Sr Peyton Ventris Kn t. Late one of the Justices of the Court of Com̄on Pleas. I Royly pinx H White sculp THE REPORTS OF Sir Peyton Ventris Kt. Late One of the JUSTICES of the common-COMMON-PLEAS In Two Parts The First PART Containing Select CASES Adjudged in the Kings-Bench in the Reign of K. CHARLES II. WITH Three Learned ARGUMENTS One in the Kings-Bench by Sir Francis North when Attorney General and Two in the Exchequer by Sir Matthew Hale when Lord Chief Baron With Two TABLES One of the Cases the other of the Principal Matters The Second PART Containing choice CASES Adjudged in the Common-Pleas in the Reigns of K. CHARLES II. and K. JAMES II. and in the Three first years of the Reign of His now Majesty K. WILLIAM and the late Q MARY while he was a JUDGE in the said Court With the Pleadings to the same ALSO Several CASES and PLEADINGS thereupon in the Exchequer-Chamber upon Writs of ERROR from the Kings-Bench Together with many remarkable and curious Cases in the Court of Chancery Whereto are added Three exact TABLES One of the Cases the other of the Principal Matters and the third of the Pleadings With the Allowance and Approbation of the Lord Keeper and all the Judges LONDON Printed by the Assigns of Richard and Edward Atkyns Esquires for Charles Harper and the Flower-de-Luce and Iacob Tonson at the Judges-Head both over against St. Dunstan's Church in the Fleetstreet MDCXCVI WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Publick 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-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 1695. THE FIRST PART OF THE REPORTS OF Sir Peyton Ventris Kt. LATE One of the Iustices OF THE common-COMMON-PLEAS CONTAINING Select CASES Adjudged in the COURT of Kings-Bench in the Reign of King CHARLES II. WITH THREE LEARNED ARGVMENTS One in the Kings-Bench by Sir FRANCIS NORTH when Attorney General And Two in the Exchequer by Sir MATTHEW HALE when Lord Chief Baron With Two exact TABLES One of the Cases the other of the Principal Matters With the Allowance and Approbation of the LORD KEEPER and all the JUDGES LONDON Printed by the Assigns of Richard and Edward Atkyns Esquires for Charles Harper at the Flower-de-Luce and Iacob Tonson at the Judges-Head both over against St. Dunstan's Church in the Fleetstreet MDCXCVI TO THE READER THE Name of the Reverend and Learned JUDGE who was the Compiler of these REPORTS will be a sufficient Invitation to the Understanding Reader not only to cast his Eye upon but seriously to peruse them And as my Lord Coke in his Commentary upon Littleton fol. 249. b. says That for the most part the latter Resolutions and Judgments are the surest and therefore best to Season Students with at the Beginning both for the settling of their Judgments and retaining of them in Memory and easier to be understood than the Ancient So it is to be hoped that these following REPORTS Collected with Care Diligence and Experience by the Learned Author thereof will fully answer these Directions given by that before-mentioned Famous Lawyer The Author of these REPORTS was so Eminent in his Profession of the LAWS that should I presume to give a Character of him it would come very short of His great Worth and therefore I shall only commend him to the Courteous Reader where he will find his own Character given by himself Vale. THE NAMES OF THE CASES IN THE FIRST PART A ABram v. Cunningham p. 303 Adams v Guy 109 Amhurst's Case of Grays-Inn 187 Anger v. Brewer 348 350 Anonymus's 2 3 4 5 9 10 11 12 13 17 18 20 21 24 26 28 31 32 33 34 37 38 39 40 41 42 43 45 46 48 49 51 53 54 55 59 60 61 63 65 69 71 74 75 87 89 92 93 98 100 105 107 108 109 111 114 115 117 120 126 127 132 133 135 142 143 146 165 166 191 211 212 213 214 222 233 234 236 239 247 248 249 252 253 256 257 258 259 261 262 264 265 266 267 268 272 274 276 292 293 295 296 298 306 308 309 310 315 323 325 327 328 329 330 331 332 333 335 336 337 338 343 344 345 346 348 349 350 352 353 355 356 357 359 361 362 366 367 369 Astree v. Ballard 315 Atkyns Sir Robert v. Holford Clare 399 Auberie v. James 70 Aubin St. v. Cox 180 Austin's Case 183 Austin's Katharine Case 189 B BAins versus Biggersdale 5 Baker v. Bulstrode 255 Baker v. Bakers 313 Baldway and Ouston 71 Baltinglasses Lady Case 64 Barber v. Fox 159 Barkly v. Paine 28 Barnard v. Mitchel 114 126 Barnes v. Bruddel 4 Barnes v. Hughes 8 Barrett v. Milward al' 75 Bateman 's Sir Anthony Case 166 Bates 's William Case 41 Batmore Vx ' v. Graves 260 Bayly v. Murin 244 Beasly 's Case 301 Bedniff Vx ' v. Popli Vx ' 220 Bell v. Thatcher 275 Bellew Monsieur Norman sen ' Norman jun ' 254 Bernard v. Bernard 72 Berry v. Bowes 360 Best v. Yates 268 Billingham and Vavasor 6 Biron 's Lord Case 100 Blackamore v. Mercer 221 Blackman 's Case 304 Blake v. 240 Bolton v. Cannon 271 Bosvile v. Coates 58 Bourne v. Mason al' 6 Bovye 's Sir Ralph Case 193 211 217 Bradnox 's Case 195 Braithwaite 's Case 19 Brell v. Richards 165 Brown 's John Case 243 Brown v. London 152 Brown v. Wait 299 Bulmer v. Charles Pawlet Lord St. John 160 Burfoot v. Peale 262 Burgen 's Thomas Case 13 Burrough 's Case 305 Burwell 's Case 48 Butcher v. Cowper 183 C CAptain C 's Case 250 Cabell and Vaughan 34 Calthorpe v. 108 Cartwright v. Pinkney 272 Castilian v. Platt 190 Catterel v. Marshal 99 Chester v. Wilson 78 Chesters Lady Case 207 Clarke v. Phillips al. 42 Clarke 's Case 327 Clayton v. Gillam 363 Clerke v. Cheney 13 Clipsham v. Morris 9 Clue v. Baily 240 Cole v. Levingston 224 Colepepper 's Case 349 Collet v. Padwel 93 Collingwood v. Pace 413 Cooke v. Fountain 347 Coriton Sir John and Harvey versus Lithby 167 Cotton Sir Robert v. Daintry 29 Cousin 's Case 69 Cox v. Matthews 237 239 Crawfoot v. Dale 263 Crispe and Jackson v. The Mayor and Commonalty of Berwick 58 90 Crosse v. Winter 22 Crossing v. Scudamore 137 Curtis al' v. Collingwood 297 Curtis v. Inman 364 Cuts v. Pickering 197 D DAcon 's Case 107 Dacres v. Duncomb 235 Davenant v. The Bishop of Salisbury 223 Davis v. Wright al' 120 Davis v. Price 317 Davison v. Hoslip 152 Day v. Pitts 10 Day v. Coppleston 356 Dean and Chapter of Durham v. The Lord Archbishop of York 225 Debt 233 Denison v. Ralphson 365 Dier v. East 42 146
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
words in Latin and this pursuant to the Statute of E. 3. which requires that their legal Proceedings should be in Latin and if the words were not so Elegant yet they would serve in an Information c. where 't is rather chosen to put in words agreeable to the phrase of the Law than to Tully's Orations And so the Court Wild being absent delivered their Opinions for the King but took time to set the Fine and immediately Committed the Defendant who before was upon Bail as the course is when Judgment is given altho' no Fine was set Anonymus IT was said by the Court upon an Indictment against one for Refusing to take an Apprentice bound by the Churchwardens and a Justice of Peace according to 43 Eliz. that in such case a man cannot be Compelled to accept an Apprentice Pagett versus Dr. Vossius TRin. 26 Car. 2. Rot. 583. In an Ejectment upon a Special Verdict the Case appeared to be thus Dr. Brown by Will Devised certain Lands to Dr. Vossius the Defendant a Dutchman during his Exile from his Country and if it should please God to restore him to his Country or that he should dye that then the Lands should go to the Lady Mary Heveningham in Fee who was the Lessor of the Plaintiff It was found that at the time of making the Will and the Death of Dr. Brown there was War between England and the States General and that the Doctor was fallen into Displeasure with the States and that they had taken a Pension from him of 140 l per annum and that by reason thereof he came over But did not find that he was Exiled by any Act of State and that the War was now ceased and that the Doctor might Return if he pleased but it did not find that they had restored him to his Pension c. After divers Arguments on both Sides this Term Judgment was given for the Defendant by the whole Court For they said there was a Voluntary and Compulsary Exile and in regard he was not Exiled by any Publick Edict the Will must be understood of a voluntary absence from his Country And the Jury found that those Matters which drove him away did still continue viz. The depriving him of his Pension Nota Exilium is a word known in our Law viz. When Villains by hard Usage are constrained to depart from the Mannor And if it be Objected That this durante Exilio is a void Limitation as being of unknown sense in our Law 't is still against the Lessor of the Plaintiff and then she cannot claim until the Doctor 's death and in the mean time the Discent must be to the Heir at Law Exilium quasi ex solo that is as if it had been said During his absence from his Country The King versus Plume HE was Indicted upon the Statute of the 5th of the Queen for that he had set up used and exercised Artem Mysterium sive Manual occupationem Pomarii Anglicè of a Fruiterer being a Trade Mystery or Manual occupation used in this Kingdom the 12th day of January Anno Eliz. 5. in which Trade the said Plume was not brought up by the space of Seven years c. And to this the Defendant Demurred For that it hath been held that the Statute extends not to every Trade but to such an one as requires Art and Skill and therefore not to a Hemp-dresser as in the 1 Cro. so in 2 Bulstrode 188. nor to a Pippinmonger as in 1 Roll's Rep. 10. And so a Gardiner hath been Resolved not to be within the Act in the 14th of this King The Indictment was for the Trade of a Barber but no Judgment given but others said That in that Case Judgment was for the King On the other side it was said That the Question here is not of those which sell Apples in Stalls but the Trade of a Fruiterer is well known and they are Incorporated in London and there requires much Skill in Sorting of Fruit and in judging the durableness thereof But the Court inclined for the Defendant But being informed by the Counsel for the King that there were many Presidents it was adjourned Postea Harrington's Case HArrington was again brought up and the Court fined him a Thousand pounds and awarded that he should recant the words in such words as the Court should direct and to find Sureties for his Good behaviour for seven years after which he produced a Writ of Error returnable before the Lords then Sitting in Parliament and prayed that it might be allowed and that he might be admitted to Bayl. The Court said that they allowed the Writ but would advise whether they should Bayl him or no and so remanded him to Prison Anonymus IN an Assault Battery and Wounding the Plaintiff after Verdict moved the Court for an encrease of Damages the Court said they could not do it if the word Maihemavit was not in the Declaration Clarkes Case UPon an Habeas Corpus to the Mayor c. of London a Custom was returned to Disfranchise and commit a Freeman for speaking opprobrions words of an Alderman The Court said they might Fine in such Case but the other Custom would not hold notwithstanding the Act of Confirmation of their Customs Termino Paschae Anno 30 Car. II. In Banco Regis Anonymus IN Trespass of Battery by Baron and Feme for beating of them both Vpon Not guilty the Verdict was for so much Damage for beating the Husband and so much for beating of the Wife The Court said upon a motion to Arrest the Judgment that the Plaintiff might release the Damages for beating of himself and take Judgment for the other The King versus Mead. AN Information was brought against him upon the Statute of 17 Car. 2. which restrains Non conformist Ministers from Inhabiting within five miles of any City Town Corporate or Burrough that sends Burgesses to Parliament c. After Verdict for the King it was moved in Arrest of Judgment First That the place of his Habitation was alledged to be within five miles of London but it was said that London sent Burgesses to Parliament which not being in the Record the Judges were not to take knowledg of Sed non allocatur For the last words of sending Burgesses to Parliament shall be referred only to Burroughs and therefore the Act restrains them from dwelling in Corporations c. tho' such Corporations as send no Burgesses Secondly It is alledged that the Town where the Defendant dwells is within five miles but not that the place of his Habitation in that Town was so and therefore may he intended to be more remote Thirdly There wants vi Armis Sed non allocatur Sed Judicium pro Rege Termino Sanctae Trinitatis Anno 30 Car. II. In Banco Regis MEmorandum This Term Sir Richard Rainsford was removed and Sir William Scroggs one of the Justices of the Common Pleas was made Lord Chief Justice of the Kings Bench.
of the Proceeding after delivery of the Writ but the place only expressed where the Writ was delivered they thereupon overruled this Specious Exception Post Anonymus ONe A. B. was indicted of High Treason in Conspiring the death of the King and was brought to his Tryal at the Bar this Term and one D. being produced a Witness against him the said A. B. excepted against him for that the said D. had been Outlawed of Felony and Burned in the Hand and produced the Record The Witness to clear himself thereof produced the Kings Pardon whereby he was pardoned of the said Crimes Outlawry c. The Prisoner still objected that the Pardon did not restore him to his Credit and that notwithstanding he was no legal and competent Witness and prayed that he might have Counsel assigned him to argue the Point which was granted And the Court having heard his Counsel and conceived some doubt in the Matter they desired Mr. Justice Raymond to consult with the Judges of the Common Pleas to which Court Raymond immediately went and at his return reported to this Court the Opinion of the said Judges to be that he might be Sworn But if a Man convicted of Perjury were afterwards pardoned yet that would not enable him to be a Witness because it seemed to be an injury to the People to make them subject to the Testimony of such an one Vid. Hob. 81. a Pardon takes away poenam reatum so D. was Sworn Colepeppers's Case HE was indicted of High Treason for Raising Rebellion in Carolina one of the Kings Foreign Plantations in America whereupon he was this Term Tried at the Bar and acquitted Note By 35 H. 8. cap. 2. Foreign Treasons may be either tried by Special Commission or in the Kings Bench by a Jury of the County where that Court Sits Vid. Co. 1 Inst 261. b. Anonymus UPon a Tryal at Nisi prius at Guildhal before my Lord Chief Justice North in Trover and Conversion against an Executor de son tort ' The question came to be Whether the Goods having been taken in Execution upon a Judgment obtained against the Defendant by a Creditor of the Deceased should discharge him against the Plaintiff who brought this Action as Administrator And the Opinion of the Chief Justice was that this Execution was a good Discharge against another Creditor that should Sue him to whom he might plead Riens inter ses mains but it was no Discharge against an Administrator for Men must not be encouraged to meddle with a personsal Estate without Right but to prevent this mischief where the Party dies Intestate and there is contest about the Administration a Man may procure of the Ordinary Letters ad Colligendum Termino Sancti Michaelis Anno 32 Car. II. In Banco Regis Anonymus THe Statute of 43 Eliz. cap. 2. that enables Justices of Peace where a Parish is unable to provide for their Poor to Tax the neighbouring Parish the words being any other of any other Parish It was resolved that the Justices might impose the charge upon any of the Inhabitants of the neighbouring Parish and were not obliged to put a general Tax upon the whole Parish Anger versus Brower A Prohibition the Plaintiff declared upon an Attachment that at such a day and place he delivered the Writ to the Defendant and that he had prosecuted the Suit in the Court Christian since and upon Judgment by Nihil dicit and upon a Writ of Enquiry 100 l Damages were found and Judgment given and a Writ of Error brought The Error assigned was that the Plaintiff had laid no Venue where the Suing was since the Writ delivered which was the cause of Damage and not the delivery of the Writ so that place would not serve On the other side it was said that the Presidents were generally this way But to that the Court said that where those Presidents were there was no further Proceeding after Judgment as there seldom was when there was Judgment by Nihil dicit but here they reversed it for this Error Ante. The Case of the City of London concerning the Duty of Water Bailage THe Mayor and Commonalty of London brought an Indebitat ' Assumpsit against A. B. for 5 l for so much due to them for divers Tons of Wine brought from beyond the Seas to the Port of London at Four pence per Ton. Vpon Non Assumpsit pleaded and Trial at Bar divers Freemen of London were offered as Witnesses for the Plaintiff But the Counsel of the other side excepted to them for that they were Parties the Commonalty of London comprehending all the Freemen and likewise Interested On the other Side it was said that their Interest was in no sort to be considered it being so very small and remote a small Legatee hath been sworn to prove a Will In an Indictment against the County for not Repairing of a Bridge one of the County may be a Witness and this Justice Dolben said he had known in the Case of Peterburgh Bridge In a Robbery sur Statute de Winton the Plaintiff shall be Sworn a Witness and that for Necessity But it was Replied that there was no Necessity for they might have other Witnesses besides Freemen tho' perhaps with difficulty In an Action against the Hundred upon the Statute of Winton an Hundred or cannot be a Witness Scroggs Chief Justice Dolben and Raymond were of Opinion that they were Witnesses Jones contra And a Bill of Exceptions was tendred by the Counsel for the Defendant which the Court profered to Seal and to allow three or four days time to Draw it up But afterwards the Plaintiffs Counsel offered other Witnesses and set by their Citizens but the Verdict went for the Defendant Note It was said that the Lord Mayor could not Release the Action but under the Common Seal and that for a Duty or Charge upon a Corporation every particular Member thereof is not liable but Process ought to go in their Publick Capacity Note A Sheriff was ordered to attend the Court for demanding an excessive Fee for the execution of an Hab ' fac ' possess the Court saying there was none due Anonymus A Prohibition was granted to the Consistory Court of the Bishop of London for Citing one for calling of her Whore because such words by the Custom of London are punishable in the Courts of Law there Anonymus IF the Plaintiff dies after the Term began tho' before Judgment Entred yet Judgment may be Entred because every Judgment relates to the first Day of the Term. Anonymus A Motion was made to quash an Inquisition taken before the Coroners super visum corporis of one that killed himself which found that he was Felo de se But the Court were Informed that the party was Non compos mentis and that there had been an undue Practice by the Coroner of both which great Proof was made and upon that it was quashed Note The Court said that if the Body
usque diem martis prox ' post tres septiman ' Sanct ' Michael de audiend ' inde Judicio suo quod iidem Justic ' hic inde nondum c. Bockenham versus Thacker IN an Action upon the Case the Plaintiff declared that J. S. was indebted in a sum of Mony to the Plaintiff not exceeding 12 l and that the Defendant as he the Defendant said was indebted to J. S. in 12 l or there about That the Defendant in consideration that the Plaintiff at his request would procure an Order from J. S. in writing to the Defendant for payment of the Mony which the Defendant owed J. S. or any part thereof to the Plaintiff he promised to pay the Mony according to such Order The Plaintiff avers that he procured such Order from J. S for the Defendant to pay him 5 l which he shewed to the Defendant and the Defendant refused to pay c. The Defendant demurs generally to the Declaration Levinz for the Defendant argued that it was no sufficiently set forth that the Defendant was indebted to J. S. and if not there was no consideration Cur ' contra for it must be intended that he was indebted for 't is set forth that the Defendant said so but if not the procuring the Note at the Defendants request by the Plaintiff was a sufficient consideration It was Objected further that the Plaintiff had not alledged that he procured the Note at the request of the Defendant as the agreement was and for that 3 Leon. 91. was cited in consideration that he should repair such part of the House at his request it was held naught for not laying the repairing to be done at request Sed non allocatur for it shall be intended to have been done at request and so is Bretton and Boltons Case 3 Cro. 246. 2 Cro. 404. Berisfords Case and Poynters Case 1 Cro. Sed Nota All those Cases are after Verdict and so is the above cited Case See more of this Case afterwards Termino Sancti Michaelis Anno 1 W. M. In Communi Banco SErjeant Trinder moved the Court to set aside a Verdict recovered in an Action for the mesn Profits after a recovery in an Ejectment shewing that the Defendant in the Ejectment had brought another Ejectment since and recovered so that the first recovery was disaffirmed and therefore there ought to have been no recovery for the mesn Profits but the motion was denied by the whole Court Leigh versus Ward DEbt upon a Bond the Condition was to perform an Award and the Defendant pleaded that the Arbitrator made no Award The Plaintiff replied that after the Bond entred into and before the time set in the Condition for making of the Award scilicet tertio die Novembris anno c. per quoddam Scriptum suum arbitr ' adtunc ibidem fact ' c. and so sets forth the Award upon which the Defendant demurred because no place was mentioned where the Award was made Tremain for the Plaintiff said that the adtunc ibidem should refer to the place mentioned in the Declaration where the Bond was made Cur ' contra The adtunc ibidem cannot be referred to the place in the Declaration and there is no place mentioned in the Replication Whereupon Iudgment was given for the Defendant Memorandum Mr. Justice Eyres came to this Court at the desire of the Court of Kings Bench who were trying of a Cause at the Bar to know the Opinion of the Court of Common Pleas upon this Question An Infant who was a party to the Ejectment that was upon trial had answered a Bill in Chancery by his Gardian whether that Answer could be read in Evidence against the Infant And the Opinion of the whole Court was that it could not be read for it is not reason that what the Gardian swears in his Answer should affect the Infant Blake versus Clattie TRespass Quare clausum fregir diversa onera equina of Gravel had carried away per quod viam suam amifit After Verdict it was moved in Arrest of Judgment that the diversa onera equina was incertain and then mentioned the loss of his Way and had set forth no Title to the Way nor set forth any certainty of it It was said on the other side that the Incertainty was aided by the Verdict and the other Matter about the Way was only laid in aggravation of Damages But the Court held the Exceptions material and thought it would be very inconvenient to permit such a Form of putting in of a Way to a Declaration in Trespass Anonymus IN an Action of Debt for Rent the Plaintiff declared in Michaelmass Term last and laid the Demise to be Anno primo Jacobi Secundi Regis The Defendant pleaded Nil hab ' in Tenementis and the Plaintiffs Attorney delivered a Copy of the Issue where the Demise was laid Anno primo Regis nunc and so the Nisi prius Roll was at first but it was observed that the Plaintiffs Attorney had amended it but gave no Notice thereof to the Defendants Attorney nor delivered him a new Copy of the Issue and so went to Trial which proceeded the Nisi prius Roll being right and a Verdict was found for the Plaintiff And it was moved by Serjeant Rotheram that there should be a New Trial granted for the Defendant was surprized to find the Record right when they had a wrong Copy of the Issue But it appearing to the Court that the Defendant notwithstanding proceeded in his Defence and the Verdict was after a long Evidence that the Court would not set it aside but ordered the Plaintiffs Attorney to attend for the undue Practice in making of an Amendment in such manner Bailes versus Wenman IN an Ejectment upon a Special Verdict the Case appeared to be thus That Articles of Marriage were made between the eldest Son and Heir apparent of the Defendant and Martha one of the Daughters of one William Nailor whereby the Defendant was to settle the Lands in question upon the Lessor for his Life and after his decease upon Martha for her Ioynture with a Proviso that the Lessor should make a Lease of the Premisses to the Defendant for 99 years if the Defendant and Susan his Wife should so long live and that Susan died before the Lease made to the Plaintiff So the only Question was Whether the Lease for 99 years determined by the Death of said Susan The Court upon the first opening without Argument were all of Opinion that it did determine and Ordered Judgment to be Entred for the Plaintiff 5 Co. 9. in Brudnell's Case Daniel and Waddington 2 Cro. 378. Vide Dyer 67. and 1 Inst 225. a. Trupenny's Case Vide Anderson 151. A Lease made to two for their Lives absque impetitione vasti durant ' vitis of the Lessees and held that this Priviledge would hold to the Survivor for 't is reasonable to give the Priviledge as large a Construction as
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
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
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-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
Award After nullum fecere Arbitrium pleaded The Plaintiff replies and sets forth That they submitted to the Award of 4 so that they made it by the 16th of Nov. and signified it under the Hands and Seals of two of them and then alledges the Award under two of their Seals to which the Defendant demurred conceiving the Award to be void because the submission was to four But the Court gave Iudgment for the Plaintiff according to the Cases in 2 Cro. 276. and 400. Anonymus IN an Indictment for the using of a Trade contrary to the Statute of 5 Eliz. It was said That to keep a Shop within a Country Village was not within the Statute and it were very inconvenient that the Inhabitants must go to some great Town upon every occasion And it was also Juratores dicunt super Sacramentum suum and not adtunc ibidem jurati If a Statute appoints an Indictment to be taken at the Quarter Sessions the Caption must be Entred ad Quaterial ' Session ' c. for ad General ' Session ' pacis will not serve Jackson versus Gabree JAckson took out a Capias ad satisfaciend ' against Gabree and his Wife the Gaoler lets the Husband escape The Court was moved that the Wife might be discharged alledging that the Husband took no care of her but let her lie there in a very necessitous Condition They were doubtful what to do in it at the first motion but did afterwards resolve That unless the Plaintiff would get the Husband taken again as he might do they would discharge the Wife and they said the Escape of the Husband was the Escape of the Wife Anonymus AN Infant brought an Assumpsit by his Guardian and declared That whereas the Defendant entred into his Close and cut his Grass that in consideration that he would permit him to make it Hay and carry it away he promised to give him six pounds for it and he also declared for six pounds Debt more that he ought him Vpon this Declaration the Defendant demurred supposing it to be no Consideration for the Infant was not bound by his permission but might Sue him notwithstanding and then the promise to pay six pounds Debt was not good because not declared how indebted But the Court gave Iudgment for the Plaintiff Sir Henry Frederick Thynne versus Sir James Thynne PAsch 13 Car. 2. B.R. Rot. 448. Vpon a Special Issue directed out of Chancery the Case was thus One was seized in Tayl of the Mannor of B. and of two Closes which in reality were not part but reputed part thereof and suffered a Recovery only of the Mannor with the Appurtenances and whether the Recovery was a Bar as to the two Closes was the Question And in the 16 year of this King it was resolved by all the Court and Hide Chief Justice delivered the Opinion of the Court That the Lands reputed parcel of the Mannor should pass by reason of the Deed of Covenants to lead the uses which explained the intent Dier 223. 1 Cro. Sir George Symond's Case Hob. 177. Dier 376. Long 5 to E. 4. 303. 6 Co. Sir Moyle Fynch's Case Modern Rep. 250. Termino Sancti Hillarij Anno 21 22 Car. II. In Banco Regis Wilbraham versus Snow IN an Action of Trover the Plaintiff declares That he was Owner and possessed of certain Goods and sets them forth particularly and that they came to the Defendants Hands who converted them c. The Defendant pleaded Not guilty and the Jury find this Special Verdict That the Plaintiff was Sheriff and that he took the Goods into his Possession by force of a Fieri facias and that the Defendant who was also Defendant in the Execution took them away And then they demand the Iudgment of the Court if the Plaintiff could maintain this Action It was said that he might Because he was answerable over to the Plaintiff in the Execution at whose Suit he took them and could not return that they were taken away And if he returns that he hath taken Goods sufficient and after looses them he is bound to answer the value as returned A Bailée of Goods shall bring Trespass quare bona sua cepit And Rolls 5. a Carrier from whom Goods are taken may bring Trover But it was argued on the other side That the property is in the Defendant notwithstanding the seizure Dier 99. a. and Yelverton 44. And the Sheriff had but an Authority in Law to Sell as Commissioners of Bankrupt have of the Estate of the Bankrupt per 13 Eliz. 7. or Executors upon a Devise that they shall Sell Land c. but Trespass he might bring because of the Possession but Trover cannot be maintained without property But the Court held that the Action was maintainable And that the reason was the same as in the Case of the Carrier and also held that the Defendants Property ceased by the Seisure And also that if a Man becomes a Bankrupt after that the Commissioners have granted over his Goods he cannot meddle with them 1 Cro. 106. So by the Opinion of Keeling Rainsford and Moreton haesitante Twisden Iudgment was given for the Plaintiff Gavell and his Wife versus Burket AN Action was brought for these Words spoken of the Wife You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen and Declared of a Special Damage The Jury gave a Special Verdict and found the Words spoken but not the Damage as the Plaintiff had Declared Now whether the Words were Actionable of themselves was the Question And it was Agreed that no Action would lye for calling one Bawd or Pimp 1 Cro. 286 Dimock's Case Rolls 44. pl. 10. But to say one keeps a Bawdy-house it will lye 27 H. 8. 14. an Indictment lies for Keeping of a Bawdy-House because it is a Common Nusance but here the subsequent words expound in what sense the former words should be taken that is To bring Gentlewomen to Gentlemen for Bawdry which is as much as keeping a Bawdy-house and 1 Cro. was cited where Judgment was given for these words Thou keepest a House worse than a Bawdy-house and keepest a Whore in thy House And in 3 H. 7. it is said that Constables ought to apprehend Bawds But the Court inclined that the Action would not lye for a Bawd was not punishable in our Law unless for Keeping of a Bawdy-House it being a Crime of Ecclesiastical Conusans Sed Adjornatur Thomlinson versus Hunter TRespass Quare clausum fregit arbores succidit ad valentiam decem librarum 5 Co. Player's Case To which the Defendant Demurred generally The Plaintiff prayed Judgment for Breaking of his Close but as to the other the Declaration was Insufficient because not expressed what kind of Trees Anonymus A Writ of Error was brought upon a Judgment given in Ireland It was held that a Day ought to be given by Rule of Court to the Plaintiff to assign his Errors or else to
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
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
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
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
the Suit against one alone ought not to be as in an Assize for a Rent-charge all the Ter-Tenants are to be named and here the party has an Election to Sue a Writ of Annuity and if so be must have named all that had been chargeable Curia 'T is true in our Law it were a good Plea in Abatement but perhaps their Law and Course is otherwise And here they have Jurisdiction and may proceed according to their own Rules or if not you may have an Appeal Whereupon a Prohibition was denied Anonymus IN an Habeas Corpus and Certiorari for the Body of J. S. who had been Imprisoned for not paying of a Fine of 20 l set at the Quarter Sessions The Return was that he being Constable and demanded by the Court to Present an High-way which was sworn before him by Two Witnesses to be out of Repair said in Contempt of the Court That he would not Present it For which and certain other contemptuous words the Fine was set The Counsel for the Prisoner moved that it might be Filed Which was done The Court were of Opinion that the Fine was not well set for Constables are to Present upon their own Knowledge and the Two Witnesses should have been carried to the Grand Jury for the Constable was not obliged to Present upon their Testimony This Court is to judge of their Fines whether without Cause or to mitigate them when excessively imposed and for the Contemptuous Words the Return is ill because not expressed what On the other side it was prayed that the Return might be amended for he had spoken Opprobious Words but that could not be admitted after the Filing And so the party was discharged Anonymus IT was moved to quash an Order of Sessions for the Keeping of a Bastard Child First That it doth not appear that the Child was born within the Parish Secondly 'T is to allow so much Weekly until the Child is Eight years of Age whereas the Statute gives power to make a Weekly allowance while the Child shall be chargeable Thirdly The Order was at Eight years old to pay 5 l for the Binding of it out But the Court would not quash it for they said it was implied by saying it would be chargeable to the Parish that it was born there and 't was apparent it would continue Chargeable for so long as they appointed the Allowance and they might Order 5 l to be paid in the end Sed Quaere For a Sum in gross ought not to be set but a Weekly allowance And the Court said they must shew that respect to Justices of the Peace who served the Country at their own charge as not too nicely to examine their Orders Anonymus ERror upon a Judgment by Nihil dicit given in the Common Pleas where the Action was for Words which in the Declaration were laid thus That the Defendant said Quidam J. S. which was the Plaintiffs Name innuendo the Plaintiff was c. The Error assigned was that there was no Averment that these Words were spoke of the Plaintiff for there might be more of the name But Holt for the Defendant said the Innuendo would help that fault and he cited the Case of Rebotham and Venlecke in the 3 Cro. 378. where the Plaintiff Declared that he had made an Oath before a Judge upon certain Articles exhibited for the Good Behaviour and the Defendant to Scandalize him said He made a false Oath Innuendo the said Oath before the Judge where it was held that the Innuendo was sufficient to ascertain what Oath was meant But the Court Reversed the Judgment in this Case and said that not saying in the Declaration that the Words were spoken of the Plaintiff it was not sufficient to bring that in by an Innuendo which ought to have been Averred and it is the worse because 't is said quidam J.S. which imports another person than the Plaintiff Anonymus ERror to Reverse a Judgment given in the Kings-Bench in Ireland in a Prohibition where the Issue was Whether he had Prosecuted in the Court Christian after the Prohibition and it was found for the Plaintiff and Damages assessed to 100 l and 6 d pro misis custagiis And now the Error was assigned in the Judgment given which was That the Plaintiff should recover damna praedicta per Juratores assess ad 100 l nec non pro misis custagiis de incremento per Cur ' adjudicat ' 20 l omitting the 6 d Costs given by the Jury On the other side it was said That damna praedicta in the Judgment included all and the saying 100 l was but a Miscomputation Et Adjornatur Postea Hill 33 34 Car. 2. How versus Whitfield A Fine of certain Lands to the use of J. S. for Life and after to his Executors and Assigns for 80 years with Power to the Lessee and his Assigns to lett Leases for 21 years reserving the ancient Rent After several mean Assignments the Assignee of an Executor of an Assignee made a Lease for 21 years which in the Special Verdict was found to be made of the said Lands inter alia reserving proinde six shillings per annum and found that six shillings was the ancient yearly Rent for the Land The Court seemed to be of opinion that an Assignee after so many Removes might execute this Power for it was coupled with an Interest and annexed to the Estate tho' to be construed strictly but in regard the Lease was made of the Land inter alia reserving proinde c. in case the Reservation should be taken to be for the whole Land then it was not the ancient Rent reserved for this and upon that they doubted Et Adjornatur Postea Anonymus AN Indictment was quashed for want of Addition For the Court said no Process ought to go out thereupon because the party cannot be Outlawed Anonymus IN an Habeas Corpus the Return was that the party was taken upon an Excom ' Cap ' It was moved that the party might be discharged because upon Search it appeared that the Writ had not been Enrolled in this Court for so it ought to be by the Statute of the 5th of the Queen tho' the Writ issues out of Chancery The Court doubted whether they could Discharge him upon a Motion or that he should be driven to plead this Matter And it was said the Course had been both ways Vid. Parker's Case 3 Cro. 553. But the party was afterwards Discharged ut opinor Herne versus Brown A Prohibition was prayed to a Suit in the Ecclesiastical Court The Libel sets out That a Tax had been made for the Repairs of a Church where the Defendant inhabited and was to make him pay his proportion To which they required his Answer viz. Whether he had paid c. The Suggestion was that the party had tendred his Answer but the Court had refused it because it was not upon Oath and that the Ecclesiastical Court
