The Second PART OF Modern Reports BEING A COLLECTION Of Several SPECIAL CASES Most of them ADJUDGED in the COURT OF Common Pleas In the 26 27 28 29 30th Years of the Reign OF King Charles II. When Sir Fra. North was Chief Justice of the said Court. To which are added Several select CASES in the Courts of Chancery Kings-Bench and Exchequer in the said Years Carefully Collected by a Learned Hand LONDON Printed by the Assigns of Rich. and Edw. Atkins Esquires for Charles Harper at the Flower de Luce over against St. Dunstans Church in Fleetstreet 1698. TO THE Right Honourable JOHN Lord SOMERS Baron of Evesham Lord High Chancellor OF ENGLAND My Lord WHEN both the Favour and Severity of the Laws were by partial and unusual Methods applyed to the Persons and not to the Cases of the accused when the Life and Honour of an unfortunate Man depended on the Arbitrary Dictates of some Men in Authority and when the Sentence pronounced was more Criminal than the Offence of which the Party was too easily convicted then was your Lordship as far from any Advancement to a judicial Office as your Judgment and Inclinations were from the Approbation of such Proceedings But no sooner were places of Honour and Profit in the Law made the unsought Rewards of good and learned Men but your Lordships Merits entituled you to both whose Moderation and Temper will make your Administration just and easie in that honourable Court to which Fortune had no share in your Promotion and whose natural Abilities are so improved by a continued and inflexible Study that your Knowledge is not alone confined to the municipal Laws of this Nation but is generally extensive to all humane Learning What Services may not a Prince expect from the Wisdom and Vigilancy of such a Counsellor And what Benefit may not a divided People find by your equal Dispensation of Justice who if they can be united in any thing it must be in the general Satisfaction which all have in your Promotion because they know those Causes which come before your Lordship will receive a due Hearing and Attention without Passion or Prejudice to Persons such Emotions being as much beneath the Greatness of your Lordships Mind as they are beyond the Duty of Justice and fit only for such who will neither be guided by the Rules of Equity or Reason so true is that Saying Utitur animi motu qui uti ratione non potest The Respect which is due to the Office of Magistrates challengeth an universal Obedience but that particular Affection and Esteem which we have for their Persons is due only to their Vertues and Merits And such is that which I have and all Men especially those of my Profession ought to have for your Lordship and the present Judges in Westminster-Hall whose Learning and Integrity in judicial Determinations may bring the Laws nearer to Perfection and whose Examples are the just Commendation of the present and I hope will be the Imitation of succeeding Ages I could never understand the right meaning of that Sentence Boni Judicis est ampliare Jurisdictionem for if that be true then to what purpose were those Arguments at the Bar of the House of Peers against some late Judges for retaining Bills in Equity the subject Matter whereof was only tryable at the Common Law Such Complaints are now no more because your Lordship will not only support the Honour and Dignity of that Court wherein you preside in the Beauty of Order but will not enjoyn any other from exercising its proper Jurisdiction Thus will the Credit of the Laws of England be revived and Men will acquiesce under the legal Determinations of each Court very few Writs of Error will be brought for Error in Law because of the Justice and Stability of the Judgment in that Court wherein it was given and very few Appeals because your Lordship knows so well how to temper Equity with Justice that he must be a very angry Man who goes away dissatisfied with your Lordships Decree But since the Actions of Men in great Places are subject to the various Censures of Mankind if any prejudiced Person should revive those Disputes or quarrel at your Lordships Administration such Complaints would leave no other Impression upon the Minds of impartial Men than to convince them of the Wrong done to your Lordship and the Folly of such Misapprehensions My Lord I have prefixed your Lordships Name to this mean Performance taking this occasion to shew that great Honour and Respect which I have for your Lordship not that I am so vain to think any thing herein to be worthy of your Lordships Leisure neither do I think it Manners to beg your Lordships Patronage because a good Book will protect it self at all times and a bad one deserves no Protection I know few Books are either praised or perused but what are warranted by the common Repute and Esteem of the Writer which must be imputed to the Prejudice and Partiality of Men and which argues a Diffidence of our natural Parts as if we did not dare to make a right use of our own Judgments For this Reason I have concealed my Name that a Judgment may not be made of the Book by the Repute of the Writer But I hope your Lordship will not condemn my Ambition when I say I am not altogether unknown to your Lordship who am Your Lordships Most humble Servant J. W. Middle-Temple June 22. 1693. A TABLE OF THE NAMES OF THE CASES A. ABbot versus Rugely 307 Abraham versus Cunningham 146 Adams versus Adams 169 Addison versus Otway Mil 233 Alford versus Tatnel 49 Arris and Arris versus Stukley 260 After versus Mazeen 311 Astry versus Ballard 193 312 Atkins versus Bayles 267 Attorny General versus Read Mil 299 ........ versus Turner Mil 106 ....... versus Alston 247 Anonymus 7 17 62 94 100 100 167 199 206 279 293 306 314 316 317 B. BAilies Joan Case 315 Ballard versus Oddey 307 Barker versus Keat 249 Barker versus Warren 270 Barker versus Basket 200 Basset versus Salter 136 Beaver versus Lane 217 Bell versus Knight 182 Benson versus Idle 37 Beaumont versus ...... 140 Bill versus Nichol 246 Birch versus Wilson 274 Birch versus Lingen 316 Blackbourn versus Conset 304 Bridges versus Beddingfield 27 Brittam versus Charnock 286 Brook versus Turner Mil ' 170 Brown versus Johnson 145 Brown versus Waite 130 C. CAlthrop versus Phillips 217 Calthrop versus Heyton 54 Chapter of Southwel versus the Bishop of Lincoln 56 Cockram versus Welby 212 Columbel versus Columbel 77 Cook and others versus Herle 138 Cooper versus Hawkeswel 58 Crosier versus Tomlinson Executor 71 Crossman versus Churchil Mil ' 97 Crowder versus Goodwin 58 Curtio versus Bourn 61 Curtis versus Davenant 8 D. DAshwood versus Cooper 283 Dawes versus Sir Paul Pindar 45 Daws versus Harrison 65 Dorchester's Marquess of Case 215 Dunning
Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards
upon complaint made and Conviction he shall forfeit 500 l. so that as to himself whatever he doth in his Office is void but it was never the intent of the Act to work a Mischief or Wrong to Strangers for the Law favours what is done by one in reputed authority as if a Bishop be created who upon a Presentation made admits a Parson to a Benefice or collates by Lapse the former Bishop not being deprived or removed such acts are good and not to be avoided Cro. Eliz 699. Cro Car. 97. 