a Justice of Peace upon such an account but only that they went and affirmed it to the party himself intending to obtain Money from him that it might be no further disclosed Sed non allocatur For there was as much Overt act as the nature and design of this Conspiracy did admit in regard there was no Child really but only a Contrivance to Defame the Person and Cheat him of his Money which was a Crime of a very heinous nature Then it was alledged That this was tryed at the Old-Baily commonly called Justice-Hall in London and the Jury came de Warda de Faringdon extra London which appeared to be out of the Iurisdiction Sed non allocatur For the Name of the Ward is Faringdon extra to distinguish it from Faringdon infra but both are known to be in London Whereupon Judgment was Entred up against them and Armstrong which appeared to be the principal Offender was Fined 50 l and the other 30 l Burrough's Case HE and others were Indicted for that they being Church-wardens Overseers of the Poor and a Constable did contemptuously and voluntarily neglect to Execute diversa Praecepta Watranta directed to them by the Bayliffs of Ipswich being Justices of the Peace under their Hands and Seals c. It was moved to quash it for that the nature and tenour of the Warrants were not expressed in the Indictment For unless the parties know particularly what they are charged with they cannot tell how to make their Defence And for that Reason it was quashed by the Court. Note The Court never gives Costs for not Executing of a Writ of Enquiry of Damages tho' Notice be given Anonymus AN Indictment of Forcible Entry into certain Lands in the possession of J.S. was quashed for not shewing what Estate J.S. had and tho' the word Disseisivit were in the Court held that tho' that might be taken to imply a Freehold yet it was not sufficient Vid. Mo. 481. And another was quashed because it was said possessed pro termino But the Court held that if it had been pro termino annorum tho' not said for how many years it had been well Note A Bayliff caught one by the Hand whom he had a Warrant to Arrest as he held it out of a Window And the Court said that this was such a Taking of him that the Bayliff might justifie the breaking open of the House to Carry him away Kent versus Harpool AN Ejectment The Case came hither by a Writ of Error out of the Kings-Bench in Ireland and divers Points were in it which concerned the Act for Settlement of Lands in Ireland But the Case was as to the great Point at Common Law to this effect Father Tenant for Life Remainder to the Son for Life Remainder to first Son of that Son who was not born Remainder to the Heirs of the Body of the Father the Father died before the first Son was born and Whether the Descent of the Entail to the Son did prevent the Contingent Remainder was the Question It was Argued that it did not because the Inheritance came to the Son by Act in Law And the Opinion in Cordal's Case in the 1 Cro. 315. was cited the great Reason in Chudley's Case and other Cases wherein Contingent Remainders have been held to be destroyed was for the preventing of Perpetuities which would have been let in if Contingent Remainders had been preserved whatever Act had been done by those which had the Actual Estate But there is no such necessity of making the life Construction upon Acts in Law If Lessee for years makes the Lessor Executor the Term is not drowned But if the Executor that hath a Lease purchases the Inheritance the Term is gone because it is his own act but in the other Case the Law shall not work that which must be construed a Devastavit In Lewis Bowles's Case in the 11 Co. and Co. Litt. where there is an Estate for Life Remainder to the first Son Remainder in Fee to the Tenant for Life the Estates at first close and open again upon the Birth of the first Son which should take the Remainder And so it may be here But the Court seemed to be of Opinion that the Contingent Remainder was destroyed by the Descent of the Estate Tail And Rainsford Chief Justice relyed upon Wood and Ingersol's Case in the 2 Cro. 260. where a Devise was to the first Son for Life Remainder to the Son which should survive and there three Judges against one held that the descent of the Fee upon the first Son prevented the Contingent Remainder to the Survivor Et Adjornatur Note In Lewis Bowle's Case the Estates were united at the first upon making of the Conveyance Smith versus Tracy IN a Prohibition the Case was One died Intestate and whether his Brother of the Half-blood should come in for Distribution upon the new Statute of 22 23 Car. 2. cap. 10. was the Question It was Argued that the Half blood should have no share for the Words are The next of Kindred to the Dead person in equal Degree which the Half-blood is not The Words likewise are Those which legally represent their Stocks and that must be intended in an Act of Parliament such as the Common Law makes to be Representatives and not the Civil Law For then it would be that the Bastard eigne should come in for Distribution For their Rule is that subsequens matrimonium facit
disposition of them in case of such necessity pendente lite And the Court granted the Prohibition quoad that Allegation only Tothil versus Ingram IN Replevin the Defendant avowed for an Herriot and Arrears of Rent upon a Lease In Bar of this Avowry as to to the Herriot the Plaintiff pleaded That in a former Replevin brought by him against J.S. the said J. S. made Conuzance as Bailiff to the Defendant for the same Herriot and was barred And to the rest he pleaded a Release of all demands made unto him by the Avowant before this Rent accrued and to this the Avowant demurred First For that he doth not shew that he which made Conisans was Bailiff to the now Avowant for he might make Conisans without his Privity and if so it could be no bar to him now As to the Release it was said that a Rent incident to a Reversion would not be barred by such Release And so it was adjudged in this Court in Hen and Hampsons Case in the year 1662 by Foster Chief Justice Windham and Maller against the Opinion of Twisden who now said that that Resolution was contrary to Littl ' Sect ' 510. who saith that a Release of all demands will extinguish a Rent-service And it was said that in Hancocks and Fields Case 2 Cro. 170. it is adjudged that such Release will extinguish a Rent reserved upon a Lease tho' not a Covenant before it be broken To which it was answered That in Witton and Byes Case 2 Cro. 486. It is resolved that if a Lessee Assigns over his Term reserving a Rent it will be extinguished by releasing of all demands But Houghton makes a difference between such a Rent and a Rent incident to a Reversion For the first Point the Court held that if the Bailiff had no Authority to make Conisans it ought to be shewn on the Avowants part for otherwise it shall be intended and this may be Traversed by the Avowant here tho' the Plaintiff in Replevin when Conizans is made cannot Traverse the being Bailiff But for the second Point Adjornatur Sir Walter Plomer versus Sir Jeremy Whitchcot THe Court were this Term to give their Opinions in the grand Point viz. Whether Sir Jeremy Whitchcot Warden of the Fleet were liable for Escapes suffered by Duckenfeild his Lessee Duckenfeild being insufficient But the whole Court observing an imperfection in the Verdict which found that Duckenfeild was insufficient when put in and at the time of his Escape but it was not found that he was so at the time of the Action brought Hereupon they declared that they were all agreed that Sir Jeremy Whitchcot was liable if the said matter had béen found but that they could not give Iudgment upon the Verdict as it was found whereupon the Parties were permitted to take a Venire de novo but they rather chose to have a Nil capiat c. entred and so bring a Writ of Error for their Counsel were very strong that that matter should be intended in a Special Verdict and their Declaration did alledge him to be insufficient at the time of the Action brought But Sir Jeremy Whitchot soon after died and so the Writ of Error did not proceed Ent versus Withers IN Debt against on Executor suggesting a Devastavit and to charge him in his own right The Defendant pleaded a frivolous Plea to which it was demurred but then exception was taken to the Declaration that it did not set forth any Judgment obtained before against the Executor de bonis testatoris without which this Action would not lie in this manner Vid. Wheatly and Lane Hill 20 21. Car. 2. in Sanders And of that Opinion were the Court but Serjeant Pemberton desiring to argue it saying there was no difference in reason between the Cases Adjornatur Anonymus THe Court said that in case of an Indictment and Issue joyned the Party could not carry it down to Try it by Proviso for it lay not against the King Astree versus Ballard THe case was The Plaintiff had recovered against two in Trover and now brought a Scire facias against the Bail who pleaded that he had taken one of the Principals in Execution before the Scire facias taken out 1 Ro. 897. If one hath Execution against the Principal he cannot afterwards proceed against the Bail nec ê contra but Paschae 28. of this King it was resolved in the Case of Orlibary and Norris where the Bail was taken first in Execution and afterwards the Principal that they should be both detained until satisfaction contrary to 1 Ro. 897. So that it appears that the Plaintiff shall not be concluded by his Election to proceed against the one first But here the difficulty is that the Bail by the Plaintiffs act is disabled to bring in both their Bodies according to the Condition of their Recognizance he having taken one of them himself Et Adjornatur Smith versus Tracy IN a Prohibition the case was Eliz. Smith died Intestate leaving two Brothers one of the whole Blood and the other of the half Blood And in the Ecclesiastail Court they would admit the half Blood to come in for distribution with the whole Blood upon the Act of 22 and 23 Car. 2. cap. 10. Vpon which a Prohibition was granted to which there was a Demurrer And the question came upon these words in the Act viz. That distribution is to be made to the next of Kin of the Intestate who are in equal degree and such as legally represent them For the Plaintiff it was said that Statutes were to be expounded by the reason of the Common Law which took no consideration of the half Blood insomuch that an Estate should rather escheat then descend to the half Blood Then the words of the Act are such as legally represent them which they both do the common Auncestor but not one another in this case Consideration is to be had of the intent of the Interstate which must be supposed to prefer the Brother of the whole Blood Dier 372. Isteds Case where the Executor dies Intestate the Residuary Legatee of the first Testator shall have Administration and not the next of Kin because that is suitable to the intent On the contrary it was argued that altho' the half Blood be rejected in descents yet it is regarded in other Cases 3 Co. in Ratcliffs Case the half Blood may be Guardian in Soccage Vid. 2 Ro. 303. and Stile 's Rep. 74 75. for granting of Administrations to the half Blood there cannot be two degrees made of the whole Blood and the half Blood neither does out Law make any distinction but when it wholly excludes them Curia The intent of this Act was to give the Ecclesiastical Court the Jurisdiction in this matter and to provide for the distribution of Intestates Estates which they had a long time attempted and contested but were still prohibited but now this Act permits them to proceed and it were fit we
Anonymus IN Trespass for Fishing in his several Piscary and for taking 20 Bushells of Oysters there such a day continuando piscationem praedictam from the said day to the time of the Action brought Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Fishing in the continuando was altogether incertain not expressing the quantity or quality of the Fishes as it ought according to Playters Case 5 Co. And of this Opinion were Wild and Jones But the Chief Justice inclined to think it well enough and said Playters Case had not been very well approved of of late years and that is that 't is necessary to express the kind of the Fishes which has béen held since needless and he knew not why it might not be as well as an indebitatus Assumpsit pro diversis mercinoniis But the other Judges said tho' it was reason it should be as the Chief Justice said yet they knew not how to depart from the Authorities in the Point and that Playters Case had remained mishaken Sed Adjornatur Anonymus IN Debt for Rent against an Assignee of a Lessee The Defendant pleaded That before the Action brought he assigned over to J. S. and thereof gave notice to the Plaintiff The Plaintiff replied That he still kept the Possession and had made the Assignment by fraud to disappoint him c. To which it was demurred for it was said that fraud was not averrable in this case neither by the Common Law nor any Statute But the Court inclined that it might for if such a practice should obtain the Lessor might be hindred perpetually of his Action of Debt by making Assignments to persons unknown An Executor confesses a Judgment which is lawful for him to do yet this may be avereed to be entred or kept on foot by fraud and that by the Comman Law which hates all frauds Sed Adjornatur Postea Anonymus A Prohibition was prayed to the Councel of the Marches for that they proceeded upon an English Bill there against the Defendant supposing that he had promised upon a Consideration to pay the Debt of a Stranger because 't is in the nature of an Action upon the Case and consists meerly in Damages And altho' many Presidents were shewn of their Proceeding in such of Actions and the Statute of 34 H. 8. cap. 26. that they should determin such Cases as were heretofore accustomed and used c. as should be assigned to them by the Kings Majesty and it was pretended that this was within their Instructions yet the Court granted the Prohibition For where Damages are uncertain they cannot be set in a Court of Equity but by a Jury In Debt because the demand is certain the Courts here have sometimes assessed Damages without a Writ of Enquiry but never in Trespass or Actions upon the Case which lie wholly in Damages Anonymus AN Habeas Corpus The Return was read and spoken to and the Prisoner ordered to be remanded Twisden said the Return should have been first Filed and the Prisoner committed to the Marshalsey for otherwise the Court have no power over him Vid. Mo. 839. and he cited 1 H. 7. Humphry Staffords Case who being brought to the Bar upon an Habeas Corpus by the Lieutenant of the Tower was committed to the Marshalsey and afterwards remanded to the Tower but the other Judges differed as to the Commitment and said it was not necessary to keep the Prisoner in the Marshalsey until the Matter was determined but he might be sent from time to time to the same Prison and brought up by Rule of Court until he is either Bailed Discharged or Remanded And so they said it was lately done in the Earl of Shaftsbury's Case Gilmore versus .... UPon a Special Verdict the Point was whether a Promise made upon such Consideration as by the Act of 29 Car. 2. to prevent Frauds and Perjury's is requisite to be in Writing signed by the Party to be charged therewith being made before the 24 of June last but the Action brought after be within the restraint of the Act which saith That from and after the 24 of June no Action shall be brought upon such Promise c. And it was resolved that the Case was not within the Act which did not extend to any Promise made before the 24 of June The King versus Sir Thomas Fanshaw SIr Thomas Fanshaw and others were indicted for not Repairing of a Bridge which it was alledged they were bound to Repair Ratione Tenurae of such Lands Sir Thomas Fanshaw pleaded That he was not bound to Repair Ratione Tenurae and found that he was In Arrest of Judgment it was said that the Verdict was not pursuant to the Indictment for therein 't is alledged that Sir Thomas Fanshaw and others were bound to Repair Ratione Tenurae and the Verdict is that Sir Thomas Fanshaw Ratione Tenurae c. Reparare debet Parietem praedict ' modo forma prout per Indictamentum praedict ' supponitur Sed non allocatur for each of them may be bound to Repair for their respective Lands and they must get Contribution by the Writ de onerand ' pro rata portione Secondly It was said that 't is Ratione Tenurae and not said Suae and this was said to be naught Noy's Rep. 93. Sed non allocatur for the Presidents are generally so Parkers Case A Mandamus to restore an Attorney to his liberty of practising in a Court within the County Palatine of Chester was Returned That the Court was holden before the Chamberlain Vice-Chamberlain Baron or the Deputy of the Baron and that at a Court before the Barons Deputy he spoke contemptuous words of him whereupon he suspended him from his Practice quod non aliter amotus fuit Vpon exceptions offered to the Return The Court held it a good cause of Suspension and ordered a Submission to him that received the affront in open Court before that he should be restored Anonymus THe Case upon the Averment of Fraud upon an Assignment by the Assignee of a Lessee was now moved again and by Twisden Wild and Jones against the Opinion of Scroggs Chief Justice Iudgment was given for the Plaintiff viz. That Fraud in such Case might be averred Ante. Anonymus IN Ejectment it was debated whether Confession of Lease Entry and Ouster would serve where there ought to have been an actual Entry upon the Title as the in case of a Condition broken or the like And the Opinion of the Court inclined that it would not tho' my Lord Hale was said to be of another Opinion Ante. Termino Sancti Michaelis Anno 30 Car. II. In Banco Regis Dutton versus Poole CUjus principium ante Michael ' 29 Car. 2. It was now moved again to stay the Iudgment by Sanders who argued that the Action could not be maintained by the Plaintiff for the Father whose the Wood was could only bring it for
Tail was executed by the first Conveyance And in the Case at Bar until the Release of B. the Fee was not executed in B. for the preservation of the Joynture and so the Plight and Condition of the Estate altered by matter subsequent and by consequence the Contingent Remainder destroyed The Court doubted whether there were such alteration of the Estate as to destroy the Remainder for they said to some purposes the Fee was executed before the Release Vid. 1 Inst 184. a. for if the Joynt-tenants had joyned in a Lease for years an Action of Wast would he against the Lessee Et Adjornatur Anonymus A Person who was committed to the Tower for Conspiring the death of the King was brought up by Habeas Corpus and prayed to have Bail taken unless an Indictment were found against her this Term according to the new Act of 31 Car. 2. for Habeas Corpus's The Court said that they which would have the benefit of that Act must pray it before the first week of the Term expires but in regard it appeared that she had prayed it before by her Counsel and her Habeas Corpus was taken out in time the Court said the benefit of the Act should be saved to her for the prayer is not necessary to be made in person But Mr. C. G. was refused the advantage he having omitted to make the prayer during the first week either in Person or by Counsel Sir Robert Peytons's Case HE was brought up by Habeas Corpus from the Tower his Counsel pressed much to have the Return Filed supposing that he would be then a Prisoner to the Court and committed to the Marshalsey but the Court ordered the Return to be Filed and notwithstanding remanded him to the Tower as they said they might do The King versus Plume ANte Hill 29 30 Car. 2. The Case was spoken to again upon the Demurrer to the Indictment for using of the Trade of a Fruiterer contra 5 Eliz. not having been bound an Apprentice Scroggs Chief Justice and Dolben inclined to the Opinion that it was a Mystery within the Statute there being great Art in chusing the times to gather and preserve their Fruit. And that the Cause deserved the more Consideration for that the Fruiterers were an ancient Corporation in London viz. From the time of E. 4. also a Barber Upholster and lately a Coachmaker Ruled to be within the Act. Jones and Pemberton seemed to be of another Opinion for it would be very inconvenient to make every one that sells Fruit by the penny within the Act and majus minus would make no odds surely since the 5 of Eliz. there would have been some Prosecution by the Company of Fruiterers in this case if it would have lain Brewers and Bakers require Skill and yet not within the Act. But the Court took time to deliver their positive Opinions Et Adjornatur Reve versus Cropley AN Indebitat ' Assumpsit was brought for 20 l as Executor to William Burroughs for so much of the said Williams Money had and received by the Defendant in his Life time whereupon the Plaintiff had Iudgment by Nihil Dicit and upon a Writ of Inquiry the Plaintiff not being provided to prove the Debt supposing it to be confessed by the Judgment the Jury found but two pence Damages Ventris moved to set aside this Writ of Enquiry for that the Plaintiff was not obliged in this Action to prove the Debt at the executing of the Writ of Enquiry no more than if he had brought an Action of Debt 2 Cro. 220. In Trespass for taking of Goods the Property is not to be proved upon the Writ of Enquiry after Iudgment Sur Nihil Dicit for said the Court if he should fail thereof it would be in destruction of the first Judgment Vid. Yelv. 152 Curia This being in an Action upon the Case which lies in Damages the Debt ought to have been proved and so let it stand Note If a Verdict be for 30 l and the Iudgment is quod recuperet damna praedicta ad 32 l This surplus will do no hurt because 't is damna praedicta Jones 171. Cooke versus Fountain IN an Ejectment upon a Trial at the Bar the Title of the Lessor of the Plaintiff was upon the Grant of a Rent with power to enter for Non payment The Executor of the Grantor was produced as a Witness for the Defendant And it was objected against him that in the Grant of the Rent the Grantor covenanted for himself and his Heirs to pay it and that the Executor being obliged was no competent Witness Against which it was much insisted upon on the other side that this Covenant annexed to a real Estate would not bind the Executor but only the Heir But the whole Court were against it The Counsel for the Defendant mentioned a Bill of Exceptions and the Court doubted whether it would lie in the Kings Bench so they waved it and shewed that the Executor had fully Administred the Inventory But they gave a further charge on the Plaintiffs side and so that Witness was set aside Termino Sanctae Trinitatis Anno 32 Car. II. In Banco Regis Anonymus IN an Action upon the Case The Plaintiff declared that he kept a Stage-Coach and got his Livelyhood by carrying of Passengers And that the Defendant spoke such Scandalous words of his Wife that so reflected upon him and rendred him so ridiculous that no body would Ride in his Coach and he thereby lost his Customers After Verdict for the Plaintiff it was moved to stay Iudgment that here was no cause of Action But on the other side a Case was cited of one Bodingly 14 Car. 2. C. B. where the Plaintiff declared That he was an Innkeeper and that the Defendant had presented his Wife at a Leet for a Scold and that such and such Guests in particular had absented from his House upon it and after Verdict he had Judgment But the Court here said that the Cases differed for that quality of the Wives might make the House troublesome to the Guests but a Stage Coachman could receive no probable prejudice in his Trade by defaming of his Wife or at the least the Plaintiff should have declared what Customers he had lost in particular and therefore they ordered quod querens Nils capiat per Biliam Anger versus Brewer IN an Attachment upon a Prohibition the Plaintiff declared That he proceeded in the Court Christian after the Prohibition delivered After Judgment by Nihil dicit and 100 l Damages given to the Plaintiff it was moved to stay Judgment that there was no place laid in the Declaration where the Defendant prosecuted since the Prohibition delivered and so if Issue had been taken upon Non prosecut ' fuit post deliberat ' brevis whence should the Venue have come But it being made appear to the Court that in all the Presidents of these kind of Declarations there is no place found mentioned