Place assigned from whence the Venue should have come 348 350 No likelyhood of an Indifferent Tryal cause to change the Venue 365 Verdict See Assumpsit What Errors and Omissions are ayded after Verdict 34 100 108 109 114 126 Where a Special Verdict refers one Special Point to the Judgment of the Court all other matters shall be intended 118 After Verdict the Court shall admit any Intendment to make the Case good 123 Want of an averment of Levancy and Couchancy aided by a Verdict 165 Vse See Trust What Words and Considerations shall raise a Use 138 140 141 The use of a Fine or Recovery may be declared by a subsequent Deed 368 In Cases of Uses the Intention of the Parties ought to be pursued 373 374 378 Vsury The Statute against Usury expounded strictly in regard of Broakers 38 No Action of Debt lies for the Interest of Mony but it is to be recovered by Assumpsit in Damages 198 W. Wager of Law WHere admitted and where not 261 Indictment of Perjury will not lie upon an Oath in waging Law 296 Way High way and Private-way the Diversity and who shall repair 189 256 Whether an Indictment lies for stopping a Common Foot-way to a Church 208 Action on the Case for obstructing his way to his Wood 274 Wills A man cannot release a Debt by Will 39 Wills concerning the Guardianship of a Child and not to be proved in the Ecclesiastical Court but they may there prove a Will of Lands 207 Where Suits for Legacies given by Wills ought to be 233 The Effect of a Republication and Paroll Declaration 341 342 Witness See Evidence Statutes A Council Attorney or Sollicitor ought not to be examined against his Clyent because obliged to keep his Secrets 197 A Pardon of Felony though after burning in the Hand restores a man to be a Witness not so of Perjury 349 Whether a Freeman of a City may be a VVitness for that City 351 Writs A Fault in a Mean Process is aided by Appearance but if an Original should bear date on a Sunday the Appearance of the Party would not help it 7 Sr Peyton Ventris Kn t. Late one of the Justices of the Court of Com̄on Pleas. I Royly pinx H White sculp THE SECOND PART OF THE REPORTS OF Sir Peyton Ventris Kt. LATE One of the Iustices OF THE common-COMMON-PLEAS CONTAINING Select CASES Adjudged in the COURT of Common-Pleas in the Reigns of K. CHARLES II. and K. JAMES II. and in the Three first years of the Reign of His now Majesty K. WILLIAM and the late Q. MARY while he was a JUDGE in the said COURT With the Special PLEADINGS to the same ALSO Several CASES and PLEADINGS thereupon in the Exchequer-Chamber upon Writs of ERROR from the Kings-Bench Together with many remarkable and curious Cases in the Court of Chancery Whereto are added Three exact TABLES One of the Cases the other of the Principal Matters and the third of the Pleadings With the Allowance and Approbation of the LORD KEEPER and all the JUDGES LONDON Printed by the Assigns of Richard and Edward Atkyns Esquires for Charles Harper at the Flower-de-Luce and Iacob Tonson at the Judges-Head both over against St. Dunstan's Church in Fleetstreet MDCXCVI MVNIFICENTIA REGIA 1715 GEORGIVS D. G. MAG BR FR. ET HIB REX F. D. I. P. Sc. THE NAMES OF THE CASES IN THE SECOND PART A ADAMS v. Cross 181 Alleson v. Marsh ibid. Anonymus's 35 39 45 46 47 48 58 73 117 154 171 172 173 174 180 194 195 196 214 215 216 218 262 346 347 349 351 353 358 359 361 362 363 365 B BAiles v. Wenman 74 Barney v. Tyson 359 Bathurst 's Case 40 Baynton v. Bobbet 67 Bealy v. Sampson 90 93 Beaumont v. Weldon 155 Beversham 's Sir William Case 345 Biddulph v. Dashwood 261 Bird v. Blosse 361 Blake v. Clattie 73 Bland v. Haselrig al' 151 Blisse v. Frost 63 67 Blois Charles al' v. Dame Jane Blois and Jane Blois Infants 347 Bockenham v. Thacker 69 71 74 Bond v. Moyle 106 Bonham v. Newcomb 364 Bowyer v. Milner 57 Bracton v. Lister 84 Bright v. Addy 195 Broadhurst v. Richardson al' 349 Brown v. Rands 156 Buckler v. Millerd 107 Burchet v. Durdant 311 Bush v. Buckingham 80 83 Butler 's Sir Oliver Case 344 C CAge v. Russel 352 Carr v. Donne 189 193 Chamberlain v. Cooke 75 78 Chapman v. Flexman 286 291 Chase v. Sir James Etheridge 130 Clarke v. Peppin 97 99 Clarke v. Tucket 182 Clobberie 's Case 342 Coghill v. Freelove 209 Collet v. Collet 355 Colley v. Helyar 135 Cornwallis 's the Lord Case 38 Cooke v. Romney 173 Cramlington v. Evans and Percival 296 307 Craw v. Ramsey 1 D DAwney v. Vesey 249 Dawson v. The Sheriffs of London 84 89 Dennis v. Mazey 210 212 Dickman v. Allen 136 138 Dighton Christopher v. Bernard Greenvil 321 Dod v. Dawson 143 Dodwell the Case of and The University of Oxford 33 Dowse v. Cale 117 126 Draper Sir Thomas v. Dr. Crowther 362 E ELlis v. Yates 153 Every v. Carter 254 259 F FAgg v. Roberts al' 195 Fleet 's The Warden of the Case 154 Fowkes v. Joyce 50 G GAwden v. Draper 217 George v. Butcher 140 Godfrey v. Ward 185 Gower 's Sir Thomas Case 90 Goylmer v. Paddiston 353 Grove v. Dr. Elliot Chancellor of Sarum 41 Guldeford Major probi homines de v. Clarke 243 247 H HAnson Judith v. Liversedge 239 242 Harding 's Patrick Case 315 Harris v. Parker 249 253 270 Harrison Tho. Ux ' v. Dr. Barwell 9 Haslewood v. Mansfield 196 Haymer Vid. v. Haymer 343 Highway v. Derby 174 Hocket Ux ' v. Stegold ux ' 29 Hodges v. Waddington 360 Holland v. Lancaster 131 134 Hollis 's my Lord Case 345 Humphreys v. Bethily 198 222 K KEmp v. Cory al' 224 227 283 Killigrew v. Sawyer 79 King of Grays-Inn v. Sir Edw. Lake 28 L LAde v. Baker and Marsh 145 149 Lade v. Barker 260 266 Lawson v. Haddock 234 237 Lechmere al' v. Toplady al' 156 169 Leigh v. Ward 72 Lexington the Lord v. Clarke and his Wife 223 Littleton 's Sir Thomas Case 351 Lundy 's Colonel Case 314 M. MArks v. Nottingham 196 Marsh v. Lee 337 Mason v. Watkins 109 Massingham v. Durrant 49 Morgan v. Hunt 213 Morley v. Polhill al' 51 56 Mountague the Earl of v. The Lord Preston 170 N NEwport v. Godfrey 184 Noell v. Robinson 358 Norwood v. Woodly 193 O ONslowe 's Case 37 Otwaie 's Sir John Case 31 Oxford 's the City of Case 106 P PAge v. Kirke 36 Pawlet 's the Lord Case 366 Perrot 's Herbert Case 30 Pheasant Peter v. Anne Pheasant The Lord Mayor of London and Sir Thomas Player Chamberlain of London c. 340 Pinager v. Gale 100 Pretious v. Robinson 173 Prynne v. Sloughter 101 104 Pyne v. Woolland 176 179 R RAgget William Vx ' v. William Clarke 364 Rashly v. Williams 59 61 Reeve 's Sir Robert Case 363
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
ad eam aliqualit ' respond sed verificationem ill admittere omnino recusat pet judicium dampna sua occasione praemisso sibi adjudicari c. Et quia Justic hic se advisare volunt de super praemissis praedictis priusquam Judicium inde reddant dies dat est partibus praedictis hicusque in crastino Sanctae Trinitatis de audiend inde judicio suo eo qd iidem Justic hic inde nondum c. Blesse versus Frost IN a Trover and Conversion brought by the Plaintiff as Assignee of Commissioners of Bankrupts amongst other things he declared that he was possessed de uno Vase Anglicè Vessel Vini Hispanici and it was objected upon a Demurrer to the Declaration that it was not said what the Vessel was made of and so no measure for the Damages sed non allocatur for it is intended to be made of Wood and is used for Casks of Wine Bynton versus Bobbett IN an Action of Covenant brought in this manner viz. by Henry Baynton and the Lady Anne his Wife the Lady Elizabeth Wilmot and the Lady Mallet Wilmot against Robert Bobbet The Plaintiffs declared that whilst the Lady Anne was sole by a certain Writing bearing Date the 20th day of March in the year of our Lord 1684. sealed by the said Robert and produced in Court it was agreed with the said Robert for and on the behalf of the said Ann Elizabeth and Mallett Daughters and Coheirs of the Right Honourable John late Earl of Rochester for the passages of all Boats and other advantages of Navigation upon the River made navigable by John Mallett Esq deceased Grandfather of the Right Honourable Elizabeth late Countess of Rochester from the Bridge of Bridgwater to a certain place upon the River aforesaid called Ham Mills the benefit of which River aforesaid was granted to the said Ann Elizabeth and Mallett by the Leters Patents of the Late King bearing date by the last year of his Reign with power to chain up a Bridge made by the said John Mallett near the place in the said River called Knapps Bridge or any other place of the River aforesaid granted to the said Ladies as foresaid with power also to sue or implead in the name of the said Ladys any Person passing with Boats upon the said River without the licence of the said Robert first had and obtained he taking for every Boat that should pass below the said Knapp Bridge one shilling To have and to hold the benefit of the Passage aforesaid to him his Executors and Assigns from the 25th of March next after the date of the said Writing for three years yielding and paying for the same yearly during the Term to the said Ann Elizabeth and Mallett Wilmot the Rent of 45 l at Michaelmas and our Lady Day by equal portions The Plaintiffs further say That altho' he the said Robert had occupied and enjoyed the Passage and Premisses aforesaid the said Robert did not pay to the said Ann Elizabeth and Mallett whilest the said Ann was sole nor to the said Henry Ann Elizabeth and Mallett after the Marriage of the said Ann or to any of them the said Rent of 45 l or any part thereof and so the said Robert did not perform his Covenant but broke the same ad dampnum c. The Defendant pleaded protestando That there was no such Grant made by the King and protestando that the said River was not made Navigable by the said John Mallett Pro placito That the said River from the said place called Bridgewater-Bridge to the said place called Ham Mills supposed and pretended to have been made Navigable as aforesaid is and for time out of mind hath been an ancient and Navigable River free and common for all the Kings Subjects to pass with Boats And further saith That the aforesaid Ann Elizabeth and Mallett Wilmott at the time of the making of the said Writing or at any other time had nothing of passage of Toll in the River aforesaid whereof they could make any Demise or Grant to the said Robert per quod the said Robert could not have take or receive the advantage and profit aforesaid according to the purport of the said Writing but was wholly deprived thereof during all the time aforesaid hoc paratus est verficare and so demands Iudgment Si Actio To this the Plaintiffs demurred for that the Plea was double and that no Traverse was to the enjoyment which were the Causes specially assigned for Demurrer Pollexfen Chief Justice Powell and Rokeby held the Plea to be double Ventris contra For it is all but one matter for if the River were free for all the Kings Subjects to pass then the Plaintiffs could have no Toll or make any obstruction thereupon so that one matter depended upon the other and in such case a Plea shall not be said to be double Calf and Nevill Poph. 186. In a Scire facias against the Bail the Defendant pleaded That the Principal tendred himself to Prison before the Scire facias and died in Prison either of these matters would have served and yet the Plea not held double But all the Court resolved that the Plea was insufficient to bar the Plaintiffs First Because it was set forth in the Declaration that the Defendant had enjoyed the Passage and Profit granted and then the Rent must be paid so long if an eviction be pleaded in bar to Rent it must be Rent grown due after the eviction 20 H. 6. 22. if a Disseissor lets rendring Rent and the Disseisee enters after the Rent-day yet an Action of Debt lies for the Rent accrued before therefore the Defendant should have traversed the enjoyment Again This is not a Rent for 't is reserved out of a thing Incorporeal and an express Covenant to pay it The Mayor and Commonalty of London against Hatton Sty 357. upon a Lease of the Garblers Office and Covenant was brought for the Rent and pleaded that it could not be let but it does not appear by the Book that Iudgment was given Vid. Newton Weeks Allens Rep. 79. One reciting that he was seised of such Land granted a Rent out of it and covenanted to pay the Rent he could not plead to his Covenant that he had nothing in the Land Iudgment pro Quer ' Bockenham versus Thacker ALIAS prout patet Termino Paschae ult ' praeterit ' A Special Indebitatus Assumpsit against an Attorney Rotulo Sexcentesimo octagesimo continetur sic Memorandum quod Vicesimo octavo die Maij isto eod ' Termino venit hic in Cur ' Hugo Bockenham per Robert ' Snell Attorn ' suum exhibuit Justic ' Domini Regis hic quandam billam suam versus Pet ' Thacker sen ' un ' Attorn ' Cur ' Domini Regis de Banco hic praefentem hic in Cur ' in propria persona sua de placito Transgr ' super Casum cujus quidem Billae tenor sequitur in haec
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
these Defendants were entitled to these Costs and he that did not appear might release them to the Plaintiff but they said that if there should appear to the Covin between the Lessor of the Plaintiff and the Defendant who did not appear to release the Costs the Court supposed that they might correct such Practice when it should be made appear Bright versus Addy AN Action of Trespass Quare clausum fregit was brought by Baron and Feme Pollexfen Chief Justice was of Opinion that the Feme could not be joyned tho' it was her Land Ventris contra For this Action will survive and they have election either to joyn or to bring it alone 1 Brown l. 21. 1 Ro. Abr. 348. Hob. 189. 1 Cro. 96. 3 Cro. Tregniel and Reeve Mo. 5. In an Action of Forcible Entry upon the Wives Land after the Coverture she was joyned with the Husband Adjornatur Anonymus IN an Assumpsit against the Administratrix the Defendant pleaded quod ipsa non assumpsit instead of the Intestate After Verdict a Repleader was awarded and no Costs to either party upon a Repleader Marks versus Nottingham THe Defendant pleaded in Abatement that the Plaintiff was dead at such a place before the Action brought The Court doubted whether such Plea could be received but upon view of Rastall's Entries 161. pl. 6. where the like Plea was Powell and Ventris conceived it to be a good Plea Pollexfen Ch. Justice and Rokeby said that that in Rastall differed because there were two Plaintiffs so that Issue might be joyned with the other Plaintiff Sed vide librum where the Replication to that Plea is that W.H. praedict ' R.B. Attornat ' praed ' J. which J. was pleaded to be dead nomine pro ipso J. Magistro suo dicit quod breve praed ' ratione praeallegat ' cassari non debet quia dicit quod praed ' J. superstes in plena vita existit viz. apud L. in Com. N. non mortuus prout praed ' W. superius allegavit hoc petit quod inquiratur per Patriam praed ' W. similiter c. Adjornatur Haselwood versus Mansfield IN Debt for 150 l the Plaintiff declared upon a Charter-party which contained divers mutual Agreements and in performatione conventionum praed ' ex parte dicti Magistri ipse obligasser se dicto Mercatori in penali summa 150 l ad performationem convention ' praed ' ex parte dicti Mercator ' obligasset se dicto Magistro c. in simili penali summa 150 l c. And this Action was brought by the Master of the Ship against the Merchant The Defendant pleaded an Insufficient Plea to which there was a Demurrer But it was moved that the Declaration was Insufficient for when it comes to the Penalty on the Merchants part it is only obligasset se omitting ipse or ipse praed ' Mercator obligasset se so 't is not expresly declared that the Defendant was bound And of that Opinion were Pollexfen Chief Justice Powell and Rokeby Ventris contra For it is obligasset se dicto Magistro so none but the Merchant can be understood to be bound and if it were ipse obligasset it had been good and that is understood But Judgment was given for the Defendant Snode versus Ward IN an Indebitat ' assumpsit for Goods sold The Defendant pleaded quod ipse infra sex annos proxime ante diem impetrationis Brevis Originalis ipsius Quer ' non assumpsit To which the Plaintiff demurred 1. Because the late Statute of 1 Willielmi Mariae for reviving of Process doth Enact That the Time from the 11th of December 1688 to the 13th of February then next following should not be accounted as any part of the Time upon the Statute of Limitations And therefore the Defendant should have pleaded that he did not assume within six years and so many days as were between the 11th of December and the 13th of February And it was said so had the Pleading been ever since the said Statute But the Court Resolved that the Pleading might be still in such manner as before the Statute For the Statute is that those Days shall be no part of the time and therefore pleading non assumpsit infra sex annos is to be understood of Six years exclusive of those Days between the 11th of December and the 13th of February 2. Another Exception was taken to the Plea for that it is ante impetrationem Brevis Original ' ipsius Quer ' and doth not say praed ' brevis and so it may be referred to some other Writ the Plaintiff might have Pollexfen Chief Justice inclined that it was naught for this Cause Adjornatur Vid. 8 Co. 57. The Earl of Rutland's Case He pleads that he was seised of the Park of Clipsham and granted officium Parci sui and not said praed ' Parci and held it good Vid. 2. Cro. 288. Burton and Eyre Humphreys versus Bethily IN an Action of Debt upon a Penal Bill where the Defendant was to pay 10 s upon the 11th of June and 10 s more upon the 10th of July next following and so 10 s every three Weeks after till a certain Sum were satisfied by such several payments And for the true payment thereof the Defendant obliged himself in the Penal Sum of 7 l The Plaintiff in facto dicit pleaded that the Defendant did not pay the said Sum or any part thereof upon the several days aforesaid unde actio accrevit for the 7 l The Defendant pleaded that he paid 10 s upon the 11th of June hoc paratus estve rificare c. The Plaintiff Replyed that he did not pay it hoc petit quod inquiratur per Patriam To which the Defendant demurred The Plea was held altogether Insufficient But then Pollexfen Chief Justice observed that the Declaration was naught for he should have declared that the Defendant failed in payment of one of the Sums which would have been enough to have entitled him to the Penalty but he says The said several Sums of Money or any of them and this is double and he inclined that it was not aided by Answering over or by the General Demurrer Adjornatur Vide Saunders and Crowley 1 Ro. 112. Thompson versus Leach IN an Ejectment by Thomas Thompson against Sir Simon Leach and divers other Defendants upon the Demise of Charles Leach of the Mannor of Bulkworthy and divers Messuages Lands and Tenements Vpon Not Guilty pleaded a Special Verdict was found to this effect Viz. That Nicholas Leach was seised in Fee of the said Mannors Lands and Tenements in the Declaration and by his last Will in Writing bearing date the 9th day of December in the 19th year of the Reign of the late King Charles the Second devised the Premisses to his Brother Simon Leach for Life remainder to the first Son of the Body of the said Simon and the Heirs Males of the
that King James came to the Crown and the time is supposed to have influenced the Opinion of the Court and the Plaintiff had Iudgment After having heard the Case several times spoken to the Court gave Iudgment for the Plaintiff principally for the words that he went to Mass for by the Statute of 23 Eliz. cap. 4. the Offender is to Forfeit 100 l and he imprisoned for a year so that they expose him to Corporal Punishment It is held that to say a Man committed petit Larceny is Actionable Allens Rep. 11. The Chief Justice here said That where a Man had been in an Office of Trust to say that he behaved himself corruptly in it as it imported great Scandal so it might prevent his coming in to that or the like Office again and therefore was Actionable Note The time these words were spoken was taken notice of viz. between King James the Second's Desertion of the Kingdom and the Proclaiming of the King and Queen when to call a Man Papist would have exposed to him the danger of the Rabble whereupon Judicium pro Quer. Lade versus Parker VIde ante Termino Michal ' ult It was this Term moved again That the pleading dedit concess ' Nicholao Marsh filio suo Annuitatem praed ' habend ' praed ' Nicholao heredibus assignat ' suis ad opus usum dicti Nicholai haered ' assign ' suor ' per quod vigore Statuti de usibus in possession ' transferen ' the said Nicholas became seised c. was sufficient and the words quae quidem concessio c. quod vide ante were to be rejected as Surplusage And of that Opinion were Powell Rokeby and Ventris But Pollexfen Chief Justice held strongly to the contrary and he agreed this Deed being to the Son with an express Consideration of natural affection tho' Money was also part of the Consideration mentioned that it would work as a Covenant to stand seised But then the Parties ought to have pleaded it as a Covenant to stand seised according to the legal construction of such a Deed where there is no Execution at Law whereas here they have pleaded it as a Grant at the Common-Law The other Judges differing in their Opinion said it was sufficient to plead the Deed as it was worded and if there were sufficient matter to intitle the Avowant Iudgment ought to be given accordingly and then the Avowant concludes that he became seised by the Statute of Vses which shews he intended to take the operation of the Deed that way so Iudgment was given for the Avowant Chief Justice contra Note Serjeant Levins cited the Pleading in Foxes Case 8 Co. where the words Demise and Grant in consideration of Money amounted to a Bargain and Sale it being of an Estate for years without enrolment it was pleaded dimisit concessit ad firmam tradidit non Barganizavit Woodward c. versus Fox IN an Action sur Assumpsit for 200 l received to his use Vpon non Assumpsit a Special Verdict was found quod vide ante Term ' Trin ' ult ' and the Case this Term came to have the resolution of the Court The case upon the Special Verdict is to this effect an Arch-deacon maketh a Register of the Court belonging to his Arch-deaconry in Consideration of 100 l The Bishop of the Diocess who was also Patron to the Archdeacon supposing the Office to have been void by the Statute of 5 and 6 Edw. 6. against the Sale of Offices relating to the Administration of Iustice granted the said Office of Register to the Defendant and the said Grant was confirmed by the Dean and Chapter The Archdeacon after the Death of that person to whom he had sold the Office ut supra Grants the said Office to the three Plaintiffs for their Lives and the Life of the longer liver of them the Plaintiffs before any Office found for the King or any Record shewing the Sale of this Office obtains a Grant of it from the now King and Queen The Court were all of Opinion for the Plaintiffs The Court did not speak to two Points stirred in the case viz Whether this Office could be granted for three Lives or whether it was within the said Statute of 5 and 6 Edw. 6. because they were in a manner agreed at the Bar and the Points setled But the two main Points in the Case which were spoken to are First Where an Archdeacon sells the Office of Register in the Court of the Archdeaconry whether by the Statute of 5 and 6 Edw. 6. the Grant and Nomination to this Office shall come to he Crown or whether it shall go to the Bishop of the Diocess Secondly Admitting the Right to be in the Crown whether the King and Queen can make a Register till Office found or that the Title appeareth by some matter of Record 1. It was resolved that the Right of appointing the Register it being Forfeited by the said Statute of 5 and 6 Edw. 6. did come to the King and Queen It is a Rule laid down by Manwood Chief B. Mo. 238. That where a Statute giveth a Forfeiture either for Nonfesans or Mis-fesans the King shall have it so in 11 Co. 68. This follows the Reason of the Common-Law in case of things which are nullius in bonis where no visible Right appears the Law giveth them to the King Siderfin 148 86. As Derelict Land Treasure Trove and a great number of such like instances may be cited from the Books so it is in Extraparochial Tithes tho' things of an Ecclesiastical nature 2 Inst 646. Cawdry's Case 5 Co. 18. Nay if the Right lie equal between the King and Subject the Kings Title hath the preference by Law Detur digniori is a Rule 9 Co. 24. In case of concurrence of Titles between the King and Subject It was objected That this held in valuable things and matters of profit to the Crown But the Court said there was no such distinction made in the Books and many Prerogatives c. were given to the King for the publick good and interest of the Government as well as for encrease of the King's Treasure There is no exception out of this construction of Forfeitures upon Penal Statutes unless they are in recompence for the Damage suffered by a Subject as the Statute of 2 Ed. 6. that giveth the Forfeiture of the treble value for not setting out of Tithes 2 Inst 650. And this follows the Reason of the Common Law that Fines and Penalties for Offences at Law go to the King as the Head of the Government and that was the second Reason the Court went upon that the Offence for which this Forfeiture is inflicted is principally against the King By the preamble of the Statute it appears to be made for avoiding of corruption in Offices and abuses in the Administration of Justice Now the King is the Fountain of Justice and that Ecclesiastical as well as Civil in
83 W Wager of Law WHere a Man shall be admitted to Wage his Law in an Action of Debt and the manner of doing it 171 Waver An Executor cannot Wave a Term unless he renounce the whole Executorship 209 Way How a man may Intitle himself to a Foot Way 186 Wills See Devise Where there is a Custom to pass Lands by a Parol or Nuncupative Will yet they shall not pass without express and plain Words to shew the Intention 286 A Cumulative Provision in a Will shall not double a Portion unless plainly proved that the Testator intended to do so 347 348 Writs Where a Writ shall be amended according to the Instructions given to the Cursitor 46 49 152 Where an Original Writ shall be new made according to the Instructions first given to the Cursitor 130 Usual for a Plaintiff to take out his Original after Judgment entred 154 ERRATA in the Second Part. PAg. 8. lin 4. read Ireland p. 10. l. ult r. Canon Law p. 16. in fine r. Judaical p. 21. l. 23. r. Lands Freehold c. p. 50. l. 15. r. In Bar to the Advoâ—â—ry the Plaintiff reply'd p. 80. l. last but 3 r. Loan p. 115. l. 16. r. â—abere fac ' possess p. 150. l. â— r. Plaintiff p. 234. l. 12. for Eliz. r. Richard BOOKS Printed for and Sold by CHARLES HARPER at the Flower-de-Luce over against St. Dunstan's Church in Fleetstreet LAW BOOKS THE Lord Coke's Reports in English Fol. His Eleven Reports in French Fol. His Commentary on Littleton or the First Part of the Institutes Fol. His Commentary on Magna Charta or the Second Part of the Institutes Fol. His Pleas of the Crown or the Third Part of the Institutes Fol. His Jurisdiction of Courts or the Fourth Part of the Institutes Fol. Bulstrode's Reports in Three Parts with New References Fol. Leonard's Reports in Four Parts with New References Fol. The Year Books in Ten Volumes the last Edition with new Notes and Tables to them all Fol. The Reports of the Lord Keeper Littleton in the Time of King Charles the First Fol. 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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
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-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
the Plaintiff may declare against him by Bill and after that the proceedings upon the Latitat cease Note By the Custom of London Hob. 86. 2 Cro. 667. the Debtor may be Arrested before the Money is due to make him find Sureties It was also moved That the Defendant might have Costs being put to the charge of motions to be discharged but the Court would grant none it being but for taking out of the Process of the Court. Stones Case THe Case being moved again The Court absente Moreton dubitante Rainsford granted a Writ of Priviledge altho ' he were obliged by his Tenure to be the Lords Reeve for the Priviledge is presumed more Antient than the Creation of the Tenure or at least shall be preferred in as much as it concerns the Administration of Iustice And Keeling said An Attorney could not be amerced for not doing Suit to his Lords Court at such time as his attendance is required at Westminster Ante. Sir Robert Cotton versus Daintry IN Trover and Conversion for Goods and Money assigned by Commissioners of Bankrupt upon Not guilty pleaded the Quemon of Fact before the Jury was Whether Sir A. B. whose the Goods were was a Bankrupt The Plaintiff proved That he had Silk and other Merchandise in his Warehouse to a very great value and that upon the Credit of them he took up divers Sums of Money and afterwards sold them but could not prove that they were brought in after the Debts contracted or that he had Exported any thing at any time after or a good while before To this the Court delivered their Opinions That the selling of such Merchandise if they were but the Effects of his former Trading for he had béen a Turkey Merchant which he could not put off immediately upon his ceasing to Trade could not make him a Trader for the Statute only extends to those that Live by Buying and Selling. It was also proved That he had a 16th part in a Coalship which at present Traded to Newcastle but brought no present profit to the Owners she being much in Debt for Repairs It was said to be resolved in one Crashaws Case That the having a part in a Ship did not make a man a Trader but that was a Merchant Ship which the Owners let out to Fraight but the Owners Fraighted this Ship themselves and were to have an account of profit and loss and that if an Owner refused to Fraight he was Compellable But in regard it could not be proved that Sir A. B. had Fraighted or that he had received any account of profit Keeling and Twisden were of Opinion that it did not make him a Trader Rainsford and Moreton doubted Wherefore it was offered the Plaintiffs Councel to have found it Specially but they declined it and the Jury found a general Verdict for the Plaintiff The day after motion was made for a new Tryal Affidavit being made that the Foreman of the Jury was Brother in Law to one of the Creditors of Sir A. B. The Court was also informed that the Plaintiff after the Verdict had paid the Jury 4 l a man whereas the Rule of Court is that they coming but out of Hartfordshire should have but 20 s a man Moreton and Rainsford held neither of these Reasons sufficient For the first it was their own Laches that they did not challenge upon it For the other they thought the breach of the Rules of Court ought to be punished but did not think fit to set aside the Verdict for it Twisden for the last treason held a new Tryal was to be granted and that it was fit to be made an Example to other Juries For if the Parties may give what they will it is to be presumed the ability of one or other will much incline the Jury to find for him from whom they may expect the greatest reward Keeling held both reasons sufficient for a new Tryal which could not be in regard the Court was divided whereupon Iudgment was entred for the Plaintiff and Execution taken out and a Writ of Error was brought which was sealed about an hour before Execution executed Whereupon it was moved That the Sheriff might bring the Money into the Court for that the Writ of Error was a Supersedeas for though the Sheriff shall not be in Contempt if he makes Execution after the Writ if no Supersedeas be Sued out for that he had no notice yet the Writ of Error immediately upon the sealing forecloses the Court so that the Execution made after is to be undone of which Opinion was the Court and Ordered the Money to be brought in and not delivered to the Plaintiff Mr. Justice Moreton's Case HE brought Debt as Executor upon the 2d of Edw. 6. for not setting forth of Tythes due to the Testator Vpon non debet pleaded and a Verdict for him it was moved in Arrest of Judgment That this being a forfeiture given by the Statute for a Tort done to the Testator it could not be brought by the Executor To which it was answered That this Action was maintainable within the equity of the Statute of the 4th of Edw. 3. that gives the Executor Trespass de bonis asportatis in vita testatoris So an Ejectione firmae lies upon an Ejectment done to the Testator and Trover and Conversion where the Conversion was in the time of the Testator 1 Cro. adjudged that an Executor may bring an Action upon the Case against the Sheriff for an Escape upon Mesne Process suffered in his Testators life time And the Court were clear of Opinion for the Plaintiff and said it had béen formerly resolved so in the Exchequer Chamber The Lady Wortley versus Holt. A Writ of Error was brought to Reverse a Judgment given in Dower in the Common-Pleas which being affirmed in this Court a Writ of Error was brought returnable in Parliament which was discontinued by the Prorogation of the Parliament Another Writ of Error was brought Teste the last day of the Session of Parliament viz. 1 March Returnable 19 November the day to which it was Prorogued The Court resolved That though the first Writ of Error was not discontinued by any Act of the Party yet this second should be no Superseas First It was doubted whether this Writ of Error bearing Teste the last day of the Session was not determined by the Prorogation And it was held clearly That A Writ of Error returnable ad proximum Parliamentum could not be good But here the Parliament was Prorogued to a day certain But however all the Court held That in regard of the length of time in the Return it should be no Supersedeas And Twisden cited a Case between Limmerie and Limmerie where a Writ of Error was brought Teste 28 Nov. Returnable 28 Nov. proxime sequent ' in Parliament ' and resolved to be no Supersedeas 2 Cro. 341. by reason of the length of the Return Anonymus AN Information was exhibited against A.