2 Cro. 260. But admitting it to be an Error it cannot now be assigned for such because the Parties in Pleading have allowed the proceedings to be good upon Record and there is Iudgment against the Defendant but if he had been taken upon that Iudgment he might have brought an Action of false Imprisonment 2 Cro. 359. Cro. Eliz. 320. Wild Iustice You shall not assign that for Error which you might have pleaded especially having admitted it by pleading and one Musgrave's Case was cited which was that there is an Act of Parliament which lays a Tax upon all Law proceedings and makes them void if the Kings Duty be not paid and it was adjudged That if the Duty was not paid but admitted in pleading you shall not afterwards alledge what before was admitted viz. That the Duty was not paid Vpon a Writ of Error in Parliament it cannot be assigned for Error that the Chief Iustice of the Kings-Bench had not taken this Oath the same might be also of a Writ of Error in the Exchequer Chamber for an Error in Fact cannot be there assigned Sid. 253. but at the last the Iudgment was Reversed See the Reasons thereof by the Chief Iustice Jones in his Reports folio 81. Higginson versus Martin in C. B. IN an Action of Trespass and false Imprisonment If Cause of Action doth not arise within the Jurisdiction tho' Judgment is given below an Action will lie here the Defendant justifies by Process issuing out of the Court of Warwick upon a Iudgment obtained there and sets forth that there was a Plaint there entered in placito transgressionis to which the Defendant appeared super quo taliter processum fuit that Iudgment was given against him upon which he was taken and Imprisoned The Plaintiff replies That the Cause of Action did not arise within the Iurisdiction of that Court. The Defendant rejoyns that the Plaintiff is now estopped to say so for that the Declaration in the Inferiour Court against the now Plaintiff did alledge the cause of Action to be infra jurisdictionem of the Court to which he pleaded and Iudgment was given against him The Plaintiff demurrs And Newdigate Serjeant took Exceptions to the Plea 1. Ex parte Quer. 'T is said a Plaint was entered in placito transgressionis but 't is not said what kind of Trespass it was whether a clausum fregit or other Trespass 2. 'T is said that the Defendant appeared super quo taliter processum fuit that Iudgment was given for the Plaintiff Antea and no mention was made of any Declaration and the pleading taliter processum est in an Inferiour Court is not good 3. The Iustification is ill because the Inferiour Court had no Iurisdiction and so the Proceedings are coram non Judice for the Plaintiff in his Replication saith That the Trespass for which the Recovery was had in the Court of Warwick Moor 422. Latch 180. Cro. Jac. 184. was done at a place out of the Iurisdiction of the Court which the Defendant hath admitted by relying on his Plea by way of Estoppel 4. It did not appear by what Authority the Court at Warwick was held whether by Grant or Prescription These Exceptions were answered by Serjeant Hopkins Ex parte Def. and first he said That the Plaintiff there sets forth that levavit quandam querelam in placito transgressionis which was well enough Secondly taliter processium fuit is the shorter and better way of Pleading and therefore in a Scire Facias nothing is recited but the Iudgment 't is true in a Writ of Error the whole Record must be set out but that is not necessary here Thirdly 't is too late now to question the Iurisdiction of the Inferiour Court after the Party hath admitted it below he ought first to have pleaded to the Iurisdiction but now is Estopped by his own admittance there and since Iudgment is given upon it 't is not now to be questioned but however this being in the Case of an Officer if it was out of the Iurisdiction he is bound to execute the Process of the Court and so this is a good excuse for him Dyer 61. 10 Co. 77. But let the Pleadings be good or bad if the Declaration here be ill the Plaintiff cannot have Iudgment and that it was so he said that the Writ alledged an Imprisonment generally but the Count an Imprisonment donec he paid 5 l. 10 s. which is variant and the Prothonotaries said that the Writ used always to mention donec c. Curia But the Court were all of Opinion that the Count was well enough for there was no matter therein contained which was not in the Writ the Imprisonment was the Gist of the Action and the donec c. might have been given in Evidence because 't is only an aggravation and a consequence of the Imprisonment so that the Count is not larger but more particular than the Writ And as to the two first Exceptions the Court was also of Opinion that there was no difficulty in them or in the last Exception but thought the Plea was well enough as to those And they also agreed that the Officer in this Case was to be discharged for though the Process be erronious yet he is to obey and not to examine 2 Cro. 3. Weaver versus Clifford The great doubt in this Case was upon the third Exception as to the point of Iurisdiction Sid. 151. Latch 181. and whether the other Defendant who was the Plaintiff below should be likewise discharged was the Question And as to that the Chief Iustice and Wyndham Iustice were of Opinion That this was no good justification as to the Plaintiff below for if the cause of Action did arise without the Iurisdiction of which he is bound to take notice the proceedings quoad him are all coram non Judice and he cannot justifie the serving of any Process so that if the Trespass was done out of the Iurisdiction of the Court the Defendant below may bring an Action against the Plaintiff and is not concluded here by the proceedings there but may alledge the cause of Action to arise out of the Iurisdiction and as to his being Estopped by admitting of the Iurisdiction below that cannot be because an admittance cannot give the Court a Iurisdiction where it had none originally and so he said it was resolved in one Squib's Case in a
and yet it was objected that there he was a Iudge Quaere Brook 204. March 117. for which Reasons he prayed Iudgment for the Plaintiff Curia But the whole Court were of Opinion that the bringing of this Action was a greater Offence that fining of the Plaintiff and committing of him for Non-payment and that it was a bold attempt both against the Government and Iustice in general The Court at the Old-Bayly had Iurisdiction of the Cause and might try it and had power to punish a Misdemeanour in the Iury they thought it to be a Misdemeanour in the Iury to acquit the Prisoners which in truth was not so and therefore it was an Error in their Iudgments for which no Action will lie How often are Iudgments given in this Court reversed in the Kings Bench And because the Iudges have been mistaken in such Iudgments must that needs be against Magna Charta the Petition of Right and the Liberties of the Subject These are mighty words in sound but nothing to the Matter There hath not béen one Case put which carries any resemblance with this those of Iustices of the Peace and Mayors of Corporations are weak instances neither hath any Authority been urged of an Action brought against a Iudge of Record for doing any thing quatenus a Iudge That Offences in Iury-men may be punished without Presentment is no new Doctrin as if they should either eat or drink before they give their Verdict or for any contempt whatsoever but 't is a new Doctrin to say that if a Fine be set on a Iury-man at the Old-Bayly he hath no remedy but to pay it for a Certiorari may be brought to remove the Order by which it was imposed and it may be discharged if the Court think fit As to what hath been Objected concerning the Liberty of the Subject that is abundantly secured by the Law already a Iudge cannot impose upon a Iury for giving their Verdict contrary to Evidence if he doth any thing unjustly or corruptly complaint may be made to the King in whose Name Iudgments are given and the Iudges are by him delegated to do Iustice but if there be Error in their Iudgments as here 't is void and therefore the Barons of the Exchequer might refuse to issue Process upon it and there needs no Writ of Error for the very Estreats will be vacated Though the Defendants here acted erroneously yet the contrary Opinion carried great colour with it because it might be supposed very inconvenient for the Iury to have such liberty as to give what Verdicts they please so that though they were mistaken yet they acted judicially and for that Reason no Action will lie against the Defendant and Iudgment was given accordingly The Case of the Warden of the Fleet. COmplaint was made by Serjeant Turner on the part of the Parishioners of St. Brides London against the Warden of the Fleet and his Prisoners for that he suffered several of them to be without the Walls of his Prison in Taverns and other Houses adjoyning to the Prison and fronting Fleet-Ditch where they committed Disorders and when