makes a Lease for the Life of the Lessee not warranted by the Statute and dies leaving B. in Remainder his Heir B. let ts for 99 years to commence after the death of the Tenant for Life reserving Rent and then the Tenant for Life surrenders to B. upon Condition and dies B. suffers a Recovery with single Voucher and dies the Lessee for years enters the Heir of B. distrains for the Rent and the Lessee brings a Replevin and upon an Avowry and Pleadings thereupon this Case was disclosed to the Court of Common Bench and Judgment given there for the Avowant and Error thereupon brought in this Court For the Plaintiff in the Error it was Argued That the Lease being derived out of a Reversion in Fee which was Created in A. upon the Discontinuance for Life and the New Fee vanishing by the Surrender of the Tenant for Life for it was urged he was in his Remitter altho' the taking of the Surrender was his own Act that the Lease for years by consequence was become void Again It was Objected against the Common Recovery that the Tenant in Tail and a Stranger which had nothing in the Estate were made Tenants to the Praecipe and therefore no good Recovery Again In case B. were not remitted after acceptance of the Surrender then he was Seised by force of the Tail and so no good Recovery being with single Voucher On the other side it was Argued to be no Remitter because the acceptance of the Surrender was his own Act and the Entry was taken away But admitting it were a Remitter because by the Surrender the Estate for Life which was the Discontinuance was gone and it was no more than a Discontinuance for Life For if Tenant in Tail letts for Life and after grants the Reversion in Fee if the Lessee for Life dies after the Death of the Tenant in Tail so that the Estate was not executed in the Grantee during the Life of the Tenant in Tail the Heir shall immediately Enter upon the Grantee of the Reversion Co. Litt. It seems also to be stronger against the Remitter in this case because 't is not Absolute but only Conditional However the Lease may be good by Estoppel for it appears to have been by Indenture and if the Lessor cannot avoid the Lease the Lessee shall without question be subject to the Rent But it was Objected against the Estoppel that here an Interest passes and the Lease was good for a time As if the Lessee for Ten years makes a Lease for Twenty years and afterwards purchaseth the Reversion it shall bind him for no more than Ten. To which Pemberton Chief Justice said The difference is where the party that makes the Estate has a legal Estate and where a Defeasible Estate only for in the latter a Lease may work by Estoppel tho' an Interest passed so long as the Estate out of which the Lease was derived remained undefeated As to the Recovery it was held clearly good altho' a Stranger that had nothing in the Land was made Tenant to the Praecipe with the Tenant in Tail for the Recompence in Value shall go to him that lost the Estate and being a Common Assurance 't is to be favourably Expounded Et Adjornatur Termino Sancti Hillarij Anno 33 34 Car. II. In Banco Regis Anonymus IN Error upon a Judgment in Ejectione Firmae in the Common Pleas where the Case was That the Bishop of London was seized injure Episcopatus of a Mannor of which the Lands in question were held and time out of mind were demised and demisable by Copy of Court Roll for Life in Possession and Reversion and J.S. being Copyholder for Life in Reversion after an Estate for Life in Ann Pitt and J.N. being seized of the Mannor by Disseisin J.S. at a Court holden for the Mannor in the name of J. N. surrendred into the Hands of the said J.N. the Disseisor Lord to the used of the said Lord. Afterwards the Bishop of London entred and avoided the Disseisin Ann Pitt died and an Ejectment was brought by J. S. And it was adjudged in the Common Bench that he had a good Title and now upon a Writ of Error in this Court the Matter in Law was insisted upon by Pollexfen for the Plaintiff in the Writ of Error That this Surrender to the Disseisor Lord to the Lords own use was good for all the Books agree a Copyholder may Surrender to a Disseisor of the Mannor to the use of a Stranger and why not to the Lords own use As if Lessee for years be ousted and he in Reversion disseised and the Lessee Releases to the Disseisor this extinguishes his Term. Here is a compleat Disseisin of the Mannor by Attornment of the Freeholders without which the Services cannot be gained and the Copyholders comeing to the Disseisors Court and by making Surrenders c. owning him for their Lords tantamounts Serjeant Maynard contra And he insisted that this Surrender was not good for the Disseisor had no Estate in this Land capable of a Surrender for the Copyholder for Life continuing in Possession and never having been ousted there could be no Disssesin of that And he endeavoured to distinguish it from a Surrender to a Disseisor Lord to the use of another for in such Surrenders the Lord is only an Instrument and does but as it were assent and until admittance the Estate is in the Surrenderer And he resembled it to the Attornment of a Tenant when è converso a Seigniory is granted and he put Cases upon Surrenders of Leases that they must be to one that hath the immediate Reversion as an under Lessee for part of the Term cannot Surrender to the first Lessor and he cited a Case of Lessee for years Remainder for Life Remainder in Fee to a Stranger he that had the Fee enfeoffed the Tenant for years by Deed and made Livery and the Conveyance held void for it could not work by Livery to the Tenant for years who was in Possession before and a Surrender it could not be because of the intermediate Estate for Life and it could not work as a Grant for want of Attornment He said it had been commonly received that a Common Recovery cannot be suffered where the Tail is expectant upon an Estate for Life not made Tenant to the Praecipe which he said was true in a Writ of Entry in the Post which are commonly used And the true reason is because such Writ supposes a Disseisin which cannot be when there is a Tenant for Life in Possession But as he said a Common Recovery in such case in a Writ of Right would be good Pemberton Chief Justice said his reason of Desseisin would overthrow Surrenders to the use of a Stranger for if the Possession of the Copyholder would preserve it from a Disseisin then was it pro tempore lopped off or severed from the Mannor and then no Surrender could be at all Et Adjornatur Berry
Indicted of Perjury in a voluntary and Extra judicial Oath and cited a late Case where one had stole away a mans Daughter and went before a Justice of the Peace and Swore that he had the Fathers Consent and this in order to get a Licence to marry her and he was Indicted and Convicted thereupon And all the Court said that it was not the course to quash Indictments of Perjury Nusance or the like but to put the party to plead to them Termino Paschae Anno 36 Car. II. In Banco Regis Duncomb versus Walter IN an Indebitat ' Assumpsit by an Assignee of Commissioners upon the Statute of Bankrupts upon Non assumpsit a Special Verdict was found upon which the Case appeared to be thus One Staly was Arrested by an Executor of his Creditor 6 Sept which was before Probat of the Will and within two or three days after he paid 1000 l to the Defendant to whom he stood Indebted in such Sum and after the 18th of September he yielded himself to Prison upon the said Arrest The Question was Whether the Defendant should be obliged to Refund this Money which was paid unto him as aforesaid First Whether the Arrest before the Probat was a good Arrest It was said If an Executor hath a Reversion in a Term upon which a Rent is reserved and Distrains c. he may avow for the Rent before the Probat Vid. 1 Roll. 917. tit Executors where an Executor brings an Action before Probat yet if he shews the Probat upon the Declaration 't is well enough Secondly Whether when he yields himself to Prison it shall not relate to the first Arrest to make him a Bankrupt from that time This depends upon the Statute of 21 Jac. cap. 19. where it is said that in the Cases of Arrest and lying in Prison he shall be adjudged a Bankrupt from the time of his first Arrest Object This Relation doth not prejudice Strangers Answ Dame Hales's Case Pl. Com. 293. If one giveth another a mortal Wound and then sells his Land and the person dies there shall be such Relation as to make the Land forfeit from the first Stroke Note This Case came by Writ of Error out of the Common Pleas where Judgment was given for Walter and the said Judgment was affirmed in this Court principally upon the point of Relation For the Court said that it would be a great mischief if it should relate to the first Arrest as to the payment of Money to Strangers Termino Sancti Hillarij Anno 1 2 Jac. II. In Banco Regis Herring versus Brown Quod vid. ante Michaelmas 35 Car. 2. THe Case upon a Special Verdict was to this effect That J. S. being Seised in Fee had made a Conveyance of his Estate to the use of himself for Life with divers Remainders over to other persons with a power of Revocation by Writing under his Hand and Seal c. Afterwards the said J. S. having a purpose to Revoke the said Uses and make a new Settlement of his Estate he levied a Fine and after the Fine he made a Deed wherein he expressed that he Revoked the former Uses and so proceeded to a new Limitation by that Deed and declared that the Fine by him limited should be to the Vses of the said Deed. The sole Question was Whether the Fine had extinguished his Power and by consequence forfeited his Estate or Whether the Fine and Deed should be taken as one Conveyance and so be a good execution of his Power and new limitation of the Uses And after many solemn Arguments it was Resolved by the Chief Justice Herbert Holloway and Wright that the Fine was an extinguishment of his Power and that the Deed came too late contrary to the Opinion of Justice Withens Vido ante ADDENDA Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Pibus versus Mitford Intratur Trin. 20 Car. 2. Rot. 703. IN an Ejectment the Jury find a Special Verdict to this effect viz. That Michael Mitford was seiz'd of the Lands in question and of divers other Lands in Fee and having Issue Robert by one Venter and Ralph by Jane his second Wife did 23 Jan. 21 Jac. by Indenture Covenant to stand seized of some of the Lands to the use of himself for Life Remainder to Trustees for years for several purposes Remainder to Jane his second Wife for Life Remainder to Ralph and the Heirs Male of his Body And as to the Lands in question he Covenants to stand seiz'd To the use of his Heirs Male begotten or to be begotten on the Body of his second Wife and died And then the Jury made this Special Conclusion If any Use did arise by the Deed to Ralph then they find for the Defendant and if not they find for the Plaintiff This Case was Argued several times at the Bar and now the Judges delivered their Opinions seriatim Wild Justice for the Defendant We are to give our Opinions upon a Deed of Uses made for the Provision of younger Children not otherwise provided for But if the Case were not so It is a safe way when the Words are ambiguous to follow the Intention of the party appearing in the Deed. I shall not maintain that Ralph is a Purchaser and so make this an Executory Use I agree a man cannot either by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser I agree also Griswold's Case in Dyer 156. and if this Case had operated by Transmutation of Possession this Limitation to the Heirs of the Body of the Covenantor had been void and no Use should have risen But here in the Case of a Covenant to stand seiz'd nothing moves out of the Covenantor he retains the Land and directs the Use and keeps sufficient in him to maintain this Use There 's a great difference between a Conveyance at the Common Law and a Conveyance to Uses At the Common Law the Heir cannot take where the Ancestor could not but otherwise it is in case of Uses 2 Rolls 794. and so is Wood's Case 1 Co. 99. a. cited in Shelly's Case This I say to shew that the Intent of the Parties shall be the Guide and that there is a difference between Conveyances at the Common Law and Conveyances to Uses Horwood's Opinion in Hussey's Case 37 H. 8. comes to our Case There 's no great difference between a Covenant to stand seiz'd and a Feoffment to Uses I will not Argue to prove that this Deed shall enure as an Executory Use because 't is against a Rule in Law taken by my Lord Hobart and so Agreed before his time But here Ralph is Tenant in Tail Michael his Father being Tenant for Life Remainder to his Heirs Male begotten on the Body of Jane his second Wife For the Law to preserve this Limitation to the use of his Heirs Male c. will by Implication create an Estate for Life in Michael
because the Intent of the parties appears that it should be so There 's no great difference between the Construction of a Deed of Uses and a Will 13 H. 7. The Wife takes an Estate for Life by Implication where the Land is devised to the eldest Son after her decease Manning and Andrew's Case in 1 Leon. 259. The Reason of these Cases is the fulfilling of the Intention of the Parties and here this Limitation cannot be made good by way of a Future Use nor by any other way but only by creating of an Estate for Life in Michael the Father by Implication and this is according to the nature of a Covenant to stand seiz'd For the Use is not to pass out of the Covenantor till the proper time for the subsequent Estate to commence As to my Lord Paget's Case 't was his Intention to have the Use during his Life And my Lord Coke was certainly very well satisfied with the Resolution in Fenwick and Mitford's Case when he wrote his Institutes for he Argued before to the contrary as appears by the Report of that Case in Moor. Rainsford Justice to the same Intent If no Use rises immediately to Ralph yet if a Use rises by the Deed so that he has the Land any way be it by discent from his Father 't is within the Conclusion of the Verdict By the scope of the Conveyance it appears that it was intended that Robert should never have his Land till Twelve hundred Pound was paid for the provision of younger Children so that if Robert should have it it would be against the Intention of Michael There are two Reasons and Grounds in Law by which we may make this Deed agree with the Intention of the Parties First Because it is in the Case of an Estate Tail ubi voluntas donatoris observari debet Secondly It is in a Conveyance setled by way of Use and in Cases of Uses the Intention of the parties ought to be pursued And this is in Case of a Use that rises by Covenant to stand seiz'd which makes the Case the stronger And I conceive this is not a void Limitation but such an one as gives an Estate to Ralph In speaking to which I shall observe what my Lord Coke in the 1 Inst 23. says viz. That so much of the Use as the Owner of the Land does not dispose of remains in him c. and so in Cownden and Clark's Case in Hob. 30. And this is the Reason of Bingham's Case 1 Co. 91. Now here when Michael Covenanted to stand seiz'd to the Vse of his Heirs Male on the Body of his second Wife begotten I conceive he shall retain the Land as parcel of his ancient Vse during his Life for non est Haeres viventis according to Archer's Case 1 Co. And that Michael shall retain an Estate for Life is prov'd by my Lord Paget's Case 1 Co. 154. Dyer 310. N. 79. 1 Co. Chudleigh's Case 129. 2 Rolls 788. 21 H. 7. 18. From my Lord Paget's Case upon which I shall rely and the other Cases it appears that were there 's a Limitation to one after the death of another the Covenantor shall retain the Land during the Life of the other and here in our Case this Estate not taking effect till after the Death of Michael he shall retain the Estate and shall be Tenant for Life of the old Vse Now the Question is Whether Ralph shall take by Discent or Purchase And I conceive this Estate for Life with the Remainder in Tail makes but one Estate Tail in Michael and that he becomes Tenant in Tail and so Ralph shall take as Heir in Tail I shall not trouble my self whether Ralph may take here as a Purchaser because in Cownden and Clark's Case in Hob. it is Resolved that he cannot take as Heir Male of the Body by Purchase because all the words are not verified in him for he is not Heir I shall rely upon the First Point That here is an Estate Tail executed in Michael For when an Estate for Life is in the Auncestor by way of Retainer and an Estate is afterwards limited to his Heirs this is within the Rule put in Shelley's Case in 1 Co. where the Auncestor takes an Estate of Freehold and by the same Conveyance an Estate is limited to his Heirs Mediately or Immediately they are Words of Limitation and not of Purchase because the Heir is part of his Father Our Case is stronger that Fenwick and Mitfords Case It s true the same Reason for that Case is not given by Anderson and More which is given by my Lord Coke More 437. There the Reason is because the Limitation to the right Heirs is merely void here Michael hath an Estate in Tail of the ancient Use therefore 't is not necessary for the Law to create an Estate for Life Obj. That this cannot be an Estate Tail executed in Michael because the Estate for Life is not by the same Limitation but by Construction of Law But my Lord Coke says in Fenwick and Mitfords Case 1 Inst 22. b. that there is no difference where the Estate is created by Law and where by the Deed. 1 Anderson 259. and the Law retaining an Estate in Michael for Life our Case is the same as if the Estate had been limited to him with the Remainder to his Heirs Male begotten on his second Wife which would be an Estate Tail executed in Michael and would have discended to Ralph Twisden Justice for the Plaintiff I hold there 's no Use raised to Ralph by this Deed. We are here in the construction of a Deed and not of a Will It may be an Estate should be raised in such a case by a Will altho' my Lord Hobart is of a contrary Opinion I agree the Case of Hodgkinson and Wood Cro. Car. 23. but it cannot be argued from thence that it shall be so in a Deed for a Devise is not to take effect till after the Death of the Devisor and then 't is apparent that he is Heir Male of his Body It hath been agreed that Heirs Male of the Body are words of purchase It is plain that Ralph cannot take as Special Heir unless by Purchase and that he cannot do because he who shall take by virtue of such a Limitation ought to be Heir as well as Issue Male and Ralph here cannot take by vertue of the Statute de Donis Conditionalibis because none can take as Special Heir but where his Ancestor took before and therefore this Limitation is utterly void To make this Limitation good divers ways have been urged First That this Deed has an operation by way of returning of the Use and it has been compared to my Lord Pagets Case which differs from it here cannot be any part of the old Use in Michael for if he hath an Estate for Life it ought to be a new Use It cannot be a returning Use for the Limitation to the Heirs Male of the Body
of Jane the second Wife is void and it cannot be returning where the Use is not setled in any Person I agree my Lord Pagets Case because there the Estate was vested in William Paget and the other Use returned by operation of Law and the Estate setled could not be divested but here the Limitation to the Heirs Males being void the ancient Use remained yet in Michael for nothing was out of him he having limited a thing which cannot be And as to a returning Use tho' all be done in an instant yet there is a priority of time in the Eye of the Law for it ought to vest first in him in Remainder and then Return but here nothing vests in the Remainder Secondly It hath béen urged That it shall be made good by Implication of Law and so shall amount to a Covenant to stand seized to the Used of the Covenantor for Life c. and the rather as it has béen said by Wild because Uses are guided by Equity But I answer we are here in case of a Deed where an Estate shall not be raised by Implication as it shall by a Will Cro. Car. Seagood ad Hone 366. A Deed differs greatly from a Will for if a Man Surrenders Copyhold Land to two equally to be divided they are Joynt-tenants but such a Devise would have made them Tenants in Common Admit in some Case an Estate shall be raised by Implication in a Deed yet it shall not be so here for it would be to the disinheriting the Heir As to the case of 13 H. 7. I agree that a Devise to the Eldest Son after the Death of the Wife gives an Estate for Life to the Wife but otherwise it would be upon such a Devise to the Younger Son for there the Eldest Son and not the Wife should have the Estate in the mean time Cro. Jac. Horton and Horton 57. We are not herein Favorabili materiâ and therefore no construction shall be made which does not appear by the words It hath béen strongly urged that this being by way of Use which is a matter of Equity shall be favoured Admit it yet it shall be guided by the Common Law for aequitas sequitur legem There never shall be a Settlement by way of Use to make one capable who is not capable by the Common Law I do not see any difference between a Feoffment to Uses and a Covenant to stand seized for if a Feoffment be made to the use of one for Life the Use shall return which is not disposed of as well as upon a Covenant to stand seized Thirdly It has been urged if these severally cannot support this Limitation yet the intention operating with the Deed will both together make an Estate for Life in Michael But I do not see his intent here to have it for Life the intention even in a Will which is much stronger ought to be collected out of the words of the Will. Cro. Car. Spirt and Bence 368. agreed by the whole Court that words in a Will ought to have an apparent intent to disinherit an Heir and here there is not any apparent intent but rather to the contrary for of some Lands Michael Covenants to stand seised to the Use of himself for Life Remainder c. but of the Lands in question he makes a difference in the Limitation And the words of the Deed are to be considered He Covenants to stand seized to the Uses mentioned declared and limited in the Deed and if Michael shall have an Estate for Life he must have it by operation of Law There was a like case between Flavil and Ventroise in the Common Pleas in which the Court was divided but the same Point came afterwards in question in the Case of Mr. Tape of Norfolk and it was adjudged to be the ancient Use And no Case can be shewn that the Law will create an Estate in the Covenantor where the Use is not vested in any Person but the ancient Use remains in him As to the Cases cited on the other side I have answered my Lord Pagets's Case already And as to my Lord Cokes Case 1 Inst 22. b. I agree the Use returns and the Son is in by discent and so it was adjudged in Fenwick and Mitfords Case there cited But the Paraphrase he makes there I do not understand It is said there when the Limitation is made to his right Heirs and right Heirs he cannot have during his Life the Law doth create an Use in him during his Life Wherefore is this said to make the Heir in by discent No doubt without this he is in by discent and so was the Iudgment in that Case for what Reason then should there be an Estate for Life raised by the Law to be merg'd by the Fee as soon as raised And there 't is said Till the future use come in Esse I do not conceive then where it is so long as the Father lives and what he means by the Future Use I do not know for it always was in Esse and never was out of the Feoffor and this was so adjudg'd in that Case of Fenwick and Mitford and not the construction of my Lord Coke And t is strange that no other Reports should mention his construction Hale Chief Justice for the Defendant If Ralph takes either by Discent from Michael or by Purchase the one way or the other answers the Verdict and the Issue is for the Defendant I shall divide the Case into two Points 1. If he takes by Discent 2. Admitting he does not If he may take by Purchase as this Case is I shall Premise two or three things First It has been agreed if an Estate for Life be raised to Michael the Remainder being to his Heirs Male of the Body of Jane his second Wife the Estate Tail is executed in him be the Estate for Life raised by Implication or express Limitation Secondly It is plain quacunque via It be rais'd that the Estate was long'd in Michael till Ralph the Son be in a capacity to take it either by Discent or Purchase for be it part of the ancient Use or a new Use it ought to be in Michael during his Life for there is nothing to bring it out of him Thirdly In all Cases touching Uses there is a great difference between a Feoffment to Uses a Covenant to stand seized and a conveyance at the Common Law If a Man by Feoffment to uses conveys Land to the use of J.S. for Life he may remit the Use to himself and the Heirs Male of his Body by the same Deed and so alter that wich was before a Fee simple and turn it into another Estate but if A. gives Land to B. for Life Remainder to A. and the Heirs Male of his Body because a Man cannot give to himself the Remainder is void for a Man cannot convey to himself by a Conveyance at the Common Law These things being premised I conceive here is an
for if a Man Covenants to stand seized to a Contingent Use and afterwards is attainted of Treason before the Contingency happen the Contingency shall never rise for the King has the Estate discharged and the Use is to rise out of the Estate of the Covenantor so is Moor Sir Tho Palmers Case 815 In Moors Rep. of my Lord Pagets Case 194. It s said that W. Paget had an Amoveas manus for the Estate of the Queen leased by the Death of my Lord Paget In Sir Francis Englefeilds Case Popham 18. n. 7. It s resolved that no Use rises because t is that it shall Discend Remain or Come which is uncertain but if he had Covenanted that after his Death he and his Heirs would have stood seized to the Use of John an Use would have resulted to Sir Francis Second Point I conceive if it be impossible for Ralph to take by Discent this would be a Contingent Use in him by Purchase The great Objection against this is that the Limitation is to an Heir and an Heir which ought to take by Purchase ought not to be only Heir of the Body c. but Heir general Of this I am not well satisfied I conceive the Remainder being limited to the Heirs of the Body of Jane begotten by Michael such a Limitation will make a special Heir to serve the turn and t is not to be resembled to Shelley's Case My Reasons are First Because at the Common Law before the Statute de Donis notice was taken that this was a special Heir and therefore 't is no wrong done to make him here a qualified Heir In the Statute de Donis 't is said When Lands are given to Man and his Wife and the Heirs of their two Bodies begotten Secondly Vpon the special penning of the Deed it is apparent that Michael took notice that he had an Heir at Common Law therefore it can't be intended that he meant here such an Heir that should be Heir general to him this would be Contradictio in Adjecto Litt. Sect. 352. puts this Case If a Feoffment be made upon Condition that the Feoffee shall give the Land to the Feoffor and his Wife and the Heirs of their two Bodies begotten In this Case if the Husband dye living his Wife before the Estate Tail is granted to them the Feoffee ought to make the Estate as near the Condition and as near the intent of the Condition as may be viz. To let the Land to the Wife for her Life without impeachment of Wast the Remainder to the Heirs of the Body of the Husband on her begotten If the Husband and Wife dye before the Gift made then the Feoffee ought to make it to the Issue and to the Heirs of the Body of his Father and Mother begotten Suppose that this had been to a second Wife and there had been Issue by a former the Book of 12 H. 4. 3. says that there it shall be in another manner but Litt. says it shall be as near vid. Litt. Sect. 22. Morevils Case Fitzh Tail 23. 2 Ed. 3. 1. 4. Ed. 3. 50. by all these Cases it appears that no regard is had whether the Son be Heir of the Husband if he be Heir of their two Bodies Therefore it seems that by this Limitation Ralph shall take by way of Contingent Remainder For Heirs of the Body of the second Wife is a good name of Purchase I have not read any Case against this Hill 16. or 26 Eliz. there was this Case A Man taking notice in his Will that his Brother who was dead had a Son and that he himself had three Daughters who were his right and immediate Heirs he gave them 2000 l and gave his Land to the Son of his Brother by the name of his Heir Male. Provided If his Daughters troubled his Heir then the Devise of the 2000 l to them should be void And it was resolved that the Devisor taking notice that others were his Heirs the Limitation to his Brothers Son by the name of Heir Male was a good name of Purchase and this agrees with Cownden and Clarks Case in Hob. Wild Justice said he was of the same Opinion with Hale in this last Point And Iudgment was given for the Defendant Three Learned ARGUMENTS One in the Court of Kings-Bench BY Sir FRANCIS NORTH Attorny General And Two in the Court of Exchequer BY Sir MATTHEW HALE Chief Baron there The Argument of Sir Francis North. In Banco Regis Potter and Sir Henry North. IN a Replevin for taking of an Horse in a certain place called the Fenn at Milden-Hall in the County of Suffolk the Defendant makes Cognizance as Bayliff to Sir Henry North and saith That the place Where c. containeth Ten thousand Acres of Pasture in Milden-Hall whereof a certain place called Delfe is parcel and that it is Sir Henry North's Freehold and the Horse was Damage feasant there c. The Plaintiff Replies Confessing the Soyl to be the Freehold of Sir Henry Norths but says That time whereof c. the place Where hath been parcel of the Fenn and parcel of the Mannor of Milden-Hall of which Sir Henry North is seised in Fee and that the Plaintiff was at the time c. seised of an Ancient Messuage one of the Freeholds holden of the Mannor by Rents and Services and parcel of the said Mannor and that Time out of Mind there were divers ancient Freehold Messuages holden of the said Mannor by Rents and Services and divers Copyhold Messuages parcel of the said Mannor by Custom of the said Mannor demised and demisable by Copy of Court Rolls of the said Mannor And the several Tenants of the said Freehold Tenements being seised in their Demesn as of Fee and they whose Estate they have in the same Time out of mind have had together with the Customary Tenants of the said Customary Tenements the sole and several Feeding of 100 Acres of Pasture for all Beasts except Hogs Sheep and Northern Steers levant and couchant upon their several Freeholds every year at all times of the year as to their several Freeholds belonging And that within the said Mannor there is and Temps d'ont c. hath been such a Custom that the several Tenants of the Customary Messuages together with the Freeholders aforesaid have used and accustomed to have the sole and several Feeding of the said 100 Acres of Pasture for all their Beasts except Sheep Hogs and Northern Steers levant and couchant upon their several Copy-holds every year at all times in the year tanquam ad seperal ' Tenementa customar ' spectant ' pertinent ' and the Plaintiff being seised put in his Horse c. and so Iustifies Vpon this the Defendant demurs generally This Prescription is naught in substance and Judgment ought to be given for the Defendant upon these Four Exceptions First That several Freeholders cannot joyn or be joyned in a Prescription to claim an entire Interest in another mans Soyl as