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
against Bates a Schoolmaster who as it was alledged taught School without the Bishops Licence and it was granted because they endeavoured to turn him out whereas they could only Censure him he coming in by the Presentation of the Founder In a Feoffment of Tythes and Lands where there is no Livery if they do adjudge the Tythes to pass notwithstanding there is no Livery a Prohibition will lye In Debt upon a Lease at Will there must be an Averment that the Lessee occupied the Lands But it is otherwise upon a Lease for Years Anonymus THe Court was moved to grant an Attachment against a Justice of the Peace who upon Complaint refused to come and view a Force But the Court denied it and directed the party to bring an Action of Debt for the 100 l Forfeiture given by the Statute in that case It was said by the Court That in an Execution upon a Statute Merchant there is no need of a Liberate as there is upon a Statute Staple And in the Case of a Statute Staple the Conusee can bring no Ejectment before the Liberate neither can the Sheriff upon the Liberate turn the Terre-Tenant out of possession as he is to do upon an Habere facias possessionem Dier versus East AN Action was brought against the Defendant upon an Indeb ' pro diversis Mercimoniis venditis deliberatis to the Wife to the use of her Husband it being for her wearing Apparel And after Verdict for the Plaintiff it was moved in Arrest of Judgment that this Declaration being laid That the Sale was to the Wife tho' it was to the use of the Husband it was not good as if it had been sold to the Servant of the Plaintiff Nevertheless the Court were of Opinion That it being for her Apparel and that suitable to her Degree the Husband was to pay for it as had been Resolved in this King's time in Scot and Manby's Case in the Exchequer Chamber and that the Declaration was well enough Anonymus THe Defendant in an Action of Debt upon a Bond sued out an Injunction in Chancery where after the Case had depended for two years the Court was moved that the Plaintiff might accept of his Principal Interest and Charges The Court said If the Defendant comes before Plea pleaded and makes such a proffer they are ex debito Justitiae to allow it But now he having delayed the Plaintiff in Chancery two years it was in their discretion And the other three against the Opinion of Keeling thought fit to deny it Clarke versus Phillips al' UPon the Trial in an Ejectment the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him for Life upon divers other Estates and that there was a Fine levied and Proclamations passed but he within the Five years after his Title accrued sent two persons to deliver Declarations upon the Land as the course is upon Ejectments brought The Court Resolved that this was no Entry or Claim to avoid the Fine he having given no express Authority to that purpose and the Confession of Lease Entry and Ouster by the Defendant should not prejudice him in this respect In this Case Keeling and Twisden were of different Opinions in this Point Viz. If he that hath power of Revocation over Lands c. makes a Lease for Life whether it suspends the Power only as a Lease for years would do or extinguisheth it as a Feoffment The King versus Monk al' IN an Information for a Riot it was concluded contra formam Statuti 13 H. 4. which appoints Justice of the Peace upon complaint of Riots to View and Record them And after Verdict it was moved in Arrest of Judgment that this Information was not good it being grounded upon this Statute which only mentions Riots and appoints them to be punished in the manner there expressed But the Chief Justice Keeling was of Opinion that it being a Crime at the Common Law and mentioned in this Statute the Information was well concluded But the other Justices inclined to the contrary Anonymus DEbt upon a Bond Conditioned to perform Covenants in an Indenture The Defendant pleaded That there were no Covenants contained in the Indenture on his part to be performed The Plaintiff demands Oyer of the Indenture which is Entred verbatim and then Demurs which he could not well do before the Entry of it whereby it becomes part of the Bar so the cause of the Demurrer appears Then it was alledged by Saunders whose Hand was to the Plea That the Plaintiff could not have Judgment because he had set forth no Breach But the Court was much offended with him For they held the Plea in Bar meerly for delay and advised against the Statute of Westm 1. Robinson versus Pulford IN an Assumpsit the Plaintiff declared That the Defendant in Consideration that the Plaintiff would deliver such silver Threads and other Wares into the Shop of J. S. that he should require that he would see him paid Now after an Assumpsit pleaded and Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not averred in his Declaration that J. S. had not paid for the Goods For the promise to see him paid was no more than if he had said If J.S. doth not pay you I will in which Case such Averment must have been But the Court Resolved that a Promise to pay and to see him paid was all one and the Averment unnecessary Rushden versus Collins IN an Assumpsit the Plaintiff declared the Consideration to be pro opere preantea facto After Verdict for the Plaintiff it was moved in Arrest of Judgment that opere was too general and might intend so inconsiderable a matter as would not amount to a Consideration for the Plaintiff But they gave Judgment for they said labore or servitio had been adjudged sufficient Lee versus Edwards IN an Assumpsit the Plaintiff declared That in Consideration that he would employ his skill and pains and provide Medicaments for and Cure a certain person of a Pthysick that he would pay what he deserved and lays another Promise at the same time in Consideration as aforesaid and alledges the Promise somewhat varying from the first and concludes with an Averment That he had bestowed his pains and cured accordingly Vpon Non Assumpsit pleaded and a Verdict for the Plaintiff the Court was moved to stay Judgment because the Plaintiff had made no Averment of the Cure upon the first Promise and entire Damages were given so it was ill in all But the Court were of Opinion That in regard he had Averred it upon the second Promise so as it appeared upon Record that the Cure was done it aided the omission of it in the first especially being after a Verdict Nota There is an Inquisition upon every ones death that dies in the Kings-Bench by the Master of the Crown-Office and Coroner Pomfret versus Rycroft IN a Writ of
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
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
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
Pro praedicto anno which refers to the Year mentioned before which was next following the Lease and it might be said finito anno 18 for so it was ended then or at any time after And the Court said It would be clearly good after a Verdict But being upon a Demurrer they would Advise Anonymus AN Indictment for not performing an Order of the Justices of the Peace concerning a Bastard Child It was moved to quash it because it did not conclude contra pacem But it was held that ought not to be it being but for a Non feasans An Indictment of Forcible Entry was quashed because it alledged the party to be seized and possessed and so uncertain which Monnington versus William IN a Replevin the Defendant avowed for a Rent charge and set forth That the Plaintiff granted a Rent to J. S. in Fee who granted bargained and sold it una cum arreragiis to him and shewed the Indenture to be Inrolled within six Months virtute cujus and the Statute of Uses he was seized and for a years Rent since the Assignment avowed The Plaintiff replies and Traverses the Grant of J. S. prout and found for the Avowant and moved in Arrest of Judgment by Jones First That here is an impossible Issue which comprehends as well the Grant of the Arrears which cannot be as the Rent Secondly He Intities himself by Bargain and Sale and the Statute of Uses and doth not shew that it was in Consideration of Money and otherwise the Rent cannot pass without Atturnment 3 Cro. 166. But the Court gave Iudgment for the Avowant As to the first The pleading the Arrears to be granted is altogether void and does no harm in regard the Avowry is expresly for Rent Arrear after the Grant And for the second The Court held the pleading good after a Verdict and it shall be intended that Evidence was given of Money paid As a Grant of a Reversion pleaded without Attornment or a grant of a Rent and not expressed to be by Deed yet a Verdict will help those defects Huttons Rep. 54. Note Twisden said where a man in pleading sets forth his Title by a Conveyance in which are the words Give Grant Release Confirm Bargain Sell c. he must express to which of them he will use it Addams versus Guy ERror to Reverse a Judgment given in the Court at Bristol in Debt against the Defendant as Executor to J.S. who declared upon a Mutuasset of him so much because Debt lies not against an Executor upon a simple Contract Sed non allocatur He agreeing to the Action and suffering Iudgment to pass against him Secondly That he set forth that the Testator Mutuasset which properly signifies to lend and not to borrow and it ought to have been Mutuatus esset But the Court affirmed the Iudgment and held that either might be expounded to borrow Anonymus AN Administrator brought Trover and Conversion and declared That the Intestate at the time of his Death was possessed of divers Goods and that after his Death and before Administration committed they came to the Defendants hands who converted them Vpon Not guilty it was found for the Defendant and prayed that he might have Costs and the Court held that he ought to have them the Conversion being since the Death of the Intestate Sir Thomas Pettus Case IT was moved to quash an Indictment of Manslaughter against him for that it is said to be taken coram Coronatoribus Comitatus Civitatis Norwici at Bucthorp in the County of the City per Juramentum hominum de Civitate Norwici Whereas the Jury ought to have come from the County and City of Norwich for they shall not be intended to be coexistent especially in an Indictment As if the Caption of an Indictment be at Dale and the Jury come de Parochia de Dale it is good cause to quash it yet in an Action they should be intended the same So it is sufficient to put the County in the Margin of the Declaration in an Action but not so in an Indictment 1 Cro. Again By the Statute de Coronatoribus the Jury ought to come from the four next Vills Of the first Exception the Court doubted But to the second Twisden said it need not be returned upon the Indictment that the Jury came from the four next Vills But they would not quash the Indictment upon Motion for they said it was not their course to do so in Case of Manslaughter but ruled the Party to Plead to it tho' it was shewn he had been Tryed at the Assizes upon an Indictment of Murder for the same Killing and found Guilty of Manslaughter The King versus Clapham A Mandamus was prayed to the Lord President and Council of the Marches to admit Clapham to the Exercise of the Office of Deputy Secretary And it was returned quod tempore receptionis brevis non fuit constitutus Deputatus It was said That one which claimed to be Deputy his Authority being revocable could not pray a Mandamus But to that it was answered That the Mandamus was at the Suit of Mr. Win and it set forth how he had the Office of Secretary exercend ' per se vel sufficientem Deputatum suum and that they had refused this Clapham whom he had appointed his Deputy And it was resolved That the Mandamus was well awarded for he had no other remedy to have his Deputy admitted And whereas it was said being an Officer belonging to the Court they are to judge of his sufficiency and so have power to refuse him It was answered to and so resolved That then they ought to have returned that he was insufficient And it was also resolved by all the Court That the Return being that non fuit tempore receptionis brevis Deputatus constitutus was naught for if he were made his Deputy before the Return was true unless he made him his Deputy at the very instant of the Receipt of the Writ and Returns must be certain because there is nothing can be pleaded to them Anonymus AN Indictment for not performing an Order of the Justices for payment of a Poors Rate It was moved to quash it because it did not conclude Contra pacem Sed non allocatur because it was not for a Male Fesans but a Non Fesans Horsam versus Turget MIch 22 Car. 2. Rot. 687. Debt upon a Bond. The Defendant demands Oyer of the Condition which was to perform an Award and sets forth that there were divers Accounts c. betwéen J. S. Testator of the Plaintiff and the Defendant and they submitted all Controversies to the Award of such an one and that he awarded that the Plaintiff should deliver certain Goods of which the Testator died possessed to the Defendant and that the Defendant should pay unto the Plaintiff 320 l And then sets forth the custom of Foreign Attachments in London that if a Suit were commenced against the Executor of any person
any Debt which was due to the Testator tempore mortis suae might be attached and then sets forth according to the common form how this 320 l was attached c. and Avers that there were no other Controversies Differences or Matters between the Plaintiff and Defendant but what concerned the Testator of the Plaintiff and him as his Executor only The Plaintiff replies That the Defendant had not paid the 320 l according to the Award c. upon which the Defendant Demurred And whether this Money were Attachable as a Debt due to the Testator tempore mortis suae was the Question It was argued by Winnington That it was For it appears by the Averment that it was awarded to be paid meerly upon the Testators account and it is but as it were a reducing the Testators Debt to a certainty for an Award being no Record or Specialty will not alter the nature of the Debt and that clearly it should be Assets in the Executors Hands and the Custom of London was to have a liberal Construction Pemberton contra It doth not appear That there was any Debt due to the Testator There might be Covenants or other Matter between them which shall be rather intended than Debt as strongest against the Plaintiff if there were the nature of the Debt is altered for an Award may be pleaded in Bar to an Action brought upon the Original Debt Also this must have béen sued for in the Debet and Detinet and not in the Detinet only so it is not a reducing the Debt to a certainty as where an account is made upon Debts by simple contracts or where an Executor gives time for payment of a Bond due to the Testator this is still Attachable 1 Rolls 551. He denied it to be Assets If it were the Administrator de bonis non might sue for it after the Executors death which clearly he could not do and the Executor was chargeable only in proportion to the Debt extinguished and not according to the Sum Awarded or at least it could not be Assets before recovered if it were Assets it did not follow it should be Attachable for if an Executor Recovers in Trespass for taking away the Testators Goods the Damages shall be Assets yet they are not Attachable So Damages recovered upon Covenant made to the Testator He said it would be very inconvenient that this Money should be attached for the Executor was liable to a Devastavit upon this matter and yet should have no remedy for the Sum Awarded Again It would be Attachable in two respects both as the Executors Debt for so clearly it is and as the Testators Debt and the Bond for performance would be Attachable for the Executors Debt and the Sum Awarded for the Testators He said all Customs ought to be taken strictly and this was clearly out of the words as being no Debt due to the Testator tempore mortis suae And here it is pleaded That it was Commanded by the Court to the Officer to Attach the Defendant by a Debt due to the Testator at the time of his Death so no Authority to Attach this Debt and if it were by Law Attachable the Command ought to have béen Special The Court were all of Opinion That this was not Attachable as the Testators Debt for then the Administrator de bonis non might Sue for it And they held it to be like the Cases where the Executor takes Bond for a Debt due to his Testator or where he sells the Goods the Money for which they are sold cannot be Attached and here the Award is made of this Sum in Consideration of conveying to the Defendant the Goods of the Testator and releasing of his Debts which séems to be all one with the other Cases And so they gave Iudgment for the Plaintiff Termino Paschae Anno 23 Car. II. In Banco Regis Error A Judgment out of an inferiour Court was reversed because being by default the enquiry of Damages was only by two Jurors and Custom alledged to Warrant it And it was resolved by the Court That there cannot be less then twelve though the Writ of Enquiry saith only per Sacramentum proborum legalium hominum and not duodecim as in a Venire Note There were divers Recognizances take before the Lord Chief Justice Keeling who died before his Hand was set to them It was moved by Coleman that they might be Filed But the Court said a Certiorari must go to his Executors to certifie them and doubted whether they were compleat Records If a Warrant of Attorney be given after the continuance day to enter up a Judgment as of the Term preceding this may be well enough if it be dated within the Term but it cannot be so if such a Warrant be given to confess a Judgment generally and dated after the Term. Anonymus A Prohibition was prayed by one who being a Churchwarden was tendred an Oath by the Court Christian to present according to the Bishops Articles which he refusing to take was Excommunicated Now for that some of the Articles were to present Filthy Talkers Revilers and Common Sowers of Sedition amongst Neighbours which were general Terms and might be understood to comprehend things out of their Iurisdiction the Court conceived a Prohibition ought to go as to them But he should have first pleaded there quod non tenetur respondere as to those matters and upon their refusal to have prayed a Prohibition Elpicke versus Action AN Action of Trover was brought de diversis vestimentis And held not to be good because not expressed what kind of Garments But 7 Jac. Emery's Case where Trover was brought for a Library of Books and held to be good without expressing what they were because to set down the particular Books would make the Record too prolix Vid. 3 Cro. 164. and Pl. Com. where a man pleaded that he was chosen Knight of the Shire per majorem numerum and held to be good Barnard versus Michel IN an Action of Debt the Plaintiff declared upon a Deed comprehending divers Covenants for the performance of which the Defendant obliged himself in the penalty of 40 l and sets forth that the Defendant had broke the Covenants The Defendant pleaded non est factum and it was found for the Plaintiff And it was moved in Arrest of Judgment That though the Issue was found for the Plaintiff yet he having assigned no Breach no Cause of Action appeared upon the Record so he could have no Judgment For if the Declaration be insufficient let the Defendant plead what he will yet Iudgment shall not be given against him Indeed if the Action had béen brought upon a Bond Conditioned for the performance of Covenants and non est factum had béen pleaded no Breach needed to have been assigned for then the Declaration is only upon the Bond without mentioning any thing of the Condition But here the Breach of the Covenant is as it were a Condition precedent to
Entitle him to the Penalty and here the declaring that he broke the Covenants without shewing which or how is altogether insufficient though the Defendant who pleads in the Negative might have pleaded non infregit conventiones Vid. Rastals Entries 162. Pl. Com. 5. A President just agreeing to this Case But the Opinion of the Court inclined for the Plaintiff here Sed Adjornatur Vide Postea Anonymus A Mandamus was prayed to the Ecclesiastical Court to Swear two Churchwardens elected by the Parish surmising that so was the Custom in that place but that the Bishops Officers had refused to admit them upon pretence that the Parson ought to chuse one And it was granted Vid. 2 Rolls 106 107. 3 Cro. 551 589. such a Writ granted The Case of the City of London and Coates COates who was Imprisioned in Newgate by the Court of the Lord Mayor and Aldermen brought an Habeas Corpus and the Sheriffs returned that the Custom of the City was That if any Freeman hath Forestalled any Fish coming to any Market within the City and complaint made thereof to the Court of Aldermen and he appearing there confessing the same and they ordain that he shall desist from such Forestalling and he will not promise to obey but declares in Court That he will not obey their Order That the Court there had time out of mind used to Commit such Freeman until he signified to the said Court that he would conform himself Then it is Returned That complaint was made to the said Court that this Coates had Forestalled a great number of Lobsters whereupon they caused him to appear which he did and confessed the same and they ordained that he should desist from such Forestalling but he said Obstinately and in Contempt of the Court That he would not obey their Order whereupon they committed him to Newgate until he should signifie to the Court that he would conform himself or otherwise he delivered by due course of Law The Return being Filed It was moved by the Attorney General That is was insufficient for a Custom to commit a man for Forestalling is void and that Offence was always Bailable and so it appears by the Register But here the Commitment is to remain in Prison without Bail or Mainprise Also the Commitment is upon a Complaint without Oath which ought not to be neither ought they to extort a Promise from him to observe their Order admitting it to be Legal for an Oath cannot be imposed upon a Man to keep the Law Besides The Custom is absurd to Commit a Man to Prison until he submits to the Court whereas a Man in Prison cannot come into Court to make such Submission and then suppose they will keep no Court must a Man lie in Prison whilest they do Then the Custom as it is laid reserves the discharge of him only to themselves for it is said or by due course of Law This Imprisonment looks in the Face of Magna Charta which saith nullus liber homo Imprisonetur c. in all Offences Finable the Imprisonment is only to be until the Fine is paid if the Fine be tendred there is to be no Imprisonment at all and so resolved in Parliament Br. tit Imprisonment 100. To this it was answered by Jones on the other side That the Imprisonment in this case was not for Forestalling but for the Contempt to the Court. It is returned that he confessed the Fact and yet declared that he would not conform himself to the Order of the Court the Proceeding is very mild not to punish for an Offence unless committed after an Admonition in Court It is implied in the Custom That he may be delivered by due course of Law it is sufficient to express that in the Commitment and so it is Also he cannot be prejudiced by the deferring of Courts for the Custom is returned to keep the Court of Aldermen twice a Wéek It is not that he shall come in person and submit to the Court but that he shall signifie his conformity to the Court which may be done by Letter or Message and it is returned that he did not by any means submit himself Twisden The Custom doth not here come in Question The Commitment is returned to be for a Contempt to the Court It must be allowed they have such power for they are a Court of Record Langham was Committed for refusing to take the Oath usually administred to Sheriffs and resolved to be good because it concerned the Government The City hath the Regulation of Trade and Orders made by them that one Man should not use the sign of another and for distinguishing Trades Viz. That a Plaisterer should not use the Trade of a Bricklayer and such like have béen allowed Wherefore the Court remanded the Prisoner he promising to make submission at the next Court and the Sheriff promising he should be discharged thereupon Phillips versus Kingston HIll 22 23 Car. 2. In an Action of Slander the words were He hath broke three or four of his Fathers Ribbs of which he shortly after died and I will complain to a Justice of him He may be hang'd for the Murder altho' it were done twenty years since After Verdict for the Plaintiff it was moved in Arrest of Judgment that he did this hurt to his Father against his will as it might be intended and tho' the Defendant said he might be Hanged for it that is but his Iudgment and Collection thereupon As Jacob and Mills's Case 2 Cro. 343. where the words were Thou hast poysoned Smith and it shall cost me an hundred pounds but I will have you hanged for it And it was Resolved that an Action did not lye because it might be unwillingly done Hob. 6. Also it is not averred that the Father was dead and that is necessary for otherwise it shall be taken that he is alive and then 't is no Slander and so is Yelverton 21 and Hob. 6. But the Court held That the Plaintiff must have his Judgment for taking all the words together the Defendant must necessarily intend a murdrous Killing and for the not averring that he was dead Twisden said the latter Opinions have all been that this is not necessary and the Action lies unless it appears upon the Record that the party is alive Anonymus IN an Action for Words the Plaintiff declared that he was a Woollen Draper and the Defendant said of him You are a cheating Fellow and keep a false Book After Verdict for the Plaintiff it was moved in Arrest of Judgment that the words might not be intended to relate to his Trade for they were capable of another sense and there was no colloquium of his Trade Sed non allocatur For they must be intended of a Debt-Book which Shop-keepers keep and to say such an one keeps a False Book it is a great slander to him in his Trade Vid. 1 Cro. 403. Twisden cited a Case Where Roberts an Attorney brought an
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
a Suit And to stay a caussess Suit can be no Consideration 1 Cro. 804. Yelv. 84.184 as the Case of Smith and Johns 2 Cro. 257. where one having married an Executrix after her decease promised J. S. that if he would forbear a Suit against him for a Legacy he would pay it It was held to be a void Promise being in no wise liable to be sued after the Death of his Wife And the Opinion of my Lord Coke 9 Rep. 94. in Bane's Case is That an Executor shall not be charged with such Promise unless he hath Assets But the Court Resolved for the Plaintiff For it is not material whether the Defendants had Assets or no at the time of the Promise for by the Promise they caused the Plaintiff to desist who peradventure at that time was prepared to prove Assets and relying upon such Promise might be much to his prejudice if he could not afterwards recover upon it But the Chief Justice said If it had appeard upon the Declaraton that there were no Assets the Plaintiff by shewing that would have destroyed his Action Vere versus Smith IN Debt upon an Obligation The Condition recited that the Defendant served the Plaintiff as a Brewer's Clerk and that if he performed such Covenants c. The Defendant pleads performavit omnia The Plaintiff Replies That one of the Covenants was to give the Plaintiff a true Account of all such Moneys as the Defendant should receive c. whensoever he should be thereunto requested and alledged that 30 l came to his hands and that he requested him to give an account of it which he refused to do The Defendant Rejoyns confessing the Receipt of the said Money but saith That before Request made by the Plaintiff he laid it up in the Plaintiffs Warehouse and that certain Malefactors to the Defendant unknown stole it away hoc paratus est verificare And to this the Plaintiff Demurs generally And Jones Argued That the matter contained in the Rejoynder was a Departure from the Bar for it doth not amount to an Account but rather an Excuse or Discharge of himself why he should not account Again He ought not to have averred his Plea but to have concluded to the Country For the Plaintiff in his Replication having alledged That he gave no Account and the Defendant in his Rejoynder setting forth That he did give an Account there is an Issue joyned wherefore it ought to have been concluded de hoc ponit se super Patriam But these Matters were Over-ruled For as to the first the Court held it no Departure but a Fortification of the Bar for shewing that he was Robbed is a giving an Account And as to the second the Conclusion is proper because the Defendant alledges New Matter and therefore ought to give the Plaintiff liberty to come in with a Surrejoynder and answer to it for he doth not only say that he gave an Account but sets forth the Special Matter how Wherefore the Court gave Judgment for the Defendant Note A Clerk of the Court must appear de die in diem to any Matters against him on the Crown side as well as on the Plea-side Reynell versus Heale AN Information was brought upon the New Statute against Conventicles for that the Defendant being a Justice of the Peace in Devonshire and Complaint being made to him by Reynell of a Conventicle he refused to go to the place to suppress it and sets forth three Omissions of that kind and that the Statute Enacts That a Justice of Peace for every such neglect of doing his Duty shall forfeit 100 l the one Moiety to the King the other to the Informer unde actio accrevit for 100 l to the King and himself The Defendant pleads non debet the said 100 l to the Informer nec aliquam inde parcellam de hoc ponit se super Patriam praedict ' Reynell similiter And upon this Issue Verdict was given for the Informer Jones moved in Arrest of Judgment That he conceived there were no words in the Act to oblige the Justice of the Peace upon such Information to go in person to the Place where such Meeting is and 't is not said here that he refused to grant a Warrant or the like But he did not much insist upon that but moved that the Issue was not well joyned for it is only between the Informer and the Defendant and so the Plea is quod non debet to the Informer and no mention of the King whereas the Action is qui tam and the Act gives the Moiety of the Penalty to the King The Court said nothing to the first matter but held clearly that the Issue was misjoyned and said that a Repleader ought to be awarded Polexfin and Ashford versus Crispin HIll 22 23 Car. 2. Rot. 225. The Plaintiff brought Trespass Quare pisces suos cepit in separali Piscaria Vpon Not Guilty pleaded and Verdict for the Plaintiffs it was moved in Arrest of Judgment that the Plaintiffs ought not to have called them Pisces suos unless they had been in a Trunk or Pond For there is no more property in Fishes in a Several Piscary than in a Free Piscary In an Action for taking of Conies in a Warren 5 Co. 34. b. F.N.B. 192 193. 2 Cro. 195. he shall not say Cuniculos suos and this is such a default as the Verdict shall not aid Sed non allocatur For the Chief Justice said it might be intended a Stew Pond which is a mans Several Piscary and after a Verdict the Court shall admit any Intendment to make the Case good And Twisden cited a Case which was in Trespass Quare Phasianos suos cepit and the Plaintiff had Judgment after Verdict for it shall be intended they were dead Pheasants And the Case of Child and Greenhill 3 Cro. 553. is the same with this But the Court held that it had been good upon a Demurrer by reason of the local Property And so is the Register Hoskins versus Robbins IN Replevin the Defendant avowed for Damage feasant The Plaintiff Replies and saith That the place Where is parcel of the Waste of such a Mannor within which Mannor there are Copyholds demisable time out of mind and that the Copy-holders have had time out of mind the sole Feeding of the said Waste and that J. S. being a Copyholder of the said Mannor Licensed him to put in his Cattel The Defendant traverses the Prescription and it was found for the Plaintiff Levins moved in Arrest of Judgment that Prescription to have the sole Feeding 1 Cro. 434. 2 Cro. 256. whereby the Lord shall be excluded from all the benefit of his Soyl is not allowable and the Lord cannot in this case ever make any profit of the Mines for he may not Dig. 'T is true a Prescription may be to have the sole Feeding from such a Day for there the Owner hath his time also