the Constable came to keep the Peace and to execute a Warrant under the Hand and Seal of a Iustice of Peace they came in a tumultuous manner and hindered the execution of Iustice and rescued the Offenders and often beat the Officers the Warden often letting out 20 or 30 of his Prisoners upon any such occasion to inflame the Disorder It was prayed therefore That this Court to which the Prison of the Fleet doth immediately relate might give such Directions to the Warden that these Mischiefs for the future might be prevented and that the Court would declare those Houses out of the Prison to be subject to the Civil Magistrate The Court were all of Opinion but Iustice Atkins Curia who doubted that nothing can properly be called the Prison of the Fleet which is not within the Walls of the Prison and that the Warden cannot pretend an exemption from the Authority of the Civil Magistrate in such places as are out of the Prison Walls though Houses may be built upon the Land belonging to the Fleet for the preservation of the Kings Peace is more to be valued than such a Private Right But Iustice Atkyns said if such places were within the Liberties of the Fleet he would not give the civil Magistrate a Iurisdiction in prejudice of the Warden but thought it might be fit for the Court to consider upon what reason it was that the Warden of the Fleet applied such Houses to any other uses than for the benefit of the Prisoners whereupon the Court appointed the Prothonotaries to go thither and give them an account of the matter and they would take farther Order in it St. Mary Magdalen Bermondsey Church in Southwark In Scaccario Rate for Building a Church shall be set by the Parishioners Jones 89. Mod. Rep. 236. IN a Prohibition it was the Opinion of the whole Court That if a Church be so much out of Repair that 't is necessary to pull it down and that it cannot be otherwise repaired that in such case upon a general warning or notice given to the Parishioners much more if there be notice given from House to House the major part of the Parishioners then present and meeting according to such notice may make a Rate for pulling down of the Church to the Ground and Building of it upon the old Foundation and for making of Vaults where they are necessary as they were in this Church by reason of the springing Water and though the Rate be higher than the Mony paid for doing all this yet 't is good and the Churchwardens are chargeable for the Overplus they not being able to compute to a Shilling That if any of the Parishioners refuse to pay their Proportion according to the Rate they may be Libelled against in the Spiritual Court and if the Libel alledge the Rate to be pro reparatione Ecclesiae generally though in strictness Ecclesia contains both the Body and Chancel of the Church yet by the Opinion both of the Court of Common Pleas and of the Exchequer It shall be intended that the Rate was only for the Body of the Church but in this Case it was made appear clearly that the Rate was only for the Body and that the Minister was at the charge of the Chancel And both Courts agreed That when a Prohibition is moved and desired on purpose to stop so good a Work as the Building a Church the Court will not compel the Parties to take Issue upon the Suggestion when upon examination they find it to be false and therefore will not grant a Prohibition for if the Rate be unduly imposed the Party grieved hath a Remedy in the Spiritual Court or may Appeal if there be a Sentence against him The Bishop or his Chancellor cannot set a Rate upon a Parish but it must be done by the Parishioners themselves
the space of 14 days after complaint made then the Sub-Commissioners of the Excise are to determine the same from whom no Appeal doth lye to the Justices of the Peace at their next Sessions which Commissioners of Excise Justices of the Peace and Sub-Commissioners amongst other things are inabled by the said Act to Issue out Warrants under their Hands c. to levie the Forfeitures and so justified the Entry under a Warrant from the Sub-Commissioners three Iustices having refused to hear and determine this Offence To this Plea the Plaintiffs demurred and had Iudgment in the Court of Kings-Bench and a Writ of Inquiry of Damages was Executed and 750 l. Damages given and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given because the Writ of Inquiry was executed the last day of the Term and the Court did immediatly rise and that he could not move the next Term because the Iudgment was given the Term before the Writ of Error was brought The Attorny General therefore said that this was a hard Case and desired a Note of the Exceptions to the Plea which he would endeavour to maintain which Mr. Pollexfen gave him and then he desired time to answer them The Exception to the Plea upon which the Iudgment was given was this Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences and so to issue out Warrants for the Forfeitures but where the Iustices or any two of them refuse And though it was said by the Defendant that three refused yet it was not said that two did refuse for there is a great difference between the allegation of a thing in the Affirmative and in the Negative for if I affirm that A. B. C. did such a thing that affirmation goes to all of them but negatively it will not hold for if I say A. B. C. did not such a thing there I must add nec eorum aliquis So if an Action be brought against several Men and a Nolle prosequi is entred as to one and a Writ of Enquiry awarded against the rest which recites That the Plaintiff did by Bill implead naming those only against whom the Inquiry was awarded and leaves out him who got the Nolle prosequi this is a variance for it should have been brought against them all 'T is true where a Iudgment is recited 't is enough to mention those only against whom it is had but the Declaration must be against all so in a Writ of Error if one is dead he must be named and so the Iustices ought all to be named in this Case viz. that the three next Iustices did not hear and determine this Offence nec eorum aliquis Wells versus Wright In Communi Banco DEBT upon Bond conditioned Bond with an insensible Condition good that if the Obligée shall pay 20 l. in manner and form following that is to say 5 l. upon four several days therein named but if default shall be made in any of the Payments then the said Obligation shall be void or otherwise to stand in full force and vertue The Defendant pleads that tali die c. non solvit 5 l. c. and upon this the Plaintiff demurred Barrel Serjeant The first part of the Condition is good which is to pay the Mony and the other is surplusage void and insensible but if it be not void it may be good by transsposing thus viz. If he do pay then the Obligation shall be void if default shall be made in Payment then it shall be good and for Authority in the Point the Case of Vernon and Alsop was cited Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill 14 Car. 2. Rot. 1786. in B. R. Where the Condition was that if the Obligée pay 2 s. per Week until the Sum of 7 l. 10 s. be paid viz. on every Saturday and if he fail in Payment at any one day that the Bond shall be void and upon the like Plea and Demurrer as here it was adjudged that the Obligation was single and the Condition repugnant The Court were all of Opinion that Iudgment should be given for the Plaintiff and the Chief Iustice said that he doubted whether the Case of 39 H. 6. 