Circumstance that Special Matter or Circumstance must be shewn to the Court by him that would have the advantage of the Prescription for the Negative cannot be averred on the other side And it cannot be helped by supposing there may be Trees Mines or Park but it ought to be shewn for every thing that depends upon supposition may as well not be as be and to allow a Prescription upon such a supposal would be to bind up a party by it tho' the thing be not and Pasturage may well be supposed the whole profit of Pasture Ground for it is so in fact in many places and has its name because it is fed all the year But Where it is fed but part of the year and mowed or plowed the rest it is called Arable or Meadow The main Objection that I conceive they can make to this is That the Sole Pasturage or Vesture lies in Grant and the Owner may exclude himself wholly by Grant and so he may be excluded by Prescription or Custom and this they ground upon Co. Litt. 4 b. where it is said if a Man Grants to another and his Heirs vesturam terrae and makes Livery secundum formam Chartae yet the Freehold of the Soil shall not pass by which it is implied that the Vesture shall If this Book be to be understood of the Vesture at all times of the year where no other profits remain to the Lord I shall crave leave to object against it from the same Page where it is agréed that if it were profits the Soil would pass Methinks it should be the same in reason where the Vesture is all the profits and Vesture shall be intended all the profits I shall cite some Authorities which are not inconsiderable to Warrant this Opinion I have in a Manuscript Report of Cases in King James's time a Case betwixt Collins and the Bishop of Oxford It was Paschae 19. Jacobi upon a Tryal at Bar in the Kings Bench. The Case was that 1 Ed. 6. the King erects the Bishoprick of Oxford and gave to the Bishop and his Successors in t ' al' primam vesturam of a Meadow called Horse Meadow John Bridge Bishop of Oxford leased it for three Lives rendring Rent and dies his Successors before restitution of the Temporalties accepted the Rent of the Lessee and afterwards entred upon him Vpon this Case the first question was what passed by the Grant of prima vestura My Report says That it was agreed by all the Justices that by a Grant of Vestura Terrae by a common Person the Soil will pass and then there must be a Livery of consequence but they held a Grant of prima vestura was but like a Grant of prima tonsura and being for no certain time is but an Interest in the first cutting or taking of the Grass But they all agreed that if a Man Grants primam vesturam from such a day to such a day certain the Grantee shall have the Soil and Mow it or Feed it as he pleases Kelway 118. If a Man Grants vesturam Terrae for term of Life to another it is a Grant of the Land for Life for saith the Book the vesture is the profit of the Land and it is all one to have the profit as to have the Land it self Littleton puts the Case if a Man Grants the Vesture of Land to another and his Heirs without Livery no Estate passeth But the Book of my Lord Cokes difference betwixt the Vesture of the Land and the profits of the Land seems to be mistaken and in reason they are the same for I take it generally speaking Vesture shall be intended all the profits and if there be special profits as Mines opened or Waters c. which may qualifie the word and retain the Soil to the Owner it must be shewn And as it is for Vesture of Land so I conceive where it appears in Pleading that the Ground is Pasture Pasturage or Sole Feeding will signifie all the profits for Pasture is properly that which is wholly for Feeding and where the Sole Pasture is claimed the Owner cannot claim or take any other profit Temps E. 1. tit Partition 21. Two Men agree to make partition of Pasture Ground in this manner That one shall have totam pasturam from such a time to such a time and the other for the residue of the year this is a partition of the Soil it self which shews Pasture is to be intended the whole profits of Pasture Ground in that case the quo jure could not be maintained for the party had not barely a Liberty but the Soil it self If several Men have Profits upon the same Land alternis vicibus the Law most commonly determines the right of the Soil to be in him that has the most considerable Profits As for Example If one has the Summer Feeding of Pasture or the first Tonsure of Meadow or the Sowing and Reaping of Corn upon Arable and an other Man has the Feeding separately at other times of the year the Law saith that the Soil is in him that has the Summer profits and Corn because it is the greater Profits and the other hath but a Profit a prender Now suppose that two Men have interchangeably the sole Feeding of Pasture at such times that the interest of one is in all respects equal to that of the other there nothing can determin the Soil to be in one more than the other and therefore it shall be in one for his time and in the other for his time But where one has the sole feeding of Pasture at all times in the year and it has been so time out of mind and there is nothing but Pasture what can the other have to shew the Soil to be in him and why should it not be said to be in him that has the Feeding or whole Profits It seems very absurd that a Man should be allowed to be Owner of the Soil and yet it may be has no badge of Ownership by Perception of Profits If the Mans Estate be displaced so as to be put to a Writ of Right how should he lay the Esplees And as to this Consideration there may be difference betwixt a Grand and Vsage for a Grant beginning within time of Memory the Ownership of the Soil was once fully manifested until he had divested himself of all but that but upon Vsage time out of mind nothing can be said why one Man should have the Soil more than another if it be not in him that hath all the Profits I must end this Point also with this Observation That if there is no Case in all the Books of a Sole Pasture at all times of the year but in F. N. tit Prescription 51 and 55 and Hutton 45. It is made a Profit a prender and the most considerable Proâ—â—ts are left to the Owner My fourth Reason upon which I hold this Prescription is void is because it is a new invention framed to overthrow
Cirencestrensi dudum spectantia c. omnia Letas executiones Brevium retorna eorundem Sect ' Hundred ' c. reputat ' spectant ' pertinent ' Hundredis praedictis c. They find that the Lord Seymour being seised c. was Attainted of Treason by Act of Parliament 2 3 Ed. 6. cap. 18. and that thereby his Lands and Hereditaments were forfeited and vested in the King They find that 6 Octob. Anno 6 Ed. 6. the King grants the Hundreds by his Letters Patents to Kingston and his Heirs and therein grants omnia amerciamenta Heriotta emolumenta haereditamenta c. dictis Hundredis quoquo modo spectant ' aut ut membrum sive pars eorundem antetunc cognit ' reputat ' vel usitat ' vel habit ' aut accept ' ut pars parcell ' vel membrum And further grants by another Clause Tot talia tanta consimilia Jurisdictiones Privilegia Libertates Franchesias c. quae quot qualia quanta adeo plene integre as Thomas Lord Seymour or any Abbot c. had c. ratione vel praetextu Hundred ' praedict ' virtute vel colore alicujus doni Chartae Praescriptionis c. They find that the Estate which Kingston had came to the Plaintiff and that the Defendant entred into the Hundreds where the Liberty is claimed and executed several Writs c. Et si c. Baron Wyndham had Argued and was of Opinion for the Plaintiff and Baron Littleton for the Defendant Now Argued Baron Turner and my Lord Chief Baron Hale Turner I am of Opinion for the Defendant At the last Arguing my Opinion was for the Plaintiff but upon something which fell from my Brother Littleton I am altered The Case arises upon the Patents I take it to be clear that Retorn ' brevium did not pass by the Patent of King John there is indeed some implication of such a Franchise but it is nothing like a Grant of it 'T is true we must put that Exposition upon Ancient Charters as should have been put in those days wherein they were made But I say this Patent would not have been expounded to have amounted to such a Grant in diebus illis If there had been an Usage of such a Franchise in pursuance of this Patent tho' made since Richard the First 's time I think it might have been allowed to have given the Return of Writs Vid. 2 Inst 282. But here has been no such Usage 'T is true in the Patent of E. 3. it is recited that there was an Usage and that the Franchise was granted by Richard the First and confirmed by King John but the Juries finding of that Patent is no finding of the things recited in it as in the 10 Co. 56. q. the finding of Evidence of a Conversion scil Refusal to deliver on Request upon a Trover is no finding of the Conversion In 17 E. 3. 't is true the Hundreds and the Returns of Writs therein are granted But since my Brother Littleton's Argument I have been and am of Opinion that that Grant is void and that as he observed because of the Statute 2 Ed. 3. cap. 12. Ordaining That henceforth Hundreds and Wapentakes should not be given nor severed from the Counties And 14 Ed. 3. cap. 9. Ordaining That henceforth all the Wapentakes and Hundreds which were severed from the Counties should be rejoyned to the same Counties as before that time had been established by another Statute meaning I suppose the said Statute of 2 E. 3. cap. 12. And thereupon my Lord Coke in the 4 Inst 267. gives his Opinion That all the Grants made of the Bailywicks of Hundreds since this Statute are void and that the making the Bayliffs thereof belong to the Sheriff for the better Execution of Justice and of his Office And for that he cites a Resolution in his own Case for he it was that was the Sheriff of Bucks mentioned in the Case there Fitzh Petition 1. 18 E. 3. is a Case of a man who by colour of the New Statute 't is said was ousted of his liberty of Retorna Brevium which was granted to him and his Heirs by the King in Parliament My Brother Littleton cited a good Opinion of three Judges that an Hundred could not be granted without a Non obstante to the Statute and here is no Non obstante Now a man cannot have the Return of Writs without the Hundred Vid. 2. Inst 452. 2. H. 4. pl. 12. But admitting it did pass and was granted before the Statute then the Statute doth not extend to avoid that Grant But then the Question will be when the Liberties return to the Crown Whether the Crown can grant them out again And therein it will be considerable Whether they are extinct in the Crown or no I think they are not extinct In 9 Co. 25. b. 't is said that all Liberties Franchises c. which were at first created and erected by the King and were not Liberties c. in the hands of the King as Flowers of the Crown are not by their accession to the King drowned in the Crown and there Hundreds and Leets are instanced in and allowed to be such And now the Liberty of Retorna Brevium is more strongly such for that all Jurisdictions of which Hundreds c. are a Branch were once in the Crown But Retorna Brevium is but a Ministerial thing It is expresly Adjudged in the Kings-Bench Keilway 72. pl. 16. that the Liberties of Retorna Brevium are not extinct by coming to the Kings hands But however if they were or were not extinct and drowned I think that they could not because of the Statute be severed and granted to Kingston Lord Chief Baron Hale I am of another Opinion but I am very glad that two of my Brothers are against me and my other Brother I would have been glad to have been excused in this Matter First Because the Case relates to my own Country and is much to the prejudice of it Secondly Because it relates to Retorna Brevium which I always took to be one of the most â—â—â—nicious Liberties to the Common Justice of the Kingdom Thirdly Because it is a Case full of difficulty but We that are Judges must satisfie our Judgments and come to a Resolution and I must Argue as the Law is and not as I wish it I Argue according to my Conscience tho' somewhat against my desire and I am sure against my particular Interest I shall be somewhat long because the Case is very Intricate and requires an Explication of many things In the first place I shall explain three Terms in the Case First The Monastery of Cirencester Secondly An Hundred Thirdly Retorna Brevium First As to the Monastery of Cirencester I shall speak a little Historically to shew the traduction and derivation of this Matter It was a Monastery time out of Mind but in 30 H. 1. it was translated to the Canons Regular
was applied only to the Return of the Writs of the Queen For he laid a Prescption in the Bishop of Durham to have Retorna omnium Brevium Praeceptorum Mandatorum dictae Dom ' Reginae and says not of her Predecessors and it is plainly impossible that a man should have time out of mind the Return of the Queens Writs when the Queen began her Reign within time of Memory This Retorna Brevium carries in it by Implication the Execution of Writs tho' it be not express as in the last preceding Case where after the Words above mentioned is added Executionem eorundem And so it was Adjudged in the Case of the Countess of Warwick against Atwood Pasch 41 Eliz. Rot. 331. B.R. This Liberty tho' it carries an Exemption yet it doth not exclude but that the Sheriff may execute Writs within it But then it is a Wrong for which the Lord of the Liberty may have his Action But in some Cases the Sheriff may lawfully do it as in the Case of the King a Non omittas c. in case of Execution of a Writ of Waste whereto he is particularly Empower'd by the Statute and sometimes where the Thing is divided c. But I shall add no more concerning this but only say First This Liberty of Retorna Brevium is a dangerous Liberty for him that hath it for he is to be Responsible for all the Defaults of his Bayliffs as Escapes c. And if the Bayliff do not Account for the Collection of the King's Revenue c. 't is a Feather in his Cap but a Thorn in his Foot Secondly 'T is much derogatory to the Justice of the Kingdom For the party must go to the Sheriff first then to the Bayliff c. and by this means Justice is delayed and disappointed There are two Liberties do abundantly more hurt than they are worth viz. the Grants of Fines especially of Jurors and this of Retorna Brevium Therefore Edward the First a most Wise Prince Declared in Parliament and it was Recorded in the Courts That he would not grant it This you will find in the Pleas of Edward the First towards the latter End in Mr. Ryley The Passage meant is in Placita Parliamentaria 35 Ed. 1. fol. 366. in Mr. Ryley it is this Praeceptum Domini Regis LE Roy ad Dit Commande Quod apres cest Grant qu'il ad fait al un Counte de Nicole de Return de Brief avoir en deux Hundreds à terme de la vie du dit Counte le Roy ne voet doner ne granter a nulluy tiel Franchise tant come le Roy vivera s'il ne soit a ses Enfantes demesne ceo voet le Roy que soit Escrit en le Chancellerie en Gardrobe al Eschequer Thirdly A Grant of this Liberty was within a certain Precinct and could not extend to a County 2 H. 4. For as my Lord Coke observes on W. 2. cap. 39. 2 Inst 452. A Grant to have Return of Writs in a County is void for in effect it taketh away the Office of a Sheriff By that time I have applied these Observations I shall in effect have done First It is to be Considered Whether the Charters of King John did Create the Return of Writs or no seeing there are only Negative no Positive Words in it Somewhat may be said to maintain this to be a good Grant of Retorna Brevium but because the contrary has been admitted I will admit it too especially because the scope of the Patent was that the Abbot should be immediate Officer to the King and the intention of the Charter was to exclude the Sheriff and that does appear by the conclusion where an Exception is made of the Sheriffs Power of medling per Summonitionem c. and so it is like the Case of the Town of Berwick in 5 Jacobi a Grant to them that they should be a County but no Grant of having a Sheriff was adjudged to be void because there would be no Officer to execute and do Iustice I do observe that 13 Ed. 3. in the Iter there was an Information against this Abbot and he pleaded the Charter of R. 1. but there is nothing of Retorn of Writs that I can find and I have read the Book over Secondly We come to consider the Grant of E. 3. I say 1. It is a good Grant of Retorna Brevium 2. There is a good annexation of it to the Hundreds by reason of these words tanquam pertinent ' Hundredis predict ' for even at this day such a thing as Common of Estovers c. may be granted appurtenant Sacheverell against Porter 13 Car. 1. 1 Cro. 482. 1 Rolls 400. 11. H. 6. 11 Pl. 27. Now then by this Patent here is a Retorna Brevium not only newly created but newly created appurtenant and especially since here is a kind of cognation between the things this may very well be in like manner may Cognisance of Pleas be granted if the King should grant that a Lord of an Hundred should have cognitionem omnium placitorum c. tanquam pertinent ' Hundred ' c. it would create Cognisance of Pleas appurtenant to the Hundred for it being a Creature of the Kings it may be created as he pleases either in gross or as appurtenant for a thing appurtenant may be by Grant though a thing appendant must be by Prescription Well now this Abbot is seised of this Liberty quodammodo appurtenant 3. When the Monastery c. comes to be dissolved and given to the King it is to be considered what becomes of this Liberty then I conceive this Liberty is in the hands of the King as it was in the hands of the Abbot viz. as appurtenant and that without the aid of the Statute of 32 H. 8. c. 20. It is adjudged Keilway 72. Pl. 16. that this Liberty of Retorna Brevium when it comes to the King remains in the Crown and is not extinguished rejoyned or drowned thereby And this Liberty is not by this coming to the Crown reannexed to the County but if that were a Question the said Statute of 32 H. 8. hath put it out of question for by that Statute it is in the same state that it was before 'T is true the King might rejoyn it to the County but till he does it continues a Liberty distinct an Hundred in gross and the Sheriff shall write Ballivo Dom ' Regis c. 'T is true if a man forfeit such a Liberty by non user or mis user the Sheriff shall enter into it and to and execute as in other parts of the County because in that case the King comes in in disaffirmance of the Liberty but otherwise it is where the King comes in under a Subject as in the Bar case he does Fourthly We come to consider what alteration is made in the Case by the Grant to Seymour and his Attainder As to this I must observe that the
the Sheriffs Farm but he made Bayliffs of his own there and they were within the Survey of the Court of Augmentations so I say it refers only to those Hundreds which made a part of the Sheriffs Farm 2. None of these Statutes extend to prohibit a Grant of an Hundred in Fee I apprehend my Lord meant a Regrant of an Hundred which before those Statutes had been granted out in a Fee for 2 E. 3. c. 12. rejoyns and prohibits the Grant of those Hundreds only which were set to Farm by the King for term of Life or otherwise The very words of the Statute 14. E. 3. c. 9. make provision for the Hundredors in Fee 't is said that they which have Bayliwicks or Hundreds c. shall answer for their Bayliffs Fitzh Petition 1. there is a complaint of one who is turned out of an Hundred he had in Fee because of the Statute called there the New Statute And perhaps these Hundreds were seised upon the like pretence and that was the matter of the Presentment mentioned in the Grant of E. 3. or rather Regrant 3. Neither this Statute nor the Decree or Report of the Case in this Court does extend to this Case for they are not to be understood of nor extended to a Case wherein Retorna Brevium is granted were not Retorna Brevium added 't is true the Grant of the Bayliwick might be void where an Hundred is granted at this day the Grant is good but by Virtue of this Statute the Sheriff may put in and use his Bayliffs there the collection of the Profits c. the Grantee shall have but the execution of Writs is in subserviency to the Sheriff still I speak where no Retorna Brevium is granted this Bayliff shall not be a Bayliff to the Sheriff in spight of his Teeth and this was the very Case of Fortescue he had a Grant of the Three Hundreds of Newport We find the Farm of these Hundreds formerly here in the Exchequer the Firma Ballivatus in Chiltern c. the Farm of the three Hundreds of Newport was 5 l then in 13 E. 3. 7 l then in 23 E. 3. 9 l then in R. 2. 10 l c. these were the ancient Farms Queen Elizabeth grants a Lease of these three Hundreds to Fortescue for three lives at a certain Farm but does not grant him Retorna Brevium This grant indeed was adjudged void viz. as to the excluding of the Sheriff observe what my Lord Coke saith in the Case by the Statute c. saith he Hundreds are rejoyned as to the Balywick of the same to the Counties and all grants made of the Balywicks of Hundreds since that Statute are void and the making of the Bayliffs thereof belong to the Sheriff for the better execution of Iustice and of his Office and so it was resolved c. the Grant at this day is good as to what belongs to the Lord of an Hundred but not as to the execution of Process which belongs to the Sheriff so that I say 1. Consider the Grantee as an Officer for the collection of the Profits c. and so it is a good Grant 2. Consider him as an Officer for the Kings Process and so 't is void because the Sheriff ought not to have a Bayliff put upon him and the Grantee shall not be the Sheriffs Bailiff whether the Sheriff will or no. But 3. I say if the Grant be with Retorna Brevium then it is a good Grant as to the Bayliwick and all for in that Case the Sheriff is at no inconvenience for the Grantee shall do all and shall be liaable to all the Escapes and all things done or suffered by him My Lord Coke was very wary in what he said about this matter for he knew and the truth is if this Statute should make the Grants of Hundreds void it would call in question most of the Hundreds in England and particularly would shake his own Grants of Hundreds which he passed when Attorney General and some of which his Posterity enjoy at this day 8 H. 7. fol. 1 2 3 4 5. and 13 H. 7. fol. 19 20. Pl. 2. is a great Case concerning an Hundred granted by Ed. 4. and afterwards by R. 3. wherein there are many Questions much argued whereof the chief is whether a Leet may be granted and pass as part and parcel of a Hundred and 't is adjudged that it may but it is the Opinion of all on all sides that the Grant of an Hundred is good and so much is implied and concluded in the Iudgment Coke upon Amerediths Case 9. Co. 29 30. there Iudgment is given that the Grant of the Hundred is good I know that in 11 H. 4. by Special Act of Parliament vid. 1 H. 4. c. 11. the Sheriffs had an allowance made to them for several Hundreds which had been parcel of their Farms and were granted away which could not have been if this Statute had made the Grants void I think there ought to be Judgment for the Plaintiff Nevertheless I am glad with all my heart that we are delivered of this Case for truly if I could have found any Thing to satisfie my Iudgment I would have given Iudgment another way both for the General Concern and for the sake of the County of Gloucester which I know will suffer much by this thing One short Act of Parliament of three Lines viz. That all Process should go with a non omittas propter aliquam libertatem saving still the Liberty of a Mans House which indeed the Law in all such Cases saves now would avoid a great delay of Justice many Suits and Vexations grievous Wrongs and oppressions and would do more good to the Kingdom than all the Liberties of Retorna Brevium have been worth these 100 years for as they are used now they are nothing but a foundation of Brocage and Mischief they are a Feather in his Cap that has them but they are a Thorn in the Foot of every one that has to do with them For first the Party must go to the Undersheriff and there he is handled then through another Purgatory to the Bayliff of the Liberty and there he is handled and then to the Underbayliff and there he is handled and then to the Sheriff again I confess I drew a short Act once and I wish some good man would now promote it It is adjourned into the Exchequer Chamber THE CASE OF COLLINGWOOD and PACE IN THE Exchequer Chamber The Lord Chief Baron HALE's Argument IN the Argument of this Case I shall suppose as clear and unquestionable these three things viz. First That Patrick the Son and William the Grandson of Nicholas the elder Brother are not inheritable to John the Earl because though they are both Denizens born yet Nicholas their Father thorough whom they must convey their Pedigree was an Alien Secondly That as Patrick and William cannot inherit so neither can they obstruct the Discent to John the Son of