Again He alledges a Custom of Dimising Copyholds and doth not say for what Estate neither doth he name any Copyholders Also he should have averred that the Beasts were levant and couchant One prescribed to have omnes Spinas yet laid them to be spent in a certain House And the Verdict shall not help the Defect as this Case is but if the Copyholder had pleaded so himself it should For after a Verdict it is intended they were levant and couchant but that cannot be in case of a Stranger Iustifying by Licence He took another Exception also That a Licence was pleaded here and not shewn to be by Deed as it appears it ought to be 2 Cro. 575. As to the first it was Answered That this Prescription did not take all the Profit from the Owner of the Soyl for there might be Trees and Bushes growing and if any one should Dig the Soyl and discover Mines the Lord should recover Damage in respect of the Mines Such an Interest as this might commence by Grant and therefore lies in Prescription The same Objection might be made against the sole Feeding for some part of the Year for the property of the Soyl remains in the Lord at that time also when the Profit is divided from him and it may be as well allowed for a longer as a shorter time this is no more than the Herbage or Vesture of the Land And Prescription to dig Turves cuts as deep into the Profits and yet that may be in one and the Soyl in another As to the second It is not needful to shew for what Estates the Copyholds have been demised for it is not laid by way of Prescription in them for then it would be material to shew that they had such Estates as might supports a Prescription but as a Custom in the Mannor and to have named them would have made a Repugnancy viz. that such particular Copyholders had the sole Feeding time out of mind 3 Cro. 311. Yelv. 187. Neither is it needful to alledge that the Beasts were levant and couchant in regard that he claims the sole Feeding which may therefore be with what Beasts he pleaseth And it is not needful that the Licence should in this case be by Deed for it passeth no Interest and serves but for an Excuse of Trespass and 't is for no certain time but only pro hac vice The Opinion of the Court inclined for the Plaintiff Sed Adjornatur Vide postea The Duke of Richmond versus Wise IN an Ejectment the parties had a Trial at Bar and a Verdict for the Plaintiff The Court were moved to set aside this Verdict upon an Affidavit made of these Misdemeanors in the Jury viz. That they had Bottles of Wine brought them before they had given their Verdict which were put in a Bill together with Wine and other things which were eat and drank by the Servants of the Jury and the Tipstaves that attended them at the Tavern where they were consulting their Verdict That this Bill after the Verdict given was paid by the Plaintiffs Solicitor and that after they had given up their Privy Verdict they were Treated at the Tavern by the Plaintiffs Solicitor before their affirmance of it in Court Counsel being heard on both Sides as to these matters the Court delivered their Opinions seriatim that the Verdict should stand They said they were not upon a discretionary setting aside of the Verdict as when the Jury goes against Evidence but whether these miscarriages shall avoid it in point of Law They all agreed That if the Jury eat or drank at the charge of the party for whom they find the Verdict it disannuls their Verdict but here it doth not appear that the Wine they drank was had by the order of the Plaintiff or any Agent for him 'T is true in regard his Sollicitor paid for it afterwards it doth induce a presumption that he bespoke it but that again is extenuated by its being put into a Bill with other things that were allowable and if the Verdict should be quashed for this Cause it must be entred upon the Roll 1 Cro. 616. that it was for drinking at the Plaintiffs charge and it is not proved that this Wine was provided by him And as to the other matter That they received a Treat from the Plaintiff after their Privy Verdict given and before it was given up in Court that shall not avoid their Verdict But if the Defendant had treated them and they had changed their Verdict as they might have done in Court it should then have been void Co. Lit. 227. b. It after the Jury be agréed on their Verdict which the Chief Justice said must be intended such an Agréement as hath the signature of the Court put upon it viz. A Privy Verdict They eat and drink at the charge of him for whom they do pass it It shall not avoid the Verdict and if it should The Court said most Verdicts given at the Assizes would be void for there 't is usual for the Jury to receive a Collation after their Privy Verdict given from him for whom they find But such practice ought not to be and if any of the Parties their Attorneys or Sollicitors speak any thing to the Jury before they are agreed relating to the Cause viz. That it is a clear Cause or I hope you will find for such an one or the like and they find accordingly it shall avoid the Verdict but if words of Salutation or the like pass between them as was endeavoured to be proved in this Case they shall not Also if after they depart from the Bar any matter of Evidence be given them as Depositions or the like tho' the Jury swear they never looked on them yet that shall quash their Verdict But they all held in this Case that tho' there was great matter of Suspition yet there was not matter of clear proof as there ought to be sufficient to disannul this Verdict but they said it was a great Misdemeanour in the Jury for which they ought to be fined and that the Plaintiffs Sollicitor had carried himself with much blame and indiscretion and the two Tipstaves which attended the Jury for that they were not more careful but connived at these matters were fined the one 40 shillings who appeared to be most in fault and the other 20 shillings Barnard versus Michell HIll 22. 23 Car. 2. Rot. 865. The Case was moved again and by the Opinion of all the Court Iudgment was given for the Plaintiff being after a Verdict For though the pleading that he brake all the Covenants would not have béen good upon a Demurrer as they said for two Reasons First For that it would have been double in regard that the breach of any one of them would have intituled the Plaintiff to the penalty Secondly For that some of the Covenants were such as he ought to have assigned a special breach upon that it might have been in
King by general words of all Land c. Conditions c. 3 Co. 2. a. b. much less could it pass from the King if it could pass at all by general words but I rest upon this First That it is a Power or kind of Trust to revoke but no Condition Secondly At least not such a Condition as is given to the King Thirdly If it were it ought to have béen executed by the same means as it should have béen by S. M. In Englefields Case there was no pretence to have more than to execute the Condition it ought here to have béen executed in the Life of S. M. and so it appears to be done in Englefields Case and Harding and Warners Case for I caused the Cases to be searched This is like the Case of the Statutes of 15 R. 2. cap. 5. 1 R. 3. cap. 1. 19 H. 7. cap. 15. these Statutes give the same advantage to Lords c. where persons have Uses in Lands respectively as if they had the very Lands but the Lord's c. cannot thereby claim any greater Interest than the cestuy que Uses had respectively in the Uses Now in this Case The Body of the Act and the Proviso fetch back and save the Trusts for all but S.M. As to the Execution for the Kings Debts it differs for the Process for they ever did and do run de terris de quibus illi aut aliquis ad eorum usum c. 'T is true in Sir Charles Hattons Case it was resolved That the Kings Debr should be executed upon Land wherein he had a power of Revocation Vid. Chirtons Case 11 Co. 92. And so Iudgment was affirmed per toram Curiam Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Anonymus IN Debt upon a Bond. After Verdict for the Plaintiff the Judgment was entred quod recuperet the Sum pro misis custag ' instead of pro debito praed ' But this was ordered to be amended as the default of the Clerk tho' in another Term The Court having power over their own Entries and Judgments Anonymus IN an Account it was held by the Court that if a man delivers Money to his Bayliff or Factor to lay out for him in Commodities he cannot bring an Assumpsit but only his Action of Account For the Chief Justice said that he knew such an Action once brought and the Jury that were to try the Cause informed him That if they should Examine all the Accounts which were between the Plaintiff and Defendant it would take up three or four days time So that it hath been always holden that in such case he should be driven to his proper Remedy which is an Action of Account and it may be the Factor hath laid out more Mony that he received Eaton versus Barker IN an Action upon the Statute of 17 Car. nunc for residing in a place where he had formerly kept a Conventicle and demands the 40 l penalty After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Costs or Damages given For it was said that where a Statute gave a certain Penalty if this be not paid upon demand he that sues for it shall recover his Costs and Damages as North and Wingate's Case in the 3 Cro. 559. is But the Court held that they ought not to be given in Actions Popular whether the Forfeiture be certain or not but where a certain Penalty is given to the party grieved there he shall recover his Costs and Damages 10 Co. 116. Vide postea Polexphen versus Polexphen IN a Prohibition the Case was that Henry Polexphen died Intestate Andrew his Brother gets Letters of Administration in the Inferiour Diocess One who pretended to be the Wife of H. surmizing Bona notabilia procured Administration from the Prerogative Court Andrew appeals to the Delegates and dies Henry his Son and Heir comes in and gets the Administration committed in the Prerogative Court Repealed and hath Letters granted to himself Vpon this the Wife prayed a Prohibition supposing that the Delegates could not proceed after the death of Andrew but that their Commission was determined For their Authority is by that to proceed in a Case between such parties one of which is dead To which it was Answered That the Commission is to hear and determine the Cause And both in the Civil and Ecclesiastical Law the Suit shall continue after the death of either party for those which shall be concerned as appears by the Bishop of Carlisle's Case in 2 Cro. 483. and in the 1st Leonard 117 and 178. it is said That if one party dies ante litis conrestationem then it shall abate but if after it is otherwise And there are a number of Presidents of this nature both in the Arches and Admiralty Courts c. And in this very Case Henry Polexphen having obtained Administration de bonis non of his Vncle Andrew in the Country the now Plaintiff got it set aside by the Delegates because granted while an Appeal was depending and that upon full debate before them who would yet now suggest that the Appeal was determined by the death of Andrew The Court were of Opinion that no Prohibition was to be granted and that the Delegates Authority to proceed in that case continued notwithstanding the death of Andrew For the Commission is to proceed in causis Administration c. una cum suis incidentibus vel annexis qualitercunque c. Summariè juxta Juris exigentiam So that the Ecclesiastical Law is appointed to be their Rule by the course of which a Suit doth not abate by the death of the parties And Hale said The Appeal is to the King in Chancery and it is by reason of his Original Jurisdiction and thereupon he grants a Commission to hear it Now if he could hear it in Person none could object but that he might determine the Cause after the death of the parties and by the same Reason they may to whom he hath delegated his Authority But the Attorney General coming in and desiring to be heard in it for the Plaintiff the Court gave further time Eaton versus Barker THe Case was now moved again upon the Statute for coming to a place where he had formerly Preached in a Conventicle And Exception was taken to the Declaration For that it was not averred that the Defendant was in Holy Orders For the words of the Statute are That if any one that hath been Parson Vicar Lecturer c. or within Holy Orders and have taken upon them to Preach c. But to this it was Answered that there is another Clause in the Act That all such persons as shall take upon them to Preach c. which is general and extends to all men whether in Orders or no which have been Preachers And of that Opinion were the Court. It was also Objected That there was no Averment That the Defendant was not there upon Summons Sub
if the Heirs satisfied the Office of their Title without pleading as where Conusans of Pleas have been once allowed it is sufficient in another Action to shew the former Roll where it was alallowed Note An Indictment for a Nusans in the High-way The Court will not quash this Indictment upon Motion unless certified that the Nusans is removed But they will Reverse it upon a Writ of Error if their be Error in it without any such Certificate Iles Case A Mandamus was prayed to the Churchwardens of the Parish of Kinsmere in Hampton to restore John Iles to the place of Sexton there and it was granted And so the Court said hath béen for a Parish Clark Churchwardens a Scavenger But it was denied to one who pretended to be Master of the Lord Mayors Waterhouse for that they said was not an Office but a Service Anonymus A Fine was levied of Lands in Blandford Forum Resolved That this should not pass Lands in a Hamlet of that Town there being Constables distinct in Blandford Forum from others that were in the Hamlet so that they were as two Vills But if a Fine be levied of Lands in a Parish it shall extend to all the Vills within the Parish The Lord Hawley's Case A Mandamus was granted to restore him to the Recordership of Bath The Corporation returned That they were Incorporated by Letters Patents of Queen Elizabeth which empowered them to chuse probum discretum hominem in legibus Angliae peritum to be their Recorder and to hold a Court twice every Week before the Mayor Alderman and Recorder or any two of them whereof the Mayor to be one That the 1st of August 15 of this King he was made Recorder by the Committee upon the Act of this King for regulating of Corporations and that he continued in the Office Secundum locationem illam until the 25 of December 21 of the King and that from the 1 of August 15 of the King to August 21 he absented himself by the space of five years without any reasonable Cause and that he is nullo modo peritus in lege and that at a Court August the 21 they summoned him to appear some days before and he not coming they amoved him from his Office the 30 day of the said August After this Return filed it was moved First That it was repugnant for they returned That the Lord Hawley continued in his Office until the 25 of December 21 of the King and after that they amoved him in August 21 of the King To which it was answered That in regard upon the whole return it appears that he was amoved though it be said he continued after that is not material but surplusage As where a Jury gives a general Verdict and yet discloses special matter disagreeing to it the Court judges according to the special matter or else they might mean that though he were turned out yet he did continue exercising it de facto And the Court were of Opinion that the contradiction in the Return was not material For Hale said If it shall be taken that he is yet in then there is no need of a Mandamus Again it was said That the matter of absence was not sufficiently returned for it appears by the Charter that the presence of the Recorder is not necessary to the holding of the Court for it is to be held before the Mayor Aldermen and Recorder or any two of them whereof the Mayor to be one then they have not returned that they held a Court in all that time neither have they returned that any mischief or inconvenience happned to them by his absence A Park-keeper shall not forfeit his Office for Non-attendance unless a Deer be killed or the like in his absence Also it is returned from the 1 of Aug. 15. Car. to the 1 of Aug. 21. he absented himself for five years and he might be out of Town five years in six years time and yet be there every Court day And for the other cause of removal that he was not peritus in lege It was said That the Corporation being Laymen could not return a thing whereof they were not Judges That the Return was too general nullo modus peritus but ought to have set forth some special Fact whereby it might appear to the Court. Also They could not remove him for a Cause which they could not examin he was put in by Commissioners authorised by Act of Parliament which it was said did capacitate implicitely him at least their Act supplied the Election of the Town which if it had been would have dispensed with his disability And the Case of Bernardiston Recorder of Colchester was much relied upon who in 1655 brought a Mandamus to be restored to his Office And it was returned That he was not learned in the Law and that one being indicted before him upon the Statute of 1 Jac. of having two Wives and convicted he denied him Clergy and also they returned That he absented himself for nine Months and notwithstanding by the Iudgment of the Court he was restored It was said by Sir William Jones on the other side That the absence as it was returned was sufficient Cause to remove him for it is returned That without any reasonable Cause seipsum elongavit by the space of five years which must be intended five years continued and not made up by Fractions and so held the Court in that Case and executionem officij sui totaliter neglexit Now tho' his Presence be not of absolute necessity to the holding of the Court yet it is highly convenient that he should be there seeing the Charter gives such large Iurisdictions to determine all Causes excepting such as concern Freehold according to Law The Court here also must judicially take notice That the Office of Recorder is concerned in other matters besides the Administration of Justice in the Court for he is as it were the Common Counsel of the Corporation And whereas it hath béen objected That it is not returned that they had held a Court during his absence or that any prejudice had ensued Also That it must be intended that there were Courts when they have returned the Charter which empower them to hold one twice every week and 't is returned That he absented himself in Regiminis Civitatis detrimentum c. and ' its apparent they must suffer prejudice by so long absence If a Park-keeper should desert his Office for five years it would make a Forfeiture without Special Damage The other matter returned also That he is nullo modo peritus in lege is good Cause for the Charter appoints them to Elect such an one so one that is not so qualified is not capable and the Act of this King authorises Commissioners but to do what the Corporation might have done It is apparent That the Office requires skill in the Law he hath no power to make a Deputy by the Statute of 21 Jac. Causes in many Cases are
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
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
there be not an Entry immediately a Livery within the View is not good and in this case by the Marriage he becomes seised in the Right of his Wife and cannot by his own Act divest himself of that Estate or work a prejudice to his Wife by putting the Estate out of her Which makes it differ from the Case of the 38 E. 3. 11. b. Where a man made Livery of the within View to a Woman and before she Entred married her and claimed the Estate in Right of his Wife there held to be a good Feoffment For in that case there is no Alteration of the Estate consequent upon the Intermarriage Neither is it like the Case of 2. R. 2. quoted in Forse and Hemling's Case in the 4 Co. Where a Woman grants a Reversion to a Man and they Intermarry before Attornment For there the Grant is to be perfected by the Act of a Stranger which in reason should be more available to a man than his own Act. But it was Resolved by all the Court that this Livery was well Executed after the Marriage For an Interest passeth by the Livery in View which cannot be countermanded The effectual part of it viz. Go Enter and take possession was before the Marriage tho' the Estate is not in the Feme while Entry She hath done all on her part to be done and hath put it meerly in the Foffor's power and when he Enters it hath a strong retrospect to the Livery and shall be pleaded as a Feoffment when she was sole If two Women Exchange Lands and one marries before Entry this shall not defeat the Exchange The Cases of 2 R. 2. and 38 Ed. 3. are as strong Emerson versus Emerson TRin. ult Rot. 1389. Error of a Judgment in the Common Pleas in an Action of Trespass by the Plaintiff as Executor upon the Statute of 4 E. 3. De bonis asportatis in vita Testatoris The Plaintiff declared that the Defendant blada crescentia upon the Freehold of the Testator messuit defalcavit cepit asportavit Vpon Not Guilty pleaded a Verdict and Judgment was for the Plaintiff and assigned for Error That no Action lay for Cutting of the Corn for that is a Trespass done to the Freehold of the Testator for which the Statute gives the Executor no Action and while the Corn stands 't is to many purposes parcel of the Freehold So that if a man cuts Corn and carries it away presently tho' with a Felonious intent 't is no Felony Otherwise if he let it lye after 't is Cut and at another time comes and steals it So that it appears for parcel of the Trespass no Action lyes then entire Damages being given as well for the Cutting as Carrying away the Corn the Judgment is Erroneous But all the Court were of another Opinion 9 Co. 78. for 't is but one entire Trespass the Declaration only describes the manner of Taking it away Indeed if it had been quare clausum fregit blada asportavit it had been naught or if he had Cut the Corn and let it lye no Action would have lain for the Executor So if the Grass of the Testator be Cut and carryed away at the same time because the Grass is part of the Freehold but Corn growing is a Chattel The Statute of 4 Ed. 3. hath been always Expounded largely Mr. Amhurst's Case of Grays-Inn SErjeant Maynard moved for a Mandatory Writ to the Mayor and Court of Aldermen of London upon the Statute of 13 Car. 2. c. 11. to give Judgment according to the late Act of 22 nunc Regis The Case was That the Act appoints a Market to be on certain Ground set out in Newgate-Market and in all such cases for the satisfaction of the Owners of the Ground if the City cannot agree with them for it it Impowers the Mayor and Aldermen to Empannel a Jury who shall Assess and Adjudge what satisfaction and recompence shall be given to the Owners and says That the Verdict of such Jury on that behalf to be taken and the Judgment of the said Mayor and Court of Aldermen thereupon and the Payment of the Money so awarded or adjudged c. shall be binding and conclusive to and against the Owners c. Now there was Fifteen thousand Foot of Amhurst's Ground taken away for this purpose and a Jury had been Empannelled and had assessed and awarded him Two shillings a Foot but the Mayor and Court of Aldermen refused to give Sentence or Judgment thereupon This says he is a Ministerial thing and this Court will interpose when any Officers will not do Iustice or will out-go their Authority For there is the same Reason to command to do Justice as to prohibit Injustice A Bishop of Exon had Fallen-out with a Town in Cornwal and denyed them Chrisme and a Mandamus went hence to command him to give it them Mr. Noy brought in a Copy of it Sir William Jones This somewhat resembles a Procedendo ad Judicium this is stronger than the Case of commanding a Bishop to grant Administration there this Court commands them to observe a Statute tho' it be in a Matter this Court has no Cognizance of We can't have an Action on the Case Hale If they don't make you Satisfaction your Interest is not bound Maynard But that is taken away by the same Act Pag. 143. 4. We are Lessee to â—he Dean and Chapter of St. Pauls Hale 'T is not Enacted That they shall give Judgment but that is implyed I never knew a Writ commanding to grant Administration tho' the Opinion has been so Sir William Jones That was done in Sir G. Sandy's Case after great Debate Then a Rule was made to shew Cause why a Writ should not go Afterwards the Court granted a Writ but willed them to consider well of the Form and to whom to direct it Loyd versus Brooking TRin. ult 1046. The Case was Tenant for Life Remainder to his first Son in Tail Remainder to J. S. for Life Remainder to his first Son in Tail c. Tenant for Life after the Birth of his first Son accepts a Fine from J. S. to certain uses and then makes a Feoffment after which the Son of J. S. is Born and whether his Contingent Remainder were destroyed or should vest in him was the Question And it was Resolved by the whole Court upon the first Opening that the Contingent Remainder was not destroyed the acceptance of the Fine displaced nothing the Feoffment divested all the Estates but the Right left in the first Son in Remainder supported the Contingent Remainders My Lord Coke's Case 2 Rolls 796 797 is stronger He Covenanted to stand seised to the use of himself for Life Remainder to his Wife for life Remainder to his Daughter for Life when born Remainder to her first Son in Tail And minding to disturb the arising of the Contingent Estates attempted it by these two Means First He grants the Reversion and in the
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
of Wood he hath the effect of his Grant But Trees differ in value exceedingly from each other Bolton versus Cannon IN Debt against an Executor for Rent Arrere in his own time in the debet detinet The Defendant pleads that the Rent is more worth than the Land and that he tendred a Surrender before the time for which the Rent is demanded and that the Plaintiff refused to accept the Surrender and that he had fully administred and so demands Iudgment of the Action The Plaintiff replies that there was Rent Arrear to him and that therefore he was not bound to accept of the Surrender and to this the Defendant Demurrs The Court said First That an Executor that does intermeddle cannot wave a Lease or any other part of the Testators Estate for he cannot assume the Executorship for part and refuse for part Secondly That in case the Land be not more worth than the Rent it is a good Plea to an Action of Debt in the debet and detinet for he is to be charged in the detinet only tho' where the Rent is of less value he may be charged in the debet detinet for that which is accrued in his own time according to Hargraves Case 5 Co. Thirdly The doubt here is that the Defendant having waved the material part of his Plea viz. That the Rent exceeded the value of the Land and relied upon his tender of a Surrender which is nothing to the purpose whether Judgment can be here for him and that otherwise his Plea is double but because the Plaintiff hath not demurred to that but answered only to one part of it the Defendant might well Demurr upon the Replication because it does not answer all contained in the Plea for unless the party Demurrs for doubleness he is bound to answer all the matters alledged Et Adjornatur But being this Term moved again Iudgment was given for the Plaintiff because the Defendant relinquished the material part of his Bar and offered matter meerly frivolous Cartwright versus Pinkney TEnant for years Surrenders to the Lessor reserving a Rent the question was Whether it was a good Reservation And held that it was upon the Contract and that Debt lay after the first day was incurred wherein it was reserved to be paid for it was in the nature of a Rent and not of a Sum in Gross Ante Wilson and Pinckney Anonymus IN Trespass for Fishing in his several Fishery pisces cepit After a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff ought to have alledged what kind of Fishes and the number of them as in Playters Case 5 Co. is But for that it was said on the other side that at that time they were more strict in the certainty of pleading than since for now and indebitat ' Assumpsit for Work done or Goods sold is allowed without further certainty And that however the Oxford Act 15 Car. 2. here helped it for tho' this be none of the defects there enumerated yet the words of the Act being That Judgment shall not be arrested for any other exception that doth not alter the nature of the Action or Tryal of the Issue shall extend to this Case But the Court were of Opinion that none of the Acts had aided this Case in regard that there was not so much as the number of the Fishes expressed as if a Man should bring Trespass for taking of his Beasts and not say what But Hale said Trover for a Ship cum velis had been allowed because all made but one aggregate Body both the Ship and Sails But Trover pro velis would not be good Vid. 2 Cro. 435. Trespass quare clausum fregit Spinas cepit and 3 Cro. 553. Child and Greenhills Case Dr. Webb versus Batchelour al' IN Trespass for taking so many Cowes upon Not guilty a Special Verdict was found That an Act of this King for repairing of the High-ways appoints that such persons as keep Carts and Horses c. should send them at certain times to assist in the repairing of the Ways not having a reasonable excuse and that warning was given to the Parishioners of the Parish whereof the Plaintiff was Parson to send in their Carts and that the Plaintiff omitting to do it a Justice of Peace made a Warrant to the Defendant to distrain him according to the Authority given by the Act c. It was alledged for the Plaintiff First That Clergymen were not obliged by this Act for Ecclesiastical Persons have always had immunities from such charges as Pontage Murage c. and shall not be comprehended in the general words Parishioners Secondly That in regard the Act allows an excuse the Justice of the Peace ought to have caused the Plaintiff to have appeared before him to have seen whether he had an excuse before he could have made his Warrant and tho' the Officer that executes the Process of a Court of Record be indemnified where the proceeding is Erroneous yet 't is not so where the proceeding is not of Record as the 10 Co. in the case of the Marshalsey 3 Cro. 394. Nicholls versus Walker and Carter Where a Warrant was made by a Justice of the Peace to distrain for a Poors Rate Trespass was maintained against the Officer that executed the VVarrant because the Plaintiff was not chargeable as an Inhabitant of the Parish for whose Poor the Rate was made Curia contra 1. The Clergy are liable to all publick charges imposed by Act of Parliament and that hath been resolved as Hale said upon debate before all the Judges 2. The Officer that executes the VVarrant though unduely made for the cause alledged is not answerable for he is not to judge but to execute the matter it being within the Jurisdiction of the Justice of the Peace and 't is not like the Case in the 3 Cro. for there the Churchwardens And Overseers of one Parish distrained in another Parish which was out of the limits of their Authority but in 14 H. 8. 16. where a Justice of the Peace made a VVarrant to Arrest a Man for Felony which in those times was held beyond his power tho' otherwise since unless there had been some Indictment of Record yet 't is there held the Officer that executes such VVarrant is not punishable Wherefore Judgment was given here for the Defendants Termino Sanctae Michaelis Anno 27 Car. II. In Banco Regis Anonymus A Judgment was removed by Error into this Court and affirmed the Capias that is Awarded thereupon must mention it and not be general as upon a Judgment originally in this Court and if such a Writ issues out the Court will upon motion grant a Supersedeas and there needs no Writ of Error in Adjudicatione Executionis tho' it was taken out in a former Term. Anonymus LIbel was by the Churchwardens of c. in the Ecclesiastical Court for 1 l 6 s 8 d upon a Custom