9 10. was Law Brittam versus Charnock Where the the Heir takes by the Will with a Charge he is a Purchaser and the Lands shall not be Assets DEBT upon Bond against the Defendant as Heir Vpon Riens per discent pleaded the Iury found a Special Verdict in which the Case was viz. The Father was seized of a Messuage and thrée Acres of Land in Fee and devised the same to his eldest Son the Defendant and his Heirs within four years after his decease provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts and then he deviseth his other Lands to be sold for payment of Debts c. The Father dies the Son pays the 20 l. and if this Messuage c. was Assets in the Hands of the Defendant was the Question Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets it was said because the Heir shall not take by descent but by Purchase for the Word Paying is no Condition if it should the Heir is to enter for the breach and that is the Defendant himself and for that reason it shall be a Limitation Southcot and Stowel Antea 'T is true where there is no alteration of the Estate the Heir must take by descent but in this Case there is an alteration of the Estate from what is directed by the Law viz. the manner how he shall come by the Estate for no Fee passeth to him during the four years But this was denyed by Serjeant Pemberton for he said if a Devise be of Land to one and his Heirs within four years it is a present Devise and if such be made to the Heir 't is a descent in the mean time and those Words within four years are void so that the Question will be whether the Word Paying will make the Heir a Purchaser and he held it would not He agreed that it was usual to make that a Word of Limitation and not a Condition when the Devise is to the Heir and therefore in a Devise to the Heir at Law in Fée he shall take by descent Styles Rep. 148. But if this be neither a Condition or Limitation 't is a Charge upon the Land and such a Charge as the Heir cannot avoid in Equity North Chief Iustice and Atkins Where the Heir takes by a Will with a Charge as in this Case he doth not take by Descent but by Purchase and therfore this is no Assets Moor versus Pit SPecial Verdict in Ejectment The Case was this Surrender of a Copyhold to a Disseisor whether good to extinguish the Right viz. A Copyholder for Life the Remainder for Life he in
reason the Iury might find for him 'T is true he might have pleaded Plene computavit which is the general Plea But it may as well be presumed that the Verdict was against the Plaintiff because the Action would not lye and the Matter being in dubio the Court will intend it against the Pleader he not having averred to the contrary and so they held the Plea to be ill DE Termino Paschae Anno 30 Car. II. in Communi Banco Osborn versus Wright ACtion on the Case for words Viz. The Plaintiff declares that she was unmarried but about to marry one J. S. and that the Defendant to hinder her Marriage spoke these Words of her Viz. She is a Whore a Common Whore and N's Whore per quod maritagium amisit The Iury found the Defendant guilty of speaking the Words but that she did not lose her Marriage thereby and it was moved in arrest of Iudgment that these Words are not actionable being only Scolding and of that Opinion was all the Court and Iudgment was arrested Hambleton versus Justice Scroggs alios In Camera Scaccarii Serjeant at Law whether Priviledge to be Sued only in the Common-Pleas AN Assault and Battery was brought against the Defendants in the Kings-Bench to which one of them pleaded that he was a Serjeant at Law and so ought to have his Priviledge to be sued by Bill in the Common Pleas and in no other Court To this Plea the Plaintiff demurred and Iudgment was given in my Lord Chief Iustice Hales's time by the Opinion of him and the whole Court of Kings-Bench That a Serjeant at Law might be sued there and was not suable in the Court of Common-Pleas only 2. That in this Action the Defendant should not have his Priviledge because it was brought against him and another And afterwards a Writ of Error was brought upon this Iudgment returnable before the Lord Chancellor and Chief Iustices of the Kings-Bench and Common-Pleas and the Errors were argued before the two Chief Iustices at Serjeants-Inn in Chancery Lane Mr. Holt for the Plaintiff in the Writ of Error Ex parte Quer. That a Serjeant at Law is to be sued only in the Court of Common-Pleas and not elsewhere because there is an absolute necessity of his Attendance there He is sworn and no other person can plead at that Bar and therefore if he should be sued in any other Court Vaugh. 155. it would be an Impediment to the Business of that Court where not only the Officers but their Servants have Priviledge In the 11th of E. 4. 2. There was some discourse about the Priviledge of Serjeants at Law where it was held that he is not to be sued in that Court by Bill but by Original but either way he is to have his Priviledge So the Servant of an Officer is not to be sued by Bill Cro. Car. 84. but he is still to have the Priviledge of the Court and so had Serjeant Hedley's Clerk in the Reign of King Charles the first The Serjeants receive a kind of Induction to the Bar and have a place assigned them and that they ought to have Priviledge the very Words of the Writ are observable Viz. mentioning a Serjeant at Law ex officio incumbit in Curia illa And though it hath been said and given as an answer to that Case in Cro. Car. That where the Serjeants Clerk was Arrested in an Inferior Court as in that Case he was there he shall have Priviledge but not against the other great Courts in Westminster-Hall this is a difference never yet taken notice of in any Book nor doth the Writ warrant this distinction 2. He shall have his Priviledge though he be joyned with another because the Action is joynt and several and the one may be found guilty and the other acquitted and it would be an easie way to oust a Man of his Priviledge if it might be done by joyning him with another who hath none 14 H. 4. 21. But the Person with whom the Serjeant is joyned may be sued in the Common-Pleas likewise so that he shall not hinder him from having Priviledge who of right ought to have it 10 E. 4. 15. Offley contra As to the first point Ex parte Def. the Court of Kings-Bench agreed that a Serjeant at Law shall always have the Priviledge of the Court of Common-Pleas against all Inferiour Courts but not against the other Courts in Westminster Hall for he may be sued in any of them A Serjeant is not like the Common Officers of the Court for they are to be attendant there and no where else but a Serjeant at Law is not confined to that Court alone he may be assigned of Council in any other Court and doth usually put his hand to Pleas both in the Kings-Bench and the Exchequer but a Philazer or Attorny of that Court cannot practise in his own Name in any other All Cases of Priviledge ought to be taken strictly And that which was cited concerning the Priviledge of a Serjeants Clerk is not like this because the Arrest was in an Inferiour Court In the 11 E. 4. 2. b. The Chief Iustice of the Kings-Bench came to the Common-Pleas Bar and told a Serjeant who he had assigned for a Pauper That if he would not come into that Court and plead for his Clyent he would forejudge him so that if he could be fetch'd out of the Common Pleas and carried to the Kings-Bench he is not confined to that Court alone In the 5 H. 5. nu 10. Complaint was made that the Subjects of the King were not well served in his Courts the Parliament thereupon Ordered that one Martin and others should take upon them the Dignity of Serjeants at Law so that it appears that their Business lies in other Courts as well as in that of the Common-Pleas 2. As to the second Point Here is a joynt Action for any thing that appears to the contrary 2 Rol. Abr. 275. pl. 4. and the Plaintiff may proceed against one in the Kings-Bench and therefore the other shall be ousted of his Priviledge if he have any in the Common-Pleas Moor 556. 20 H. 6. 32. North Chief Iustice said That he always took it to be an uncontroverted point That a Serjeant at Law should be sued only in the Court of Common-Pleas by Bill he is bound by Oath to be there and when he brings a Writ of Priviledge 't is always out of that Court and no other Curia advisare vult The Attorny General versus Sir John Read In Scaccario INformation A special Verdict was found Disability by a Statute ought to be removed by the Party to enable himself to execute an Office The Case was thus Viz. Sir John Read 1 Apr. 24 Car. 2. was by Sentence in the Spiritual Court divorced a Mensa Thoro and for Non payment of Alimony was excommunicated Afterwards it was Enacted by the Statute of 25 Car. 2.