1 W. M. After which Judgment for the Defendants 166 That the said Defendants shall go sine die and have their Costs 167 Averment that the said Judgment remains in full force That the Goods in the said Action of Trespass and this of Trover are the same That the Conversion in this Action and the Taking in the other is the same That the Cause of Action was the same in both And that the Plaintiffs and Defendants are the same Et hoc parati sunt verificare unde petunt Judicium si praedicti the Plaintiffs Actionem suam versus eos habere debeant c. Not guilty to the residue of the Goods The Plaintiffs demur The Defendants joyn 168 Vsury Pleaded Vid. Debt 7. Way Action for stopping it Vid. Action on the Case 5. WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Public approve of and allow the Printing and Publishing of this Book Intituled The Reports of Sir Peyton Ventris Kt. Late One of the Justices of the Court of Common-Pleas J. Som̄ers C.S. J. Holt Geo Treby Ed Nevill Joh. Powell W. Gregory N. Lechmere Tho. Rokeby G Eyre Jo Turton John Powell Sam. Eyre April the 20 th 1965. The Second Volume TERMINO SANCTI HILLARII Anno Vicesimo primo secundo Caroli Secundi IN COMMUNI BANCO Craw versus Ramsey IN an Ejectment of Lands and the Rectory of Kingston upon Thames in Surrey Vpon Not Guilty pleaded the Jury found a Special Verdict to this effect viz. That Robert Ramsey Born in Scotland before the Accession thereof to the Crown of England had Issue four Sons Robert Nicholas John and George Antenati Robert died they do not find when leaving Issue three Daughters Margaret Isabel and Jane who were also Aliens and alive 1 Octob. 14 Car. 1. Nicholas had Issue Patrick born in England 1 May 1618. They also find that at the Parliament holden 10 Car. 1. in Ireland it was Enacted That all Persons of the Scottish Nation should be reputed the Kings Natural Subjects to all intents constructions and purposes of that his Realm of Ireland as if Born there And they find the Act of Parliament at large Nicholas Ramsey was alive at the making of that Act. John the third Son afterwards Earl of Holderness was Naturalized by Act of Parliament in England 1 Jacobi and purchased the Lands and Rectory in question and being seised 22 Jac by Indenture Tripartite between him of the First part Sir William Cocke and Martha his Daughter of the Second part and Charles Lord Effingham of the Third part In Consideration of a Marriage to be had between him and Martha did Covenant to levy a Fine to the use of himself for Life and afterwards to Martha for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs And 29 Septemb. 22 Jac. the Marriage was had and the Michaelmas Term after a Fine was Levied accordingly The 24 of Jan. 1 Car. 1. the Earl died without Issue Martha Entred and was seised for her Life and died 17 Car. Et eodem anno it was found by Office that the Earl of Holderness died seised of the Rectory as before and without an Heir and that King Charles anno decimo granted this Rectory to one Murray George the fourth Son of Robert was Naturalized by the Parliament here 7 Jac. He had Issue John the Defendant Nicholas died Patrick his Heir in 1651. bargained and sold to the Earl of Elgin and one Sydenham virtute cujus vigore Statuti c. they were seised prout Lex postulat and in 1662. bargained and sold for years to Amabel Countess of Kent and Jane Hart and afterwards Released to them and their Heirs in 1665. They being seised bargained and sold by Lease and Release also to Pullen and Neale who Entred and bargained and sold to Sir Lionel Talmash and West the Lessors of the Plaintiff upon whom John the Defendant Entred Vpon which the Action is brought and the great Question in the Case was Whether Patrick the Son of Nicholas might claim these Lands as Heir to the Earl of Holderness by virtue of the Act of Parliament in Ireland 10 Car. or that they should descend to the Defendant the Son of George Naturalized the 7 of Jac. in England Wyld and Archer who Argued first were of Opinion That however the Point was adjudged the Plaintiff could not have Judgment upon this Verdict for they do not find that Patrick entred or was seised but that he in 1651. did bargain and sell c. Virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold in 1662 and do not so much as find their Bargainees seised prout Lex postulat But they find the Defendant Entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it not being found that Patrick Entred Again If the Naturalization in Ireland will serve in England the Title appears for the Daughters the Heirs of Robert the eldest Son for 't is found that he died but not when so it might be after the Act of 10 Car. But Tyrrell and Vaughan Chief Justice differed in these two Points As to the First They said it would be intended Patrick entred for a Verdict that leaves all the Matter at large to the Iudgment of the Court will be taken sometimes by Intendment as well as where the Jury Conclude upon a Special Point 2 Cro. 64. find an Incumbent Resigned the Resignation shall be intended accepted So in 4 Co. Fullwood's Case it was found that one came before the Recorder of London and Mayor of the Staple recognovit se debere c. and did not say per scriptum suum Obligatorium nec per formam Statuti yet intended so Vid. Hob. 262. And where they find the Bargainees seised prout lex postulat that doth not leave it doubtful whether seised or no but whether by right or wrong for Seisin must be taken as found expresly Neither do they find any other in possession nor that the Defendant made any Claim in Twelve years after which enforces the Intendment as before And it is found expresly that Pullen and Neale Entred in 1665. so that the Defendant had not the primer Possession however or if he had he should not have Judgment if no other Title were found for him as is Resolved in 1 Cro. 42. Hern and Allen's Case As to the Second It shall be intended Robert died before 10 Car. For he is found an Alien and shall be presumed to have continued so during his Life unless found to the contrary then the Discent to the Daughters is obstructed by the Incapacity of their Father And tho' when the Title is found for the King the Court shall adjudge for him because the Kings Courts are intrusted with his Rights 't is not so of any other person but they shall take no
this Law by which this matter is to be decided Answ This Objection hath some speciousness in it but no weight First The Law viz. the Levitical Law is generally understood to be that which is publickly received as the Translation all Laws that are made concerning any such thing are to be understood of that kind of the thing which is vulgarly and generally known and received Secondly And 't is not long since the Clergy came to be so learned they were content heretofore with the Vulgar Translation and 't is not necessary for a Dean for that purpose or other Dignitary or Clergyman quasi such that he should understand the Languages But Thirdly We have no Cognizance of this Matter there was a time when they had no cognizance of Wills and Testaments but now they have they must study them and determine concerning them Since we have a Cognizance we may as well prohibit in this Case of Land Freehold c. For since this is made of the same nature we must go the same way If an Act were made that in matter of Theft c. we should judge after the Law of Moses we must study it and judge by it 'T is no new thing that Laws be thus transferred from one Nation to another thus was the Law of the Twelve Tables from Athens to Rome thus the Law of Rhodes to other parts of the World and so our Law was made the Law of Ireland and this is the Answer I give to the two Statutes that since we have Cognizance we must take notice of Gods Law If Churchmen in this case encroach Iurisdiction they must be prohibited because they have no Cognizance and we have tho' their accidental Learning may be more than ours Object 'T is hard that this should be a Prohibiting Law any more than those two other Statutes which 't is agreed were directive only to the Spiritual Courts and gave the Temporal Courts no Jurisdiction Answ There is a full and flat answer to this this Statute makes it not at all cognisable by them for where any Court has Cognizance the party must have Process c. But now here in the close of this Statute 't is enacted That no Person c. shall be admitted to any of the Spiritual Courts c. to any Process Plea or Allegation contrary to this foresaid Act And therefore all Cognizance of that nature is taken away from them They have Cognizance of all Marriages within the Levitical Degrees we allow and agree to disturb and punish the Parties but they have no Cognizance nor Power to determine what is within the Levitical Degrees and what not I conclude It is the Opinion of this Court and of all the Iudges that the Prohibition do stand and no Consultation be granted In this Case Dr. Stern the Archbishop of York was very zealous and industrious to set aside the Prohibition He made several and distinct applications to the Iudges about it he earnestly and particularly debated the matter with them and gave them Papers of his Arguments and Reasons to prove this Marriage incestuous and unlawful Thomas Rudyards Case THomas Rudyard an Attorney of this Court came into this Court upon the retorn of an Habeas Corpus directed to the Keeper of Newgate who retorned that he was taken and detained by virtue of a Warrant to him directed from Sir Samuel Sterling Lord Mayor and Sir J. Robinson two of the Kings Iustices of the Peace the tenour of which Warrant follows in these words Whereas T. R. Gent. hath been brought before Us and examined touching several Misdemeanours by him committed within the City of London since the Month of April and before the 4th of this instant June and to Us complained of and more particularly for inciting and stirring up of His Majesties Subjects then and there to the disobedience of his Laws and for abetting and encouraging of such as do meet in unlawful and seditious Conventicles contrary to the form of the late Statute made in the 22th Year of our Sovereign Lord the King that now is upon whose Examination we find just cause to suspect him to be guilty of the said Misdemeanours and thereupon did require him to find Sureties to be of the good Behaviour which he refused These are therefore to require you to take into your Custody the Body of the said T. R. and him safely to keep till he be from thence delivered by due Course of Law Given under our Hands and Seals this 11th day of June 1670. The Retorn being filed and spoken to by the Counsel upon two several days the Court delivered their Opinion Seriatim Wyld held that he ought to be remanded for if the Warrant had been that he appeared to be guilty or that they had found him guilty then the Commitment had been good as hath been agreed on all Hands and here the words in a favourable construction amount to as much The proceedings of the Magistrates against such Seditious Persons are to be encouraged especially in such a time as this when 't is known they are grown to such a head Archer contra For 't is altogether uncertain 't is said he was complained of c. but not that he did any thing and that they find just cause to suspect but shew not the Cause in particular If it had been said sundry Misdemeanours and not expressed what all would agree it insufficient as Chambers Case 1 Cro. and Wolnoths Case ibid. Mr. Selden 3 Car. was required to find Sureties for the good Behaviour for which the Iudges were severely reprehended in full Parliament because no sufficient Cause appeared Tho' the Iustices here had sufficient Cause to induce their suspicion they ought upon the Retorn to have signified it to the Court for their satisfaction also it should have been expressed also in what sum they required him to find Sureties that it might have appeared to be reasonable so that we cannot remand him but I think 't is fit to oblige him to Bail to appear the first day of the next Term that he may answer such things as shall be objected against him Tyrrell It is the Statute of 34 E. 3. c. 1. that enables Iustices of the Peace to require Sureties for the good Behaviour and that upon Suspition and seems to refer it to their Discretion but that must be exercised according to Law and whether it be or no the Iudges in this Hall must judge and therefore the matters ought to be certainly certified to them The present Retorn is altogether uncertain wherefore I think it ought to be discharged but I would advise him to consider the Statute of 35 Eliz. c. 1. against impugners of the Kings Authority in Ecclesiastical Causes Vaughan Chief Iustice This Case is one of the nicest that ever I met with on the one side is the consideration of discouraging Sectaries and preserving of the Publick Peace and Quiet of the Government On the other side the Legal Right which every
tit ' Act ' Case 120. So 9 H. 6. 60. Action against an Escheator who had taken an Office whereby the Party was found to hold of J.S. and he retorned one whereby he was said to hold the Moiety in Capite Where an Officer does any thing against the Duty of his Place and Office and a Damage thereby accrues to the Party an Action lies 'T is positively affirmed here he had the greater Number Archer of the same Opinion This is a wilful dental of the duty of the Defendants Place and for the particular Damage an Action lies 'T was said there might be many Competitors and all might bring Actions No for 't is averred that the Plaintiff had the greatest Number An Action lies against an Arch-Deacon for not inducting F. N. B. 94. So if a Sheriff will not execute a Writ of Seisin an Action lies against him An Action lies against an Ordinary for admitting a wrong Patrons Clerk against a Verdict in a jure patronatus Hob. 318. I agree to the Case put at the Bar that upon a Writ de Coronatore eligendo if the Sheriff will not retorn him Coroner who was chosen by the major part an Action upon the Case lies tho' I know no Authority for it in point Vid. 6 E. 4. 9. b. Pl. 21. A man that has a Title to an Office before he has possession shall have an Action upon the Case after an Assize 21 E. 4. 23. is as memorable a Case for the purpose as any I know there Fairfax gives good advice to Pleaders to mind Actions upon the Case and then he said the use of the Subpoena would not be so frequent Hob. 205. Action for suing double Execution I think Actions upon the Case should be according to Justice Fairfax's his advice favoured in Courts of Justice Tyrrell Perhaps there never was such an Action which is an Argument against it Litt. 107. but I think it lies Action lies not against a Lord for not admitting a Copy-holder nor against Feoffees in trust for refusing to make a Feofment or a Tenant for refusing to Attorn or against a Foeffor for refusing to make Livery according to the Charter but it lies against an Officer or against a Clerk for refusing to enroll This Action is for Damages for being prevented of having the Office and not for the Office it self The Cases of the Copy-holders c. are not to be compared to this for there are proper Remedies for them as Subpoena's and other Writs at the Common Law but here is none De cetero non recedunt Partes a Curia nostra sine Remedio ne Curia deficeret in Justitia exhibenda says the Statute And my Lord Coke says 't is a Maxim in Law that no Action lies for the Ward against the Lord which disparages him but the next of Kin may enter Co. Lit. 107. An Action lies as much for injurious preventing him of having the Office as for hindring in of him the executing of it after that he is in For Actions of the Case are not of any certain Form but vary according to the Circumstances It was objected That every Action upon the Case supposes dammens injuriam now here was no Election 't is impossible to know whether he should be an Officer Answ The Custom is alledged positive that he which hath the greater Number is elected ipso facto again qui destruit medium destruit finem 't is as bad as if he had turned him out of his Office It may be tried whether he were duly elected and 't is in effect tried here there cannot be multiplicity of Actions brought by this this Mayor will make himself sole Iudge and Arbiter and dispose of Elections which should be Popular and as my Brother hath said an Action of the Case lies for a possibility of Damage Vaughan Chief Justice contra That wherein I am satisfied is that no Damage appears suppose none had been elected he should not have an Action more than any person in the Town If a Mayor will not elect a Burgess or a Sheriff a Knight no Action lies because there is no Election If an Officer will not elect at all 't is against his Duty and so 't is if he do it unduly but he is punishable in a publick way by Information or it may be by Indictment If 20 had stood must each have recovered the value of the Place Object But there is an Averment that he was chosen by the greater Number Answ That can't be put in Issue or known or tried suppose the Election were by Ballots c. should he have an Action for not opening the Box. In the Case of the Coroner there is apparent Damage and 't is against the Statute and in the Case of Induction there is a certain loss I take it that 't is not Actionable to call a man Bastard while his Father is alive the Books are cross in it nay if Land had Discended I doubt it without a Special Damage no more than to say one had no Title to his Land The Case of the Market is close but there the Person damnified is certain and the thing leads to deprive him of the benefit of the Kings Grant But my Brothers have given the Rule take Iudgment King of Grayes Inn versus Sir Edward Lake ACtion for that whereas he was bred up to the Law and practised it and had many Persons of Honour and others his Clients and thereby got Money and maintained his Family c. The Defendant falso malitiose wrote a Letter to Ann Countess of Lincoln who was the Plaintiffs Client containing that the Plaintiff would give vexatious and ill Councel and stir up a Suit and that he would milk her Purse and fill his own large Pockets c. per quod he lost the said Countess and other Clients Vpon not Guilty pleaded and a Verdict for the Plaintiff It being moved in Arrest of Iudgment Wyld Archer and Tyrrell held that the Action lay 't is a Scandalous Letter concerning his Profession and here is a Special Damage He does give bad Counsel spoken of a Lawyer judged Actionable so Dunce stirring up Suits is taken in malam partem Vaughan Chief Justice I must submit to the Rule given but am of another Opinion In ancient Books we do not read of an Action for Words unless the Slander concerned Life 'T was held not actionable to call Villain unless 't were added he was lain in wait to be seised the growth of these Actions will spoil all communications a man shall not say such an Inn or such Wine is not good Their progress extends to all Professions to say a man was not a good Surveyor has been held actionable The words spoken here have no more relation to the Plaintiffs Profession than to say of a Lawyer he hath a Red Nose or but a little Head to say one had the use of a Womans Body is a slander it being an ideom of speech for lying with
they have been favourably Construed A Mannor in Reputation hath passed by the name of a Mannor in a Recovery Sir M. Finch's Case in Co. and in 5 Co. Dormer's Case Common Recoveries have been admitted of an Advowson All here is to be taken as one Conveyance A Deed expressing the intent may abridge the Recovery in the number of Acres 2 Co. 76. 'T is true in case of the King as that in Mo. 710. there shall be no larger Construction than the express Words import So where the Intent appears as that in Dyer 261. B. North Chief Justice Wyndham and Atkyns Scroggs absent but said by the Chief Justice to be agreed were of the same Opinion and that Common Recoveries were not to be overthrown by nice Constructions and that the Inconvenience objected against the Intent being explained by a Pocket Conveyance was the same where a man had several Lands in the same Vill that of late they have directed the Cursitors to make out Writs of Lands in Parochia They said that there was no Case express against this and that it was the stronger because found in the Verdict that he which suffered the Recovery had no Lands in the Vill and therefore must be void if not extended to the Parish Termino Paschae Anno 32 Car. II. In Communi Banco The Case of Dodwell and the University of Oxford A Prohibition was prayed to the Chancellors Court of the University of Oxford in the behalf of Dodwell who being a Townsman of Oxford was Libelled against in the said Court upon a Statute or By Law of the University made in King James's time that whoever Privilegiatus sive non privilegiatus should be taken Walking in the Streets at Nine of the Clock at Night or after having no reasonable Excuse to be allowed by the Proctor c. should forfeit 40 s c. whereof one Moiety was to go to the University and the other to the Proctor c. that should take him And that Dodwell was taken walking abroad at that Hour and being demanded a Reason thereof he refused to give any Account causa contemptus ad morum reformationem this Libel was Exhibited The Prohibition was moved for the last Term but in regard the Court observed it touched the Jurisdiction of the University on the one hand and concerned the Liberties and Rights of the Townsmen on the other hand they deferred the granting of it until they should hear Counsel on both Sides which was appointed this Term. And now sundry ancient Charters were shewn by which was granted to the University a Iurisdiction tam in Laicos quam in alios and a By-Law made above 200 years since against Night-walking with the penalty of 40 s upon the Offender and Presidents of Proceeding thereupon in the Chancellors Court and that they were as well Guardians of the Peace by Prescription as by Charter And an Act of Parliament of 13 Eliz. was shewn whereby their Jurisdictions and Priviledges and Statutes were Confirmed And altho' the Mayor hath also a Commission of the Peace yet 't is subordinate and he swears Fealty to the Chancellor Curia This Libel is grounded upon a By-Law of 7 Jac. and being subsequent to that Statute of 13 Reginae it is questionable whether warranted by it or no This By-Law and Proceeding cannot be grounded nor derive Authority from their being Guardians of the Peace by Prescription as it seems they are by 9 H 6. 44. For without Act of Parliament or express Prescription a Corporation cannot make a By Law to bind those which are not of the Body Justices of the Peace cannot ordain a Penalty for a Crime without their Jurisdiction and the Proceeding in the Chancellors Court which is according to the Civil Lawâ— cannot be warranted by the Kings Charter For no Court other than such as proceed according to Law can be unless by Prescription or Act of Parliament wherefore in regard if the University should Intitle themselves to this Jurisdiction by Prescription it were properly triable by a Jury And if upon the Act of 13 Eliz. Matter of Law might arise how for the Act might extend North Chief Justice Atkyns and Scroggs thought it was not fit they should determine those Questions upon a Motion but inclined to grant the Prohibition and propounded to the parties to agree that the Libel should be amended wherein it was grounded upon the By-Law made 7 Jacobi which being subsequent to the Act of 13 Eliz. the Merits of the Cause would not be brought before themselves to determine the Grand Points which was agreed And then the Court said that they would grant a Prohibition and let the other Plead c. For North said that they did often deny a Prohibition tho' it were a Writ ex debito Justitae where they saw no Colour for it But if any material Questions were like to arise it was proper to grant it and not to determine them upon Motion but upon pleading to the Prohibition and therein it differed from a Habeas Corpus which was to be inst aly granted because the party is in Prison but there is no such speed requisite in a Prohibition But Wyndham was against the Prohibition in the Case at Bar for he took it that the By-Law 7 Jac. was but in Confirmation of that made before and as a Renewing of it which he took to be confirmed by the Act of 13 Eliz. Nota Scroggs said that Nine of the Clock could not be held such an Hour as it should be a Crime for a Townsman to walk at no more than Three in the Afternoon Tho' for Scholars it might be reasonable to restrain them but no Reason that Townsmen should be subjected to such Rules as were proper for Scholars And upon this he much grounded his Opinion for the Prohibition Anonymus IN an Action of Trespass the Defendant pleaded That the Plaintiff was Impropriator of such a Rectory and that he was sued in the Ecclesiastical Court and by Sentence there the Profits were sequestred for the Repair of the Chancel To which the Plaintiff demurred supposing that by 31 H. 8. the Profits of Rectories Impropriate were made Lay Fee and so not subject to be sequestred by the Court Christian and therefore it was supposed that the Lay Impropriator could not sue for Tythes in the Spiritual Court. For which Cause 32 H. 3. was made to empower Lay-men to recover them and 35 H. 8. gives the Ordinary Remedy for Procurations and Synodals which was conceived had been lost by making the Rectories Lay Fee 2 Cro. 518. in Parry and Banks's Case it is Resolved that when the Rectory is in the hands of a Lay Impropriator the Ordinary cannot dissolve the Vicaridge nor in such case cannot augment the Vicaridge 2 Roll. 339. The Form of Pleading was also Objected unto As First 'T is not positively alledged that the Chancel was out of Repair but that he was Libelled against which Libel did mention only it to be