for payment of so much for being Buried in the Body of the Church and a Prohibition was prayed suggesting that there was no such Custom The Court held such a Custom must be good because the Parish is to be at the charge to make up the Church Floor but if the Custom be denied it must be tried at Law And therefore inclined that a Prohibition was to go tho' it was objected that this duty belongs properly to the Ecclesiastical Court and no remedy for it elsewhere for so is the Case of a modus decimandi which may be demanded in the Spiritual Court but if the Custom be denied there shall be a Prohibition and so the case of a Mortuary since the Statute of H. 8. And it afterwards being moved again Hale Chief Justice being present the Prohibition was granted Which Hale said was sometimes granted pro defectu Jurisdictionis and sometimes pro defectu Triationis as in this case and others where the ground of the Suit is Prescription for in their Law they have sometimes allowed Prescriptions of 20 years sometimes of 40 years but we admit none but what are de temps dont c. St. John versus Moody IN an Action upon the Case the Plaintiff declared That he was possessed of a Wood and that he had a way leading from such a place to the said Wood and that the Defendant had obstructed it Vpon not Not guilty it was found for the Plaintiff and moved in Arrest of Judgment that the Plaintiff had not set forth his Title to the way whether by Prescription or otherwise and this ought to be that the Defendant might be ascertained what to make defence unto Also 't is proper to the nature of an Action upon the Case to set forth the Case at large Curia contra The Action here is grounded upon the Possession indeed if Trespass were brought by the owner of the Soil in a justification for a way 't is necessary to express by what right 't is claimed but this for ought appears may be against a Stranger In Assize for a Rent against the Terre-tenant he may demand Judgment whether he ought to answer before Title made otherwise of an Assize brought against the Pernor of a Mans Rent Where 't is pleaded that the Party ought to keep the Fence it sufficeth to say occupatores reparare consueverunt for in Truth the greatest part of the Enclosures in England have been within time of Memory The Writ of Curia claudenda is only quod debet solet 't is true before 7 Jacobi the usage has been in Actions of this nature to prescribe but not since Vid. 2 Cro. 43 123 3 Cro. 499 575. Sands and Trefuses Case and 325 Symonds and Seabourn Whereupon Iudgment was given for Plaintiff Note This Case was afterwards affirmed upon a Writ of Error in the Exchequer Chamber Drue versus Baily THe Case was an Executor had a Term and let part of it reserving a Rent and made his Executor and died The question was Whether the Executor should have the Rent or the Administrator de bonis non And it was held that the Executor should have it Bell versus Thatcher IN Error upon a Judgment given in the Court of Common Pleas where the Plaintiff in an Action upon the Case declared That he had been retained by the under Postmaster to carry about post Letters of which he made a profit and had behaved himself honestly in that Employment And that the Defendant to defame him said He had broken up Letters and taken out Bills of Exchange which brought him to such discredit that he lost the said Employment And Iudgment was given for the Plaintiff and Error assigned upon the matter for that the words do not import but that he might break open the Letters by the direction of those to whom they were directed neither do they express that they were Post Letters and the innuendo will not help it unless there had been such a signification in the words Neither is it such an Employment that an Action should lie for Scandalizing Also the Plaintiff does not declare that he was retained for above a year and seems to be little more then a Common Porter And for these reasons by the Opinion of the Court the Iudgment was reversed and Hale principally from the quality of the Employment for he said a Man should not speak disparagingly of a mans Cook or Groom but an Action would be brought if such Actions as these should be maintained Anonymus IN an Action for words the case was that the Defendant speaking to the Plaintiff said thus I know my self and I know you I never buggered a Mare And the Opinion of the Court was that the words were Actionable or else there might be sly ways to defame any Man and evade an Action Hodgkins versus Robson and Thornborow IN Debt for Rent The Defendants pleaded in Bar to the Action that the Plaintiff had entred into a Back-yard part of the Land demised by Force and Arms c. The Plaintiff replied that he ought not to be foreclosed of his Action for that the Defendant had let that Back-yard to J.S. for a lesser Term reserving no Rent and that J. S. entred and after assigned unto the Plaintiff c. which is the same Entry in the Bar. The Defendants rejoyns that J. S. did not enter to which it was demurred And after it was several times spoken to at the Bar Iudgment was given this Term by the whole Court for the Plaintiff viz. Hale Chief Justice Twisden Rainsford and Wild. And First They all held that as the pleading was in this case there could be no Apportionment of the Rent for when there is to be an Apportionment either the Jury shall do it upon nil debet pleaded or the Defendant may in his pleading set forth the value of the Land and to what the Apportionment shall be Hale said if the Lessee redemise part to the Lessor reserving a Rent there shall be no Apportionment for the parties by the Reservation have ascertained what Rent shall be allowed for that part but where there is no Rent reserved upon the Redemise there shall be an Apportionment but if part be assigned by the Lessee to a Stranger who Assigns it to the Lessor and the Lessee had reserved no Rent in that case there shall be no Apportionment for the Lessor comes under the benefit of the Strangers Contract And Hale resembled it to the Case of Lord and Tenant by an entire Service if such Tenant aliens part the Service is multiplied and after it be conveyed to the Lord the entire Service still remains upon the Tenant that holds the residue A Rent upon a Lease is not within the Statute of Quia emptores terrarum yet in many Cases there shall be an apportionment at Common Law If the Lessor enters into part by Wrong this shall suspend the whole Rent for in such case he shall not so apportion his
Juratorum was returnable die Martis prox ' post mensem Paschae Nisi prius Richardus Rainsford Mil ' c. venerit die Lune in mensem Paschae instead of post mensem and so objected That there was no Authority to try the Cause there being no such day And the Court seemed to be of that Opinion and that there was no Record by which this could be amended but the Parties agreed to go to a new Tryal an so this Point did not come to be fully resolved Woodward versus Aston AN Indebitat ' Assumpsit was brought by the Plaintiff against the Defendant for 10l received of his Money Vpon Non Assumpsit pleaded and a Tryal at the Bar which the Court permitted because the Parties were Officers of the Court the Case appeared to be thus The Master of the King Bench Office or Chief Clerk had granted the Office of Clerk of the Papers and agreed on all hands that it was his to grant it to Woodward the Plaintiff and one Vidian and the longer liver of them Vidian being a Recusant and knowing himself disabled by the late Act of Parliament to continue in the Office Prays the Court that Aston might be admitted in his room which was done accordingly and within two or three years after Vidian died and Woodward commenced this Suit against Aston supposing that he had no right in the said Office The Plaintiff to Entitle himself shewed a Copy of the Enrolment in this Court of the Deed of Grant of the Office to him and Vidian And it was objected on the Defendants part that this was not Evidence but they ought to produce the Grant it self for tho' the Enrolment of a Bargain and Sale is Evidence because the Estate passes by the Enrolment without which the Deed would not be sufficient yet here the Deed passes the Office and the Enrolment is but as it were a Copy But the Court ruled that the Enrolment might be given in Evidence and of Grants of Offices in this Court it has been the course to Enrol Deeds Then the Deed it self was produced by the Defendant which was cancelled and urged by his Counsel that the Estate in the Office was thereby destroyed Curia contra Not as to the Plaintiff unless it appeared that he had a hand in the cancelling of it But then for the Plaintiff it was said that this was an entire Office tho' granted to two and one could not surrender or grant his Interest But then the Counsel for the Defendant shewed that when the Defendant was admitted into the Office the Court demanded of the Plaintiff whether he consented and he said salvo jure and seemed unwilling at first but afterwards the Chief Justice demanded of him whether he would execute it alone and told him he knew such things of him which would make appear it was not proper for him so to do and then he said he submitted and that afterwards Sir Robert Henly Chief Clerk made a new grant to the Plaintiff and Defendant of that Office which the Plaintiff knew of and yet joyned in the Execution with the Defendant which as was urged amounted to a surrender of his former Grant In 2 Cro. 197 258. it is said if an Officer for life accepts a new Grant 't is no Surrender of his former Estate The Court did not deny but that if it did appear that the Plaintiff had accepted this new Grant it would be a Surrender and that matter of fact was left to the Jury and they found for the Defendant The Court said in this case that a Rent or other Grant was not lost by the destruction of the Deed as a Bond or chose en Action was Quaere if the party himself Cancel it and if the Grantee of the Rent delivers up the Deed to the Grantor this is no Surrender but he may Sue for his Rent if he can recover the Deed again for a Chose en Grant must be Surrendred by Deed. Curtis al' versus Collingwood IN an Assumpsit the Plaintiffs declared That the Defendant was Excommunicated at their Prosecution for not paying of a Tax made for the Reparation of a Church of which they were Churchwardens and that in consideration that the Bishop would absolve the Defendant at the Defendants Special instance and request the Defendant promised to pay unto the Plaintiffs so much After Verdict it was moved in Arrest of Judgment that there was no consideration on the part of the Plaintiff yet the Plaintiff had Iudgment for it cannot be intended but that the Bishop absolved the Defendant at their instance and would not have done it but upon the account of the Promise of paying the Money to them Termino Sancti Michaelis Anno 28 Car. II. In Banco Regis Anonymus A Bill of Middlesex was issued out by an Attorney of this Court against the Countess of Huntington which was discharged by Supersedeas without pleading because it appeared by the Record that she was a Peere and the Attorney was committed for suing out of the Process The City of London against Goree AN Assumpsit for the Duty of Scavage and declared upon the Custom of London that every one which exposes Forreign goods to Sale which had been entred in the Custom-house shall pay so much for shewing of them After Verdict it was alledged in Arrest of Judgment that no Assumpsit lay for such a Duty for there ought to be a Contract express or implied to maintain an Assumpsit Again forasmuch as the Customs of the City are confirmed by Parliament this is a Duty by Record Sed non allocatur for there are multitudes of Presidents in such like Cases an Assumpsit lies upon a Bill of Exchange accepted an Assignee of Commissioners of Bankrupt may bring an Assumpsit and yet the Debt is assigned by Vertue of an Act of Parliament And the Court said in such case as this the Declaration might be upon an Indeb Assumpsit as it was in the Case at Bar. Molyn versus Cooke al' IN Trespass for Assault Battery and Imprisonment until the Plaintiff was forced to spend 20 l and deliver up a Bond of 100 l to be cancelled wherein one Lamplugh one of the Defendants stood bound to him Cooke pleads his Priviledge as Clerk to one of the Protonotarys of the Common Pleas. The Plaintiff replies that this Trespass c. was done by them joyntly and that he had taken out an Original against them all and that this Declaration against Cook was upon that Original and that he still prosecuted the rest viz. Lamplugh and Jeffries to which the Defendant demurred And Iudgment was given Twisden and Jones only present quod respondeat ouster for Cooke being joyned with others in the Action he shall have no priviledge As Powles Case Dier 377. he being Clerk of the Crown was sued with his Wife and not allowed his Priviledge because sued with his Wife Vid. Poph. Rep. 329. and Rolls Abr. 1 p. 493. Brown versus Wait. IN
Ejectment the Case upon a Special Verdict was to this effect Sir John Danvers being seized of the Lands c. in Tail with the Fee expectant Anno 1646 and in 1647 levied a Fine to the same uses as he was before seized save that a power was reserved to make Leases for any number of years and without reserving any Rent Sir John Danvers did after become Guilty of Treason in Murdring of King Charles the first in 1648 and died in 1655. In 13 Car. 2. cap. 15. the Statute commonly called the Statute of Pains and Penalties Enacts That sundry of the Offenders in that execrable Treason of which Sir J. D. was one should amongst other Penalties there inflicted forfeit all their Lands Tenements and Hereditaments Leases for years Chattels real and interest of what nature or quality soever See the Act of 14 of this King The Lands were by Patent granted to the Duke of York who let them to the Defendant And John Danvers Heir of Sir John Danvers entred and made the Lease to the Plaintiff It had been several times argued at the Bar and this Term Iudgment was given by the Court for the Defendant And Rainsford Chief Justice delivered the Opinion of the Court and the Reasons for himself Twisden Wild and Jones as followeth The question being Whether an Estate Tail were forfeited by the words of the Act of 13 Car. 2. It was observed that all Estates were Fee simple at the Common Law and forfeitable W. the 2. de donis was the first Statute that protected Estates Tail from Alienations and from all Forfeitures of all kinds and so continued until the 12 E. 4. Taltarums Case from which time common Recoveries have been held not to be restrained by the Statute de donis and by the way it must be considered that Perpetuities were never favoured Then came the Statute of 4. H. 7. of Fines which with the explanation of the 32 H. 8. have been always resolved to bar the Issues in Tail so as to Alienations Estates Tail were set free but were not forfeitable no not for Treason until the 26 H. 8. by which they became subjected to Forfeitures in case of Treason and so by 5 E. 6. But 't is true these Statutes extend only to Attainders and 33 H. 8. Vests the Lands c. in the Kings possession without Office Thus having considered the History and Progress of Estates Tail the reasons why such an Estate should be construed to be forfeited upon this Act of 13 Car. 2. are these First The Crime mentioned is of the same nature and with the same aggravations as in 12 Car. 2. by which the Offenders are attainted of Treason c. for they are called Perpetrators of that execrable Treason with many Expressions to the like effect which was looked upon as an offence of that hainous nature that the same Parliament Enacted An Anniversary Humiliation throughout the whole Kingdom to be perpetually observed upon the account of it as if not only they that acted it but the whole Kingdom and their Posterity like to another Original sin were involved in the Guilt of it Nati natorum qui nascuntur ab illis And therefore the Punishment shall not be mitigated in any other manner than is expresly provided by that Act. Secondly It is proved by the generally and comprehensions of the words which are made use of viz. Possessions Rights Hereditaments of what nature soever Interests which does as well signifie the Estate in the ting as that wherein the Estate is which can have no effect if not extended to Estates Tail We must observe also that at the making of this Act entailed Lands were not protected from Forfeitures and tho' 26 H. 8. extends only to Cases where the Offender is attainted yet 't is of good direction to the Judges in Cases of like nature and 't is plain that by this Act of 13 Car. 2. the Offenders were looked upon in pari gradu with these attainted for when the Proviso comes to save the Estates of Strangers c. in trust for whom the Offenders were seized It is said notwithstanding any of the Convictions or Attainders aforesaid Thirdly It is to be observed that the Act takes notice that divers of the Offenders included in this Act were dead now in regard most Lands are known to be entailed if the Act had not intended such Estates to be forfeited it would signifie nothing indeed if the Offenders had been alive it might have been somewhat satisfied with the Forfeiture during their Lives But as the case was it should be of no effect at all after making a great noise of Forfeitures and Confiscations the Act would have been but a Gun charged only with Powder or as in the Fable Parturiunt Montes c. Fourthly It is manifest that the Parliament did not intend that the Children or Heirs of the Persons within the Penalties of the Act should have any benefit of their Estates for in the saving which is made for Purchasers upon valuable Considerations the Wives Children and Heirs of the Offenders are excepted then surely if they would bar them of the benefit of their Purchases à fortiori from inheriting to an Estate Tail especially of a voluntary Entail that seems to be made with a prospect of this Treason which was perpetrated a year after and such an Entail as scarce the like was ever seen before that a power should be reserved to make Leases for any number of years and without Reservation of any Rent By which it is manifest that Sir John Danvers that committed the Treason was fully Master of the Estate Again all Conveyances are avoided by the Act unless such as were upon valuable Consideration which this Fine was not The great case which has been insisted upon by way of objection is Trudgeons Case Co. Litt. 130. Estates Tail were not forfeited upon the Statute of Praemunire but during the Offenders Life For answer to that it must be observed that that Forfeiture is upon the Statute of 16 R. 2. at which times Estates Tail were under thè protection of the Statute de donis but since that time the Judges have not been so strict in expounding Statutes concerning Estates Tail as appears by Adams and Lamberts Case 4 Co. That an Estate Tail given for a superstitious use was within the Statute of 1 E. 6. cap. 4. where the words are generally and not so large as in our case nor so much to demonstrate the intent as is in our Act to extend to Estates Tail wherefore Iudgment was given for the Defendant Note They that argued for the Defendant endeavoured to maintain that if it should be admitted that Entails were not forfeited by the Act yet the Estate of Sir John Danvers in those Lands would be forfeited in regard he levied a Fine in 1647 and the Act of 13 Car. 2. extends to all Lands c. whereof the Persons therein mentioned were seized c. since 1646 and he being
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
legitimum Granting of Administrations was originally Temporal an came to the Churchmen by the Indulgence of Princes and therefore must in some sort be governed by the Temporal Laws In Administrations the Whole Blood ought to be preferred before the Half Blood for Next of Kin shall be taken to be meant by the Statute such as our Laws judge to be so Rolls tit Prohibition 303. and so it was held in one Brown's Case before the Delegates in 8 Car. This being a New Case the Court gave no Opinion but Adjourned it to the next Term. Postea Termino Paschae Anno 29 Car. II. In Banco Regis NOte Where Justices of the Peace find a Force and make a Record of it upon their View they are to Commit the Offenders but cannot restore the Possession Anonymus A Prohibition was prayed to a Suit in the Spiritual Court for Money taxed for the Reparation of the Church upon a Surmize that the Tax was imposed upon one part of the Parish omitting the rest And for this was cited Rolls tit Prohibition 291. in the Point But the Court doubted in regard it was not alledged That they had offered that Plea in the Ecclesiastical Court because Reparation of Churches is proper for their Cognizance But the Prohibition was granted and the other might Demur if they thought fit But afterwards in this Term it was Countermanded Anonymus A Prohibition was prayed to the Admiralty where there was a Libel for a Ship taken by Pirates and carried to Tunis and there Sold for that it did not appertain to the Court to try the Property of the Ship being sold upon Land Curia In regard it was taken by Pirates it is originally within the Admiral Jurisdiction and so continues notwithstanding the Sale afterwards upon the Land Otherwise where a Ship is taken by Enemies for that alters the Property And this was the Opinion of the Court in Eglesfield's Case in my Lord Hales's time contrary to my Lord Hobart in the Spanish Ambassador's Case 78. in the 1. Cro. 685. they have Cognizance of the Case of the Pirate because incident to the Principal Matter But afterwards it was observed upon the Libel that there was no mention made That the Ship was taken super altum Mare And tho' there was contained therein very much to imply it yet the Court held that to be absolutely necessary to support their Jurisdiction Note One taken upon an Excom ' Cap ' was Discharged because the Writ de Excom ' Cap ' was not delivered into this Court and Enrolled as is required by the Statute Robinson versus Woolly IN an Ejectment upon a Special Verdict the Case appeared to be thus A Clerk was Admitted and Instituted to a Benefice within the Diocess of Gloucester whilst the Bishoprick was Vacant and a Mandate from the Archbishop for Induction but before it was Executed by the Archdeacon a new Bishop of Gloucester was Consecrated and whether the Induction coming after was sufficient was the Question That it was It was Argued that after the Mandate made it was Executed so far as the Bishop had to intermeddle in the matter For if no Induction does follow the Remedy lies not against the Bishop F.N.B. 47. h. But an Action upon the Case against the Archdeacon for the Induction is said to be a Temporal Act 1 Rolls 125 195. Neither can such Mandate be Revoked by the Bishop or be Inhibited by the King 1 Rolls 294. Again the Archbishop hath a concurrent Jurisdiction with the Bishops throughout his Province and may Admit and Institute until the Inferiour Bishoprick is full And the Statute of 23 H. 8. cap. 9. takes away the Jurisdiction of the Metropolitan only as to Proceedings in that Court In case the Inferiour Ordinary refuses to Admit the Archbishop may do it as appears Hob. 15. Hutton's Case and Mo. 879. It was said on the other side That this was but an Authority derived from the Bishop and therefore ceasing before it was Executed is determined The Bishop may direct his Mandate to another as well as the Archdeacon It was compared to a Letter of Attorney to make Livery which cannot be done after the Death of him that gave it Et Adjornatur Postea Anonymus IN an Information of Forgery the Defendant Challenged one of the Jury for that the Prosecutor had been late Entertained at his House This was admitted to the Favour tho' against the King Vid. for that in the 1 Cro. 663. And then the Counsel for the King challenged another and being pressed to alledge the Cause for 33 Ed. 1. does take away the General Challenge quia non sunt boni pro Rege But all the Court save Wild who seemed to be of another Opinion ordered the Panel to be first gone through and if there were enough the King is not to shew any Cause Vertue versus Bird. IN an Action upon the Case the Plaintiff declared that it was agreed between him and the Defendant That he should carry the Defendants Timber from a certain place to the Defendants House then and there to deliver at such place as the Defendant should appoint and that such a Day and Year he did carry with certain of his Carts to the place aforesaid the said Timber there ready to be delivered but that the Defendant delayed by the space of six Hours the Appointment of the place insomuch that his Horses being so Hot with Carrying of the Timber aforesaid and standing in aperto Acre they died soon after After Not Guilty pleaded and a Verdict for the Plaintiff Ventris moved in Arrest of Judgment that here did not appear any Cause of Action for it was the Plaintiffs Folly to let the Horses stand Neither was the Defendant under the Penalty of an Action bound to receive the Timber or appoint a place but in case of Refusal the other might recover what he Contracted for the Carriage having done all on his part but not to bring an Action for not appointing a Place And by the Opinion of all the Court the Judgment was stayed Vid. 2 Cro. 386. Roll. Rep. 275. Baily and Merritt Anonymus IT was moved for the setting aside of an Order of Sessions for the Setling a Poor person in a Town which had been sent thither by a Warrant of two Justices and it was Confirmed upon an Appeal to the Sessions But the Court would hear nothing of the Merits of the Cause the Order of the Sessions being in such case Final unless there were an Error in the Form Note A man gives a Warrant of Attorney to Confess a Judgment and dies before the Judgment is Confessed This is a Countermand Anonymus JUstices of the Peace at the Sessions Ordered the Father of him which had the Bastard Child to provide for it under the pretence of the reputed Grandfather for the Statute doth enable them to Tax the Grandfather of a Legitimate Child But in this Case the Court held there was no Colour and therefore quashed the
Order And Wild said It was well Westminster-Hall Doors were open Kent versus Derby INdebitatus Assumpsit The Plaintiff declared that the Defendant being indebted to him in a certain sum pro diversis mercionis ante tunc venditis deliberatis ad requisitionem of the Defendant to a Stranger did promise to pay c. After Verdict for the Plaintiff it was moved in Arrest of Judgment that this was but a Collateral Promise and that no Indebitatus Assumpsit would lie for the Debt was from the person to whom the Goods were sold Wild and Jones held the Action well brought and cited an Action sur indebitatus Assumpsit lately in this Court against one for Money promised in Marriage with his Sister Vid. R. 120 122. Sed Rainsford Chief Justice contra But the Plaintiff had Judgment Termino Sanctae Trinitatis Anno 29 Car. II. In Banco Regis Howlet versus Carpenter THe case upon a Special Verdict in Ejectment was this a Copiholder of a Dean and Chapter levied a Fine with Proclamation and five years passed without any Seizure or Claim by him that was Dean at the time of the Fine levied and whether the succeeding Dean was barred was the question And the Court at the first opening held clearly that he was not for if so the Statutes 1 13 Eliz. which restrain the Alienation of the Church Revenue would be of small effect 11 Co. Magd. Colledge's Case The Company of Ironmongers versus Nailer IN Trespass upon Not guilty a Special Verdict was to this effect that Nailer being one of the Officers for Collecting of the Duty of Hearth Money distrained for a certain Sum accruing for the Chimneys of a new built House which had never been inhabited neither did it appear that there had been any account of the Chimney's thereof returned into the Exchequer There were made three questions First Whether any thing shall be paid for Chimneys in such new built Houses Secondly Whether the Distress can be for that Duty in other places than at such Houses Thirdly Whether there can be any Distress taken before such time as the account of the Chimneys be returned into the Exchequer As to the first the whole Court were clear of Opinion that such new Houses which were never inhabited were chargeable for the words of the first Act are express viz. That every Dwelling and other House and Edifice other than such as are after excepted shall pay And there is no exception that extends to such House altho' it were objected that the Proviso in the Act of 14 is that the Duty shall be chargeable only on the Occupier and every Clause in the Act runs upon Occupiers and the Act of 15 recites the Kings Revenue to have been much obstructed for want of just Accounts of Chimneys under the hands of the Occupiers and the Act of 16 charges the next Occupiers with the half years payment where the former Occupâ—er removed before it grew due which implies if an House stood empty for longer time it should not be paid Again it is appointed to be demanded at the House and in case of refusal to distrain which shews an intention that it should be inhabited But it was answered That the words before mentioned were so full as not to be avoided and that there were sundry Clauses also in the Act which did import an intention that empty Houses should pay and so hath been the practice ever since the Act and that there were no manner of difference between these Houses which were new built and other Houses that in case there was no Tenant the Owner was understood to be Occupier as if the Owner grants an House in his Occupation it would be well tho' he did not inhabit it himself if it were inhabited by no other The Act of the 13 and 14 appoints notice to be fixed upon the Door for an account to be given in case there be no Inhabitant and six days after such notice to enter and take account which shews they meant empty Houses should be chargeable and why not as well as for Chimneys whereof no use is made As to the second Point the Distress it well taken tho' it doth not appear to be after an account made into the Exchequer for the duty accrues before and that is provided only that the King might be apprized of the number of Chimneys and so there might be a check upon the Collectors when they make their Accounts neither is any Process appointed to go out upon such Return of the number of Chimneys The Statute of 21 Jac. appoints Informers to be Sworn but if an Informer be not Sworn 't is but a neglect in the Officer The Proceedings are notwithstanding sufficient Mo. 447. where 21 H. 8. appoints the Enrolments of Dispensations in Chancery yet if not done it does not invalidate the Dispensation Thirdly The Distress was resolved to be well taken being in the Kings Case for an Act of Parliament shall be expounded according to the reason of the Law in such Cases Note Livesay the Secondary craved the Opinion of the Court whether he should tax treble Costs in this Case for the Act of 14 gives treble Costs where any person is prosecuted for what he should do in execution of that Act c. Now that Act appointed the Constables c. to Collect and Execute the Act. But now by vertue of the subsequent Acts for the Chimney Money the Collection c. is by other persons and the doubt is Whether they can have treble Costs by the Act of 13 and 14. But the Attorney General who was of Counsel with the Defendant said he would not insist upon treble Costs at this time because this Cause was brought on by consent for the determination of the doubt about new empty Houses paying but desired that it might be without prejudice Baker versus Bakers A Prohibition to the Delegates The case was that Administration had been granted to the Wife upon which an Appeal was brought by the Mother of the Intestate upon this Allegation in t ' al' That the Wife had Covenanted that she would not intermeddle in the Administration in regard she had been otherwise sufficiently provided for for it was said that the Ecclesiastical Judges had not to do with such matter But it was objected on the other side that it fell incidently into the principal matter whereof they had Conuzance but they might be prohibited if they judged the effect of it contrary to our Law neither did it appear that the Delegates would admit of this Allegation and there were no presidents for a Prohibition quia timer But on the other side it was said that there would go a Commission out to examin this matter of course before the Judges Delegates should sit to hear the merits of the case and that would take up so much time that many of the Goods being bona peritura would be lost but note the Ecclesiastical Judges may provide for the
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