new Will and the Grandson should take by the Name of Son And Iustice Atkins relied on the Case of Brett and Rigden in the Commentaries where new purchased Lands passed by a Republication but a Writ of Error being brought upon this Iudgment in the Kings Bench it was reversed Anonymus In Banco Regis MR. Sanders moved for a Prohibition to the Spiritual Court in the Case of the Children of one Collet and Mary his Wife to stay Proceedings there upon a Libel against them that the said Collet had married Anne the Sister of the said Mary They both appear and confess the Matter upon which a Sentence of Divorce was to pass whereas in truth Collet was never married to Ann but it was a contrivance between him and his Wife to get themselves divorced and the Marriage declared void ab initio to defeat their Children of an Estate settled upon them in Marriage with Remainders over by bastardizing them after they had been married and lived together 16 years The Reason why a Prohibition was prayed was because Marriage or no Marriage was to be tried in pais for that the Inheritance and Freehold of Land were concerned in this Case The Court directed that they should suggest this Matter Curia and that it was a Contrivance to obtain a Sentence of Divorce to defeat them of their Estate entailed on them and then to move for a Prohibition Smallwood versus Brickhouse THE Suggestion was Spiritual Courts are proper to determine where a person is capable of making a Will Godolph 276. that B. being under the Age of sixteen years had made a Will and that the Prerogative Court proceeded to the proof of it whereas by the Common Law a person is not capable till 17 years and therefore a Prohibition was prayed And that the Common Law hath determined the time my Lord Coke's Comment upon Littleton was cited 1 Inst 89. b. where 't is said That at 18 years of Age he may make his Testament and constitute Executors and the Age of a person is triable also in pais But the Court said Curia that the Proof of Wills and the Validity of them doth belong to the Ecclesiastical Court and if they adjudge a person capable the Court will not intermeddle for 't is within their Iurisdiction to adjudge when a person is of Age to make a Will and sometimes they allow Wills made by persons of 14 years of Age and the Common Law hath appointed no time it depends wholly on the Spiritual Law and therefore a Prohibition was denied Joan Bailies Case NOTA. One Joan Bayly being in Execution Administration was committed to the Debtor in Execution the Plaintiff dyed intestate and the Right of Administration came to her and a Motion was made for a Habeas Corpus to bring her from the Compter into this Court for that having administred to her Creditor she might be discharged but it was denyed for she could not be thus discharged because non constat de persona neither can she give a Warrant of Attorny to acknowledge satisfaction therefore let her renounce the Administration and get it granted to another and then she may be discharged by a Letter of Attorny from such Administrator Anonymus Mandamus MAndamus to swear one who was elected to be one of the Eight Men of Ashburn Court it was denyed because it is incertain for it ought specially to be inserted what the Office is and what is the place of one of the Eight Men of Ashburn Court that it may appear to the Court to be such a place for which a Mandamus doth lye and though such a Writ hath been granted for one of the approved Men of Guilford yet it was specially set forth what his Office was Birch versus Lingen Trin. 34 Car. 2. in B. R. Discontinuance where amendable JVdgment was obtained upon a Bond 25 years since and in one of the Continuances from one Term to another there was a blank The Executors of the Defendant now brought a Writ of Error and the Plaintiff in the Action got a Rule to amend and insert the Continuance suggesting to the Court that it was a Iudgment of a few Terms and so aided by the Statute of 16 17 Car. 2. cap. 8. Hughes Abr. tit Costs 480. 2 Sand. 289. Moor 710. Cro. Eliz. 320 489 553 619. Cro. Jac. 211 353 528. Vpon this Rule the Plaintiff fills up the Blank and the Record was certified so filled up into the Exchequer-Chamber And Mr. Pollexfen moved for the Defendant that the Record might stand as it did at first and that the Rule was got by a trick and on a false Suggestion it being a Iudgment before the Restoration of this King and a Discontinuance not amendable for 't is the Act of the Court and for an Authority in the Point the Case of Friend and Baker was cited where after a Record certified Stiles 339. a Motion was made to amend it because day was given over to the Parties from Easter to Michaelmas-Term and so Trinity-Term left out where by the Opinion of Roll Chief Iustice that the giving of a day more than is necessary is no Discontinuance but where a day is wanting 't is otherwise But Sanders for the Plaintiff said that this was only a Misprision of the Clerk and no Discontinuance but amendable The Clerks commonly leave Blanks in the Venires and if they neglect to fill them up 't is only a Misprision and amendable by the Court and the Record being now filled up by the Rule of the Court ought not to be razed to make an Error The Chief Iustice was of Opinion That this was not a discontinuance but an insufficient continuance and an omission of the Clerk only who if he had filled up this Blank himself without Rule it could not afterwards be set aside But Iustice Jones was of another Opinion That it was such a misprision of the Clerk as was not amendable by the Statute of H. 6. since it was not the same Term and all the Proceedings being in the Breast of the Court only during the Term it ought not to be altered but left in Blank as it was for where Iudgment is entred for the Plaintiff the Court may upon just cause alter it the same Term for the Defendant but not of another Term the whole Term being but one day in Law And though the Writ of Error be returned into the Exchequer that will make no alteration for the Record it self remains still here and 't is only a Transcript that is removed thither Sed Adjornatur Anonymus TRespass for breaking of his Close The Defendants plead Power where 't is coupled with an Interest is assignable That the place where were c. the Lands of one Martin who made a Lease thereof to the Plaintiff and did thereby except the Trees growing on the same In which Lease the Plaintiff did Covenant with the said Martin his
of the next Avoidance was not good because it was made by those who were not Head of the Corporation and it must be void immediately or not at all and Iudgment was given accordingly Threadneedle versus Lynam THere being two Mannors usually let for 67 l. 1 s. 5 d. by the year Lease by a Bishop and more than the old Rent reserved good Mod. Rep. 203. a Bishop lets one of them for 21 years reserving the whole Rent and whether this was a good Lease within the Statute of 1 Eliz. cap. 19. was the Question which depended upon the construction of the Words therein viz. All Leases to be void upon which the old accustomed Rent is not reserved and here is more than the old Rent reserved and this being a private Act is to be taken literally North Chief Iustice agreed that private Acts which go to one particular thing are to be interpreted literally but this Statute extends to all Bishops and so may be taken according to Equity and therefore he and Wyndham and Atkins Iustices held the Lease to be good But this Case was argued when Vaughan was Chief Iustice and he and Iustice Ellis were of another Opinion DE Term. Sancti Mich. Anno 27 Car. II. in Communi Banco Thorp versus Fowle No more Costs than Damages NOTA. In this Case the Court said that since the Statute which gives no more Costs than Damage 't is usual to turn Trespass into Case Cooper versus Hawkeswel Words IN an Action upon the Case for these Words I dealt not so unkindly with you when you stole a Stack of my Corn Per Curiam the Action lies Escourt versus Cole Words IN an Action on the Case for Words laid two ways the last Count was Cumque etiam which is but a recital and dubitatur whether good Sharp versus Hubbard Six Months for proving of a Suggestion THE six Months in which the Suggestion is to be proved must be reckoned according to the Calendar Months and 't is so computed in the Ecclesiastical Court Crowder versus Goodwin Justification by Process out of inferiour Court IN Assault and Battery and false Imprisonment as to the Assault c. the Defendant pleads Not-Guilty and as to the Imprisonment he justifies by a Process out an inferiour Court and upon Demurrer these Exceptions were taken to his Plea 1. The Defendant hath set forth a Precept directed Servienti ad Claven and 't is not said Ministro Curiae 2. 