out of Repair Secondly The whole is Sequestred whereas it ought to have been but in proportion to the Charge of Repairing and should be certainly expressed what it required Thirdly The Sequestration is to remain by the Sentence until the Judge should take further Order Whereas it ought to have been but until the Repairs had been done These Exceptions the Court held fatal and therefore gave no Opinion as to the Matter in Law but did incline that there could be no Sequestration for being made Lay Fee the Impropriation was out of their Jurisdiction and it was now only against the Person as against a Layman for not Repairing the Church And they said in case of Dilapidations the whole ought not to be Sequestred but to leave a proportion to the Parson for his Livelyhood Anonymus IN an Ejectment upon a Special Verdict the sole Point was Whether a Lease for a year upon no other Consideration than reserving a Pepper Corn if it be demanded shall work as a Bargain and Sale and so to make the Lessee capable of a Release And it was Resolved that it should and that the Reservation made a sufficient Consideration to raise an Use as by Bargain and Sale Vid. 10 Co. in Sutton's Hospitals Case Rozer versus Rozer AN Indebitatus Assumpsit pro parcell ' Corii ad specialem instantiam requisitionem of the Defendant sold and delivered to J.S. Et sic inde Indebitat ' existens the Defendant promised to pay Vpon Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that there is no Promise laid and no Reason to presume a Promise when 't is the very ground of the Action tho' after a Verdict And admitting there were a Promise yet it being Collateral it did not make a Debt but should have been brought as an Action upon the Case Mo. 702. and Dyer 230. And hereupon Judgment was stayed Tho' as I hear in the King Bench about two years since between Danbey and Kent they held such a Case well enough after a Verdict Quaere Termino Sanctae Trinitatis Anno 33 Car. II. In Communi Banco Page versus Kirke IN an Action of Trespass upon Not Guilty at the Assizes in Suffolk a Verdict was found for the Plaintiff and 10 s Damages and 40 s Costs and Judgment entred accordingly And an Action of Debt was brought upon the Judgment and the Defendant pleaded Specially the Statute 22 23 of Car. II. ca. 9. against Recovering more Costs than Damages where the Damages are under 40 s in Trespass unless certified by the Judge that the Title was chiefly in question the Words of the Statute being If any more Costs in such Action shall be awarded the Judgment shall be void To which the Plaintiff Demurred and the Plea was held Insufficient because the Verdict was for 40 s Costs and not Costs increased by an Award of the Court. 2. If the Judgment were Erroneous yet it was hard to make it avoidable by Plea notwithstanding that the Words of the Statute are Shall be void Termino Sanctae Michaelis Anno 33 Car. II. In Communi Banco Onslowes Case HE brought an Action against a Bayliff being the chief Magistrate of a Corporation for that although he were chosen one of the Burgesses to serve in Parliament for the Corporation by the greater Number c. yet the Bayliff to disappoint him of sitting and to bring trouble c. upon him did return another Person in the Indentures together with him to his Damage c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Action would not lie And of that Opinion were the whole Court viz. North Chief Iustice Wyndham Charlton and Levins for they said they had no Iurisdiction of this Matter the principal part thereof being a Retorn in Parliament No Action before the Statute H. 6. c. did lie against a Sheriff or chief Officer of a Corporation for a False-retorn and the Courts at Westminster must not enlarge their Iurisdiction in these matters further than those Acts give them That there were no Presidents of any Actions at the Common Law save Nevils Case in the late times and Sir Samuel Bernardistons Case both which miscarried In the Long Parliament there were a great many double Retorns but no Actions had been brought which is a great Argument that no such Action lies as Littleton argues upon the Statute of Merton of disparaging an Heir Termino Paschae Anno 35 Car. II. In Communi Banco The Lord Conwallis's Case THE Case was Isaac Pennington a Copyholder of the Mannor whereof my Lord Conwallis is now feised committed Treason in the matter of the Murder of King Charles the First and then about Anno 1655. surrendred into the hands of the Lord of the Mannor his Copyhold Lands to the use of some of his Children who were admitted In 1659. the Mannor was aliened to the Lord Conwallis then came the Act of Attainder 12 Car. 2. whereby Tychburn with other Regicides were attainted and thereby it was Enacted That all their Mannors Messuages Lands Tenements Rents Reversions Remainders Possessions Rights Conditions Interests Offices Annuities and all other Hereditaments Leases for Years Chattels Real and other things of that nature whatsoever they be shall stand forfeited to the King c. Provided that no Conveyance Assurance Grant Bargain Sale Charge Lease Assignment of Lease Grants and Surrenders by Copy of Court Roll c. made to any Person or Persons other than the Wife or Wives Child or Children Heir or Heirs of such Person or Persons c. After which Attainder c. the Lord of the Mannor caused the Lands to be seised and brought an Ejectment The First Point Was whether in Case of Treason or Felony the Lord can seise before Conviction or Attainder And the Court seemed to be of Opinion that no Seisure could be till Attainder without Special Custom but they agreed the presentment of the Homage was not necessary to precede a Seisure or to entitle the Lord to take the advantage of a Forfeiture but in case of a Capital Crime it would be unreasonable and inconvenient to permit the same to be tried or controverted in a Civil Action before the Conviction appeared upon Record Secondly Whether this were such a Forfeiture as the Lord was bound to take notice thereof for if no notice then the acceptance of the Surrender c. would not preclude him from taking advantage of the Forfeiture And the Court inclined that the Lord should be presumed to take notice in this Case as he shall in the Case of Failer of Suit of Court Non-paiment of Rent c. Vide 2 Cro. Matthews and Whetton 233. Thirdly Whether the Mannor being conveyed away before the Attainder shall purge the Forfeiture Iustice Levins said That although no advantage of this Forfeiture can be taken till Attainder yet after Attainder it has relation and
said George Francis and by vertue of the said Warrant the said George Francis and the said Defendant Sampson ut ejus serviens per ejus mandatum the aforesaid Beasts in execution for the Debt and Costs aforesaid took and seised and caused them to be appraised and they were appraised at 11 l being the true value of them and deteined them quousque praed ' W. Bealy the aforesaid sum of 11 l to the said George Francis to the use of the said Sheriff pro deliberation ' averiorum illorum habend ' solvisset prout eis bene licuit quae sunt idem resid ' transgress ' praed ' unde praed ' Willielmus Bealy se modo queritur absque hoc quod ipse idem Johannes Sampson est culpab ' de captione c. ad aliquod tempus ante praed ' secundum diem Augusti vel post praed ' Quindend ' Sancti Martini hoc parat ' est verificare And to this the Plaintiff demurred This Case was spoken to the last Term and then Pollexfen Chief Justice and Rokeby were of Opinion for the Plaintiff and Powell and Ventris for the Defendant and it was again argued at the Bar this Term and by the Opinion of the Chief Justice Powell and Rokeby Iudgment was given for the Plaintiff The Chief Justice and Rokeby held the Plea to be naught chiefly because the Defendant pleads that he detained the Chattel till the Plaintiff had paid so much Mony to the use of the Sheriff whereas it should have been to the use of the Plaintiff at whose suit the Execution was The Chief Justice said that he found no Authority in Law that warranted the delivering of the Goods back to the Plaintiff especially upon payment of part of the Mony vide 1 Cro. 404. Stringar versus Stanlack but here the taking of the Mony to the use of the Sheriff made him a Trespasser for it could not be done in pursuance of the Execution He also said that one Farr in the time of King Charles the Second by colour of a Writ of Execution came into the House and carried away the Goods and it was adjudged Felony He also said that if this manner of Pleading should be allowed admitting that the Bayliff had agreed to take the Mony to the Sheriffs proper use how should the Plaintiff be let in to a Replication in this manner of Pleading to put the matter in issue Rokeby said Parols font Plea and that it must be here taken that the Mony was paid to the proper use of the Sheriff and in pleading the matter is to be taken most strongly against him that pleads Another matter they went upon is that in the justification the Defendant saith he detained the Cattle till 11 l was paid to Francis whereas the Declaration chargeth him with detaining till 11 l was paid to the Defendant and so Francis answers nothing to the payment alledged to himself Note The Chief Justice cited the Case of Thompson and Clarke 1 Cro. 504. where 't is said that the Sheriff cannot deliver the Defendants Goods to the Plaintiff in satisfaction of the Debt neither ought they to be delivered to the Defendant against whom the Execution is but they ought to be sold and the apprisement is not material for the Goods upon a Fieri facias need not to be appraised as they must be upon Elegit 1 Cro. 584. in Palmers Case In the Case of Goodyers and Ince 2 Cro. 246. upon an Elegit it was held that the Sheriff could not sell a Term to the Plaintiff himself that took out the Elegit Powell was of Opinion that the Plea was good in that point of paying the Mony to the use of the Sheriff for he hath an interest or special property in the thing taken in Execution 1 Cro. 639. the Sheriff may bring trespass against one that takes Goods after they are seised in Execution Wilbraham and Snow 2 Saunders 47. resolved that in such Case the Sheriff may bring Trover But he held the Plea insufficient for the other exception because the Declaration is of a Detainer till the Mony was paid to Francis and the Defendant And in the Plea the Iustification is of the detaining till the Mony was paid to Francis He took another Exception also that the Defendant had not shewn that there was a retorn made of the Warrant to the Sheriff and cited Br ' Tit. Trespass 566. but that was not much insisted upon because the Warrant was not directed to the Defendant here but to Francis and another and the Defendant ought not to be punished for the omission of the Bayliffs in not retorning the Warrant Vpon a Mesn Proces the Bayliff who acts by a Warrant from the Sheriffs is not liable in Trespass if the Sheriff does not retorn the Writ Ventris was of Opinion for the Defendant as to the first matter the payment to the use of the Sheriff he thought ought to be taken upon the whole matter set forth in the Plea that it was paid to the particular and special use of the Sheriff viz. that he might have the Mony in Court as the Writ commands and the Warrant mentions and it was a strained construction to take it to be to the proper use of the Sheriff it would not have been proper to say paid to the Bayliff to the use of the Plaintiff because 't is not the Plaintiffs Mony till 't is paid to him in the Case of Benson and Flower 3 Cro. and Jones 115. it was resolved that if the Plaintiff became Bankrupt the Commissioners could not assign the Mony that had been levied at the Plaintiffs suit upon Execution or remaining in the Sheriffs Hands or in Court a Barr is good to a common intent 2. The pleading of the payment to Francis and not said to Francis and the Defendant tho' it does not precisely answer the Declaration yet he held it well enough because payment to Francis is a payment to both because it is set forth that they acted joyntly in pursuance of the Warrant and averring that the matters pleaded were idem residuum transgressionis was sufficient answer of the Allegation in the Declaration of payment to both He put this Case one brings Trespass against A. that he simul cum B. took his Cattle and detained them quosque he made a Fine with the said A. and B. for the delivery of them A. the Defendant pleads that a Rent was granted to B. with a clause of Distress and that the said B. and A. as his Servant and by his command took the Cattle by way of Distress and detained them till the Plaintiff paid the arrear to B. quae est eadem transgressio Would it not have been good Again If this payment must be taken to be to the proper use of the Sheriff and so not in pursuance to the Execution yet he held that the Plaintiff here could not maintain an Action of Trespass that in regard that he is particeps criminis
from naming another This nomination can be taken to be no more than a proposal of the thing to Jessup who must be taken to be present at the first nomination for the pleading is quod adtunc ibid ' penitus recusavit But the great Objection relied upon at the Bar and by the Chief Justice was that Jessup tho' he did refuse might have still proceeded with the Vmpirage and then if Clarke were well nominated there should be a concurrent Authority in several Persons to make an Award which the Law will not suffer as the Case of Bernard and King Rol. Abr. 262. and Sty 306. where the submission was to the Award of A. and B. so so that they made the Award within such a time and if they made no Award then to the Award or Vmpirage of C. so as he made his Award within the same time and the Pleading was that the Arbitrators denegassent facere Arbitrium within the time superinde C. made an Award within the time and it was adjudged that the Award was void because the Arbitrators notwithstanding the denial might have made an Award and the Vmpire could have no power till their power was determined And the Case of Barber and Giles 1 Ro. Abr. 261 is to the same purpose To which it was answered That if it be admitted that Jessup after his refusal might have taken upon him the Vmpirage in case the Arbitrators had named no other Vmpire yet 't is clear Jessup could not have accepted the Vmpirage after another was named for the Arbitrators naming another upon his refusal had quite taken away their first nomination and in case Jessup had accepted before they had proceeded to name another then the Arbitrators had been prevented naming of any other so here could be no concurrent Power at all Vide the Case of Frall and Brierly 2 Ro. Abr. 261. Where the submission was to two Arbitrators and if they did not agree within a certain time then to the Vmpirage of such an one as they should choose so that the Vmpire made his Award within the same time And it was shewn that the Arbitrators made no Award and they chose an Vmpire who made an Award within the time and that was held good because they had determined their Power by choosing an Vmpire and so it differed from the Case of Bernard and King where the Vmpire was named in the submission and the Case of Copping and Horner 2 Saunders 129. where the submission was to Arbitrators and if they made no Award and could not agree in such a time then to the Arbitrament of J. S. so that he made an Award within the same time In an Action brought upon the Award made by the Vmpire it was set forth that the Arbitrators made no Award nec facere potuerunt aliquod Arbitrium inter Partes and that the Vmpire made an Award within the time upon a Demurrer to the Declaration Iudgment was given for the Defendant for the Averment quod non potuerunt facere Arbitrium was idle for it appeared they might have made an Award within the time But as 't is reported by Saunders if the Plaintiff had set forth that they had declared they would make no Award Then all the Court held except Twysden Justice that the Award of the Vmpire had been good And this Ventris said did somewhat shake the Authority of Bernard and Kings Case But Pollexfen Chief Justice said he had taken a report of the Case of Copping and Horner and produced his Report where there was no mention of that last Opinion reported by Saunders And the Chief Justice said no Case could be put that where a man that was vested with a bare Authority his denial or refusal to execute it could conclude him but that notwithstanding he might execute his Authority but if he makes a void or insufficient execution he may do it over again There is no reason he said to take the words adtunc ibidem penitus recusavit that he was present and that the nomination was but a communication or proposal for if he had notice of it many days after and refused the pleading might be the same and no Traverse could be taken to the adtunc ibidem Where a man is to be vested with an Interest his Acceptance is necessary but it signifies nothing when but a bare Authority In the Cases of Awards the Pleading is nullum fecerunt arbitrium and 't is never pleaded that they were not Arbitrators or that they refused to be Arbitrators for the Submission makes them so the pleading suscepto super se onere arbitrii is but meer Form Lessee for years assigns upon Condition to obtain the assent of the Lessor the Lessor at first denies he may after Consent and 't is a good performance of the Condition 14 H. 7. 17. This is properly an Authority in the Arbitrators 't is so taken in Vinyor's Case in 8 Co. and is revokable as other Authorities are These were the Chief Reasons upon which the Chief Justice relyed But Iudgment was given for the Plaintiff by the Opinion of the other three Justices Anonymus IN a Writ of Dower the Tenant was Essoigned and the Essoign adjourned in Crastino Purificat ' at which Day the Demandant did not appear with the Writ and demand the Tenant but would have a Grand Cape made out This being shewn to the Court they said the Demandant must be Nonsuit for his not being ready in Court at the Day of Adjournment of the Essoign to demand the Tenant and the Tenant was therefore in no default Dowse versus Cale Midd. ss JOHANNES CALE nuper de London ' Plumber Covenant by an Assignee of an Assignee of an Assignee against an Executor Executor Test'i Richardi Cale nuper dict' Richard Cale of the Parish of St. Bridgets alias Brides London Plumber sum ' fuit ad respondend ' Thomae Dowse gen ' assign ' Thomae Dowse patri suo assign ' Arthuro Stanhope Armig ' Edwardo Rosceter Mil ' Johanni Wostenholme Armig ' Thomae Bristowe gen ' assign ' Johannis Comitis de Clate de placito quod teneat ei convention ' inter ipm̄ Johann ' Comitem de Clare praefat ' Ric ' Cale in vita sua fact ' secundum vim formam effectum quarundam Indentur ' inter eos confectarum Lessor seised in Fee c. Et unde idem Thomas Dowse per Robert ' VVaring Attorn ' suum dic ' quod cum praedict ' Johannes Comes de Clare nono die Decembris Anno Domini Millesimo sexcentesimo quadragesimo septimo seisit ' fuisset de in tribus Messuagiis cum pertin ' in parochia sancti Clementis Dacorum in Com' Midd ' praed ' in dominico suo ut de feodo Ipsoque Johanne Comite de Clare sic inde seisit ' existen ' Idem Johannes Comes de Clare postea scilicet eodem nono die Decembris Anno Domini Millesimo sexcentesimo
and the Preferment of Her in Marriage and other good and valuable Considerations Give Grant Bargain and Sell Alien Enfeoff and Confirm unto the said Jane and her Heirs the said Lands And in the said Deed there was a Covenant that after due execution c. the said Jane should quietly enjoy and also a clause of warranty and the Iury found that there was no other Consideration than what was expressed in the Deed ut supra this Deed could not enure as a Bargain and Sale but it was adjudged that it should work as a Covenant to stand seised and Watts and Dix's Case was also cited Sty 188 204 where Rolls said if Lands are passed for Mony only the Deed ought to be enrolled but if for Mony and Natural Affection the Land will pass without Enrollment The Court here in the Principal Case inclined that this Grant would work as a Covenant to stand seised But Pollexfen Chief Justice was of Opinion that it ought to have been so pleaded and not to use the words concessit assign transposuit which is to plead it as a Grant at Common Law Powell and Ventris did conceive that it was pleaded sufficiently in regard it was said that by virtue of the Deed and Statute of Vses he became seised but leave was given by the Court to amend the Plea as the Defendant should see cause Bland versus Haselrig alios QUarto Jacobi Secundi the Case was an Assumpsit was brought against four who pleaded non Assumpsit infra sex annos and the Verdict was that one of the Defendants did assume infra sex annos and the other non assumpsit And it was moved that no Iudgment could be given against the Defendant upon whom the Verdict was found for this is an Indeb assump for Goods sold and 't is an intire contract and they must all be found to promise or else 't is against the Plaintiff Torts are in their nature several so one Defendant may be found guilty and the other not guilty but 't is not so in Actions grounded upon Contract Pollexfen Chief Justice Powel and Rokeby were of Opinion in this Case That the Plaintiff could not have Iudgment Ventris inclined to the contrary he admitted if an Indebitat ' assumpsit be brought against four and they plead non assumps and found that one of them assumed this is against the Plaintiff for he fails in his Action But in the case at Bar it may be taken that they did all promise at first and that one of them only renewed the promise within six years The plea of non assumpsit infra sex annos implies a promise at first and if one should renew his promise within six years 't is reason it should bind him and the Plaintiff must sue them all or else he will vary from the Original Contract But the Chief Justice seemed to be of an Opinion that if the promise were renewed within the six years yet if not upon a new Consideration it should not bind and if there were a new Consideration the Action will lie against him that promised alone Sed Quaere for the common Practice is upon a Plea of the Statute of Limitations to prove only a renewing the Promise without any further Consideration but a bare owning the Debt is not taken to be sufficient Quaere if the first Consideration upon repeating the Promise within six years be not enough to raise a new Cause of Action Iudgment was given for the Defendant Westby's Case WEstby brought an Action by Original and the Instructions to Cursitor for drawing of the Writ were Westby but the Writ was Westly and so all the Proceedings Afterwards the Court upon a motion ordered the Cursitor to attend who satisfied the Court that the Instructions were right and so they ordered the Original to be amended in Court and this without any application to the Chancery or Order from thence and they amended all the proceedings after Termino Paschae Anno 2 Willielmi Wariae In Communi Banco Ellis versus Yates IN an Action of Trespass the Writ was brought and so recited Quare clausum fregit herbam ibid ' crescent ' conculcavit consumpsit averia fugavit and the Declaration was Quare clausum herbam ibid ' crescent ' conculcavit consumpsit bidentes c. fugavit alia enormia c. Vpon Not guilty pleaded a Verdict was found for the Plaintiff It was moved in Arrest of Iudgment that fregit was omitted in the Declaration so one of the Trespasses contained in the Writ viz. the Clausum fregit was not mentioned in the Declaration and if the Writ contains more than is Declared for this is a Variance not aided by the Verdict 1 Cro. 329. Haselop and Chaplin where a Replevin was de averiis and declares only of an Horse and for that the Judgment was Reversed in a Writ of Error So where the Writ was Quare clausum fregit and the Declaration Quare clausum 1 Cro. 185. Edwards and Watkin Pollexfen Chief Justice and Rokeby were of that Opinion that Judgment should be arrested Ventris contra Powel being absent because the treading and consuming of the Grass necessarily implied a breach of the Close for there could not be an Entry without a Breach So the Declaration by necessary Intendment comprehended all that was in the Writ and to support the Verdict it was reasonable to intend no other breach of the Close than by a bare Entry But the other two said That there might be given in Evidence a breach of a Gate or Hedge and Damages might be given for that and then there was no ground for such Damage set forth in the Declaration And by the Opinion of the Chief Justice and Rokeby the Judgment was stayed Vid. Keilway 187. B. finding in a Verdict upon a Writ of Forcible Entry that the Defendant expulit disseisivit c. this implies it was Vi armis and yet that is the very point of the Action The Warden of the Fleet 's Case A Motion was made by the Warden of the Fleet for a Writ of Priviledge sitting the Parliament alledging that he was obliged to attend the House of Lords and therefore ought to be priviledged from Suits and divers Presidents were shewn where Writs of the like nature were granted to the Warden of the Fleet upon Motion one whereof was 2 Car. 1. and divers since that time some whereof appeared to be upon hearing of Counsel on both sides And the Court were at first inclined to grant him the like Writ but it being afterwards made appear to the Court that he was sued upon Escapes and the Court considering the great inconvenience that would ensue thereupon and being of Opinion that it was in their Discretion whether they would grant such Writ upon Motion or no. For they could not Iudicially take notice of this Priviledge of Parliament and therefore in case he had such Priviledge the Court said he might plead it