meant by the name of Son As to Beckford's Case the Words are full to carry all and therefore it had been impertinent to have wrote over the Will again So where a man has two Sons named John it may be well averred that he meant the younger Son for nothing in the Will is inconsistent with such meaning The Court took time to deliver their Opinions And afterwards the Chief Justice delivered the Opinion of the Court That neither the Republication nor Parol Declaration could operate as a Devise to R. c. the Grandson Pepis's Case A Mandamus to restore him to his Place of Recorder of the Town of Cambridge The Return was That they were Incorporated by the Name of Mayor Aldermen c. with a Power to chuse a Recorder Habend ' pro termino vitae aut ad voluntat ' eligentium That Mr. Pepis was Chosen Recorder ad voluntat ' eligentium and that afterwards by the Votes of the greater number of the Electors he was removed and the Lord Allington constituted a Recorder under their Common Seal c. Vpon this Return it was moved for Mr. Pepis that altho' they had alledged a Power to Chuse a Recorder at Will yet they should have shewn Cause for his Removal being a Judicial Office which the Court takes notice of and that none had such a Power but the King to remove Judges ad libitum Again A Corporation aggregate cannot determine their Will but under their Common Seal and that is not shewn here Curia Where a Recorder is at Will they may remove him at pleasure as it is in Blagrave's Case and several other Cases As to the other Point it does not appear that he was Constituted under their Common Seal perhaps then they must have determined their Will under their Common Seal but now 't is well enough my Lord Allington is Constituted under their Common Seal which Act removes the other so it was adjudged against Mr. Pepis Termino Sancti Michaelis Anno 31 Car. II. In Banco Regis A Prohibition was prayed to the Court of Admiralty upon a Suggestion that the Suit was there upon a Contract made upon the Land The Case was thus A Bargain was made upon the Land with severl Seamen to bring up a Ship from a Port in England to London for a certain Sum to them to be paid And for the Prohibiton 't was alledged that this being upon the Land and a Contract with divers joyntly for a Sum in Gross it could not be within the ordinary Rule of Mariners Wages which is permitted to be Sued for in the Court of Admiralty in favour of the Mariners because they may all joyn in that Court and not be put to the inconvenience of Suing severally as they must at Law but as this Contract is they are to sue joyntly at Common Law But the Prohibition was denied for this must be taken as Mariners Wages And therefore tho' the Contract were upon the Land yet they have Jurisdiction Besides the Party comes after Sentence and therefore in the Courts discretion whether they will then grant a Prohibition Note A Rump Act was made to enable Mariners to Sue for Wages in the Admiralty but yet the Law was taken to be so before Vid. 3 Cro. Anonymus A Prohibition was prayed to the Ecclesiastical Court where the Libel was for these words You are a Whore and Ply in Moorfields And the Suggestion was that the words were spoken in London where an Action lies for such words and for that Cause a Prohibition was granted otherwise Suits might have been in the Court Christian for such words tho' not singly for the word Whore being a common word of brabling otherwise where joyned with words which shew the intent to Defame in that kind Anonymus AN Indebitat ' Assumpsit was brought for Goods sold and delivered The Action was laid in London and a Motion was made to change the Venue upon an Affidavit that the Sale was in Kent But on the other side it was said the delivery was in London and that were the Matter consists of two parts in several Counties the Plaintiff shall have his Election to which the Court agreed Anonymus A Man Covenants with his intended Wife to give her leave to dispose of so much by her Will and then they Intermarry the Husband having given Bond to a third person for the performance of these Covenants after the death of the Wife the Husband is Sued upon the Bond for not permitting her Will to be performed And upon Oyer of the Condition it was insisted on for the Defendant that these Covenants were discharged by the Marriage and so the Bond likewise loseth its force Vid. Hob. 216. Et Adjornatur Anonymus A Motion was made to quash an Inquisition of forcible Entry it was Inquisitio capta per Juratores super Sacramentum suum coram T. S. J. N. Justiciariis c. qui dicunt super Sacramentum praed ' And it was objected That qui dicunt c. referring to the last antecedent it was that the Justices say Sed non allocatur for super Sacramentum praedict ' makes it certain Note The Caption of an Indictment may be amended the same Term it comes into Court Anonymus AN Indictment for not taking upon him and executing the Office of a Constable to which he was chosen by the Leer The question was Whether a Tenant in antient Demesne were obliged to that Office And the Court held that he was Termino Sancti Hillarij Anno 31 32 Car. II. In Banco Regis Anonymus IN Ejectment upon a Special Verdict the case was thus A Lease was made A. and B. for their Lives Remainder to the first Son of A. c. Remainder to the Heirs of A. B. conveys his part to A. The question was Whether the Contingent Remainder to the first Son were destroyed Holt argued that it was For a Contingent Remainder must have some particular Estate of Freehold to support it and by the Release of B. his Estate was gone and there became an intire Fee in A. For by whotsoever means a Joynt tenant for Life conveys his Moiety to his Companion it does not enure by Grant of the Estate but by Release as Eustace and Scawens Case 2 Cro. 696. A. and B. Joynt tenants for Life A. Levy's a Fine to B. B. dies there shall be no Occupancy of the Moiety of A. during the Life of A. Jones 55. and the Case of Lewis Bowels 11 Co. is not to be objected where an Estate for Life was made to B. and F. the Remainder to their first Son that they should have in Tail Remainder to B. and F. in Tail here tho' an Estate in Tail is executed in B. and F. until a Son Born yet after upon the Birth of the Son the Contingent Remainder shall vest and split and divide the former Estate 2 Co. 60.61 but here the Fee becomes executed by several Conveyances but there the Estate
could not be digged up there might be an Indictment Exhibited to the Grand Jury who might Enquire thereupon Termino Sancti Hillarij Anno 32 33 Car. II. In Banco Regis Anonymus A Motion was made against a Judge of an Inferiour Court of Record for increasing upon a View the Damages in an Action of Trespass and Battery to so much more than was given by the Jury Curia The proper way is to Reform it by a Writ of Error for none but the Courts at Westminster can increase Damages upon View Anonymus IF a Writ of Error in Ejectment c. abates by the Act of God a second Writ will be a Supersedeas Otherwise where it abates by the Act of the Party Anonymus IN a Writ of Error to Reverse a Fine the Proclamations were pleaded in the same Fine and Five â—ears quiet possession and this in barr of a Writ of Error The Court Inclined that the Error being in the Fine Five years possession could not be pleaded Sed Adjornatur Mo. Rep. 8. Termino Paschae Anno 33 Car. II. In Banco Regis NOte This Term Sir Francis Pemberton was made Lord Chief Justice of the Kings-Bench in the room of Sir William Scroggs who was displaced Page versus Denton HIll 32 33. Car. 2. Rot. 45. In Debt upon a Bond against an Executor who pleads that the Testator was Indebted to him by an Obligation the Condition whereof was to pay Rent and that at the time of his Decease there was 300 l due for Rent and that he had not more than 60 l Assets to pay it c. The Plaintiff Replied That there was but 30 l due for Rent at the time of the Testator's death Which the Court held to be a good Replication altho' the Penalty of the Bond was forfeited at the time of the Testator's death For if a Bond due to a Stranger be forfeited and this be pleaded by an Executor and that he hath not Assets ultra 't is a good Replication to say That the Obligee would have taken part of his Money in full and it shall be a Bar for no more and here the Defendant ought to take but his due Debt And the Court said that if men would plead their Case Specially it would save many a Suit in Chancery Fitzharris's Case EDward Fitzharris was Indicted of High Treason upon which being Arâ—aigned and demanded to plead he delivered in a Paper containing a Plea to the Jurisdiction of the Court which could not be received as the Court said not being under Counsel's Hand Whereupon he prayed to have Counsel assigned and Named divers whereof the Court assigned Four And he was taken from the Bar three of four days being given him to advise with his Counsel to prepare his Plea as they would stand by him The Counsel prayed that they might have a Copy of the Indictment But the Court denied it and said that it was not permitted in Treason or any other Capital Crimes But Justice Dolben said that sometimes it had been allowed to take Notes out of the Indictment Vid. Mirror 304. Abusion est que Justices ne monstre l'Indictment à les Indictes s'ils demandront Sect. 115. Termino Sanctae Trinitatis Anno 33 Car. II. In Banco Regis Anonymus IN an Action of Debt against an Executor in the Debet and Detinet upon a Surmize of a Devastavit the Defendant was held to Special Bail And so Ruled upon Motion Anonymus IT was said by the Court That if a Corporation that hath been by Prescription accept a New Charter wherein some alteration is of their Name and likewise of the Method in the Governing part yet their Power to remove and other Franchises which they had de temps d'ont c. do continue And if the Power to Remove be at their Will and Pleasure this Will must be expressed under their Common Seal but in Return to a Mandamus debito modo amotus may suffice Note No Writ of Error lies upon an Indictment of Recusancy and Conviction by Proclamation Note In an Ejectment where there are divers Defendants which are to Confess Lease Entry and Ouster if one does not appear at the Trial the Plaintiff cannot proceed against the rest but must be Nonsuit Termino Sancti Michaelis Anno 33 Car. II. In Banco Regis Anonymus IN Covenant the Plaintiff Declared upon several Breaches one whereof was for not paying of 7 l according to the Covenant It was moved for the Defendant that he might be admitted to bring 7 l into Court to pay to the Plaintiff together with his Costs hitherto c. as is usual in Cases of Debt or Assumpsit for Money and that the Plaintiff might proceed for the rest if he thought fit But the Motion was denied because the Plaintiff had Declared of other Breaches and the Matter lay in Damages Anonymus ERror upon a Judgment in the Common Pleas where the Plaintiff Declared in an Action upon the Case that he had Common in the Defendants Lands habere debuit c. The Defendant Demurred because not set out how the Plaintiff was Intituled to the Common whether by Prescription or otherwise Notwithstanding which Judgment in the Common Bench was for the Plaintiff and now the same Matter insisted on for Error here and the Court doubted To make the Declaration good there was quoted the Case of Sands and Trefuses in the 3 Cro. in an Action for Stopping of a Watercourse to his Mill which was held good without saying an Ancient Mill or that he was Intituled to the Watercourse by Prescription or otherwise 2 Cro. 43.122 Dent and Oliver an Action for disturbing of him to take Toll and no Title set forth Sed Adjornatur Vid. Co. Entr. 9. 11. Day versus Copleston IN an Assumpsit for Money the Defendant pleaded the Statute for the Discharge of poor Prisoners and that he had been Discharged by that Act which provides that there shall be no after Prosecution by a Creditor in such case so as to subject the Body to Execution and says that he can say nothing further in Bar of the Action Vpon which the Plaintiff Demurred and the Defendant joyned in the Demurrer and Judgment was Entred up for the Plaintiff but with a Cesset executio quoad Corpus c. And the Court approved of this way of pleading the Statute for otherwise they said if the Matter had not been disclosed in pleading they doubted whether the could have given the Defendant the benefit of the Act but he would be driven to his Audita Querela Anonymus ERror of a Judgment in the King's Bench in Ireland it was suggested that the Plaintiff was in Execution upon the Judgment in Ireland And the Court seemed to be of Opinion that a Habeas Corpus might be sent thither to remove him as Writs Mandatory had been awarded to Calais and now to Jersey Guernsey c. Anonymus THe Case was A. Tenant in Tail Remainder to B. in Tail c. A.
given pro Quer. Termino Paschae Anno 34 Car. II. In Banco Regis Clayton versus Gillam IN Trespass for breaking and entering of his Close and Feeding c. and laying thereon certain pieces of Timber c. Et continuando Transgressionem praed ' After Verdict for the Plaintiff it was moved in Arrest of Judgment that one of the Trespasses viz. The laying of Timber could not be with a Continuando But it was resolved by the Court that continuando transgressionem praed ' shall be referred only to the Trespasses which may properly be said with a continuando But if the continuando had been expresly laid for that Trespass all would have been naught as it was resolved in a Case in this Court between Letchford and Elliot 16 Car. 2. The Earl of Shaftsbury versus Cradock IN an Action of Scandalum Magnatum for saying That the Earl was a Traytor c. The Action being laid in London where the words were supposed to be spoken It was moved in behalf of the Defendant that the Venue might be changed into some other Country and Affidavits were read that the Plaintiff had a great interest in the City and an intimacy with the present Sheriffs so that the Defendant could not expect an indifferent Tryal there and thereupon the Court did think fit to take the Cause out of London and gave the Earl the Election of any other County but he refused to Trie it elsewhere and would rather let the Action fall Curtis versus Inman IN Debt for the Penalty forfeited by the Statute of 5 Eliz. for using the Trade of a Grocer having not been Bound an Apprentice It was moved that the Action lies not in this Court because 21 Jac. cap. 4. Enacts That Actions popular shall be brought before Justices of Assize of the Peace c. But a Case was cited which was adjudged in this Court Hill 20 21 Car. 2. between Barns and Hughes which see before that such Action would lie But the Court notwithstanding in this Case said they would hear Arguments The Earl of Shaftsbury versus Graham al. IN an Action upon the Case in the nature of a Conspiracy the Declaration was That the Defendants did conspire to indict the Plaintiff of High Treason and for that purpose did Sollicit one Wilkinson and endeavoured to Suborn him to give false Testimony against the said Earl and an Indictment was offered at the Sessions at the Old Baily in London by the Defendant in pursuance of the said Conspiracy which Indictment the Grand Jury there found Ignoramus c. It was moved in behalf of the Defendants that whereas the Conspiracy was in the Declaration alledged to be in London that the Court would change the Venue and an Affidavit of the Defendants was produced That the Conspiracy alledged in the Declaration if there were any such was in Surry and not in London Note Wilkinson at the time of the supposed Conspiracy was a Prisoner in the Kings Bench and Affidavits were produced likewise to shew that the Plaintiff had such Interest with the present Sheriffs of London that an indifferent Jury was not like to be returned and that several Persons named to be material Witnesses for the Defendant durst not come to the Tryal if it were in London for fear of their Lives in regard they had been so affronted and abused when they were produced to prove the before mentied Indictment at the Old Baily and several other matters were alledged But it was insisted upon by the Counsel for the Earl That First The Venue uses not to be changed in Case of a Peer who is one of the Comites Regis and shall not be forced to Travel into another County to trie his Case as a Common Person Secondly That the present Case was local viz The preferring the Indictment at the Old Baily and where the Cause of Action ariseth in two Counties the Plaintiff hath his Election to bring it in either 7 Co. Bulwers Case But the Court declared that they were satisfied that no indifferent Tryal could be had in London they remembered they were affronted themselves when they were at the Old Baily upon the before mentioned Indictment And they resolved that they had a power to alter the Venue in the case of a Peer as it had been done about six years since in a Scandalum Magnatum brought by the Earl of Salisbury in this Court. And also they said that the Cause of Action here was Transitory viz. The conspiring and that the preferring of the Indictment was but in aggravation of Damages and the Action would lie altho' none had been offered or if preferred by other Persons than the Conspirators 'T is true when the matter ariseth in several plates the Plaintiff has Election but if there be like to be no indifferent Tryal in the place where it is laid 't is usual with this Court to change the Venue But the Court said they would not confine the Plaintiff to Surry if he could shew them cause that that was not an indifferent County Vid. 42 Ed. 3. 14. Termino Sancti Michaelis Anno 34 Car. II. In Banco Regis Denison versus Ralphson IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of a Sum of Money paid by the Plaintiff did promise to deliver to him ten Pots of good and Merchandizable Pot Ashes and that not regarding his Promise and to defraud him he delivered him ten Pots of Ashes not Merchandizable but mixed with Dirt c. And declared also that pro quadam pecuniae summa c. the Defendant vendidit to the Plaintiff ten other Pots of Ashes Warrantizando c. that they were good and Merchandizable and that he delivered them bad and not Merchandizable knowing them to be naught and to this Declaration the Defendant Demurred And it was argued by Sanders That here were Causes of Action of several Natures put into one Declaration and they required several Pleas viz. Non Assumpsit and Not guilty and therefore ought not to be joyned Thompson for the Plaintiff cited a Case between Matthews and Hoskin An Action against a Common Carrier and declared upon the Custom of the Realm and that he had not delivered the Goods and declared also in a Trover and Conversion upon the same matter and after Verdict upon motion in Arrest of Judgment the Action was adjudged well brought 16 and 17 Car. 2. Hill in this Court. So an Action against one for twenty shillings upon the Hire of an Horse and declared further that he abused him and held good Curia Those Cases were after Verdict Causes upon Contract which are in the Right and Causes upon a Tort cannot be joyned for they do not only require several Pleas but there is several Process the one Summons Attachment c. the other Attachment c. These upon the Contract lie for and against Executors the other not but these seem to be both upon the Contract viz. That
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
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-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
one hath to his Liberty Whoever excites the People to the disobedience of a Law commits the Highest Offence under High Treason I do not mean every Law as if one which should cause a Trespass to be done should be so guity but Laws which are of a publick Nature As to the Retorn I think it is the most insufficient I ever yet saw The certainty of the sum ought to have been expressed in which he and his Sureties should have been bound for otherwise the sum required might be so great that any Person might be constrained to remain in Prison There may may be lawful inciting to the breach of the Law as a Counsel or Attorney advising an Action which is not maintainable and sometimes it may be upon some particular design as in Dier 168. Bronker being made Sheriff one Hyde dissuaded him from taking the Sheriffs Oath because of the difficulty of the Articles B. was condemned in 100 l fine and 5 weeks imprisonment for refusing of the Oath and H. in 20 l and 5 weeks imprisonment for inciting him to it and the reason was because Hyde knew it to be an Offence and that makes it differ from the case of a Counsel or Attorney but the Offence was the less because the incitement was upon a particular reason and not against the Law quatenus a Law In the Retorn here they don't say that they found he was guilty but only that they found cause to suspect him Now what Remedy can be had in such a Case can an Issue be taken whether they had cause to suspect him or no Put the case one who had been fined 10 l for an Offence against this Act in which case the Statute allows of an Appeal had come to Mr. Rudyard to know what he should do and he had advised him to bring an Appeal at the Quarter Sessions this is no Offence and yet 't is an abetting to such as meet and perhaps might be a cause of suspition to a Iustice of Peace I do not see that the Retorn is good in any part of it and therefore he ought to be discharged but I think the Iustices should do well if they know him to be guilty to commit him by a better Warrant whereupon the Prisoner was discharged For it is the usage of this Court when the Iudges are of three Opinions as here my Lord Chief Justice and Tyrrell for discharging him Archer for putting him to Bail and Wyld for remanding him to give the Rule according to the Opinion of the Two which agree The Court said they had often directed that no Habeas Corpus should be moved for in this Court except it concerned a Civil Cause because when the Party was brought in and the Cause shewn this Court cannot proceed upon it therefore the proper place to move for them is the Kings Bench but they permitted it in this Case because the Party was an Attorney of the Court. The Court demanded of Rudyard upon his first bringing in whether he would submit to what they should propose and direct he said he would submit to the Rule of the Court but the Court told him that he must do but demanded whether he would yield to what they should do by way of Arbitration but he tho' advised otherwise by his own Counsel discovered his unwillingness to submit to any thing but the Rule of Law Termino Sancti Michaelis Anno 23 Car. II. In Communi Banco Methuselah Turner versus Sir Samuel Sterling Pas ' 23 Rot ' 363. IN an Action upon the Case brought by the Plaintiff against the Defendant the Plaintiff declares That London is an Ancient City and that there is an Ancient Bridge and that there use to be two Officers for it to look after it called Bridgmasters and that they have certain Fees and Profits belonging to them And that there is a Custom for the Citizens assembled in a Common Hall or Court yearly to choose or continue those Bridgemasters And another Custom that if one of these die within the Year that the Mayor shall assemble a Common Hall and they being Congregated shall proceed to the election of another Bridgemaster in his stead for the residue of the year And another Custom that upon their proceeding to Election if there be two Persons upon Election he that is chosen by the major number of Votes is duly Elected and that if one in such case require that the Polls should be numbred that the Mayor ought to allow the Poll and that the Assembly ought to be dismissed till that were done And another Custom that the Party so chosen ought to be sworn and used to receive the Profits to his own Use That 24 June 22 nunc Regis there was a Common Hall assembled the Defendant being then Mayor and that A. and B. were then and there chosen to this Office c. and being so A. died in October following and on the 18th of the same October there was another Common Hall for the Election of a Bridgemaster in his stead congregated by the Defendant and then and there the Plaintiff and one Allen stood as Competitors to be chosen for that Office and the Question grew which had the greatest number of Electors and the Plaintiff avers that he had the greatest Number and the other denied it and he requested 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 did then and there malitiously refuse the numbring the of Polls and made Proclamation That the Congregation of Electors should depart and discharged the Court and the other man was sworn and so he lost the Profits of the Place c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff after it had been several times spoken to in Arrest of Iudgment the Court delivered their Opinions seriatim Wyld I think the Action well lies for otherwise it will be in the power of every Head Officer to get whom he will have chosen or refused It is objected That non constat whether the Plaintiff should have been chosen Answer The Law gives an Action for but a possibility of Damage as an Action lies for calling an Heir Apparent Bastard It was objected also That at the Common Law there was no Action for a Parliament man against a Sheriff for not returning of him being Elected I Answer That is a place of Burthen this of Profit if I have an Horse or Beast-Market and a Toll for Sale and one hinder the Beasts from coming hither non constat whether they should be sold Yet for the possibility of that and of the loss of the Toll thereon an Action lies 41 E. 3. 24. Pl. 17. b. An Action of the Case was brought against a Sheriff for making of a Precept to one to make a Retorn in the Plaintiffs Case who indeed was not a Bailiff of a Franchise and thereupon the Retorn was quashed Br '
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
her But Object All these words together to make a Slander Answ No man can assign me such a ratiocination a male divisis ad bene conjuncta I never heard it but in my Lord Straffords Case viz. that many Trespasses should make a Treason 'T is said he stirred up a Vexatious Action so does a Counsell when he Advises an Unsuccessful Action for the party is amerced pro falso clamore He will milk your Purse taken enunciatively signifies no more than Milking a Bull the Phrase is not come to an Idiom So of Filling his Pockets these Words might have been spoken of the Law and indeed they are spoken of the Thing not the Man or his Practice Dunce Corrupt c. concern the Profession but these words are applicable to any If he had said he were not a Good Fidler would that be Actionable Termino Paschae Anno 28 Car. II. In Communi Banco Hockett Uxor versus Stegold Ux ' TRespass for Assault Battery and Wounding of the Baron and Feme Vpon Not Guilty pleaded the Verdict was as to the Wife Guilty and quoad residuum Not guilty It was moved in Arrest of Judgment that the Baron and Feme could not joyn in an Action of Trespass for Beating them both 2 Cro. 355 655. 2. That there is nothing found as to the Beating of the Husband and so an imperfect Verdict for the Quoad residuum shall extend only to the other Trespasses done to the Wife Yelv. 106. Vid. Lib. which goes to both Points But the Whole Court were of Opinion that the Verdict had Cured this Mistake in the Action 9 Ed. 4. 51. 6 Acc ' Vid. Styles 349. Termino Paschae Anno 29 Car. II. In Communi Banco Herbert Perrot's Case HE having married a Wife that had an Inheritance of a considerable Value prevails upon her while she was but of the Age of 20 years to levy a Fine upon which the Use was declared to him and her and the Heirs of their two Bodies This was taken in the Country upon a Dedimus potestatem by Sir Herbert Perrot his Father and Mother After which the Wife died without Issue but had Issue at the time of the Fine It was moved in Court that this Fine might be set aside and a Fine imposed upon the Commissioners for the undue Practice and taking of a Fine of one under Age. But all the Judges agreed they could not meddle with the Fine but if the Wife had been alive and still under Age they might bring her in by Habeas Corpus and inspect her and set aside the Fine upon a Motion for perhaps the Husband would not suffer the bringing or proceeding in a Writ of Error And Justice Atkyns said These Abuses which are so frequent in taking Fines were occasioned by the Alteration of the Common Law made by the Statute of Carlisle 15 Ed. 2. that Fines which before were always to be done in Court may now be taken by Dedimus But the Common Law â—alls much short of the Order the Statute prescribes which requires that two Judges of the Court or one at the least should taking with him an Abbot Prior or Knight of good Fame take such Fines whereas 't is now the Common Practice to name Attorneys and Inconsiderable persons The Court were of Opinion That if a Commissioner to take a Fine do execute it corruptly he may be Fined by the Court for in relation to the Fine which is the proper Business of this Court he is subject to the Censures of it as Attorneys c. But they held that they had no power to Fine the Parties for a Misdemeanour in them North Chief Justice and Wyndham would have Fined Sir Herbert Perrot for taking a Fine of one under Age But Atkyns and Scroggs dissented because it did not appear that Sir Herbert Perrot did know she was under Age and it could not be discerned by the View she being Twenty Termino Sancti Hillarij Anno 29 30 Car. II. In Communi Banco Sir John Otwaie's Case IN an Ejectment upon a Special Verdict the Case was to this effect It was found that there was a Parish of Ribton and Vill of Ribton but not Coextensive with the Parish J.S. had Land in Tail in the Parish and out of the Vill and bargained and sold by Indenture with a Covenant to levy a Fine and suffer a Recovery to the Vses of the Deed of the said Land in the Parish of Ribton and the Fine and Recovery were only of Lands in Ribton and whether this would serve for the said Land in the Parish of Ribton was the Question Serjeant Maynard Argued that it would not and said that the Division by Parishes is wholly Ecclesiastical the Limits of which are equal to the Cure of the Parson But that of Towns and Vills is Civil and hath the same Limits with the Power of the Constable and Tythingman Where a Place is named in a Record of the Law and no more said 't is always intended a Vill tho' when a Vill and Parish are both mentioned and of the same Name they are intended Coextensive The later Authorities have admitted Fines to be levied of Land in a place known 1 Cro. 2 Ro. 20. But in a Recovery the Town must be mentioned But 't is Objected That here the Intention appears by the Deed that these Lands should pass But he Answered That cannot carry the Words further than they are contained in the Record Again it is Objected That the Deed Fine and Recovery do all make but one Assurance True but each hath its several effect the Deed serves to declare the Uses but it cannot make the Record larger than it is in the Subject Matter of it If a Formedon had been brought and the Fine and Recovery pleaded in Bar had it not been a good Reply to have said Nient comprise c. In 2 Cro. 120. Storke and Fox the Case was Walton and Street were two Vills in the Parish of Street and a Fine was of Lands in Street and Resolved that no Lands but in the Vill of Street tho' in the Parish did pass And so is Mo. 910. in case of a Grant 2 Ro. 54. If this were permitted it would introduce much Mischief for men would not know what passed by searching the Record but this should be known only by a Pocket Deed and so they in Reversion a Lord of Ancient Demesne c. would not know when to make their Claim and should be barred by reason of a Private Deed when the Record of the Fine or Recovery did not import that they were concerned Fines are to end Controversies and therefore must be certain and in that respect sometimes receive a stricter Construction than Grants A Fine of a Tenement is not good but ought to be reversed but a Grant of a Tenement will bind On the other side it was Argued that since Common Recoveries have been so much in practice and become the Common Assurances of mens Estates