1 Rol. 484. Cro. Car. 254. Dyer 262. b. It was to take the Plaintiff and have him ad proximam Curiam which is not good for it should have beén on a day certain like Adams and Flythe's Case * Cro. Jac. 571. Mod. Rep. 81. where a Writ of Error was brought upon a Iudgment in Debt by Nil dicit in an inferiour Court and the Error assigned was That after Imparlance a day was given to the Parties till the next Court and this was held to be a Discontinuance not being a day certain 3. 'T is not said ad respondend ' alicui 4. Nor that the Action arose infra Burgum 5. The Precept is not alledged to be returned by the Officer To all which it was answered That a Pleint is but a Remembrance and must be short Rast 321. and when 't is entred the Officer is excused for he cannot tell whether 't is infra * Squibb versus Hole antea 29. Jurisdictionem or not And as to the first Exception a Precept may be directed to a private person and therefore Servienti ad Clavem is well enough Then as to the next Exception 't is likewise well set forth to have the Plaintiff ad proximam Curiam for how can it be on a day certain when the Iudge may adjourn the Court de die in diem Then ad respondendum though 't is not said alicui 'tis good though not so formal and 't is no Tort in the Officer but t is to be intended that he is to answer the Plaintiff in the Plaint As to the fourth Exception the Defendant sets forth that he did enter his Plaint secundum consuetudinem Curiae Burgi and when the Plaintiff declared there he shewed that the Cause did arise infra Jurisdictionem And as to the last The Officer is not punishable though he do not return the Writ The end of the Law is that the Defendant should be present at the day and if the Cause should be agreed or the Plaintiff give a Release when the Defendant is in custody no Action lies against the Officer if he be detained afterwards But the Chief Iustice doubted that for the second Exception the Plea was ill for it ought to be on a day certain and likewise it ought to be alledged infra Jurisdictionem But the other threé Iustices held the Plea to be good in omnibus and said that the inferior Court had a Iurisdiction to issue out a Writ and the Officer is excusable though the cause of Action did not arise within the Iurisdiction which ought to be shewn on the other side And so Iudgment was given for the Defendant Snow and others versus Wiseman Traverse necessary where omitted is substance TRespass for taking of his Horse The Defendant pleads that he was seised of such Lands and intitles himself to an Herriot The Plaintiff replies that another person was jointly seised with the Defendant Et hoc paratus est verificare The Defendant demurs generally because the Plaintiff should have traversed the sole Seisin But it was said for him that the sole Seisin néed not be traversed Sid. 300. because the matter alledged by him avoids the Barr without a Traverse In a Suggestion upon a Prohibition for Tythes the Plaintiff entituled himself by Prescription under an Abbot and shews the Vnity of Possession by the Statute of 31 H. 8. by which the Lands were discharged of Tythes Yelv. 231. Pl. Com. 230. 231. The Defendant pleads that the Abbey was founded within time of Memory and confesseth the Vnity afterwards and the Plea was held good for he néed not traverse the Prescription because he had set forth the Foundation of the Abbey to be within time of Memory which was a sufficient avoiding the Plaintiffs Title Yelv. 31. The Plaintiff therefore having said enough in this Case to avoid the Barr if he had traversed it also it would have made his Replication naught Cro. Jac. 221. like the Case of * Bedel and Lull where in an Ejectment upon a Lease made by Elizabeth the Defendant pleads that before Elizabeth had any thing in the Lands James was seised thereof in Fee and that it descended to his Son and so derives a Title under him and that Elizabeth was seised by Abatement The Plaintiff confesses the Seisin of James but that he devised it to Elizabeth in Fee and makes a Title under her absque hoc that she was seised by Abatement and upon a Demurrer the
Plaintiff Blackbourn versus Conset Place where it shall be intended tho' not laid in the Pleading IN Replevin the Avowant pleads an Execution taken out and that a Term for years was extended and an Assignment thereof made by the Sheriff but alledges no place where the Assignment was made But upon Demurrer it was held good for it shall be intended to be assigned where the Land doth lie Hall versus Carter Bond to render himself a Prisoner good IN an Action of Debt upon a Bond the Defendant craves Oyer of the Condition which was That if another person who was arrested at the Suit of the Plaintiff and for whom the Defendant was now bound should give such Security as the Plaintiff should approve of for the payment of 90 l. to him Sid. 132. pl. 4. or should render his Body to Prison at the return of the Writ then the Obligation to be void The Defendant pleads the Statute of 23. H. 6. cap. 10. That this Bond was given pro easimento favore And this Case coming to be argued upon a Demurrer the question was whether such Bond be within the Statute or not And the Court were of Opinion that it was not If the Sheriff takes Bond in another Man's name to elude the Statute such Bond is void but the Plaintiff may give directions to the Officer to take such Bond as this to himself 't is only an expedient to prevent a new Arrest and the Agreement of the Plaintiff makes it good If a Capias be taken out against the Defendant and a third person gives the Plaintiff a Bond that the Defendant shall pay the Mony or render himself at the Return of the Writ 't is a good Bond and not within the Statute because 't is not by the direction of the Officer but by the agreement of the Plaintiff and there is no Law that makes the Agreement of the Parties void and if the Bond was not taken by such Agreement it might have been traversed But Iustice Atkyns doubted because a Bond to render himself a Prisoner is void Bewfages's Case 10 Co. But if it had been to pay the Mony or appear at the Return of the Writ it had been good But notwithstanding Iudgment was given for the Plaintiff Shaxton versus Shaxton THE Condition of a Bond was Non damnificatus not a good Plea where the person and Lands are to be indempnified Antea That the Defendant should save harmless Thomas Shaxton and the Mortgaged Premisses and should pay the Interest for the prinicipal Sum. The Defendant pleads that Thomas Shaxton non fuit damnificatus for that the Defendant had paid the 120 l. principal mony with all the arrears of Interest due at such a day And upon a Demurrer this was held no good Plea because the first matter non damnificatus goes to the Person and not to the Premisses And so Iudgment was given for the Plaintiff Anonymus After acquittal for a Common Trespass an Action on the Case will not lie Sid. 465 466. Antea THE Defendant was Indicted for a Common Trespass and Acquitted and now was Plaintiff in an Action on the Case against the Prosecutor And by the Opinion of the Chief Iustice the Action will lie for the Charges and Expences in defending the prosecution which the acquittal proves to be false and the Indicting him proves to be malicious for if he had intended any thing for his own benefit or recompence he might have brought a civil Action and then if he had been found Not Guilty he would have had his Costs allowed Though the prosecution be for a Trespass for which there is a probable cause yet after Acquittal it shall be accounted malicious the Difference only is where the Indictment is for a Criminal matter but where 't is for such a thing for which a Civil Action will lie the Party can have no reason to prosecute an Indictment it is only