sunt verificare unde petunt Judicium si praed ' Nicholaus Sabian ' accon ' suam praed ' versus eos habere seu manutenere debeant The Conclusion of the first Plea c. Et quoad resid ' Transgr ' convercon ' disposicon ' resid ' bon ' catall ' pecun ' in Narr ' praedict ' superius menconat ' iidem Alicia Thomas Benjaminus Georgius dicunt quod ipsi non sunt inde culpabil ' Et de hoc pon ' se super Patriam Et praedict ' Nicholaus Sabian ' similiter Not Guilty to the residue of the Goods c. Creswell Levinz Demurrer Et praedict ' Nicholaus Sabian ' dicunt quod ipsi per aliqua per praedict ' Aliciam Benjaminum Thomam Georgium modo forma superius placitand ' allegat ' ab accon ' sua praed ' inde versus eos habend ' praecludi non debent quia dicunt quod placitum praedict ' per ipsos Aliciam Benjaminum Thomam Georgium modo forma praed superius placitat ' materiaque in eodem content ' minus sufficien ' in lege exist ' ad ipsos Nich ' Sabian ' ab acc̄one sua p̄d ' inde versus ipsos Aliciam Benjaminum Thomam Georgium habend ' praecludend ' ad quod quidem placitum ipsorum Aliciae Benjamini Thomae Georgii iidem Nicholaus Sabian ' necesse non habent nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defect ' sufficien ' respons ipsorum Aliciae Benjamini Thomae Georgii in hac parte iidem Nicholaus Sabian ' petunt Judicium dampnum sua occ̄one convercon ' disposicon ' bon ' catall ' ill ' sibi adjudicari c. Joynder in Demurrer Et praedict ' Alicia Benjaminus Thomas Georgius dicunt quod placitum praed ' ipsorum Aliciae Benjamini Thomae Georgii modo forma praed ' superius placitat ' materiaque in eodem content bon ' sufficien ' in lege exist ' ad ipsos Nicholaum Sabian ' ab accon ' sua praed ' versus ipsos Aliciam Benjaminum Thomam Georgium habend ' praecludend ' quod quidem placitum materiamque in eodem content ' ipsi iidem Alicia Benjaminus Thomas Georgius parat ' sunt verificare Et quia praedict ' Nicholaus Sabian ' ad placitum ill ' non respond ' nec ill ' hucusque aliqualit ' dedic ' sed verificacon ' ill ' admittere omnino recusant iidem Alicia Benjaminus Thomas Georgius ut prius petunt Judicium Et quod praedict ' Nicholaus Sabian ' ab accon ' sua praed ' inde versus eos habend ' praecludentur c. Et quia Justic ' hic se advisare volunt de super praemiss priusquam Judicium inde reddant dies inde dat' est tam praed ' Nicholao Sabian ' quam praed ' Aliciae Benjamino Thomae Georgio hic usque in Octab ' Sancti Hillar ' de audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Lechmere versus Toplady IN an Action of Trover by Letchmere and Others against Alice Toplady Sir Benjamin Thorowgood and Others where the Plaintiffs Declared That they were possessed de ducent ' viginti quinque libris legalis monet ' Angl ' in pecuniis numerat ' and of ten pipes and fifty gallons of Canary and of divers other things in the Declaration mentioned which they lost and which came afterwards to the possession of the Defendants and they converted them to their own use The Defendants as to divers of the Goods in the Declaration mentioned which they particularly recite in their Plea plead in Bar That in Michaelmass Term in the second year of the late King James the Second the said Plaintiff commenced an Action against the now Defendants in the Kings Bench de plaeito Transgr ' super Casum where they Declared that the Defendants Vi armis took the said Goods and Chattels in the Declaration now mentioned and pleaded to apud London c. ceperunt asportaverunt To which the Defendants pleaded Not Guilty and went to Trial upon that Issue Vpon which the Jury found a Special Verdict which the Defendants set forth in their Plea verbatim together with the whole Record in the Kings-Bench and that upon that Special Verdict the Court gave Judgment that the Plaintiffs nil capiant per billam and that the Defendants irent inde sine die prout per Recordum Process inde in Cur ' dicti domini Regis dominae Reginae nunc coram ipsis Rege Regina apud Westm ' residen ' plen ' apparet quod quidem Recordum in plenis róbore vigore suis adhuc remanent minime reversat ' seu annihilat ' and avers that the Goods and Chattels in both Declarations ' were the same and the taking carrying away and disposing of the said Goods in the said Action of Trespass and the coming of the said Goods to the hands of the Defendants and the disposition and conversion thereof in this Declaration mentioned are the same and the Cause of Action the same c. and as to the residue of the Goods and Chattels in the now Declaration mentioned the Defendant pleads Not Guilty and Issue thereupon and to the Bar pleaded the Plaintiffs demurred It was Argued by Serjeant Tremayne against the Bar That the Actions were of a different nature and that in many Cases Trover would lye where Trespass Vi armis would not 1 Cro. 667. Ferrars and Arden where 't is said If one deliver Goods to another to keep and brings Trespass and is Barred he may after bring Detinue because he mistook his Action Vid. 6 Co. 7. And he relied upon the Case of Putt and Royston Pasch 34 Car. 2. B. R. Rot. 422. where in an Action of Trespass upon a Not guilty Verdict was for the Defendant and Judgment and there the Plaintiff brought an Action of Trover for the same matter and the former Judgment was pleaded in Bar and upon a Demurrer it was adjudged for the Plaintiff Serjeant Pemberton contra 'T is taken for a Rule in Sparrie's Case 5 Co. 61. Nemo bis vexari debet si constet Cur ' quod sit pro una eadem causa He agreed that Trover would lye in many cases where Trespass would not but here it appears to the Court by the Matter disclosed in the pleading the Special Verdict and whole Record being set forth that the Plaintiff was barred before not for having mistaken his Action but upon the Rights and Merits of the Cause and this he said differed this Case from that of Putt and Royston Note That Case was Adjudged when Sir Francis Pemberton was Chief Justice of the Kings-Bench for there the Verdict being upon the General Issue in Trespass
Ground tanquam ad Mesuag ' praed ' spectant ' pertinent ' de jure habere debet and that the Defendant stopped it up ad damnum c. The Defendant pleaded a frivolous Plea to which there was a Demurrer It was Objected on the Defendant's part that the Declaration was insufficient because the Plaintiff did not prescribe for the Way nor otherwise entitle himself to it than by a possession of the Messuage and that he had and ought to have a Way to the said Messuage belonging And a difference was taken between this and Dent and Oliver's Case 2 Cro. 43. where one alledged himself to be seised in Fee of a Mannor and had a Fair there and that the Defendant disturbed him to take Toll And in 2 Cro. Stackman and West there is a Prescription laid in the Dean and Chapter who had the Fee for the Way But it was Objected That a Corporation could not prescribe in a Que Estate but it was held well being but inducement to the Action And the Court here held the Declaration sufficient being but a possessory Action And a Case was said to be so Adjudged in this Court between the same parties Anno primo Jacobi secundi Vide the Case of Saint John and Moody upon the like Point Woodward al' versus Fox IN an Indebitat ' Assumpsit for 200 l for so much Money received by the Defendant for the use of the Plaintiffs The Defendant pleaded Non assumpsit and upon that a Special Verdict was found That in the Year 1681. before the Promise supposed c. John Hammond was and yet is Archdeacon of Huntington within the Diocess of Lincoln and that the Bishop of Lincoln is Patron of the Archdeaconry and that the Office of Register of the Court of Archdeaconry was time out of mind grantable by the Archdeacon for the Term of three Lives and that the said John Hammond in the said Year 1681. for 100 l sold and granted to Simon Michael and John Juce for their Lives the said Office of Register it being an Office concerning the administration of Justice and that by Colour thereof they enjoyed the Office till Juce died which was in 1687. and soon after in the same year the said Simon Michael died in the possession of the said Office and that Hammond was no ways Convicted of selling the said Office upon any prosecution at Law or otherwise And they further said That Thomas Bishop of Lincoln in the said Year 1687. after the Death of Juce and some time before the Death of Michael granted the said Office of Register to the Defendant Fox and set forth the Grant in haec verba which mentioned the said Registers Office to be void by the Statute of the 5 6 Ed. 6. against Sale of Offices and that thereupon it belonged to the said Bishop to grant the said Office by virtue of which the said Fox became seised of the said Office prout lex postulat And they find afterwards that in the same Year that Juce and Michael died Hammond being Archdeacon as aforesaid granted the said Office to the Plaintiffs Woodward Masters and Gilbert for their Lives and that they entred upon the said Office and became seised thereof ê“ut lex postulat And they find that the Bishops Grant was Afterwards Confirmed by the Dean and Chapter and they find that afterwards viz. the 22 of Octob. Anno regni Willielmi Mariae primo the said King and Queen their Letters Patents under the Great Seal reciting that the said Office appertained to Their Majesties to grant by the said Statute of Edward the 6th did grant the said Office of Register to the said Plaintiffs Woodward Masters and Gilbert for their Lives and that by virtue thereof they entred upon and exercised the said Office and received divers Fees and Profits thereunto belonging and that the Defendant having notice thereof did take divers Fees and Profits of the said Office amounting to 30 l claiming them to his own use c. and if upon the whole Matter c. Vpon this Special Verdict there were these Points moved The first Point was Whether this Office of Register could be granted for Lives This was not much insisted on by the Defendants Council it having been usually granted and so found by the Verdict 3 Cro. Young and Fowler 's Case a Grant in Reversion of the Registers Office was allowed being warranted by Usage and so in 3 Cro. Young and Stoel But unless there have been such Vsage 't is not grantable in Reversion Vide 3 Cro. Walker and Sir John Lamb. The second Point was Whether the Grant of this Office in Consideration of Money is void by the Statute of the 5th and 6th of Edward the 6th against Sale of Offices That Point was also waved it being Resolved in Dr. Trevor's Case 12 Co. 78. 2 Cro. 269. forasmuch as it concerned Administration of Justice The third Point was That the Statute of 5 Ed. 6. Enacting That the person who takes any Money for any Office shall lose and forfeit all his Right to any such Office c. Whether the King or the Bishop shall take advantage of this Forfeiture in regard the Statute doth not express who shall dispose of the Office in such case Co. Lit. 159. a. And it was said on the part of the Plaintiff That when a Statute gives a Forfeiture and not said to whom the King shall have it 11 Co. 60. a. unless there be a particular party grieved as upon the Statute of 2 Ed. 6. of Tythes and yet it was for some time before it was setled that the Parson should have the treble Value in that Case And this agrees with the Reason of the Common Law things that are nullius in bonis the King shall have them as extra Parochial Tythes 11 H. 4. 17. Vid. 5. Co. in Sir Henry Constable's Case The Soil of Navigable Rivers and derelict Lands was with this difference If the Sea leaves the Land gradatim and for but a little quantity the Owner of the Land shall have it but if in a great quantity at a time it goes to the King Davis Rep. 5. 6. Vid. Siderfin 86. Dyer 126. 'T is true at the Common Law where a person hath an Interest in that which is Forfeited he shall have the benefit of it as if a Park-keeper forfeit it shall go to the Owner of the Park And in Sir John Breon's Case Bridgm. 27. where the Earl of Lancaster gave License to make a Park in his Forest and the party forfeited his Office the Earl had the advantage of it In those cases the thing is forfeited to him from whom it was granted as a Copyholder forfeits to his Lord and Tenant for Life to him in Reversion but here the Bishop hath nothing to do with the Office of Register he cannot dispose of it in the time of Vacancy of the Archdeaconry The Verdict finds that his Office is to Register the Acts in the
them The Lessee comes to the Lessor and the Lessee saith to the Lessor I surrender saith he if the Lessor doth not agree 't is void Car il ne poit surrender à luy maugre son dents And that is certainly so in Surrenders and all other Conveyances for a man cannot have an Estate put into him in spight of his Teeth But I cannot find any of the Books cited that come to this Point That where a Deed of Surrender is executed without the Notice of him in Reversion that it shall pass nothing till he Consents so that it cannot be said that there is any express Authority in the Case Now as to the Form of Pleading of a Surrender it has been Objected That a Surrender is always pleaded with Acceptance and many Cases have been cited of such Pleadings Rastal's Entries 176 177. Fitzh tit Barre 262. which are Cases in Actions of Debt for Rent and the Defendant in Bar pleads That he surrendred before the Rent grew due and shews that the Plaintiff accepted the Surrender So in Waste brought a Surrender pleaded with the Agreement of the Plaintiff These and the like Cases have been very materially and I think fully Answered at the Bar by my Brother Pemberton That those Actions being in Disaffirmance of the Surrender and implying a Disagreement the Defendant had no way to bar or avoid such Disagreement but by shewing an express Agreement before The Case of Peto and Pemberton in the 3 Cro. 101. that has been so often cited is of the same sort In a Replevin the Avowry was for a Rent-charge in Bar of which 't is pleaded That the Plaintiff demised the Land out of which the Rent issued to the Avowant The Avowant Replies That he surrendred dimissionem praedict to which the Plaintiff agreed This is the same with Pleading in Bar to an Action of Debt for Rent But when the Action is in pursuance of the Surrender then it is not pleaded So is Rast Entries 136. The Lessee brought an Action Covenant against the Lessor for entring upon him and ousting of him The Defendant pleads a Surrender in Bar and that without any Agreement or Acceptance In Fitzherbert tit Debt 149. where the Case is in an Action of Debt for Rent The Defendant pleaded in Bar that he surrendred by force of which the Plaintiff became seised There is no mention of pleading any Agreement notwithstanding that the Action was in Disaffirmance of the Surrender Therefore as to the Argument which has been drawn against the Form of Pleading I say that if an Agreement be necessary to be pleaded Then I say First That 't is answer'd by an implied Assent as well as an express Assent I would put the Case Suppose a Lessee for Life should make a Lease for years reserving Rent and in Debt for the Rent the Lessee should plead That the Plaintiff before the Rent grew due surrendred to him in Reversion and he accepted it and Issue is upon the Acceptance and at the Trial it is proved that the Plaintiff had executed a Deed of Surrender as in this Case to him in Reversion in his absence would not this turn the Proof upon the Plaintiff that he in Reversion disagreed to this Surrender for surely his Agreement is prima facie presumed and then the Rule is stabit praesumptio donec probertur in contrarium Again I say it appears by the Cases cited that it is not always pleaded and when pleaded 't is upon a special Reason as I have shewn before i. e. to conclude the party from disagreeing and it would be very hard to prove in Reason that an Agreement admitting an express Assent to be necessary must be pleaded for if it were a necessary Circumstance to the Conveyance why then 't is imply'd in pleading sursum reddidit for it cannot be a Surrender without it In pleading of a Feoffment it is enough to say Feoffavit for that implies Livery for it cannot be a Feoffment without it Now why should not sursum reddidit imply all necessary requisites as well as Feoffavit and therefore I do not see that any great Argument can be drawn from the Pleading For 1. It is not always to be pleaded 2. It cannot be made out to be necessary so to plead it for if Assent be a necessary requisite then 't is implied by saying sursum reddidit as Livery is in Feoffavit and then to add the words of Express Consent is as superflous as to shew Livery after saying Feoffavit And again If it were always necessary it is sufficiently answered by an Assent intended in Law for Presumptions of Law stand as strong till the contrary appears as an express Declaration of the party Memorand Anno quarto Willielmi Mariae this Case was brought by Writ of Error into the House of Lords and the Judgment was there Reversed upon the Reasons in the aforegoing Argument Termino Sancti Michaelis Anno 2 W. M. In Communi Banco Coghill versus Freelove IN an Action of Debt for Rent the Plaintiff Declared for 78 l upon three several Demises against the Defendant as Administratrix to Thomas Freelove her late Husband in the Detinet The Defendant pleaded that after the Letters of Administration granted to her and before the Rent became due she assigned to Samuel Freelove the Indenture of Demise and all her Estate and Interest in the Premisses and that Samuel entred and was possessed and that the Plaintiff had notice of the Assignment before the Action brought To this the Plaintiff Demurrs It was said for the Plaintiff that the Action being brought in the Detinet the Assignment was no Plea for the Administratrix is charged upon the Contract of the Intestate and liable so far as there is Assets tho' there be no Assignment And tho' in the 3 Co. and in the 1 Cro. 555. Overton and Syddal's Case seems the contrary and so Marrow and Turpin's Case in the 1 Cro. 715. And that the privity of Contract is determined by the Death of the Lesser yet in Ironmonger and Newsam's Case in Latch 260. the contrary was Resolved Note it did not appear by Latch to be Resolved but the Chief Justice said it was so Resolved So in 17 Car. 2. Syderfin 266. in Heylar and Casbord's Case it was Resolved that the Action lay against the Executor upon the Contract after an Assignment where it was held also that an Executor cannot wave a Term unless he renounceth the whole Executorship After hearing Arguments at the Bar the Court gave Judgment for the Plaintiff Powell absente As to Overton and Syddal's Case it appears by Mo. 352. that Popham and Fenner were against Gawdy and Clench vide Poph. Rep. 121. It appears that the Action was brought in the Debet and Detinet and by a Prebend upon the Lease of his Predecessor and then an Assignment will be a Bar which matters indeed do not appear to be urged in the Case as Cited by my Lord Coke and Reported
forma as he hath set forth in his Avowry Petit Judicium dampna c. loc ' in quo c. modo forma prout praed ' Simo per advocar ' suum praed ' superius supponit Et hoc parat ' est verificare unde ex quo praed ' Simo capc̄onem Equuli praedicti in praedicto Clauso in quo c. superius cogn ' idem Samuel pet ' Judicium dampna sua occ̄one capconis injuste detenconis Equuli illius sibi adjudicari c. Demurrer to the Plea Et praedict ' Simo dic ' quod praed ' placitum praedict ' Samuel ' superius replicand ' placitat ' materiaque in eodem content ' minus sufficien ' in lege existunt ad ipm̄ Samuel ' acconem praed ' versus eum habend ' manutenend ' quodque ipse ad placitum illud modo forma p̄d ' replicand ' placitat ' necesse non habet nec per legem terrae tenetur aliquo modo respondere Et hoc parat ' est verificare unde pet ' Judicium si praed ' Samuel acconem suam praed ' inde versus eum habere debeat c. Joynder in Demurrer Et praedict ' Samuel ex quo ipse sufficien ' materiam in lege in replicacone in sua praedicta ad acconem suam praed ' versus praefat ' Simonem habend ' manutenend ' superius allegavit quam ipse parat ' est verificare Quam quidem materiam idem Simo non dedic ' nec ad ill ' aliqualit ' respondet set verificacon ' ill ' admittere omnino recusat Idem Samuel ut prius pet ' Judicium dampna sua occone capconis injuste detenconis Equuli illius sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedictis hic usque ad audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Denney versus Mazey IN a Replevin the Plaintiff Declared of taking of his Horse Colt at S. in quodam loco vocat ' Townfield The Defendant saith that before the Taking one Elizabeth Mann was seised in Fee de praedicto loco in quo c. and 20 Septemb. Anno primo Willielmi Mariae demised the Premisses to him for a year then next ensuing and that he entred and avowed the taking of the Plaintiffs Horse damage feasant The Plaintiff Replied that the said Elizabeth Mann was seised of the Premisses in Fee and before the Lease to the Avowant viz. the 5th of June in the said first year of the King and Queen she demised to the Plaintiff the Premisses habend ' from the second day of March then last past for the Term of six years by virtue of which he entred and put his Horse into the Premisses and traverseth the Lease made to the Avowant To this the Avowant Demurred generally Pollexfen Chief Justice inclined that the Traverse was no cause of Demurrer tho' it might have been omitted He said there were divers Authorities against Heylars ' Case in the 6 Co. which is Reported to the same effect in Mo. 551. 1 Cro. 658. as 1 Cro. 754. Covert's Case Hob. 81.103 Traverse where the Matter in confessed and avoided and the Books generally are only that there need be no Traverse as the Bishop of Salisbury and Hunt in 3 Cro. 581. and Kellend and White 3 Cro. 494. the other Justices doubted relying upon the Authority of Heylar's Case and Rice and Harveston's Case 2 Cro 299. and Yelv. 221. where 't is said that such a Traverse makes the Plea vitious Vid. Mo. 557. But here the Demurrer being General 't is but matter of Form and clearly aided by the Statute of 27 Eliz. where if one Confess and Avoid and Traverse 't is in nature of a Double Plea Vid. That it is good upon a General Demurrer Edwards and Woodden 3 Cro. 323. So Judgment was by the whole Court given for the Plaintiff Woodward versus Fox Quod vide ante ultimo Termino THe Case was this Term Argued again by Serjeant Pemberton for the Defendant and by Serjeant Powell for the Plaintiff upon the Point Whether the Nomination to the Office being forfeited by the Statute of Ed. 6. it did belong to the King or the Bishop in whose Diocess the Archdeaconry was to make the Register But Pollexfen Chief Justice desired them to Consider Whether the King admitting he had a right by the Statute could grant this Office of the Register before Office found of the Forfeiture Note In case of Simony the Presentation vests in the King without Office Adjornatur Morgan versus Hunt IN Covenant the Plaintiff Declared that the Defendant Let to him a certain House and Lands and Covenanted that he should quietly and peaceably enjoy it without any manner of interruption molestation or disturbance and that by virtue of the said Demise he ented and sometime after the Defendant exhibited a Bill against the Plaintiff in the Court of Chancery wherein he charged the Plaintiff with ploughing up Meadows and the committing of divers Wastes and did obtain an Injunction out of the said Court against the Plaintiff whereby he was interrupted in his Ploughing c. and that afterwards the said Bill was dismissed with 20 l Cofts and so the Defendant had broken his Covenant After a Verdict for the Plaintiff I know not upon what Issue it was moved in Arrest of Judgment First That here was no sufficient Breach set forth It was said that the Law does not take notice of Proceedings in Chancery Poph. 205. it is said If one be possessed of Lands by Extent and by a Decree in a Court of Equity he is forced to pay a Rent out of the Lands this shall not be a legal Eviction or Recovery for so much Secondly The Suit in Chancery here is not touching the Lessees Estate or Title but for Waste which he ought not to do and tho' the Suit might be groundless yet it not relating to his Title or Possession was no breach of Covenant The Judgment was stayed by the Opinion of the whole Court for the last Reason for this was interruption or disturbance within the Covenant the Subject matter of the Suit being for Waste But the Court will take notice of a Suit in Chancery and 1 Cro. 768. an Assumpsit in Consideration of desisting from exhibiting a Bill in Chancery was held a good Consideration Anonymus IN a Covenant That the Defendant should keep in good Repair the House Outhouses and Stables and the Breach assigned was that the Defendant had permitted the Racks in the Stable to be in decay After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff had not set forth that the Racks were fixed in the Stable and so part of the Freehold for they might be in the Stable and lye loose