out of Repair Secondly The whole is Sequestred whereas it ought to have been but in proportion to the Charge of Repairing and should be certainly expressed what it required Thirdly The Sequestration is to remain by the Sentence until the Judge should take further Order Whereas it ought to have been but until the Repairs had been done These Exceptions the Court held fatal and therefore gave no Opinion as to the Matter in Law but did incline that there could be no Sequestration for being made Lay Fee the Impropriation was out of their Jurisdiction and it was now only against the Person as against a Layman for not Repairing the Church And they said in case of Dilapidations the whole ought not to be Sequestred but to leave a proportion to the Parson for his Livelyhood Anonymus IN an Ejectment upon a Special Verdict the sole Point was Whether a Lease for a year upon no other Consideration than reserving a Pepper Corn if it be demanded shall work as a Bargain and Sale and so to make the Lessee capable of a Release And it was Resolved that it should and that the Reservation made a sufficient Consideration to raise an Use as by Bargain and Sale Vid. 10 Co. in Sutton's Hospitals Case Rozer versus Rozer AN Indebitatus Assumpsit pro parcell ' Corii ad specialem instantiam requisitionem of the Defendant sold and delivered to J.S. Et sic inde Indebitat ' existens the Defendant promised to pay Vpon Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that there is no Promise laid and no Reason to presume a Promise when 't is the very ground of the Action tho' after a Verdict And admitting there were a Promise yet it being Collateral it did not make a Debt but should have been brought as an Action upon the Case Mo. 702. and Dyer 230. And hereupon Judgment was stayed Tho' as I hear in the King Bench about two years since between Danbey and Kent they held such a Case well enough after a Verdict Quaere Termino Sanctae Trinitatis Anno 33 Car. II. In Communi Banco Page versus Kirke IN an Action of Trespass upon Not Guilty at the Assizes in Suffolk a Verdict was found for the Plaintiff and 10 s Damages and 40 s Costs and Judgment entred accordingly And an Action of Debt was brought upon the Judgment and the Defendant pleaded Specially the Statute 22 23 of Car. II. ca. 9. against Recovering more Costs than Damages where the Damages are under 40 s in Trespass unless certified by the Judge that the Title was chiefly in question the Words of the Statute being If any more Costs in such Action shall be awarded the Judgment shall be void To which the Plaintiff Demurred and the Plea was held Insufficient because the Verdict was for 40 s Costs and not Costs increased by an Award of the Court. 2. If the Judgment were Erroneous yet it was hard to make it avoidable by Plea notwithstanding that the Words of the Statute are Shall be void Termino Sanctae Michaelis Anno 33 Car. II. In Communi Banco Onslowes Case HE brought an Action against a Bayliff being the chief Magistrate of a Corporation for that although he were chosen one of the Burgesses to serve in Parliament for the Corporation by the greater Number c. yet the Bayliff to disappoint him of sitting and to bring trouble c. upon him did return another Person in the Indentures together with him to his Damage c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Action would not lie And of that Opinion were the whole Court viz. North Chief Iustice Wyndham Charlton and Levins for they said they had no Iurisdiction of this Matter the principal part thereof being a Retorn in Parliament No Action before the Statute H. 6. c. did lie against a Sheriff or chief Officer of a Corporation for a False-retorn and the Courts at Westminster must not enlarge their Iurisdiction in these matters further than those Acts give them That there were no Presidents of any Actions at the Common Law save Nevils Case in the late times and Sir Samuel Bernardistons Case both which miscarried In the Long Parliament there were a great many double Retorns but no Actions had been brought which is a great Argument that no such Action lies as Littleton argues upon the Statute of Merton of disparaging an Heir Termino Paschae Anno 35 Car. II. In Communi Banco The Lord Conwallis's Case THE Case was Isaac Pennington a Copyholder of the Mannor whereof my Lord Conwallis is now feised committed Treason in the matter of the Murder of King Charles the First and then about Anno 1655. surrendred into the hands of the Lord of the Mannor his Copyhold Lands to the use of some of his Children who were admitted In 1659. the Mannor was aliened to the Lord Conwallis then came the Act of Attainder 12 Car. 2. whereby Tychburn with other Regicides were attainted and thereby it was Enacted That all their Mannors Messuages Lands Tenements Rents Reversions Remainders Possessions Rights Conditions Interests Offices Annuities and all other Hereditaments Leases for Years Chattels Real and other things of that nature whatsoever they be shall stand forfeited to the King c. Provided that no Conveyance Assurance Grant Bargain Sale Charge Lease Assignment of Lease Grants and Surrenders by Copy of Court Roll c. made to any Person or Persons other than the Wife or Wives Child or Children Heir or Heirs of such Person or Persons c. After which Attainder c. the Lord of the Mannor caused the Lands to be seised and brought an Ejectment The First Point Was whether in Case of Treason or Felony the Lord can seise before Conviction or Attainder And the Court seemed to be of Opinion that no Seisure could be till Attainder without Special Custom but they agreed the presentment of the Homage was not necessary to precede a Seisure or to entitle the Lord to take the advantage of a Forfeiture but in case of a Capital Crime it would be unreasonable and inconvenient to permit the same to be tried or controverted in a Civil Action before the Conviction appeared upon Record Secondly Whether this were such a Forfeiture as the Lord was bound to take notice thereof for if no notice then the acceptance of the Surrender c. would not preclude him from taking advantage of the Forfeiture And the Court inclined that the Lord should be presumed to take notice in this Case as he shall in the Case of Failer of Suit of Court Non-paiment of Rent c. Vide 2 Cro. Matthews and Whetton 233. Thirdly Whether the Mannor being conveyed away before the Attainder shall purge the Forfeiture Iustice Levins said That although no advantage of this Forfeiture can be taken till Attainder yet after Attainder it has relation and
IN an Assumpsit in Consideration that he paid him so much Money he promised to pay a like Sum into the Court and appear Object That there is no benefit as if it were in Consideration that he deposited so much Corn he promised to deliver it over 3 Cro. Cur ' This is not like for here he was benefit by the use of the Money but in the other case he is to deliver the Corn in specie Anonymus IT was moved that where the Defendant was a Constable and a Verdict for him being in the Execution of his Office and no Memorandum appeared as was usual upon the Postea to give him Double Costs according to the Statute of 7 Jac. that it must be now supplied But per Curiam We cannot do it because the Statute says the Judge before whom the Cause was tryed should allow double Costs and the Court cannot do it unless the Judge of Assize had ordered the Postea to be marked Anonymus IT was pleaded in Abatement that the Declaration varied from the Original in the Name of the Defendant and his Addition 'T was said that in such case the Cursitor or Clerk that made out the Writ may be ordered to attend and if his Instructions were right to amend the Writ by the Instructions Anonymus WHere a man was Outlawed after the Plaintiff had him in Prison a Reversal was Ordered at the Charge of him that prosecuted the Outlary it appearing to be an Abuse Anonymus COvenant that he shall Have and Enjoy and a Breach was assigned that such an one brought Trespass and Recovered And after Verdict it was moved in Arrest of Judgment that it does not appear that he which recovered in Trespass had a Title Serjeant Levins Here is an express Covenant that he should quietly hold the Possession and he is disturbed in his Possession tho' upon no Title And so is Dyer 328. a. Vaughan 120. Vide Hob. 35. Et Adjornatur Termino Sanctae Trinitatis Anno 1 W. M. In Communi Banco Anonymus A Motion was made to change a Venue where an Attorney was Plaintiff Object He has priviledge to lay it in Middlesex because of his Attendance Answ But here he has laid it within London Curia Then let the Venue be changed for then he is to be considered as a person at Large Anonymus A Motion was made for a Prohibition to a Suit for Tythe Lamb upon a Suggestion of a Modus to pay 2 d falling in the Plaintiffs Farm in the Parish Object A Prohibition was granted before to stop this Suit upon a Suggestion which was tryed and found for the Plaintiff and a Consultation granted Answ That Suggestion was for 2 d to be paid for every Lamb which fell in the Parish and this only to a particular Farm and so not within the Statute of 50 Ed. 3. that a second Prohibition shall not be granted after a Consultation awarded in the same Suit Vid. 1 Cro. 151. Stroud and Hoskins 1 Roll. Rep. 378. Note here If this Matter had been found by the Verdict no Consultation had been granted Hob. 192. But here the Court inclined against a Prohibition by reason of the said Statute of 50 Ed. 3. Anonymus A Fine was acknowledged before Herbert Chief Justice by a Man and his Wife 7 Decemb. 1689. and by reason that the late King James had deserted the Kingdom and taken away the Great Seal there followed a step of Proceedings at Law and the Woman died thy 20th of February following and upon the 22th of February the Kings Silver was paid as upon a Writ of Covenant in King James's time tho' no Writ was then sued out But afterwards a Writ of Covenant was taken out Returnable in Michaelmass Term last which was sealed with the Seal of King William and Queen Mary and the Fine was Engrossed and made as a Fine in Michaelmass Term. And this present Term it was moved that the Fine might be vacated and the Book of 1 H. 7. fo 9. was cited where the Cognizance of the Fine was in the time of R. 3. and afterwards a Writ of Covenant was sued in the time of Henry the Seventh which being shewn to the Court they stopped the Fine tho' 't is said in that Case that 't is the common course to take the Acknoweldgment of Fines and then to sue out a Writ of Covenant But they said they would not permit a President That an Acknowledgment of a Fine should be in the Predecessor King and the Writ of Covenant in the time of the Successor But the Court after the Cause had been twice moved and full Consideration of it gave their Opinions seriatim that the Fine should stand For the Entring of the Kings Silver after the parties death could not be now Examined in regard the Fine was engrossed and compleated as a Fine of Michaelmass Term. And so was Farmer 's Case Hob. 330. and Carill's Case Dyer 220. b. The Court would not stop a Fine taken of a Feme Covert when she was dead 1 Roll. Rep. 114. Note Several Presidents were shewn where Fines were set aside for undue Practice in the Passing of them viz. in case of Personating Fines taken by Commissioners of Infants c. Anonymus IN an Action of Trespass Quare clausum fregit and putting Stakes upon his Ground it was held that this was within the late Statute which Enacts That the Plaintiff shall recover no more Costs than Damages but if any thing had been taken away of how little value soever it had not been within the Statute Anonymus A Prohibition was granted to a Suit for Tythes upon a Suggestion that the Tythes were set out and it was moved for a Consultation that he did not alledge Notice given to the Parson And the Bishop of Catlisle's Case Hob. 107. was cited where a Custom was laid to set out Tythe Wool absque aliquibus visu tactu Roll. Abr. 2. pl. 19. of the Nine parts by the Parson c. But the Court were all of Opinion that Case having been twice moved that no Notice need be given to the Parson And so it is said to be Adjudged in Noy 19. tho' the Ecclesiastical Law is otherwise So is the Case of Chase and Ware Rolls tit Tythes 643. Style 342. where 't is held that if an Action be brought against the Parson for not taking away his Tythe after set out Notice must be given before such Action For the Bishop of Carlisle's Case in Hobart does not make against this for there a Custom was laid to exclude the Parson from seeing the Tythe which is to be set out which Custom is not to be omitted Vid. Rolls Abridg. tit Dismes 647. And the 2 of E. 6. cap. 13. Enacts That it shall be lawful for every person to whom Tythe ought to be paid to view his Tythe set forth and severed from the Nine parts Massingburn versus Durrant IN an Action of Trespass for breaking of his Close and cutting of
Record to come too late and for that Cause it was disallowed by the Court. Note This Plea was recited by Serjeant Trenchard in French and then a Challenge was offered to the Array for that it was Returned by J. S. as Sheriff of Buckinghamshire who was made Sheriff in Michaelmass Term 1687. and had continued in the Office for more than three Months and not taken the Oaths and subscribed the Declaration required by the Act of 25 Car. 2. made for preventing of dangers by Popish Recusants and so his Office by that Act was void to all intents and purposes before he made this Return of the Jury But this Challenge was disallowed by the Court for he must be taken here as a Sheriff de facto and if such a Challenge should be allowed no Trial could be had but should be put off unless the party were ready to shew that the Sheriff had taken the Test In 1 Cro. 369. Hore versus Brome a Challenge was made that the Sheriff which Returned the Jury had a Writ of Discharge before he made the Return and it was disallowed by the Court as contrary to the Record Rashly versus Williams Trin. 4 Jac. Rot. 730. PLACITA apud Westm ' coram Edwardo Herbert Mil ' Covenant against an Attorney upon Articles of Agreement for quiet enjoyment of Lands Sociis suis Justic ' Domini Regis de Banco De Termino Sanctae Trinitatis anno regni Domini nostri Jacobi Secundi Dei gratia Angliae Scotiae Franciae Hiberniae Regis Fidei defensor ' Quarto Rot. 730. Alias prout patet Termino Paschae ult ' praeterit ' Rot. DCXLVIII continetur sic Memorandum quod secundo die Maij isto eodem Termino ven ' hic in Cur ' Jonathan ' Rashleigh Armig ' per Carolum Dymock Attorn ' suum exhibuit Justic ' Domini Regis hic quandam Billam suam versus Humfridum Williams Gen ' un ' Attorn ' Cur ' DnÌ„i Regis de Banco hic praesent ' hic in Cur ' in propria persona sua de Placito conventionis fract ' cujusquidem Billae tenor sequitur in haec verba Justic ' Dom ' Regis de Banco Cornub. ss Jonathan ' Rashleigh Ar ' per Carolum Dymocke Attorn ' suum queritur de Humfrido Williams Gen ' un ' Attorn ' Cur ' Domini Regis de Banco hic praesent ' hic in Cur ' in propria persona sua de Placito quod cum per quosdam Articulos Agreeament ' fact ' sexto die Aprilis anno Domini Millesimo sexcentesimo octogesimo quinto apud Lanceston ' in Com' praedict ' inter praedict ' Humfridum Williams per nomen Humfrid ' Williams de Burgo de Bodmyn ' in Com' Cornub ' Gen ' Ex parte of another pro ex parte cujusdam Thomae Manning de London ' Gen ' ex una parte eundem Jonathanum per nomen Jonathani Rashleigh de Menabilly in Com' praedict ' Armig ' ex altera parte fact ' quor ' quidem Articul ' unam partem sigillo praedict ' Humfr ' signat ' idem Jonathan ' hic in Cur ' profert cujus dat' eisdem die anno testat ' existit Profert in Curia Imprimis concludat ' agreat ' fuit inter partes praedict ' Quod idem Jonathan ' Rashleigh pro Considerat ' in Articulis praedict ' postea express quiete pacifice haberet teneret occuparet The Articles set forth possideret gauderet Tenementum vocat ' le Saltmarsh Marsh Parke cum pertin ' scituat ' jacen ' existen ' in paroch ' de Tywardreth in Com' praedict ' pro Termino unius anni integri à Vicesimo quinto die Martij tunc ult ' praeterit ' plenar ' complend ' finiend ' except ' è dimissione praedict ' cuidam Edwardo Knollis nuper tenen ' praemissorum unum parvum clausum parcell ' praemissorum tunc arat ' Anglicè Tilled usque post tempus messionis asportationis grani abinde per praedict ' Edward ' Knollys Item concludat ' agreat ' fuit inter partes praedict ' quod praedict ' Jonathan ' Rashleigh solveret seu solvi causaret pro tenemento praedict ' summam viginti librarum legalis Anglicanae monetae per quarterial ' solutiones maximè usual ' in anno Item concludat ' agreat ' fuit inter partes praedict ' quod praedict ' Jonathanus Rashleigh ad finem termini praedict ' sursum redderet tenementum praedict ' bene reparat ' in tam bona conditione quam idem Jonathan ' tunc inveniebat tenementum praedict ' Entry of the Plaintiff prout per Articulos praedict ' plenius apparet Virtute quorum quidem Articulorum idem Jonathan ' postea scilicet nono die Aprilis anno Domini Millesimo sexcentesimo octogesimo quinto supradicto in tenementum praedict ' cum pertin ' except ' praeexcept ' intravit fuit inde possessionat ' Et idem Jonathan ' dicit quod licet ipse à tempore confectionis Articulorum praedict ' The Plaintiff avers performance of all the Covenants usque finem termini predict ' omnia singula conventiones agreamenta in Articulis praedict ' superius specificat ' ex parte ipsius Jonathan ' performand ' perimplend ' bene fideliter performavit perimplevit secundum vim formam effectum Articulorum praedict ' in facto idem Jonathan ' dic ' quod praedict ' Jonathan ' post confectionem Articulorum The Breach assigned scilicet decimo quinto die Aprilis anno Domini Millesimo sexcentesimo octogesimo quinto supradicto intravit in tenementum praedict ' except ' praeexcept ' per se servos suos videlicet Arthurum Harris Johannem Williams Petrum Kittoe posuit averia sua videlicet equos equas boves vaccas oves porcos bidentes suos in tenementum praedict ' except ' praeexcept ' herbam ibidem crescent ' cum averiis ipsius Jonathan ' praedict ' depast ' fuer ' conculcaver ' consumpser ' Ac superinde praedict ' Edwardus Knollys pro intratione depasturatione praedict ' postea ante finem praedict ' termini unius anni scilicet Termino Sanctae Trinitatis The Defendant and his Servants sued in an Action of Trespass in the Common Pleas. anno regni Domini Regis nunc primo in Cur ' ipsius Domini Regis de Banco eadem Cur ' apud Westm ' in Com' Midd existen ' implacitavit prosecut ' fuit ipsum Jonathanum praedict ' Arthurum Harris Johannem Williams Petrum Kittoe servos suos in placito Transgr ' pro praedict ' intratione positione averiorum suorum praedict ' in tenementum praedict ' except ' praeexcept ' herbam praedict ' ibidem crescent ' cum averiis praedict ' depascent ' Taliterque in eadem Cur ' postea super placito illo ê“cess suit quod per eandem Cur
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
Scire facias to the Sheriffs of London Returnable tres septiman ' Trin. ultimo praeterito who Returned that there were no Tenants in Balliva sua super hoc Testatum est in Cur ' Regis hic that there were several Tenants in the County of Norfolk and upon that a Scire facias was awarded to the Sheriff of Norfolk Returnable tres Michael ' c. So by this Record it would seem the Writ and Return is all the same day whereas the Testatum scire fac ' ought to be in Trinity Term before and therefore the Record should have been tituled Alias prout patet Term ' Sanctae Trinitat ' And this the Counsel for the Plaintiff prayed might be amended but the Court would not permit it unless they agreed to amend on both sides The City of Oxfords Case A Townsman of Oxford was chosen into an Office in the Incorporation and refusing to hold he incurred a Penalty according to the Vsage of this place for which an Action of Debt was brought And it was moved for the Defendant that he might be allowed the Priviledge of the University and a Charter was shewn whereby it was granted to the University that their Members Servants c. belonging to the University should be sued in the Court before the Vice Chancellor and not elsewhere And a Certificate was produced from the Chancellor of Oxford directed to the Chief Justice Sociis suis Justiciariis de Banco that the party was Matriculated and Registred in the University and a Servant to Doctor Irish And after hearing Counsel and it appearing to the Court that he was Registred in the University but two days before he was Chosen into the Office and was a Painter that had dwelt long in the Town and been for many years of the Corporation and no Servant attendant to Dr. Irish but had his Dwelling-house and kept Shop in the Town and that he procured himself to be admitted in the University as an Artificer to hinder the Remedy the Town had against him for not holding his Office The Priviledge was denied by the whole Court Bond versus Moyle IN an Action of Debt for 28 l 2 s and 4 d the Plaintiff declared that whereas the Defendant by a certain Bill Obligatory cognovisset se debere indebitat ' fore to the Plaintiff summam viginti octo librarum duorum solid ' quatuor denat ' solvere Querenti c. ad vel super vicesimum nonum diem Septembris qui foret anno Dom. 1685. pro vera solutione quatuordecim librar ' unius solidi quatuor denar ' ipse the Defendant obligasset se firmiter per eandem billam and in facto dicit quod the said Moyle non solvit Querenti the said 14 l 1 s and 4 d upon the said 29th of September per quod actio accrevit To this the Defendant Demurred and it was Adjudged for the Plaintiff for tho' it is not drawn properly as a Penal Bill for the payment of the 14 l c. yet there is enough to ground an Action of Debt for the 28 l 2 s and 4 d and the Day of payment seems to refer to the 28 l 2 s and 4 d Vid. 1 Cro. 771. Note 'T is the common course to declare in Communi Banco per scriptum indentat ' without saying sigillo sigillat ' but 't is otherwise in B.R. Buckler versus Millerd THe Plaintiff Buckler and two others Executors of Peter Becket brought Debt upon a Bond of 200 l which the Defendant together with one Katherine Becket had entred into to the Testator The Defendant demanded Oyer of the Condition which was Viz. That if the above bound Katherine Becket and James Millerd should yearly during the Life of the said Peter Becket and the minority of Mary Becket pay unto the said Peter Becket or his Assigns the sum of Twelve pounds by equal payments upon the 15th day of August and the 15th day of February that then the Bond should be void The Defendant pleaded Actio non for that upon the 15th of February when the Bond was alledged to be made and before the sealing thereof the said Peter Becket being Grandfather to Mary Becket in the Condition mentioned who was then within Age did deliver to the Defendant and the said Katherine Becket 200 l to the use of the said Mary to be paid to her when she should be One and twenty years of Age. And it was then agreed that the Defendant and the said Katherine Becket should give a Bond in 200 l penalty to the said Peter Becket And it was also then agreed that the Condition should be for the payment of 12 l yearly for the Interest thereof to the said Peter and his Assigns during the minority of the said Mary If the said Peter should so long live at the two days mentioned in the said Condition by equal portions and if it should happen that the said Peter should dye before the said Mary should be One and twenty that then the said 12 l Interest should remain in the hands of the Defendant and the said Katherine for the use of the said Mary to be paid to her when she should come to 21 years of Age and then to be paid to the said Mary And the Defendant further saith that after the Bond and Condition were so agreed one Yeomans by mistake wrote the Obligation as is in the Bond upon which the Action is brought and the said Defendant and Katherine not knowing the Mistake sealed the said Bond prour and that the said Peter Becket afterwards died and that only the first day of payment incurred between the date of the said Bond and the death of Peter Becket viz. the 15th day of August anno tertio Jacobi Regis And the Defendant on the said 15th day Six pounds being all that was then due to the said Peter Becket at S. obtulit solvere and was ever after ready to pay it to him and after scilicet the first day of December anno tertio supradicto did pay to the said Peter Becket the said Six pounds which he did accept unde petit Judicium c. The Plaintiff replied Protestando that there was no such Agreement and that the said Mary Becket was still living and under Age and that Six pounds became due upon the 15th of February anno quarto nuper Regis Jacobi according to the said Condition which the Defendant had not paid hoc paratus est verificare c. To this the Defendant demurred and it was insisted on for the Defendant that this Agreement might be pleaded and averred to shew the meaning of the parties and to have the Condition taken accordingly As the Case of Nevison and Whitly in the 3 Cro. and in Jones Rep. 396. where the Condition of the Bond was for payment of Interest at Six months as much as the Statute allows for a year and it was shewn to be made so by the Mistake of
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
allocatur After Verdict 2 Cro. 307. Styl 174 182. 2. the Plaintiff declares that he was possessed de quadam equa ut de catallis suis propriis and that catalla praedict ' casualiter perdidit and that coming to the Defendants hands he converted catalla praedict ' to his own use so that there is no express Conversion of the Mare The Court said That the Declaration was Inartificial but good after a Verdict for catalla praedict ' must refer to the Mare for nothing else is mentioned before Tunstall versus Brend IN an Ejectment upon Not guilty a Special Verdict was found upon which there arose several Points of Law but it was moved for the Defendant that the Declartion was of Michaelmass Term 2 Jac. 2. and the Demise is laid to be 30 Octob. 2. Jac. and so after that Term began Note The Declaration recited an Original and an Original was produced Teste 2 Novembris which was after the Demise And the Prothonotary informed the Court that this was frequently allowed and that no Memorandum of the Originals bearing Teste within the Term was used to be made upon the Record Highway versus Derby IN an Action of Trespass Quare clausum fregit solum fundum viz. duas acras terr' fod ' subvert ' asportavit Vpon Not guilty pleaded and Verdict for the Plaintiff it was moved in Arrest of Judgment that the Declaration was insufficient as to the digging and carrying away of the Soyl for duas acras terr' doth not express the quantity of Earth but the measure and extent of the Ground where the digging was And for this Cause the Judgment was stayed by the Opinion of the whole Court Note If the Sheriff Return a Rescous it is not traversable but an Attachment goes against the Rescousers and a Fine usually set Tho' it appears by Dyer such Return was allowed to be traversed in C.B. but not practised of late Termino Sanctae Trinitatis Anno 2 W. M. In Communi Banco Sherborn versus Colebach IN an Indebitat ' assumpsit for 20 l lost by the Defendant to the Plaintiff at a certain Play called Hazard Vpon Non assumpsit after Verdict for the Plaintiff it was moved in Arrest of Judgment that to Play at Dice is an unlawful Game and so the Consideration is insufficient But to that the Court said that they could not intend that this was Play at Dice tho' there is a Play called Hazard at Dice known amongst Gamesters neither is Play at Dice in it self unlawful tho' prohibited by several Statutes to certain persons and to be used in certain places Then it was moved that the Declaration was too General for tho' there have been divers Actions maintained for Money won at Play yet they use to declare that in Consideration the Plaintiff promised That if the Game went on the Defendants side he would pay so much to the Defendant the Defendant promised That if it went on the Plaintiffs side to pay so much to him But the Court said that of late it had been the usage to declare Generally and it might be as well as an Indebitatus pro opere labore And Judgment was given for the Plaintiff Note Justice Powell cited in the Case supra the Lord North's Case 2 Leon. 179. where Queen Elizabeth had granted the Fines to him and his Heirs pro licentia concordandi within a certain place and he brought an Indebitat ' assumpsit for such Fine and it was held that it would lye And also a Case adjudged in the Kings Bench the last Term that an Indebitat ' assumpsit would lye for a Dropping Fine in one Shuttleworth's Case Pyne versus Woolland Civit ' Exon ' Debt for Rent against an Executor upon a Lease parol THomasina Woolland nuper de Civitat ' Exon ' in Com' Civ8788 itat ' Exon ' Vid ' Executrix testament ' Isaaci Woolland sum ' fuit ad respondend ' Mariae Pyne Vid ' de placito quod reddat ei octoginta sex libras duos solid ' un ' denar ' un ' obulum quos ei injuste detinet c. Et unde eadem Maria ê‘ Nathanielem Salter Attorn ' Demise to the Testator suum dic ' quod cum praedicta Maria decimo die Maij Anno Domini Millesimo sexcentesimo octogesimo tertio apud Civitat ' Exon ' praedict ' in Com' ejusdem Civitat ' dimisisset praefat ' Quarta pars molendini c. Isaaco in vita sua quartam partem duorum molendinorum granaticorum unius molendini brasiatorij sub uno tecto Anglicê Roof vocat ' sive cognit ' per nomen de Cuckingstool-Mists scituat ' jacen ' existen ' in Exland in Paroch ' sancti Edmundi in Com' Civit ' Exon ' praedict ' ac quartam partem domus molendin ' sive tenementi cum pertin ' adinde prox ' jacen ' ex boreali latere eorundem necnon quartam partem medietatis pasturae unius parcell ' terrae pone dicta molendina not ' sive cognit ' per nomen de Bonhay eisdem molendinis pertin ' Habend sive pertinen ' habend ' occupand ' eidem Isaaco à primo die ejusdem mensis Maij usque finem terminum unius anni integri extunc prox ' sequen ' plenar ' complend ' finiend ' Pro uno anno Et sic de anno in annum sic de anno in annum quamdiu ambabus partibus placeret reddend ' solvend ' proinde eidem Mariae ad finem cujuslibet mensis secundum computacon ' viginti octo dierum pro quolibet mense quo idem Isaacus eadem dimissa praemissa teneret reddit ' The Rent payable Monthly sexaginta solidor ' quatuor denar ' unius obuli legalis monet ' Angl ' Virtute cujus dimissionis idem Isaacus in quartas partes praedictas intravit fuit inde possessionat ' ac easdem quartas partes usque nonum diem Septembr ' Anno Domini millesimo sexcentesimo octogesimo nono habuit occupavit ac quinquaginta septem libr ' septem solid ' un denar ' un ' obul de praedictis octoginta sex libris duobus solid ' un ' denar ' un ' obul ' parcell ' super eodem nono die Septembris Anno Domini millesimo sexcentesimo octogesimo nono supradicto ê“ reddit ' dimissorum praemissorum pro novem decim mensibus secuncum computacon ' praedict ' adtunc finit ' eidem Mariae aretro fuer ' non solut ' Rent unpaid Actio accrevit per quod accoÌ„ accrevit eidem Mariae ad exigend ' habend ' de praefat ' Isaaco in vita sua de praedict ' Thomasina post ipsius Isaaci mortem praedictos quinquaginta septem libras septem solid ' un ' denar ' un ' obul ' de praedictis octoginta sex libris duobus solidis un ' Another
' de Banco evacuat ' fuit adnullat ' prout idem Robertus superius inde placitando allegavit absque hoc quod Intrac ' ill ' facta fuit per ipsum Robertum falso fraudulent ' ac in decepconem ejusdem Cur ' modo forma prout praedict ' Willielmus superius inde replicando allegavit Et hoc parat ' est verificare Unde ut prius petit Judicium Et quod praedict ' Willielmus ab accon ' sua praedict ' inde versus eum habend ' praecludatur c. The Plaintiff Demurrs to the Rejoynder Et praedict ' Willielmus dic ' quod ipse per aliqua per praed ' Robertum superius rejungen ' allegat ' ab accon ' sua praedicta inde versus ipsum Robertum habend ' praecludi non debet quia dic ' quod placit ' praedict ' per eundem Robertum modo forma praedict ' superius rejungen ' placitat ' materiaque in eodem content ' minus suffic ' in lege existunt ad ipsum Willielmum ab accon ' sua praedicta versus praefat ' Robertum habend ' praecludend ' Ad quod idem Willielmus necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' respons ' in hac parte idem Willielm ' petit Judicium dampna sua praedicta sibi adjudicari c. Et praedict ' Robertus ex quo ipse sufficien ' The Defendant joyns in Demurrer materiam in lege ad praedict ' Willielm ' ab accon ' sua praedicta versus ipsum Robertum habend ' praecludend ' superius rejungen ' allegavit quam ipse parat ' est verificare quam quidem materiam praed ' Willielm non dedic ' nec ad eam aliqualit ' respond ' set verificationem ill ' admittere omnino recusat ut prius petit Judicium Et quod praed ' Willielm ' ab accon ' sua praed ' versus eum habend ' praecludatur c. Et quia Justic ' hic se advisare volunt de super praemissis praed ' unde partes praedict ' posuer ' se in Judic ' Cur ' priusquam Judic ' inde reddant dies dat' est partibus praed ' hic usque à die Paschae in quindecim dies de audiend ' inde Judic ' eo quod iidem Justic ' hic inde nondum c Carr versus Donne IN an Action of Trespass the Plaintiff declared upon an Assault Battery Wounding and Imprisonment The Defendant as to the Vi armis vulnerationem pleaded Not guilty quoad resid ' transgr ' insult ' imprisonament ' he Iustified for that he obtained Judgment against the Plaintiff in the Common Bench and that a Capias ad satisfaciend ' was thereupon awarded to the Sheriff which being delivered to the Sheriff he at the Request of the Defendant Mandavit Executionem inde cuidam eo quod executio inde extra eandem libertatem fieri non potuit c. Which said Bayliff had the Return and Execution of all Warrants Precepts Mandates c. by virtue of which the said Bayliff molliter manus imposuit upon the Plaintiff and arrested him c. Vpon a Demurrer it was Adjudged for the Plaintiff for an apparent fault in the Plea which was that he had not pleaded to the Battery Powel said that the Plea was also naught because it sets forth a Mandate to the Bayliff of the Liberty and did not shew that it was under the Hand and Seal of the Sheriff Norwood versus Woodly IN an Indebitat ' assumpsit for Goods sold The Defendant pleaded the Statute of Limitations The Plaintiff Replied That before the Six years were out he brought an Original in Trespass against the Defendant ea intentione to Declare against the Defendant in an Assumpsit secund ' consuetud ' Cur ' de tempore cujus c. The Defendant said that there was no such Record and the Plaintiff produced an Original in Trespass brought within the time against the Defendant and two others and it was in Trespass and insult ' in London And it was moved that this Record did not make good the Replication for 't is against Three and it should have been in a Clausum fregit for that was said to be the course of the Court to declare in any thing upon such a Writ But the Prothonotary Informed the Court that the Original being in London the Cursitor would not make a Clausum fregit into London for which no Reason was given and that therefore tho' in other Counties it is to be a Clausum fregit yet Trespass and Insult would do in this Case and so was the constant Practice And the Plaintiffs Replication is that he brought an Original in Trespass generally so it may be applied to this and 't is not material tho' others be joyned in the Writ with the Defendant But the Court doubted of the Practice Anonymus AN Attachment was granted against an Attorney for a Misdemeanor in Practice and upon a Rule of Court it was referred to the Prothonotay to tax Costs for the party grieved which were taxed accordingly and then came out the Act of General Pardon which discharged the Contempt The Court inclinced that the Costs were also discharged tho' taxed before the Pardon for that they are not Costs upon a Judicial Proceeding but a kind of Composition with the Offender who submits to pay Costs to the Injured party to the eased of the Penalty for his Contempt and so not like Costs taxed in the Ecclesiastical Court ê“ reformatione morum as in 5 Co. 51. and in 3 Cro. 6. Nota In the Dutchy Court this Term in a Suit in Equity Costs were taxed upon a Contempt to the party grieved before the Pardon And the Opinion of the Lord Chief Baron Atkyns and Justice Ventris who attended there as Assistants was That the Costs were not discharged But that was in a Court of Equity where Costs are at the pleasure of the Judge Anonymus IN an Action of Trespass Quare clausum fregit where as to some part there was Not guilty pleaded and as to the other a Special Justification and a Verdict upon the General Issue for the Plaintiff and upon the Special Issue for the Defendant The Court took this to be within the late Statute for the Plaintiff to have no more Costs than Damages because the Issue upon the Matter specially pleaded was found for the Defendant and so the same thing if the General Issue had been only pleaded and found for the Plaintiff Fagg versus Roberts al' NOta Vpon a Trial at Bar in an Ejectment where two were made Defendants and had entred into the Common Rule and at the Trial one appeared and confessed Lease Entry c. but the other did not And after Evidence given the Plaintiff was Non-suited and Costs taxed for the Defendants The Court said that both