to put the Defendant to charges and make to him pay Fees to the Clerk of the Assises Penrice and Wynn's Case Habeas Corpus may be granted in Civil matters SErjeant Maynard moved for a Habeas Corpus for them being committed to the Poultry Compter by the Commissioners of Bankrupts for refusing to be examined and sworn touching their Knowledge of the Bankrups Estate The Process against them in this Court was an Attachment of Priviledge which was a Civil Plea and of which the Court had Iurisdiction and therefore the Habeas Corpus must be granted And the Chief Iustice said that it might be without motion because all the Habeas Corpus's in that Court were ad faciendum recipiend and they issue of course Antea but in the Kings-Bench they are ad subjiciendum which are in Criminal Causes and not to be granted without motion Then the Serjeant moved that the Sheriff might Return his Writ which was done and being filed he took Exceptions to the Return by which the ground of the Commitment appeared to be by virtue of a Warrant under the Hands and Seals of the Commissioners c. which he said was ill for want of an Averment of their refusal to come and be sworn for it did not appear that they did refuse and they ought not to be committed without refusing so that should have been positively averred viz. That they did refuse and still do for if they are willing at any time they ought to be discharged and so they were but were ordered to put in Bail upon the Attachment Abbot versus Rugeley THE Plaintiff declared in an Action of Assault and Battery to which the Defendant pleaded non cul Plea puis darrein continuance must be certified as part of the Record of Nisi prius and at the Assises a Plea was put in puis darrein continuance and a Demurrer thereunto The Court were clear of Opinion That if the Plea had been issuable it could not have been then tried neither could the Demurrer be there argued but must be certified up hither by the Iudge of Assise as part of the Record of Nisi prius Yelv. 180. Hawkins versus Moor. Ballard versus Oddey It was ruled in this Case The Contract it self must be Usurious to make it void 1 Sand. 295. Mod. Rep. 69. That to avoid a Security by reason of Vsury the Contract it self must be usurious for if the Party takes afterwards more than is allowed that will not make it so so that if the Agreement of the Parties be honest but made otherwise by the mistake of a Scrivener yet 't is not Vsury As if a Mortgage be for 100 l. with a Proviso to be void on payment of 106 l. at the end of one year and no Covenant for the Mortgagor to take the Profits till default be made in paiment so that in strictness the Mortgagee is intituled both to the Interest and the Profits yet if this was not express'd the Agreement is not Vsury DE Term. Sanctae Trin.
and takes notice that this Writ is not returnable into that Court from Wales and therefore orders that the Significavit shall be sent by Mittimus out of the Chancery to the Chief Iustice there and gives them power to make Process to inferior Officers returnable before them at their Sessions for the due Execution of this Writ all which had beén in vain if the Capias might go into Wales before the making this Act. Answ But that is an original Writ and so comes not up to this Case Wyndham Iustice agreed in omnibus and said that the Statute of 1 Ed. 6. was very needful for if a Man should be outlawed if the Process should be sent to the Sheriff of the next adjoining County in England he could not have any notice that he was outlawed and so could not tell when oulawed or at whose Suit Vaughan late Lord Chief Iustice held strongly Vaugh. 395. 2 Saund. 194. that no Execucution would go into Wales when this Case was argued before him and of the same Opinion was Iustice Twisden Williamson versus Hancock Collateral Warranty Mod. Rep. 192. A Special Verdict was found in an Ejectment where the Case was Richard Lock the Father was Tenant for Life with Remainder in Tail to Richard his Son Remainder to the right Heirs of the Father who levies a Fine with Warranty to the use of Susan and Hannah Prinn in Feé they by Bargain and Sale convey their Estate to the Defendant The Son in his Fathers life time before the Warranty attached comes of full age the Father dies The Question was whether the Sons Entry was barred by this collateral Warranty thus discended And the thrée Iustices absente North Chief Iustice were clear of Opinion that the collateral Waranty was a barr to the Son and so Iudgment was given for the Defendant Ellis Iustice held that his Entry is taken away for in every Warranty two things are implied a Voucher and Rebutter he that comes in by Voucher calleth the person into Court who is bound in the Warranty to defend his Right or yield him other Land in recompence and must come in by Privity but if a Man have the Estate though he comes in the Post he may rebut that is he may repel the Action of the Heir by the Warranty of his Ancestor without shewing how the Estate came to him Fitzh Nat. Br. 135. In a Formedon in the Discender to say the Ancestor enfeoffed J.S. with Warranty without shewing how J. S. came by his Estate is good Object It was objected by Serjeant Maynard that no person can take advantage of a Warranty who comes in by way of use as in this Case Answ But 't is expresly resolved otherwise in Lincoln Colledge Case 3 Co. 62. b. and the Prinns in this Case came in by Limitation and Act of the Party and the Defendant who hath the Reversion likewise by Limitation of Vse though he be in the Post shall take benefit of the Warranty as Assignee within the Statute of 32 H. 8. Mod. Rep. 181. c. 34. and so it was resolved in Fowl and Dobles Case in this Court that he who comes in by way of use may rebut and Iustice Jones in his Report fol. 199. affirms the fourth resolution in Lincoln Colledge Case to be Law It was formerly objected by the Lord Chief Iustice Vaughan that this Warranty goes only to the Heirs not to the Assigns and here the Estate was conveyed by the two Prinns before the Warranty attached Answ But when the Estate passeth the Warranty and Covenant followeth and the Assignée shall have the benefit thereof though not named and so is the Authority of 38 E. 3. 26. if a Warranty be made to a Man and his Heirs the Assigneé though not named shall Rebutt but he cannot Vouch. So if A. enfeoff B. with Warranty and B. enfeoff C. without Déed C. shall vouch A. as Assigneé of the Land of B. for the Warranty cannot be assigned In this Case though the Warranty did not attach before the Estate in the Land was transferred yet if it attach afterwards 't is well enough and he who hath the Possession shall Rebutt the Demandant without shewing how he came by the Possession If a Warranty be to one and his Heirs without the word Assigns the Assignée indeéd cannot Vouch but he may * 1 Inst 265. a 384. Rebutt for Rebutter is so incident to a Warranty that a Condition not to Rebutt is void in Law But 't is otherwise of a Condition not to Vouch for in such case you may Rebutt 'T is true it hath béen an Opinion that he who claimeth above the Warranty if it be not attached cannot take benefit of it by way of Voucher or Rebbutter as if Tenant in Dower maketh a Feoffment to a Villain with Warranty and the Lord entreth upon him before the descent of the Warranty the Villain can never take advantage of this Warranty by way of Rebutter because the Lords Title is paramount the Warranty and he cometh not under his Estate to whom the Warranty was made If Land be given to two Brothers in Feé with Warranty to the eldest and his Heirs the eldest dies without Issue the Survivor shall not take benefit by this Warranty for the reason aforesaid But in the Case at Barr the Warranty being collateral and annexed to the Land goeth with the Estate and whilst that continues the Party may Vouch or Rebutt so here the Defendant though he be only Tenant at Will for the Estate is in the Bargainors and their Heirs there being no Execucution of it either by Livery or Enrolment yet he may Rebutt Iustice Atkins was of the same Opinion that by this collateral Warranty the Entry of the Lessor of the Plaintiff was taken away for 't is the nature of a collateral Warranty to be a Barr a * Jones Rep. 199 200. 1 Inst 366 385. 25 H. 6. 63. Bro. Gar. 4. Right is bound by it it extinguishes a Right 't is annexed to the Land and runs with it If then a collateral Warranty be of this nature 't is against all reason that he who is thus bound should make any Title to the Land but 't is very reasonable that he who comes in quasi by that Estate should defend his Title The Opinions of Iustice Jones and Iustice Crook in the Case of * Cro. Car. 368. Spirt and Bence has occasioned this doubt The Case was shortly thus Cann being seised in Fée had thrée Sons Thomas Francis and Henry and devised Lands to the two eldest in Tail and to Henry the Meadow called Warhay which was the Land in question but doth not limit what Estate he should have in it then he adds these Words viz. Also I will that he shall enjoy all Bargains I had of Webb to him and his Heirs and for want of Heirs of his * Notwithstanding the word Body he had but an Estate for Life in Warhay for that