Pollexfen Chief Justice was of Opinion that it ought to have been shewn in the Declaration that the Racks were set up and fixed But the other Justices conceived that it should be intended that they were Racks fixed for use in the Stable and it would be very remote to give it any other Construction And so Judgment was given for the Plaintiff Anonymus IN an Ejectment it was moved in Arrest of Judgment that the Plaintiff had declared of two Demises viz. That J. S. demised 10 Acres of Land to him an that J. N. had demised 10 other Acres of Land to him habend ' for the Term of Five years c. and that he entred into the Premisses demised to him by J. S. and J. N. in forma praedict ' After Verdict upon Not guilty for the Plaintiff it was Objected That in one of the Demises there is no certain Term or Estate for the habend ' can be referred only to the Demise of J.S. for that begins a New sentence But the Court held that the Habend ' should be a good Limitation of both Demises for Five years and when 't is shewn that the Plaintiff entred into the Premisses demised to him in forma praedict ' that is an Averment that all was demised for Five years for that is the forma paed ' As Lands lett to A. for his life Remainder to B. in forma praed ' this is an Estate to B. for Life And so Judgment was given for the Plaintiff Anonymus IN an Action upon the Statute of Hue and Cry it was after Verdict moved in Arrest of Judgment that in the Recital of the Statute there were Variances from the Statute and Omissions First There was no mention of Burning of Houses in the Recital but that is in the Statute Non allocatur For 't is not necessary to set forth more in the Declaration than is pertinent to the Action Secondly The Statute is That the Country should answer for the Bodies of the Malefactors and the Recital is Quod patria respondeat ê“ Malefactoribus the sense of which is That the Country should stand in their stead whereas the meaning of the Statute is That they should produce their Persons Sed non allocatur For as it is in the Recital of the Declaration it well answers the sense of the Statute Anonymus IN an Action of Trespass quare Clausum fregit and digging up and carrying away of his Trees It appeared upon the Evidence That the Defendant had entred into the Plaintiffs Close and digged up several Roots of his Trees and removed them to a place on the same Ground about two yards distance off And the Question was Whether this were such a Carrying away as that the Plaintiff should have full Costs or only Costs according to the late Statute where the Damages are under 40 s as was in this Case Pollexfen Chief Justice and Rokeby Powell absente were of Opinion that the Plaintiff was to have full Costs because the Roots were carried from the place where they were digged tho' not removed off from the Ground and they said that it had been adjudged Felony to take and removed things with an intent to steal them tho' laid at a small distance from the place and not carried out of the House or the like Ventris conceived That the taking of the Roots and laying them a little way off in the same man's Ground could not be taken as an asportavit and it differed from the Case of Stealing for taking Goods as a Thief is the Felony and it doth not lye in the carrying them off but in the Felonious intent in the taking But by the Opinion of the other two of the Plaintiff had his full Costs Anonymus IT was moved for a Prohibition to the Ecclesiastical Court to stay a Suit for Dilapidations by the Successor against the Executor of the former Incumbent upon the late General Act of Pardon for that all Suits for Offences of Incest Simony or Dilapidations are excepted in the Act unless commenced and depending before such a Day viz. the 20th day of March last and this Suit was commenced since The whole Court upon Hearing of Counsel at the Bar and Consideration of the Matter conceived that the Parliament never intended to take away the Successors Remedy for Dilapidations for that would be to ease the Executor of the last Incumbent who was the Wrong-doer and translate the Charge to the Successor But they would intend this Exception of such Suits as might be in the Ecclesiastical Court ex Officio against the Dilapidator himself to punish it as a Crime against the Ecclesiastical Law and to pardon it unless there were Prosecution before the Day aforesaid And so the Prohibition was denied Nota If a Sheriff of a County in a City be in Contempt the Attachment is to go to the Coroner and not to the Mayor or Chief Officer of the Corporation in such City or Town And if the Offender be out of his Office the Attachment shall be directed to the New Sheriff Gawden versus Draper IN an Action of Covenant the Plaintiff declared upon a Deed of Covenant by Indenture made between the Defendant and him whereby the Defendant Covenanted with the Plaintiff That Sarah Wife of the Defendant should be permitted to live separate from the Defendant until the Defendant and the said Sarah by Writing under their several Hands attested by two Witnesses should give notice to each other that they would again Cohabit And further Covenanted That he the Defendant during the Coverture and until such Notice should be given of their desires to Cohahit as aforesaid would pay to the Plaintiff for the Maintenance of the said Sarah 300 l per Annum at four Quarterly payments and sets forth That the said Sarah form the Date of the said Indenture to the time of the said Suit did live separate from the Defendant and no notice of Cohabitation as aforesaid had been given during that time of either side And for 75 l for one Quarters payment of the said 300 l which was to be paid at our Lady-day last the Action is brought The Defendant pleads in Bar That after the Indenture aforesaid and before the Action brought another Indenture was made between the Defendant and the said Sarah his Wife of the one part and the Plaintiff of the other part which the Defendant ê“fert hic in Cur ' reciting the said first Indenture and further reciting That the Defendant and the said Sarah did then intend to Cohabit and did at that time Cohabit and expressing that it was the true intent and meaning of all the said parties to the said Indenture produced ut supra by the Defendant That so long as the Defendant and the said Sarah should agree to Cohabit the said Annual payment should cease And the Plaintiff did by the said last mentioned Indenture by the appointment of the said Sarah as appointed by her being party thereunto and her Signing Sealing and
hujus regni qui Missam frequentant vel audiunt per Statut ' hujusmodi regni Angliae inde edit ' provis ' inferre causare octavo die Decembr ' Anno Domini Millesimo sexcentesimo octogesimo octavo apud Hunt ' praedict ' in Com' Hunt ' praed ' Colloquium habens cum quodam Thoma Waddington tunc Servien ' Colloquium ipsius Lionelli in aperto publico Mercato ibidem tunc tent ' de concernen ' eodem Lionello Religione sua de ejus existen ' un ' Burgens ' Of the Plaintiff and of his being a Member of Parliament sive Membr ' Parliament ' praed ' pro Villa de Hunt ' praedict ' in praesentia auditu quamplurimarum person ' in eodem publico Mercato adtunc ibidem congregat ' praesen ' existen ' haec falsa ficta scandalosa Anglicana verba sequen ' praefat ' Thomae Waddington servien ' ipsius Lionelli tunc ibidem existen ' de eodem Lionello falso malitiose palam ê“ublice dixit retulit propalavit alta voce publicavit pronunciavit videlicet Your Master ipsum Lionellum innuendo is a Papist The first words when he ipsum Lionellum innuendo is at home he ipsum Lionellum iterum innuendo goes to Church but when he ipsum Lionellum iterum innuendo is at London he ipsum Lionellum iterum innuendo goes to Mass Missam in Ecclesia Romana performat innuendo Sir Iohn Cotton quendam Johan ' Cotton de Stratton in Com' Bedf. Baronet ' al' Burgens ' sive Membr ' Villae de Hunt ' praedict ' in Parliamento praedict ' innuendo and he ipsum Lionellum iterum innuendo were both Pensioners ipmÌ„ Johan ' Cotton Lionellum pencÌ„ones habere de praedict ' nuper Rege Carolo secundo ad consentiend ' voces suas dand ' in Parliamento pro confeccone legum statut ' in oppressione subdit ' ipsius nuper Regis innuendo all the time of the Long Parliament praedict ' Parliament ' in quo idem Lionellus praedict ' Johannes ut praefertur fuerint Burgens ' sive Membr ' innuendo praedictusque Johan ' ex ulteriori malitia sua postea scilicet eisdem die anno ult ' menconat ' apud Hunt ' praedict ' super quod ' al' Colloquium adtunc ibidem habit ' cum praedict Ex ulteriori malitia Thoma Waddington adtunc ibidem Servien ' ipsius Lionelli existen ' de concernen ' eodem Lionello Religione ipsius Lionelli de suo existen ' un ' Burgens ' sive Membr ' Parliamenti praedict ' pro Villa de Hunt ' praed ' in praesentia auditu quamplurimarum aliarum person ' in publico aperto Mercato ibidem assemblat ' existen ' ad intencon ' praedict ' haec alia falsa ficta scandalosa Anglicana verba sequen praed Thoma Waddington adtunc ibidem Servien ' ipsius Lionelli ut praefertur existen ' de eodem Lionello falso malitiose palam publice dixit retulit asseruit alta voce publicavit pronuncavit videlicet Your Master ipsum Lionellum cujus Servien ' Other words praed ' Thom ' ut praefertur tunc fuit innuendo is a Papist when he ipsum Lionellum iterum innuendo is in the Country he ipsum Lionellum iterum innuendo goes to Church but when he ipsum Lionellum iterum innuendo is at London he ipsum Lionellum iterum innuendo goes to Mass ipsum Lionellum ad audiend ' Missam in Ecclesia Romana performat ' ivisse innuendo Sir Iohn Cotton praedict ' Johan ' Cotton ' iterum innuendo and he ipsum Lionellum iterum innuendo were both Pensioners all the time of the Long Parliament Quorum quidem falsorum fictorum scandalosorum malitiosorum verborum diccon ' propalacon ' praetextu idem Lionellus non solum in bonis nomine reputacone fama suis praedict ' gravit ' laesus deteriorat ' est verum etiam diversas grandes denar ' sum ' pro sedacone quamplurimorun falsorum rumorum de ipso Lionello sparsor ' expendere diversos corporis sui labores subire coact ' compulsus fuit ad dampnum ipsius Lionelli ducent ' libr ' inde produc ' sectam c. Et praedict ' Johannes ê“ Richardum Lee Attorn ' suum ven ' The Defendant pleads Not guilty defend ' vim injur ' quando c. Et dic ' quod ipse in nullo est culpabilis de praemissis superius ei imponit ' modo forma prout praedict ' Lionellus superius versus eum queritur de hoc pon ' se super patriam praedict ' Lionellus similitur Ideo Praecept ' est Vic' quod Venire fac ' hic à die Sanctae Trinitatis in tres Septiman ' duodecim c. per quos c. Et qui nec c. ad recogn ' c. quia tam c. Sir Lionell Walden versus Mitchell THe Plaintiff Declared in an Action for Words That he was a true professor of the Protestant Religion according to the Reformation and Laws of England and that he had been a Member of the Parliament begun the 8th of May 13 Car. 2. and that the Defendant premissor ' non ignarus 8 Decemb. Anno Domini 1688. having discourse of the Religion of the said Plaintiff and of his having served in the said Parliament said to T. W. Servant of the Plaintiff your Master is a Papist when he is at Home he goes to Church but when he is at London he goes to Mass Sir John Cotton and he were both Pensioners innuendo that the said Sir John Cotton and the Plaintiff received Pensions of King Charles the Second for giving their Votes in Parliament for Laws and Statutes in oppression of the People at the time of the long Parliament innuendo the Parliament in which the Plaintiff and Sir John Cotton served and upon not Guilty pleaded a Verdict was found for the Plaintiff It was moved in Arrest of Iudgment that none of these words were Actionable 1 Leon 336. To call a Man Papist said by Wray Chief Justice there that it is not Actionable unless spoken of a Bishop so in Savage and Cooks Case 1 Cro. 192. T is true where spoken of a Person in some eminent Office t is otherwise as Sir John Knightlies Case who was a Justice of Peace and Deputy Lieutenant Hill 33 34. Car. 2. in C. B. rot 1518. He had Iudgment in an Action for calling of him Papist and it was affirmed in a Writ of Error brought in B.R. And the Case of Peake and Tucker which was Trin. 1. Jac. 2. B. R. Rot. 838. Where the Plaintiff was a Merchant And the Defendant said of him he is a Rogue a Papist Dog never a Rogue in Town would have made a Bonfire but he Note those words were spoken the day
the case of Proxies Davis Rep. 4. It is said the King has power and that by the Antient Law of the Realm to Visit Reform and correct all Abuses and Enormities in the Iurisdiction Spiritual so that an Offence of this nature is a Violation of the Kings Justice and a Transgression of the Rules of his Administration This is indeed the case of all Crimes of a publick nature the King is most evidently injured by them the Indictments run contra coronam dignitatem c. Now who should have the Forfeiture but he that hath the greatest share in the Injury Again by giving of this Forfeiture to the King the end and design of the Statute is like to be best answered By the Preamble the Statute appeareth to be made that worthy persons might be advanced to places where Iustice was to be administred and who is best to be entrusted with this but the King The Court having given these Reasons they came to consider what had been insisted on at the Bar in the behalf of the Bishop It was said that all the Jurisdiction Ecclesiastical in the Diocess was originally placed in the Bishop and the case of Gastrill and Jones 2 Ro. Rep. 646 647. was cited where it is said That the Iudicial power of the Archdeacon was derived from the Bishop he is called Vicarius Episcopi and Oculus Episcopi T is true there are some Archdeacons that have Iurisdictions peculiar and exempt but that is by Prescription or Custom these are taken notice of by Godolphin But there is nothing found of that in the Verdict and so must be taken to be the common case of an Archdeacon and that was agreed It was said this offence was reckoned Simony in the Canon Law And the Bishop had the correction of it as in Smithes Case Owens Rep. 87. This was compared to the Cases of inferiour and subordinate Officers which when they are forfeited the superiour takes advantage as in the Earl of Pembrooks Case and Sir H. Bickly Popham 119. The Keeper of a Walke in a Forest forfeited this went to him that had the custody of the Forest so in Bridgman's Rep. 27. He that hath Liberty of a Park in a Forest when forfeited it goeth to the Lord of the Forest 39 H. 6. 32. The Keeper of the Marshalsey of the Kings Bench forfeited his Office the Duke of Norfolk Great Marshal of England took advantage of it To these Cases it was said by the Court That they differed much from the Case at the Bar. First In the Cases cited the Inferior Officer is put in by the Superior and in some Cases to answer for his miscarriage ubi respondeat Superior they are Offices incident as the County Clark to the Sheriff Mittons Case 4 Co. and Scroggs Case of the Exigenter to the Chief Justice of the Common Pleas Dyer 175. But here the Bishop doth not put in the Register of the Archdeacons Court He may make one to supply that place if it falls void when the Archdeaconry is vacant but then the next Archdeacon removeth him and puts in another Secondly The Forfeitures in the Cases cited were upon Breaches of Conditions in Law annexed to the Offices and t is a Rule in Law that the Grantor is to take advantage of the Breach of all Conditions but we are in case of a Forfeiture for offending against an Act of Parliament And the Court said tho' it might be supposed originally the Jurisdiction within the Diocess was lodged in the Bishop yet the Archdeacons Court hath time out of mind been settled as a distinct Court 4 Inst 339. and the Statute of 24 H. 8. cap. 12. takes notice of the Consistory Court which is the Bishops Court and the Archdeacons Court from which there lies an Appeal to the Bishops Court in 2 Ro. Rep. 150. Chivertons Case The Archdeacon is said to have a Court of himself and that the Courts of Westminster take notice thereof Thâ—s may be resembled to the Case of the Torn and Leet in the County the Leet is supposed to have been derived out of the Torn and yet upon the Forfeiture of a Leet it shall not go to the Sheriff As to the second Point it was resolved by the Court That the King might in this Case make a Register before Office found It was agreed That where an Estate of Freehold was forfeited to the King by Act of Parliament that an Office would be requisite to vest it in the King and that by the Statute of 5 Edw. 6. against the sale of Offices all the Estate and Interest c. of the Offender is forfeited But Pollexfen Chief Justice conceived this was not an Estate in the Archdeacon but only a Power to appoint a Register and in the nature of a chose en Action like the case of Offices in the King where the King may grant or nominate to the Office but hath not the Office in him to use or execute But he conceived and with that the rest of the Court agreed that however as to the present vacancy the right to supply that was a Chattel separate from the Inheritance and the King might supply the present avoidance before any Office found tho' it be admitted that the right of nomination in point of Estate should not vest in the King before Office found Where the Kings Tenant dies seised of an Advowson or in case of an Outlawry tho' the Estate is not in the King before Office yet if the Church becomes void the King shall present before Office 20 Edw. 4. 11. The case so put of an Advowson appendant Stamf. Prerog 54. B. T is a Transitory Chattel the present avoidance Lanes Rep. 43 64. 1 Ro. Rep. 326. and Jones Rep. 425. So the Body of the Ward is in the King before Office In Case of Simony the King shall present without Office Sed nota 31 Eliz. giveth the Presentation pro hac vice only And the Court said that the Verdict found that the Plaintiffs had a Grant from the Archdeacon also so that if nothing be in the King till Office it must remain in the Archdeacon so his Grant will be good till Office found There are no disabling words in the Statute but only shall Lose and Forfeite so quacunque via data the Plaintiffs ought to have Iudgment Harris versus Parker Ante ult ' Term. IN an Action of Debt for 99 l Rent the Plaintiff Declared upon two Demises which he laid at the Parish of St. Martin in the Fields in Middlesex of a Messuage and divers Lands quae praemissa sunt struat ' jacent ' existent in super acclivitatem de Hampstead Anglicè the rise of Hampstead Hill to hold for seven years reserving upon each Demise eighteen pounds yearly Rent The Defendant pleaded Actio non quia dicit quod praed ' Johannes Harris tempore dimiss ' praed ' nihil habuit in Tenementis praedict ' unde c. The Plaintiff Replied That long before the
ipse paratus est verificare Quam quidem materiam praedicta Priscilla non dedic ' nec ad eam aliqualit ' respondit set verificacon ' illam admittere omnino recusavit ut prius per ' Judic ' quod praed ' Priscilla ab accone sua praed ' versus eum habend ' praecludatur c. Et quia Justic ' hic se advisare volunt de super pÌ„missis praed ' priusquam Judic ' inde reddant dies dat' est partibus praed ' hic usque à die Sancti Michaelis in tres Septimanas de audiendo inde Judicio suo eo quod idem Justic ' hic nondum inde c. Priscilla Web Widow versus Moore THe Plaintiff Declared in an Action upon the Case upon Five several Promises one whereof was upon a Quantum meruit for finding Meat and Drink for the Defendant at his Request The Defendant pleaded in Bar an Outlawry of the Plaintiff in this manner viz. Quod quidam S.C. al' scilicet Termino Sanctae Trinitat ' anno regni nuper Regis Jacobi secundi tertio implacitavit pÌ„d ' Priscillam in Cur ' dicti nuper Regis de Banco hic de placito trangres praedict ' quae Priscilla pro eo quod non venit in praedict ' Cur ' de B. praed ' praefat ' S. C. inde responsur ' secundum legem consuetud ' hujus regni Angl ' in Exigendo posita fuit ad utlagand ' in Com' Wiltes ' ea ratione postea scilicet quinto decimo die Maij anno regni dicti nuper Regis quarto in Com' Wiltes ' praed ' debito juris modo ad Sectam praed ' S. C. waviata fuit adhuc waviata existit prout per recordum processum inde eadem Cur ' dicti nuper de Banco praed retornat ' modo residens plen ' liquet Quae quidem Utlagaria adhuc in suis robore effectu remanet minime reversat ' seu annihilat ' hoc parat ' est verificare per Recordum illud unde pet ' Judicium si action ' c. And to this Plea the Plaintiff Demurred 1. For the Outlawry could not be pleaded in Bar to an Assumpsit upon a Quantum meruit for there is no certainty of Debt appearing till the thing comes to be valued and so cannot be forfeited It was doubted Whether Debt upon a Simple Contract was forfeited till 4 Co. Slade's Case But it was Resolved by the Court in this Case that the Outlawry was a good Plea in Bar for the Consideration created a Debt tho' that Debt was not reduced to a certain Sum. Markham and Pitt in 3 Leon. 205. Outlawry pleaded in Bar to Trover where it lies all in Damages But this Action arose upon a property of Goods which would have been forfeited 3 Leon. 197. where the King had granted all Forfeitures that accrued to him by the Outlawry of J. S. and the Grantee brought an Action But an Exception was taken to the pleading of the Outlawry for it ought to have been set forth that the Plaintiff did not appear upon the Exigent and upon that waviata fuit debito juris modo is too general Fitzherb Account 91. Traverse 31. Stamford 148. And of this the Court doubted and appointed to search Presidents of the Pleading Et Adjornatur Kempe versus Cory al' Quod vide ante ultimo Termino THe Case was now moved again and as to the Matter in Law it was held clear that where A. is seised of a Third part in Common and B. of the other two parts in Common with A. and A. let his Third part reserving Rent and B. puts in his Cattle or a Stranger by his License that such Cattle are not Distrainable for the Rent But the Doubt was because the Avowry was in loco in quo ut in super praedict ' tertiam partem c. Whether the Plaintiff should not have traversed the Taking in tertia parte tantum Vide the Case of Newman and Moor in Hob. 80. 103. And note there that the Traverse was held unnecessary And the Court held clearly that it would have been impertinent to make a Traverse in this Case for the Matter in the Avowry was confessed and avoided CASES Adjudged upon Writs of ERROR IN THE Exchequer Chamber Termino Sancti Michaelis Anno 1 W. M. BY Pollexfen Chief Justice Powell Justices Rokeby Justices Ventris Justices Atkyns Chief Baron Nevill Barons Lechmore Barons Turton Barons Willows versus Lydcot VPon a Writ of Error upon a Iudgment in Ejectment in B.R. which was brought for a Messuage in St. Martins in the Fields Vpon the General Issue pleaded and a Special Verdict found the Point was to this effect William Shelton was seised in Fee of the said Messuage and of dvers other Messuages situate in the said Parish of St. Martin and other Parishes and made his Will in Writing and thereby Devised his Houses in the other Parishes to divers Charitable Vses and then devised to one Edward Harris and Mary his Wife the Messuage in question for their Lives and then in the following Clause the better to enable his Wsfe to pay his Legacies he devised all his Messuages Lands Tenements and Hereditaments whatsoever within the Kingdom of England not above disposed of to have and to hold to her and her Assigns for ever and made her Executrix And the Verdict was found That Edward Harris and Mary his Wife were dead and that the Testator left sufficient to his Wife to pay his Legacies without the Reversion of the said Messuages devised to Harris and his Wife That the Lessor of the Plaintiff was Heir at Law to the Testator and that the Defendants claimed from Anne Wife of the Testator c. si super totam materiam c. And Judgment was given in the Kings Bench for the Plaintiff And upon a Writ of Error brought in the Exchequer-Chamber it was this Term Argued before the Justices and Barons and by the Opinion of them all the Judgment was Reversed For they held that there were words in the Devise to the Testators Wife that would carry the Reversion of this House as an Hereditament undisâ—oâ—d of Vide the Case of Whâ—eler and Walroon in Allen's Rep. 28. one having a Mannor and other Lands in Somerset-shire Devised the Mannor to A. for Six years and part of the other Lands to B. in Fee and then comes this Clause and the rest of my Lands in Somersetshire or elsewhere I give to my Brother and it was adjudged by the word Rest the Reversion of the Mannor passed as well as the Lands not Devised before A Case about 20 years ago was cited by the Counsel for the Defendant in the Writ of Error between Bowyer and Milbanke in a Borough where a Nuncupative Will would pass Lands by the Custom a man upon his Death-Bed being asked about his Will said I Give All to my Mother and repeated the
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
But Hale said That he thought that in this Case inasmuch as the Mortgage to Lee was only of part of W. that therefore Marsh might bring Lee to an Account upon the extended value whereupon these two Mannors were extended upon the Statute and if Lee had received the Money due upon the Statute by receiving of the Profits according to the extended value or if she will pay down the residue of the Money due upon the Statute or if she will pay down so much as the proportion will come to for Monfield that then she may discharge the Mannor of Monfield But then my Lord Keeper asked him how he would have it appointed and how much should be laid upon Monfield and how much upon Wicksal for that part of W. is under that Extent To which Hale Answered That if Marsh did sue Lee for the discharge of this Statute from Monfield that Monfield should be Discharged by her paying down as much as the proportion comes to or when Lee shall have received so much according to the extended value and that he thought there might be a proportion found out by the Court. Nota Sir H. Fynch Counsel for Lee cited Primate and Jackson's Case Grove and Grove's Case and Mrs. Calamy's Case All which were Resolved in this Court That a Purchasor or Mortgagee coming in upon a valuable Consideration without Notice and purchasing in a precedent Incumbrance it shall protect his Estate against any person that hath a Mortgage subsequent to the first tho' before the last Mortgage tho' he purchased in the Incumbrance after he had Notice of the second Mortgage White versus Ewer AT a Re-hearing before my Lord Keeper assisted with Justice Vaughan and Turner concerning the Redemption of a Mortgage which had been made above 40 years since My Lord Keeper Declared That he would not relieve Mortgages after 20 years for that the Statute of 21 Jac. cap. 16. did adjudge it reasonable to limit the time of ones Entry to that number of years Vnless there are such particular Circumstances as may vary the ordinary Case as Infants Feme Coverts c. are provided for by the very Statute tho' these Matters in Equity are to be governed by the Course of the Court and that 't is best to square the Rules of Equity as near the Rules of Reason and Law as may be Termino Sancti Michaelis Anno 22 Car. II. In Cancellaria Peter Pheasant versus Anne Pheasant The Lord Mayor of London and Sir Thomas Player Chamberlain of London c. THe Case was this Anne Hadly now Pheasant one of the Defendants being an Orphan of London and having an Estate of 3 or 4000 l in Money in the Court of Orphans there was married to W. Pheasant elder Brother to the Plaintiff W. Pheasant before he was at the Age of 21 years and not having taken out this Money dies having bequeathed this Money inter alia to his said Wife provided that she should not claim Dower c. Notwithstanding she brings Dower against the now Plaintiff Brother and Heir to her late Husband Whereupon he brings this Bill in Chancery to make Discovery of this Estate and to compel her to release her Dower or renounce this Devise and thereupon obtains an Injunction to stay Proceedings in the Writ of Dower The Point was Whether this Money in the Court of Orphans were Devisable or no Serjeant Goodfellow Argued That it was Devisable as a Chattel personal in the Testator's possession and vested in the Baron the Court of Orphans have but have the Custodiam Co. Entries 346. 1 Roll. 550. the Chamberlain of London is the Officer intrusted and a sole Corporation to this purpose so as to take Recognizance which shall go to his Executors and is the only Corporation of that nature in England His possession is the Testator's actual possession Latch 127. If the Servant be robbed the Master shall have the Action in the 1 Cro. 37. This is not a Debitum but a Depositum as in Custodia in gremio legis by the Custom of London as if Money had been brought into Court here by a Compulsory Order in which case it would have vested in the Husband Now in the Court of Orphans they compel People to bring in the Money or to give Security and they pay no Interest only allow Finding-Money that is for the Orphans Maintenance and no more Seeing the Feme is intituled to Dower immediately it were hard that the Baron should not have the Portion Debts he shall not have because of his Latches in not bringing an Action whereby to reduce them to Property but this cannot be had until the Wives full Age. Vpon the Marriage of Orphans the Custom is to appoint the Common Serjeant to Treat and take Security for the Orphan Serjeant Maynard contra This was a Chose en Action Debt lies for it and it cannot be recovered without an Action Interest is allowed for it according to the Custom tho' not Statute Interest and proportionable to the Sum. And the Case of Dr. Ent versus Adrian was by the Custom of London If a man dye leaving three Sons his Estate shall be equally divided amongst them and if either of them dye within Age his part shall survive to the other The Father taking notice of this Custom Devised That if any of his Sons dye within Age his part should not survive but that it should go to J.S. It was Resolved that the Father could not thus give the Childs Portion because but a possibility and a thing not vested in himself Wyld said That when he was Recorder he certified the Custom in that Case to be That the Father might Devise Curia viz Bridgman Lord Keeper Twisden and Wyld assisting We are clear of Opinion that this was a Chose en Action and not Devisable A Trover and Conversion lies not for it if it be refused to be paid It was the Latches of the Husband that he did not recover it for by the Custom it is to be paid at the full Age or Marriage of the Female Orphan The Chamberlain is not a Servant to the Orphan but to the Mayor If it were purely a Depositum it must be paid in specie without Interest but they pay Customary Interest And tho' whilst the Orphans are under Age and Vnmarried if Women they give them Finding Money only yet at the end of all when the Orphan comes at full Age or if a Female marries all is Cast up and the Interest is paid The word Custodia in Pleading imports an Interest as in the Case of Guardian in Soccage c. the Lord Mayor c. have a Special Interest in it and if it be lost or miscarry they are to Answer it Let the Injuction be Dissolved Nota This Case was referred by my Lord Keeper to Justice Wyld A man opens a Mine in his Land and digs until he comes under the Soil of another whether he can follow his Mine there And he certified