by Cro. Eliz. 355. But they go upon the privity of Contract said to be dissolved by the Death of the Lessee Sed vid. Latch 261. that Case said not to be Resolved as cited by Co. and so Noy's Rep. 77. And for Marrow and Turpin's Case there is an acceptance of the Rent of the Assignee pleaded as appears by 1 Cro. 715. tho' that doth not appear to be insisted on by the Books which Report the Case however the latter Authotities are clear that the Action lies in the Detinet after an Assignment as appears by the Cases cited Judicium pro Quer. Note The Court was moved upon the Case of Persons Outlawed upon Mesn Process before the late Act of General Pardon 2 Willielmi Mariae it being provided by the said Act That no Process of Outlawry at the Suit of any Plaintiff shall be stayed or avoided unless the Defendant appears and puts in Bail where by Law Bail is necessary and takes forth a Writ of Scire facias against the party at whose Suit he was Outlawed Whether the Defendant before he can have the benefit of this Pardon must pay the Costs to the Plaintiff of the Outlawry there being no mention of any thing but his appearing and putting in of Bail The Court were of Opinion that he must pay the Costs and to take the Act otherwise would be a great prejudice to the Plaintiff who did no wrong And Pollexfen Chief Justice said that the Practice had been so upon the General Act of Pardon 25 Car. 2. cap. 5. and yet in that Statute the Claus◠concerning Outlawries is to the same purpose and no mention made of the Costs of the party Denny versus Mazey Essex ' ss Replevin SIMON MAZEY nuper de Bocking in Com' praedict ' Clothier sum̄ fuit ad respondend ' Samueli Denney de placito quare cepit un ' Equul ' ipsius Samuelis eum injuste detinuit contra vados pleg ' c. Et unde idem Samuel per Johannem Meriton Attorn ' suum queritur quod praedict ' Simo vicesimo sexto die Septembris anno regni domini dominae Regis Reginae nunc primo apud Bocking in quodam loco ibidem vocat ' Townfield cepit un ' Equul ' nigr ' Anglicè Black Horse Colt ipsius Samuelis eum injuste detinuit contra vad ' pleg ' quousque c. unde dic ' quod deteriorat ' est dampn ' haber ad valenciam decem librarum Et inde produc ' sectam c. Avowry pur Damage fesant Et praedict ' Simo per Stephan ' Hales Attorn ' suum ven ' defend ' vim injur ' quando c. Et bene advocat capc̄onem Equuli praedict ' in praedicto loco in quo c. Et juste c. quia dic ' quod ante praedict ' tempus quo supponitur capc̄onem Equuli praedicti quaedam Elizabetha Mann Vid ' J. S seised in Fee fuit seisit ' de praedict ' loco in quo c. in dominico suo ut de feodo Et sic seisit ' existen ' praedicta Elizabetha ante praedict ' tempus quo c. scilicet vicesimo die Septembris anno regni domini dominae Regis Reginae nunc primo apud Bocking praed ' dimisit eidem Simoni locum praed ' And demised to the Avowant at Will in quo c. habend ' occupand ' eidem Simoni abinde per spacium unius anni tunc prox ' sequen ' sic de anno in annum quamdiu ambabus partibus placuer ' The Avowant entred and was possessed Virtute cujus dimissionis Idem Simo postea ante praed ' tempus quo c. scilicet vicesimo primo die ejusdem mensis Septembr ' in praedicto loco intravit fuit inde possessionat ' Ipsoque Simone sic inde possessionat ' existen ' quia Equul ' praedict praedicto tempore quo c. fuit in praedicto loco in quo c. herbam suam ibidem tunc crescen ' depascen ' dampn ' ibidem facien ' And took the Colt damage feazant Prays Judgment and a Return And Costs and Damages according to the Statute The Plaintiff pleads in Bar to the Avowry that J. S. demised to him and traverses the Demise to the Avowant Confessing of the seisin Fee Demise to the Plaintiff For six years Idem Simo bene advocat capc̄onem Equuli praed ' in praedicto loco in quo c. Et juste c. dampn ' ibidem sic facien ' Et hoc parat ' est verificare unde pet ' Judic ' retorn ' praed ' Equuli una cum dampnis mis ' custag ' suis in hac parte appoit ' juxta formam Statuti in hujusmodi casu edit ' provis ' sibi adjudicari c. Et praedict ' Samuel dic ' quod praedict ' Simo ratione praeallegata capc̄onem Equuli praed ' in praedicto loco in quo c. justam advocare non debet quia dic ' quod praedicta Elizabetha Mann Vid ' ante praed ' tempus quo c. suit adhuc est seisit ' de praed ' Clauso in quo c. cum pertin ' in t ' alia in dominico suo ut de feodo Et sic inde seisit ' existen ' eadem Elizabetha ante praed ' tempus quo c. scilicet quinto die Junij anno regni dictorum domini Regis dominae Reginae nunc primo supradicto apud Bocking praed ' dimisit ' praefat ' Samueli idem Clausum cum pertin ' in quo c. inter alia habend ' à secundo die Marcij tunc ult ' praeterit ' pro sex annis ab eodem secundo die Marcij prox ' sequen ' Virtute cujus dimissionis idem Samuel ante praedict ' tempus quo c. in Clausum illud in quo c. inter alia intravit fuit adhuc existit inde possessionat ' Et sic inde possessionat ' existen ' The Plaintiff entred and was possessed idem Samuel ante praed ' tempus quo c. posuit Equul ' praed ' in idem Clausum in quo c. ad herbam ibidem tunc crescen ' depascend ' Et Equulus ille praedicto tempore quo c. fuit in eodem Clauso in quo c. Herbam ibidem tunc crescen ' depascen ' And the Defendant took his Colt there quousque praedictus Simo praedicto vicesimo sexto die Septembris anno primo supradicto apud Bocking praed ' in pradicto Clauso vocat ' Townfield cepit Equulum illum Et eum injuste detinuit contra vad ' pleg ' quousque c. prout ipse idem Samuel superius versus eum queritur Absque hoc quod praedict ' Elizabetha Mann dimisit praed ' Simoni praedict ' Absque hoc that J.S. demised to the Avowant modo
forma praedict ' superius in barram placitat ' minus sufficien ' Demurrer to the Bar. in lege existunt ad ipsum Johannem Cory ab advocare ac ad praedict ' Johannem Cocke Willielmum Cocke à cognicone suis praedict ' versus praefat ' VVillielmum Kempe Edwardum Edwardum habend ' praecludend ' quodque ipsi ad placitum illud modo forma praedict ' placitat ' necesse non habent nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare unde pro defectu sufficien ' placiti in barram ad advocare cogn ' praedict ' in hac parte iidem Johannes Cory Johannes Cocke Willielmus Cocke pet ' Judicium retorn ' averiorum praedictorum unacum dampnis c. sibi adjudicari c. Et praedict ' Willielmus Kempe Edwardus Laundry Edwardus Cheapman ex quo ipsi sufficien ' materiam in lege ad praed ' Joynder in Demurrer Johannem Cory ab advocare suo praedict ' ad praedict ' Johannem Cocke VVillielmum Cocke à juste cognoscend ' capconem averiorum praedictorum in praedicto loco in quo c. praecludend ' superius allegaver ' quam ipsi parat ' sunt verificare Quam quidem materiam praedict ' Johannes Cory Johannes Cocke VVillielmus Cocke non dedic ' nec ad eam aliqualit ' respond ' set verificaconem ill ' admittere omnino recusant pet ' Judicium dampna sua occone capconis injuste detenconis averiorum praedictorum sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis praedict ' priusquam Judicium inde reddant dies dat' est partibus praedict ' hic usque à die Sancti Michaelis in tres Septimanas de audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Kempe versus Cory al' IN a Replevin the Plaintiff declared for the taking of his Cattle the 19th of June 1 VVillielmi Mariae at D. in a place called Fludder Park The Defendant avows for that the locus in quo containeth twenty Acres and saith that he was seised of a Third part of a Messuage and Tenement called Trewint of which the said twenty Acres are and for time whereof c. were parcel and that he being so seised long before the taking demised the said Third part of the said Messuage and Tenement to one James Robyns to have and to hold for 99 years at the yearly Rent of 1 l 13 s and 4 d payable Quarterly during the said Demise And that the said Robyns entred and for two years Rent arrear at the Feast of the Nativity in the Year of our Lord 1688. he distrained the Cattle in the Declaration The Plaintiff Replied in Bar of the Avowry and Confessed the Seisin of a Third part of the said Messuage and Tenement and the Lease prout c. but saith that before the taking one William Spry was seised in his Demesn as of Fee of the other two parts of the said Messuage and Tenemeni called Trewint of which the said twenty Acres are parcel And he being so seised the said William Spry before the time of the taking did give License to the Plaintiff to put his Cattle into the said twenty Acres and he put them in by the said License where they continued till the Plaintiff took them and detained them prout c. To this the Avowant Demurred It was held clear by the Court That the Third part and two parts being undivided the Avowant could not Distrain the Cattle of him that had the Two parts or the Cattle of any one which were put in by his License upon any part of the Land But Pollexfen Chief Justice doubted in regard the Avowry was of the taking in praedicto loco in quo ut in super praedict ' tertiam partem tenementi praedict ' Whether the Plaintiff should not have traversed absque hoc that the taking was in tertia parte tantum and shewn in the Inducement to such traverse how they held in Common Vide More and Newman's Case in Hobart 80 103. Et Adjornatur Tovey versus Pitcher Midd'x ss Covenant against an Assignee of an Executrix THOMAS PITCHER nuper de VVestm ' in Com' praedict ' gen ' Assign ' Susannae Gill Executric ' Testamenti ult ' volunt ' Richardi Gill nuper dict' Richardi Gill of the Parish of St. Martins in the Fields aforesaid Vintner sum ' fuit ad respond ' Christianae Tovey de placito quod teneat ei convencon ' inter p̄dict ' Christian ' praefat ' Ric ' in vita sua factam secundum vim formam effectum quarundam Indenturarum inde inter eos confect ' The Plaintiff possessed of a Term for years yet in being c. Et unde eadem Christiana per Carolum Draper Attorn ' suum dicit quod cum ipsa praedict ' Christiana decimo quinto die Julij Anno Domini Millesimo sexcentesimo octogesimo extunc hucusque fuit adhuc existit possessionat ' de duobus mesuag ' sive tenement ' cum pertin ' in paroch ' Sancti Martini in Campis in Com' Midd ' praedict ' pro major ' Termino tunc adhuc ventur ' Et sic inde possessionat ' existen ' praed ' Christiana postea scilicet eodem decimo quinto die Julij Anno Millesimo sexcentesimo octogesimo supradict ' apud praedict ' paroch ' Sancti Martini in Campis in Com' Midd ' praed ' per quandam Indentur ' factam inter eandem Christian ' per nomen Christianae Tovey de paroch ' sancti Martini in Campis in Com' Midd ' Vid ' ex una parte Et praedict ' By Indenture demised to the Testator Richardum Gill per nomen Richardi Gill de paroch ' sancti Martinis in Campis praedict ' Vintner ex altera parte cujus alteram partem sigillo praed ' Richardi signat ' eadem Christiana hic in Cur ' profert cujus dat' est eisdem die anno pro in consideracon ' annual ' reddit ' convencon ' postea in Indentur ' praed ' reservat ' menconat ' content ' ex tenen ' vel less parte vice solvend ' faciend ' performand ' dimisisset concessisset ad firmam tradidisset praefat ' Richardo Executor ' Administrator ' Assign ' suis totum ill ' frontal ' mesuag ' sive tenement ' cum pertin ' sicut idem tunc fuit in occupacon ' praed ' Richardi vocat ' five cognit ' per nomen vel signum de le Fleece scituat ' jacen ' existen ' in Venella sancti Martini Anglicè St. Martins Lane in paroch ' sancti Martini in Campis praedict ' cum Romaeis scituat ' supra viam Januae Anglice Gate-way ducen ' in Aream Anglicè vocat ' Moor's Yard quod quidem
words twice or thrice Raymond's Rep. fo 97. It was held that would not pass the Land for it was said that it were hard that Lands should pass by a Parol Will by Custom unless there be express and plain words to shew the Intention Chapman versus Flexman The Style of the Court of the Exchequer Chamber PLACITA in Camera Scaccarij apud VVestm ' coram Thoma Street Mil ' Edwardo Lutwich Mil ' duobus Justic ' domini Regis de Communi Banco Thoma Powell Mil ' un ' Baron ' de Scaccario domini Regis de gradu de la Coife die Sabbati vicesimo quinto die Novembr ' anno regni domini Jacobi secundi Dei gratia Angliae Scotiae Franciae Hiberniae Regis Fidei defensor ' c. quarto Dominus Rex mandavit dilecto fideli suo Roberto Wright Mil ' The Writ of Error Capitali Justic ' suo ad placita coram ipso Rege tenend ' assign ' Breve suum Clausum in haec verba Jacobus secundus Dei gratia Angliae Scotiae Franciae Hiberniae Rex fidei defensor ' c. Dilecto fideli nostro Roberto Wright Mil ' Capital ' Justic ' nostro ad placita coram nobis tenend ' assign ' salutem Cum in Statuto in Parliamento Dominae Elizabethae nuper Regin ' Angl ' apud Westm ' vicesimo tertio die Novembr ' anno regni sui vicesimo septimo tent ' edit ' in t ' caetera inactitat ' fuit authoritat ' ejusdem Parliamenti quod ubi aliquod Judic ' ad aliquod tempus extunc postea reddit ' foret in Cur ' de Banco Regis in aliqua secta aut accone debiti detencon ' convencon ' compoti accon ' super Casum Ejeccon ' firmae aut Transgr ' primum inchoat ' aut primum ibidem inchoand ' pÌ„terea tantum ubi nos foremus pars sequen ' aut defend ' contra quam aliquod tal ' Judic ' reddit ' foret ad suam eleccon ' prosequi potest extra Cur ' Cancellar speciale breve de Errore devisand ' in dicta Cur ' Cancellar ' Capitali Justic ' dictae Cur ' de Banco Regis pro tempore existen ' dirigend ' mandans ill ' causare dict' Record ' ae omnia concernen ' dict' Judic ' Transferri coram Justic ' de Communi Banco Baron ' de Scaccario in Camera Scaccarij ibidem examinand ' per dictos Justic ' de Communi Banco Baron ' praed ' Qui quidem Justic ' de Communi Banco tales Baron ' de Scaccario qui sunt de gradu de la Coife aut sex illorum ad minus virtute ejusdem Actus superinde plenam potestat ' authoritat ' habuerunt ad examinand ' omnes tales Error ' qual ' assignat ' aut invent ' fueirnt in aut super aliquod tale Judic ' superinde reversare aut affirmare dict' Judic ' prout lex requiret praeterquam pro Erroribus assignand ' aut inveniend ' pro aut concernen ' Jurisdicconem praed ' Cur ' de Banco Regis aut aliquem defect ' form ' in aliquo Brevi retorn ' Querela Billa Declaracone aut in alio placito processu veredicto aut procedencia quibuscunque Et quod postquam dict' Judic ' affirmat ' aut revocat ' fuit dict' Record ' ac omnia ill ' concern ' in dictam Cur ' de Banco Regis removend ' reducend ' erunt ut talis ulterior ' process superinde fiat tam pro execucon ' quam alit ' prout pertinebit sicut in dicto Statuto plenius continetur Ac quia in record ' c ê“cess ac etiam in reddicone Judic ' loquelae quae fuit in Cur ' nostra coram nobis per billam inter Rogerum Flexman Johannem Chapman de quadam Transgr ' super Casum eidem Rogero per praefat ' Johannem illat ' ut dicitur Error intervenit manifestus ad grave dampnum ipsius Johannis sicut ex loquela sua accepimus Qui quidem Error nullo modo tangit nos aut Jurisdiccon ' praed ' Cur ' nostr ' de Banco Regis praedict ' aut aliquem defect ' formae in aliquo Brevi retorn ' Querela Billa Declaracon ' aut in alio placito vel ê“cedencia quibuscunque ut accepimus Nos igitur volentes Errorem si quis fuerit juxta formam Statut ' praed ' corrigi partibus praed ' plenam celerem Justic ' fieri in hac parte vobis mand ' quod si inde Judic ' reddit ' sit tunc Record ' ê“cess praed ' cum omnibuse a tangen ' coram dictis Justic ' de Communi Banco Baron ' de Scaccario nostro praedict ' in Camera Scaccarij nostri praedict ' die Sabbati videlicet vicesimo sexto die instantis mensis Novembr ' ven ' fac ' ut dicti Justic ' Baton ' vis ' examinat ' Record ' ê“cess praed ' ulterius inde Fieri fac ' quod de jure secundum formam Statut ' praed ' fuerit faciend ' Teste meipso apud Westm ' xiij die Novembr ' anno regni nostri tertio Davies The Return of the Writ Record ' ê“cess praed ' cum omnibus ea tangen ' de quibus in brevi praedict ' fit mencÌ„o sequuntur in haec verba Placita coram domino Rege apud Westm ' de Termino Sancti Hill ' annis regni domini Jacobi secundi nunc Regis Angliae c. secundo tertio Rot ' DCCCCLXMIIII The Memorandum Devon ' ss Memorandum quod alias scilicet Termino sancti Michaelis ult ' praeterit ' coram domino Rege apud Westm ' ven ' Rogerus Flexman per Johannem Clifton Attorn ' suum protulit hic in Cur ' dicti domini Regis tunc ibidem quandam billam suam versus Johannem Chapman in Custod ' Mar ' c. de placito Transgr super Casum Et sunt pleg ' de pros ' scilicet Johannes Doe Ric ' Roe quae quidem Billa sequitur in haec verba Declaration in a Special Action of the Case brought by a Lessee of an Ancient Mill for not grinding at his Mill. Devon ss Rogerus Flaxman queritur de Johanne Chapman in Custod ' Mar ' Maresc ' domini Regis coram ipso Rege existen ' pro eo videlicet quod cum quidam Johannes Speccott Armig ' secundo die Novembr ' Anno Domini Millesimo sexcentesimo octogesimo quinto diu antea continue postea hucusque fuit adhuc est seisit ' de in Maner ' Burgo de Torrington in Com' praed ' ac de septem antiquis molend ' aquat ' suffic ' ad molend ' omnia grana brasium inhabitantium infra Manerium Burgum praedict ' pro necessar ' usibus suis molit ' ibidem expendit ' sex eorum infra
his Opinion that he might But if the Owner dig there also he conceived that he might then stop his farther progress And in Cornwall it is their Vse that if a man begins a Mine in his own Land he may proceed in the Vein through another mans Ground Note If a Bill in Chancery be Exhibited against a Peer the Course is first for my Lord Keeper to write a Letter to him and if he doth not answer then a Subpoena and then an Order to shew Cause why a Sequestration should not go and if he still stands out then a Sequestration For there can be no Process of Contempt against his Person Termino Sanctae Trinitatis Anno 29 Car. II. Clobberie's Case IN one Clobberie's Case it was held That where one Bequeathed a Sum of Money to a Woman at her Age of 21 years or Day of Marriage to be paid unto her with Interest and she died before either that the Money should go to her Executor and was so Decreed by my Lord Chancellor Fynch But he said If Money were bequeathed to one of his Age of 21 years if he dies before that Age the Money is lost On the other side If Money be given to one to be paid at the Age of 21 years tho' if the party dies before it shall go to the Executors Termino Sancti Michaelis Anno 30 Car. II. In Cancellaria Haymer Vid. versus Haymer THe Case was thus The late Husband of the Plaintiff before their Marriage had entred into Articles with the Plaintiff whereby it was Agreed That certain of the said Haymer's Lands should be setled before the Marriage which was then intended between them should be solemnized upon him and the Plaintiff and the Heirs of his Body by the Plaintiff but died before the Settlement was made In pursuance of the said Articles the Plaintiff married him and after his Decease the Plaintiff Exhibits her Bill to have those Articles executed Which was Decreed accordingly against the Heir at Law of the Husband Altho' it was Objected That the Articles being to make the Settlement before Marriage it was a Waver of the benefit of them the Plaintiff marrying before it was done and the Plaintiff being the sole party with whom they were made her marriage with the other party before they were performed was a Release in Law Note The Lands were mortgaged to one that had no Notice of the Articles It was Decreed That the Plaintiff should Redeem and hold for her Life and that her Executors should detain the Land till the Money was raised that she had been out upon the Redemption Termino Sancti Hillarij Anno 31 32 Car. II. In Cancellaria Sir Oliver Butler's Case UPon a Scire facias to Repeal a Patent granted by this King to Sir Oliver Butler for a Market to be kept at Chatham reciting That there was an Ancient Market long before kept at Rochester within Half a Mile of Chatham and that there was an Ad quod damnum taken out before the New Patent and the Inquest thereupon taken found it not to be to the Damage of any and that it was Executed by Surprize and without Notice and that notwithstanding it was to the great Damage of the former Market c. To this Scire facias Sir Oliver Butler Demurred And it was Argued by his Counsel That this Patent could not be Repealed because it was preceded by a Writ of Ad quod damnum whereupon it was found to be to no Bodies damage and that should conclude all or at least the King could not bring a Scire facias to Repeal his own Patent But the Lord Chancellor Fynch assisted by North Chief Justice of the common-Common-Pleas and Justice Jones gave Judgment for Repealing of the Patent For the Return of the Writ of Ad quod damnum was not Conclusive and here by the Demurrer it is Confessed to be to the Damage of the former Market And where a Patent is granted to the prejudice of the Subject the King of Right is to permit him upon his Petition to use His Name for the Repeal of it in a Scire facias at the King's Suit and to hinder multiplicity of Actions upon the Case for such Actions will lye notwithstanding such void Patent Termino Sanctae Trinitatis Anno 32 Car. II. In Cancellario Sir Jerom Smithson's Case A Motion was made for a Ne exeat Regnum against Sir Jerom Smithson for that his Wife had Sued him in the Ecclesiastical Court for Alimony and it was suspected that he would go beyond Sea to avoid the Sentence And the Writ was granted And the Lord Chancellor said That it had been so done before for this Court was to aid the Ecclesiastical Court in such Cases And likewise the Court being Informed of his Ill usage of his Wife a Supplicavit de bono gestu was granted My Lord Hollis's Case Pasch 26 Car. II. MY Lord Hollis's Case was thus An Hundred Pounds was Lent by his Lady and in the Note which was first given for it it was written that the Money was to be disposed as the Lady Hollis should direct An Action at Law for this Mony being barred by the Statute of Limitations a Bill was exhibited for Relief and the Statute of Limitations insisted upon But in regard the Money was looked upon as a Depositum and a Trust thereupon to the Lady a Decree was obtained for the Money Sir William Beversham's Case HE had purchased a Mannor and a Copyhold being a little before Escheated which was not intended to pass in Demesn was left out of the particular yet the Conveyance was sufficient to pass it in Law And the Vendor Exhibited a Bill to be relieved and obtained a Decree to hold by Copy of Sir William Beversham Vide 1 Roll. 397. Averments not to be admitted in Chancery contrary to the purport of a Deed. Anonymus Trin. Anno 31 Car. II. THe Case was thus J.S. made his Will his Wife being at that time with Child where he ordered that all his Personal Estate after his Debts and Legacies paid should be laid out in Land in case he had a Son and be setled upon his Brother for preservation of his Name and Devised That if his Wife were delivered of a Daughter that she should have 3000 l paid her at her Day of Marriage provided that she married with her Mothers Consent and otherwise but 1000 l and also Devised That the Mother should have 80 l part of the Interest of the 3000 l for the Education of the Daughter The Testator dies and the Wife has a Daughter The Question was Whether the Daughter should have the remaining part of the Interest of the 3000 l or the Executors should have it in Trust for the Brother and so to be laid out c. It was said for the Brother that the Father intended the Daughter but 3000 l at the most and that appointing 80 l part of the Interest of her Education excluded her from the rest
his Assent to the Marriage of his Daughter with J.S. and that he would give her 1500 l And afterwards by another Letter upon a further Treaty concerning the Marriage he went back from the Proposals of his Letter And at some time after declared That he would agrèe to what was propounded in his first Letter This Letter was held a sufficient Promise in Writing within the Statute of 29 Car. 2. called the Statute against Frauds and Perjuries and that the last Declaration had set the Terms in the first Letter up again Anonymus WHere a man buys Land in anothers name and pays Mony it will be in Trust for him that pays the Mony tho' no Deed declaring the Trust for the Statute of 29 Car. 2. called the Statute of Frauds doth not extend to Trusts raised by Operation of the Law Anonymus AN Administrator de bonis non of the Conusee of a Statute had agreed with the Conusor to assign it in Consideration of a Sum of Mony which upon the said Agreement the Conusors had Covenanted to pay to him his Executors or Administrators and then the Administrator died The Court Decreed the Mony to be paid to the Executor of the Administrator and not to the New Administrator de bonis non altho' before the Extent it could not be assigned at Law Sed nota That there were not Debts of the first Intestate appearing Termino Sancti Hillarij Anno 35 36 Car. II. In Cancellaria NOte Suits in Chancery admitted for Distribution of Intestates Estates upon the Act of 22 Car. 2. Sir Thomas Draper Mil ' versus Dr. Crowther THe Bill sets forth a Contract under Seal with the Defendant for making of a Lease of certain Lands in Middlesex and to have an Execution of the Agreement The Defendant pleaded That he has Head of a Colledge in Oxford and sets forth the Charters of 14 R. 2. and 14 H. 8. Impowering the University to enquire and proceed in all Pleas and Quarrels in Law and Equity except concerning Freehold where a Scholar their Servants and Ministers sunt una partium c. ita quod Justiciarij de Banco Regis sive de Communi Banco vel Justiciarij ad Assisas non se intromittant c. And the Confirmation by an Act of Parliament of the 13th of Elizabeth and Concluded his Plea to the Iurisdiction of the Court. And it came to be Argued before the Lord Keeper Guildford 22 Febr. 1683. and the Plea was Over-ruled because the Charter ought properly to be extended to Matters at Common Law only or to Proceedings in Equity that might arise in such Cases and not to meer Matters of Equity which are Originally such as to Execute Agreements in specie Again Conuzance of Pleas is never to be allowed unless the Inferior Jurisdiction can give Remedy Here they can only Excommunicate or Imprison but cannot proceed to Sequestration of Lands in Middlesex If the Matter lay only in Damages it might be allowed to them because the Jurisdiction is given over all England but this is not to be intended where the Suit is for the thing it self and when 't is out of their reach A President was cited in the year 1663. before my Lord Clarendon Chancellor assisted with Hale then Chief Baron and Justice Wyndam where the Plea was Over-ruled Vide in the 3 Cro. 63. Wilcocks and Bradell's Case and Hallie's Case 87. Sir Robert Reeve's Case SIr George Reeve upon his Marriage with his Second Wife setled a Ioynture of divers of his Lands in Suffolk which he had before charged with his Daughters Portion viz. 3000 l which Daughter he had by a former Wife and by his last Will he mentioned that the said Joynture Lands were so incumbred and therefore he Devised certain Lands he had in Bickerton in Yorkshire to his Wife in lieu of such part of the Suffolk Lands as were charged with the Portion in case she would accept thereof But after his Decease it appeared that the Lands in Bickerton were not equivalent in Value to the Suffolk Lands and therefore she held to the latter and was not prejudiced by the Charge of the Portion because it appeared to be a Voluntary Settlement Nota In this Case the Lord Keeper Decreed that the Portion should be charged upon the Bickerton Lands for so much as it was defeated by the Settlement in Ioynture of the Suffolk Lands Anonymus ONe Devised his Lands to J.S. in Fee in Trust for Katharine and the Heirs of her Body and if Katharine died without Issue to Jane for life And in another Clause in the Will he devised That if Katharine died without Issue and Jane be then deceased then and not otherwise he gave the Land to J. N. and his Heirs Katharine died without Issue and Jane survived her and died A Bill was brought by J. N. against J. S. and the Heir at Law of the Testator to have this Trust executed My Lord Keeper Decreed it for J. N. altho' Jane survived Katharine because the words if Jane be then deceased seemed to be put in to express his meaning that Jane should be sure to have it for her life and that J. N. should not have it till she were dead and also to shew when J.N. should have it in possession Termino Paschae Anno 36 Car. II. In Cancellaria Wiliam Ragget and his Wife versus William Clarke THe Case was thus Nicholas Wheeler was seised of a parcel of Land for his own life and the lives of two others and prevailed with the Defendant to be bound with him for a Sum of Mony And that the Defendant might raise Mony for the discharge of the said Debt he permitted the Defendant to enter into the said Lands and to take the Profits for two years the said Lands being about 12 l yearly value and the said Land being so in the possession of the Defendant the said Wheeler died and made Isabel Wife of the now Plaintiff his Executrix And this Bill was brought by the said Husband and Wife to have an account of the Profits and that the possession of the Land should be delivered up to them The Defendant by Plea sets forth his Title as Occupant and it was allowed And the Bill was dismissed Bonham versus Newcomb ONe being seised in Fee in Consideration of 1000 l paid to him by a Person that married his Kinswoman Conveys to him and his Heirs and takes a Re-demise for 99 years if he should live so long And a Covenant therein That if he should pay 1000 l with the Interest that should be due for the same at any time during his life that the Grantee should Re-convey to him and his Heirs and that if he did not pay the Mony then that his Heirs c. should have no power to Redeem He died the Mony not being paid and his Heir preferred a Bill to Redeem it And it was urged for him That in a Conveyance which was a Security for Mony whatever