Sister the Dutchess of Cleaveland to whose Son this Daughter being about 8 years old was contracted pretending that Sir Henry VVood by word revoked this disposition of the Guardianship Sued in the Prerogative Court to have this nuncupative Codicil proved and the Court granted a Prohibition for they are not to prove a VVill concerning the Guardianship of a Child which is a thing conusable here and to be judged whether it be devised pursuant to the Statute And Hale said that they may prove a VVill which contains Goods and Lands tho' formerly a Prohibition used to go quoad the Lands Vid. 1 Cro. Netter and Percivalls Case Prior versus .... ERror was brought of a Judgment in this Court into the Exchequer Chamber and Error in fact was then assigned and the Court being there of Opinion that Error in fact could not be assigned there they affirmed the Judgment upon which the Record with the Affirmation was remitted hither and a Writ of Error was brought here coram vobis residen ' as is usual for Error in fact It was pray'd that upon putting in not Bail this new Writ of Error might be a Supersedeas to the Execution But the Court held that this Writ was not to be allowed in this case for the Judgment given in this Court being affirmed in the Exchequer Chamber transit in rem judicatam there and a Writ of Error cannot be brought here upon a Judgment there and 't is always the course in Writs of Error to recite all the proceedings that have been in the matter as if a Judgment be removed hither by Error out of the Common Pleas and here affirmed and then brought into Parliament the last Writ must recite both the Judgment in Communi Banco and the Affirmation here And whereas this Writ goes by the Judgment into the Exchequer Chamber and mentions only the Judgment here it must therefore be quashed And it is the course if a Writ of Error be brought here upon Error in fact of a Judgment here that the Writ should be allowed in Court And the Court said they would allow none in this Case Throwers Case HE was indicted at the Sessions of the Peace at Ipswich for Stopping communem viam pedestrem ad Ecclesiam de Witby It was removed hither by Certiorari and the Court were moved to quash it for it was objected That an Indictent would not lye for a Nusans in a Church-path but Suit might be in the Ecclesiastical Court. Besides the Damage is private and concerns only the Parishioners Where there is a foot way to a Common every Commoner may bring his Action if it be stoped but in such case there can be no Indictment Hale said if this were alledged to be communis via pedestris ad Ecclesiam pro parochianis the Indictment would not be good for then the Nusans would extend no further than the Parishioners for which they have their particular Suits but for ought appears this is a common foot way and the Church is only the Terminus ad quem and it may lead further the Church being expressed only to ascertain it and 't is laid ad commune nocumentum wherefore the Rule was that he should Plead to it The Lady Prettymans Case A Judgment was had in a Scire facias brought against her upon a former Judgment upon two Nihils returned And the Court was moved to set it aside for that it was alledged that before the Scire facias brought she was married to Sir John Pretty-man and that it was brought against her as sole by contrivance between the Plaintiff and her Husband to oppress her and lay her up in Prison and it was shewn that the Plaintiff knew of the Marriage for he being an Attorney had prosecuted an other Action before the return of the Scire facias against her and her Husband and that she could not help her self by Error or Audita Querela because her Husband would Release The Court said they might set aside the Judgment for the misdemeanour of the Plaintiff but because they were informed that this Marriage was under debate in the Ecclesiastical Court and near to a Sentence they suspended making any Rule in this while that was determined Twisden said he had a Case from my Lord Keeling where a Feme Covert Infant levied a Fine and her Friends got a VVrit of Error in her Husbands and her name that the Court would not suffer the Husband to Release But Hale said he could not see how that could be avoided but he had known that in such case the Court would not permit the Husband to disavow the Guardian which they admitted for the VVife How 's Case HE was indicted of an Assault Battery and VVounding of Thomas Masters Esquire and Found Guilty at the Assizes in Gloucestershire Now the Attorney General moved the Court to set a Fine and such an one as might be exemplary according to the demerit of the Fact for he shewed that a great part of the Gentry of Gloucester amongst which were How and Masters being assembled at Circencester about the Election of a Burgess for that Town How without any provocation struck Masters on the Cheek with the end of his Cane which had an Iron pike at it and that if Masters had not governed himself with much moderation and prudence it had in all probability engaged the whole Assembly in a dangerous quarrel they being both Men of great Estates and Quality in the Country And the Attorney said there was nothing more necessary than that somewhat of a limited Starchamber should be exercised in this Court for the due punishment of such enormous Crimes as these Hale said that they were much discouraged from setting Fines for the new Act binds them to estreat them into the Exchequer and then it was well known whether they went meaning to such as farmed them from the King by Patent The Attorney replied that the legality of such Patents was to be questioned and that one which was granted to the Earl of Berkshire 7 Co. Penal Statutes was now like to be resumed and it was fit it should seeing it was like to prove an obstruction to the publick Iustice Then it was doubted whether the Fine could be set How not being present but held it might but the Course is not to hear any thing moved in mitigation of the Fine unless the Party be present and he was fined 500 Marks Ward versus Forth IN Debt upon a Bond the Defendant pleads that he delivered the Deed as an Escrow to J. S. c. hoc paratus est verificare To this it was demurred For that he ought to have concluded issint ninet son fait for this matter amounts to a Special Non est factum and the Plaintiff cannot reply that he delivered it as his Deed absque hoc that he delivered it as an Escrow and so said the Court. Shermans Case BY Certiorari an Order for the keeping of a Bastard Child by the
Justices of the Peace in persuance of the Statute of 18 Eliz. was removed into this Court which was excepted to First For that they had appointed the Father to allow 4 s to the Midwife whereas it did not appear that the Parish had procured her or that they were chargeable with it Secondly For that they ordered 7 s a week to be allowed for the Nursing Cloaths c. of the Child until it should be able to get its living by working which was said to be excessive in the Sum and uncertain for the time for it should have béen for so long time as it shall be chargeable to the Parish Hale said that they could make no allowance to the Midwife unless in discharge of the Parish Twisden said that they could not order the 7 s a week to be paid until it should be able to get its living for perhaps the Father would take it away and maintain it himself which he may do if he please but that the Order might be quashed without more delay and the matter remanded to further Examination Sherman consented to pay all the Arrears of the 7 s a week and the Costs that had béen expended in Maintenance of this Order or what more should be laid out in case he should be again found the reputed Father of the Child for he said it was imposed upon him by Combination whereupon it was quashed Sir Ralph Bovy's Case AN Action was brought upon an Escape for that he being Sheriff of Surry voluntarily suffred J. S. whom he had in Execution to escape He pleads that be made fresh pursuit and took him again and doth not Traverse the voluntary Escape to which it was demurred Et Adjornatur Anonymus A Scire facias against the Conusee of a Statute who had extended supposing that he was satisfied He pleads that before the Scire facias brought he had assigned over all his interest and prays Iudgment of the Writ Hale said that the VVrit was good seeing he was a Party to the Record the Plaintiff need not take notice of the Assignee unless he please and if there be part of the Debt unsatisfied that is to be tendred to the Conuzee In a VVrit of Disceit to reverse a Fine of Land in antient Demesne after Assignment the Conuzee shall be made party So in a VVrit of Error tho the Terretenant shall not be turned out of possession without a Scire facias Dionise versus Curtis TRover de duabus Centenis Plumbi urae Anglicè two hundred weight of Lead Ore It was objected that Centena signifies an hundred in a County and 't is uncertain here of what it should be understood but the Court said it was good with the Anglicè and to be understood by the subject matter Trover de duobus ponderibus casei Anglicè two weigh of Cheese hath been held good So de duobus oneribus Cupri Anglicè two Horse loads of Copper Evans c. IN an Action upon the Case whereas he pretended Title to certain Goods in the Custody of one Susan Pricket and claimed them to be his own intending to remove them the Defendant in Consideration that he would suffer them to continue there assumed to see them forth coming and that they should not be imbezelled but safely kept to the use of the Plaintiff and shews that afterwards the Goods were Eloigned c. Vpon Non Assumpsit and Verdict for the Plaintiff it was moved to stay Judgment that it doth not appear that the property of these Goods was in the Plaintiff for it is alledged only that he pretended to them and claimed them to be his own Sed non Allocatur For the Declaration is full enough at least must be intended he proved they were his own or the Jury would not have found for him Anonymus IN Debt upon a Record in an inferiour Court upon Nul Tiel Record pleaded they shall certifie only tenorem Recordi and grant Execution afterwards Hale said that he had seen a Certiorari to certifie tenorem Recordi upon a Tryal at Bar concerning the Toll of Uxbridge the Town pretending to be incorporated and to have a right to the Toll and it was resolved that no Bugh holder could be a Witness for the Town Termino Sanctae Trinitatis Anno 24 Car. II. In Banco Regis Mekins versus Minshaw A Prohibition was prayed to the Court of the Chamberlain of Chester where an English Bill was preferred setting forth that J. S. being Indebted to the Plaintiff the Defendant upon good Consideration promised That if J. S. did not pay it he would and that he wanted such precise Proof of the Promise as the Law required Wherefore he prayed to be relieved by the Equity of the Court. The Defendant confessed the Promise in his Answer and alledged further That he had paid the Money And a Prohibition was granted for the Plaintiff had now obtained the end of his Suit and might have remedy at Law upon the Evidence of the Defendants Answer Anonymus AN Action was brought for these words The Defendant said of the Plaintiff That he had picked his Pocket against his Will and at the same time de ulteriori malitia said He was a Pick-pocket The Defendant Iustified but in such manner as it was Ruled against him Then he moved to stay Judgment upon the Insufficiency of the Declaration And the Court were of Opinion that the Words were not Actionable as carrying with them no necessary implication of Felony and might mean only Trespass And Hale said He would not improve Actions for Words further than they are Fortescue versus Holt. A Scire facias was brought upon a Judgment of 1000 l as Administrator of J. S. The Defendant pleaded That before the Administration committed to the Plaintiff viz. such a day c. Administration was granted to J.N. who is still alive at D. And demanded Judgment of the Writ The Plaintiff Replies J. N. died c. de hoc ponit se super Patriam And to that the Defendant Demurs For that he ought to have Traversed absque hoc that he was alive For tho' the Matter contradicts yet an apt Issue is not formed without an Affirmative and a Negative and so said the Court. And also that the Defendants Plea was bad being Concluded in Abatement whereas it goes in Bar which was so palpable as made it evident to be used only for delay Which Hale observing he did exceedingly blame the bad Practice that is amongst Counsel in advising such Pleas and said it was within the Penalty of Westm 1. Serjeants Counters c. and said Tho' Counsel were obliged to be faithful to their Clients yet not to manage their Causes in such a manner as Justice should be delayed or Truth suppressed to promote which was as much the Duty of their Calling as it was the Office of the Judges tho' not in so Eminent a Degree In this Case it was doubted Whether Judgment final should be given or a
requisicon ' praedict ' Rogeri Flexman ac per mandat ' Justic ' praed ' de novo apponuntur Quorum nomina Panello infrascript ' affilantur secundum formam Statut ' in hujusmodi casu edit ' provis ' ac Jur ' sic de novo apposit ' videlicet Hugo Bidwell Johannes Crauscombe VVillielmus Avent Johannes Sprye exact ' silit ' ven ' Qui ad veritatem de infracontent ' simulcum al' Jur ' praedict ' prius impannelat ' jurat ' dicend ' elect ' triat ' jurat ' dicunt super SacrumÌ„ suum quod praed ' Johannes Chapman est culpabilis de praemiss infrascript ' prout praed Verdict for the Plaintiff Rogerus Flexman interius inde versus eum queritur Et assidunt dampnum ipsius Rogeri Flexman occone inde ultra mis ' custag ' sua per ipsum circa sectam suam in hac parte apposit ' ad un ' denar ' Et pro mis ' custag ' The Judgment ill ' ad quadragint ' solid ' Ideo cons ' est quod praed ' Rogerus Flexman recuperet versus praefat ' Johannem Chapman dampna fua praedict ' per Jur ' praed ' in forma praed ' Asses necnon sexdecim libras pro misis custag ' suis praed eidem Rogero per Cur ' dicti domini Regis nunc hic ex assensu suo de IncroÌ„ adjudicat ' Quae quidem Dampna in toto se attingunt ad octodecim libras un ' denar ' Et praed ' Johannes in misericordia c. The Placita in the Exchequer Chamber Placita in Camera Scaccarij apud Westm ' coram Edw ' Atkyns Mil ' Capital ' Baron ' de Scac ' dnÌ„i Regis de gradu dela Coife Thoma Jenner Mil ' Richardo Heath Thoma Powell Mil ' tribus al' Baron ' de Scaccario dnÌ„i Regis de gradu de la Coife necnon Thoma Street Mil ' Edw ' Lutwich Mil ' Christof Milton Mil ' tribus al' Justic ' dnÌ„i Regis de Communi Banco vicesimo sexto die Maij anno regni domini Jacobi secundi Dei gratia Angliae Scot ' Franciae Hiberniae Regis Fidei defensor c. quarto Ad quem diem hic ven ' praedict ' The General Errors assigned Johannes Chapman per Johannem Lugg Attorn ' suum Et dic ' quod in Record ' ê“cess praedict ' ac etiam in reddicone Judic ' praed ' manifest ' est errat ' in hoc videlicet quod Judic ' praed ' in foima praed ' reddit ' reddit ' existit pro praedict ' Rogero versus praefat Johannem Chapman ubi per legem terrae hujus regni Angliae idem Judicium reddi debuisset pro praed Johanne Chapman versus praed ' Rogerum Ideo in eo manifeste est errat ' Et petit quod Judicium praed ' ob Errores praedict ' alios in Record ' ê“cess praed ac in reddicone Judicij praed existen ' revocetur adnulletur pro nullo penitus habeatur quod ipse ad omnia quae occone Judic ' praed amisit restituatur c. And a Scire facias ad audiendum Errores prayed Et petit breve domini Regis Vic' Devon ' dirigend ' ad praemuniend ' praefat ' Rogero essendi hic auditur ' Record ' ê“cess praed ' ei conceditur c. And awarded Ideo Praecept ' est Vic' quod probos c. Scire fac ' praefat ' Rogero quod sit hic die ê“x ' futur ' auditur ' Record ' ê“cess praedict ' si c. Et ulterius c. Idem dies dat' est eidem Johanni Chapman hic c. Et praedict ' Rogerus Flexman dic ' quod nec in Record ' ê“cess praedict The Defendant in the Errors appears and pleads in nullo est Erratum nec in reddicone Judic ' praed ' in ullo est erratum Et petit etiam quod Cur ' domini Regis dominae Reginae hic procedat ad examinacon ' tam Record ' ê“cess praed ' quam praed ' causae per ip mÌ„ Johannem Chapman superius ê‘ erroribus assign ' allegat ' Et quod Judic ' praed ' in omnibus affirmetur Et quia Cur ' dicti domini Regis dominae Reginae hic se advisare vult de super praemiss prius quam Judic ' inde reddat dies dat' est partibus praed ' usque diem Sabbati prox ' futur ' de Judicio suo inde audiend ' eo quod Cur ' domini Regis hic inde nondum c. Chapman versus Flexman IN an Action upon the Case in B. R. the Plaintiff declared That one Jo. Specot 2 Novembr ' 1685. diu ante was seiseo of the Mannor and Burgh of Torrington and of seven antient Water Corn Mills sufficient to grind the Corn of the Inhabitants within the Mannor and Burgh aforesaid for their necessary uses and that the Plaintiff was the day aforesaid continue postea Tenant at Will to the said Specot of the said seven Mills and had the Toll of Corn which was ground in the said Mills during the time aforesaid habere debuisset And whereas all the Inhabitants of any antient Messuage within the Mannor and Burgh aforesaid de jure debuerunt molere ad praed ' septem molend ' aliqua sive aliquod eorum omnia omnimoda grana sua infra Mess ' praed ' expendit ' ac solvere pro molitura inde rationab tolnetum And whereas the said Chapman the day aforesaid diu antea was Occupier of an antient Messuage within the Mannor and Burgh aforsaid the said Chapman the 2 of November c. Erected a certain Mill within the Mannor and Burgh aforesaid and within his said Messuage wherewith he did grind divers viz. 1000 Bushels of Malt which he spent in his said House by Reason whereof the said Flexman lost the benefit of the Tall of the said Malt which he should have had ad damnum c. The Defendant pleaded not Guilty and a Verdict was found Plaintiff and Judgment that he should Recover in B. R. And the Error now insisted upon was That the Plaintiff had not set forth any Title in his Declaration to the Toll or any Custom or Prescription for the Inhabitants of those antient Houses to bring their Corn to be ground there But the Opinion of all the Court the Judgment given in the Kings Bench was affirmed for t is sufficient to say in this possessory Action that during the time aforesaid he had and ought to have the Toll and that the Inhabitants debuerunt molere vide the Case of Dent and Oliver in 2 Cro. 43.122 vide Rastall Tit. molin ' in Action sur le Case fol. 90. F. N. B. 123. for an antient Water-course said currere consuevit Note That of Rastall cited by Pollexfen
Chief Justice t is said that the Inhabitants a toto tempore praedicto molere consueverunt and the Prior and his Predecessors are alledged to be seised of the Mill time out of mind so that that President does not seem to warrant the Judgment in this Case Sarsfeild versus Witherly FRancis Sarsfeild brought an Action upon the Case against Hamond ' Witherly in the Kings Bench wherein he declared to this effect Cum Civitas Paris in regno Franciae est tempore c. fuit antiqua Civitas Cumque etiam Civitas London in hoc regno est à toto tempore c. fuit antiqua Civitas Cumque etiam duplex usantia in aliqua billa excambij mention in t ' mercatores al' person ' apud Paris praed ' residen ' negotian ' commercium haben ' mercat ' al' person ' apud London praed ' residen ' c. appunctuat ' fore solut ' apud London praed ' acceptat ' est à toto tempore c. acceptat ' fuit per spatium duorum mensium a dat' hujusmodi primae Billae Excambij Cumque etiam apud London praed ' viz. in paro eh c. existit età toto tempore c. habebatur antiqua consuetudo in t ' mercatores al' person ' apud Paris praed ' residen ' negotian ' mercatores al' person ' apud London praed ' residen ' negotian ' viz. quod si aliquis mercator sive al' persona apud Paris praed ' residen ' negotian ' fecerit primam Billam Excambij pro aliqua denar ' summa alicui al' mercator ' sive al' personae apud London praed ' residen ' negotian ' direxit requisivit ad duplicem usantiam hujusmodi primae billae Excambij secunda minime solut ' ad solvend ' alicui al' mercat ' sive al' person ' vel ordini suo aliquam denar ' sum pro valore recept ' de hujusmodi mercator ' sive al' persona cui vel cujus ordini hujusmodi denar ' summa per hujusmodi prim ' billa ' Excambij appunctuat ' fuit solvendum ante solutionem satisfactionem inde per Indorsamentum in scriptis manu sua propria subscript ' indorsat ' super hujusmodi primam billam Excambij ordinavit hujusmodi denar ' sum ' solvi ordim alicujus alij mercator ' in hujusmodi indorsament ' nominat ' valore recepto de illo Et ' si hujusmodi mercator sive al' persona cui vel cujus ordini hujusmodi denar ' summa per hujusmodi indorsament ' appunctuat ' fuit solvend ' per secund ' indorsament ' super hujusmodi primam billam Excambij ordinavit hujusmodi denar ' summ ' solvi ordini alicujus alij mercator ' sive al' personae ac si post hujusmodi seperal ' indorsament ' notitiam inde dat' hujusmodi mercator sive al' personae cui hujusmodi prima billa Excambij sic fuit direct ' quod ille non solveret hujusmodi denar ' summam hujusmodi mercator ' sive al personae cui per hujusmodi secundum indorsament ' praedicta solutio inde appunctuat ' fuit sed pro defectu solutionis hujusmodi mercator sive al' persona in hujusmodi secundo indorsamento nominat ' ad finem duorum mensium à dat' hujusmodi primae billae Excambij protestare sive protestari causaret secund ' praed ' consuetud ' mercator ' hujusmodi primam billam Excambij Et si post hujusmodi protestationem hujusmodi mercator sive al' persona in hujusmodi primo indorsamento nominat ' solveret satisfaceret hujusmodi mercatori sive al' personae in hujusmodi secundo indorsamento mentionat ' hujusmodi denar ' summam in prima billa Excambij content ' quod tunc hujusmodi mercator sive al' persona qui hujusmodi primam billam Excambij fecerit onerat ' onerabil ' existit per consuetud ' ad solvend ' hujusmodi denar ' summam hujusmodi mercatori sive al' personae cui solutio inde per hujusmodi primum indorsamentum appunctuat ' fuit Cumque etiam praed ' Hammond Witherly die c. apud Civitat ' Paris praed ' apud London praed ' in Parochia Warda praed ' residens negotians Mercator ibid. existens eodem die c. Stilo novo apud Paris c. secundum consuetud ' mercator ' praed ' fecit quandam primam suam billam Excambij manu sua propria subscript ' geren ' dat' c. cuidam T.W. in parochia Warda praed ' residen ' negotian ' direct ' per eandem requisivit praed ' T. W. ad duplicem usantiam dictae suae primae billae Excambij secunda sua minime solut ' existen ' ad solvendum cuidam W. Ellis sive ordini plenam summam septuaginta quatuor librarum pro valore recept ' quam quidem billam postea ante finem duarum mensium à dat' ejusdem scilicet die c. apud c. praed ' W. Ellis per indorsamentum manu sua propria subscript ' indorsat ' secundum consuet ' c. ordinavit praed ' septuaginta quatuor libras fore solut ' ordini praed Francisci Sarsfeild mercator ' adtunc ibidem existen ' c. valore de illo c. idemque Franciscus ante solutionem Billae praed ante finem duorum mensium a dat' c. scilicet die c apud London ' c. per secundum indorsamentum manu sua propria subscript ' super illam primam Billam excambij secund ' praed ' consuetud ' ordinavit praed ' 74 l fore solut ordini cujusdam Johannis Comin mercat ' adtunc ibidem existent ' quod de praed ' seperal ' indorsament ' praed ' Tho. W. postea scilicet die c. apud L. praed ' noticiam habuit Et praed ' Franciscus Sarsfield in facto dicit quod praed ' T. W. à fine duorum mensium à dat' c. seu hucusque non solvit praedict ' Johanni Comin praed ' 74 l quod pro defectu solutionis praed ' J C. ad finem duorum mensium à dat' c. scil ' die c. apud L. praed ' in Paroch c. protestavit seu protestari causavit praed ' primam Billam excambij secund ' confuetud ' c. ulterius in facto dicit quod ipse idem Franciscus postea scil ' 20 die Septembr ' Anno 1681. apud L. c. solvit praefat ' Johanni Comin praedict ' septuagint ' quatuor libras ratione quorum quidem praemiss consuetud ' praed ' p̄d ' Hamond Witherly onerat ' onerabil ' est per consuetud ' praed ' onerab ' onerat ' esse consuevit ad solvend ' praefat ' Francisco praed ' sum ' 74 l in praedict ' prima