take Bail but the Sheriff himself must do it and therefore an Action on the Case must lye against the Bayliff for not carrying the Party before the Sheriff in order to put in Bail but an Action of false Imprisonment will not lye 2. The action is laid quare vi armis c. in ipsum the Plaintiff insultum fecit ipsum imprisonavit ut Prisonat à tali loco ad talem locum adducebat detinuit contra consuetudinem Angliae sine cause rationabili per spacium trium dierum The Defendant pleaded quoad venire vi armis necnon totam transgressionem praeter the taking and deteining him three days non Culp and as to that he pleaded the Latitat Warrant and Arrest ut supra but the Verdict being only against the Defendant upon the second Issue and nothing appearing to be done upon this and entire Damages given 't is for that reason ill North Chief Iustice If the Writ and Warrant were good then the refusing Bail is an Offence within the Statute of 23 H. 6. And as 't is an Oppression so 't is an Offence also at the Common Law but an Action on the Case and not of false Imprisonment lyeth against the Officer for it would be very unreasonable by the refusal of Bail to make the Arrest tortious ab initio A special Action on the Case had therefore been the proper remedy against the Sheriff but not against the Officer for an Escape will not lye against him but it must be brought against the Sheriff Kren versus Kirby Surrender by a Disseisor not good IN Ejectment the Lessor of the Plaintiff claimed under a Surrender made to him by William Kirby who had an Estate in the Land after the decrease of his Father but entred during his Life and thereby became a Disseisor and his Estate being now turned into a Right he made the Surrender to the Lessor of the Plaintiff all which was found by special Verdict at the Tryal and it was adjudged that the Surrender was void It was pretended at the Trial that the Father who was Tenant for Life had suffered a Common Recovery in the Lords Court and so his Estate was forfeited for which the Son might enter and then his Surrender is good But the Court answered that without a particular Custom for the purpose the suffering a Recovery would work no Forfeiture of the Estate but if it did 't is the Lord and none else who can enter And so Iudgment was given for the Defendant Duck versus Vincent DEBT upon Bond conditioned to perform Covenants Plea to debt upon bond not good one of which was for payment of so much Mony upon making such Assurances The Defendant pleaded he paid the Mony such a day but doth not mention when the Assurance was made that it might appear to the Court the Mony was immediately paid pursuant to the Condition and for that reason the Court were all of Opinion that the Plea was not good And Iudgement was given for the Plaintiff upon Demurrer Smith versus Shelberry IN Assumpsit the Plaintiff declared that he was possessed of a Term of 80 years Assumpsit upon a mutual promise and it was agreed between him and the Defendant that he should assign all his interest therein to the Defendant who proinde should pay 250 l. and that he promised that in consideration that the Plaintiff at his request had likewise promised to perform all on his part that he would also perform all on his part and then sets forth that the Defendant had paid a Guinea in part of the said 250 l. and that he viz. the Plaintiff obtulit se to assign the Premisses by Indenture to the Defendant which was written and sealed and woud have delivered it to him but he refused and assigns the breach in Non-payment of the Mony to which the Defendant demurred And it was said for him by Baldwin Serjeant Ex parte Def. that this was not a good Declaration because the Assignment ought to precede the Payment and that it was not a mutual promise neither was the obtulit se well set forth but this was a Condition precedent on the Plaintiffs side without the performance whereof no Action would lie against the Defendant Vide 7 Co. Ughtreds Case fol. 10. b. because it was apparent by the Plaintiffs own shewing that the Mony was not to be paid till the Assignment made for the Plaintiff is to assign and the Defendant proinde which is as much as to say pro assignatione is to pay the Mony Like the Case in Dyer 76. a. Assumpsit against the Defendant that he promised pro 20 Marks to deliver 400 Weight of Wax to the Plaintiff the Pronoun Pro makes the Contract conditional Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Declaration good and that it was a mutual promise and that the Plaintiff need not averr the performance Hill Thorn Postea for in such Cases each has remedy against the other and 't is as reasonable that the Plaintiff should have his Mony before he make the Assignment as that the Defendant should have the Term assigned before he paid the Mony And of that Opinion was the Court only Iustice Atkins doubted Ellis Iustice cited a Case adjudged in the King's Bench which was as he thought Stiles Rep. 186 Postea very hard viz. An Assignment was made between A. and B. that A. should raise Souldiers and that B. should transport them beyond Sea and reciprocal promises were made for the performance as in this Case that A. who never raised any Souldiers may yet bring his Action upon this promise against B. for not transporting them which is a far stronger Case than this at Barr. It was agréed here that the Tender and Refusal had it beén well pleaded would have amounted to and have been equivalent with a full performance but the Plaintiff hath not done as much as he might for he should have delivered the Indenture to the Defendants use and then have tendered it But Iudgment was given for the Plaintiff Hays versus Bickerstaffe Covenant not conditional by the words paying and performing IN Covenant brought by the Lessee who declared that the Lessor covenanted with him that he paying the Rent and performing the Covenants on his part to be performed shall quietly enjoy The breach assigned was a disturbance by the Lessor who pleads that till such a time the Plaintiff did quietly enjoy the thing demised without disturbance but then he cut down Wood which was contrary to his Covenant and then and not before he entred and so by the Plaintiffs not performing his Covenant the Defendants Covenant ceases to oblige him whereunto the Plaintiff demurred The Question was Whether the Defendants Covenant was conditional or not For if it amount to a Condition then his Entry is lawful but if it be a Covenant 't is otherwise for then he
after the Partition 2. The Rejoynder is a departure from the Plea which is that the Plaintiff never had any thing but joyntly with others and the Rejoynder is that at the time of the conversion he was joyntly possessed which is a manifest difference in point of time and such as will make a Departure 33 H. 14. Bro. Departure 28. 13. Ex parte Def. It was argued by Serjeant Hopkins for the Defendant that the Replication was not good for the Plaintiff therein had alledged a Partition by Deed and doth not say hic in Curia prolat̄ And in all Cases where a Man pleads a Deed by which he makes himself either party or privy he must produce it in Court As where the Defendant justifies in Trespass that before the Plaintiff had any thing One Purfrey was seised in Fee of the place where c. And by Indenture c. demised it to Corbet excepting the Wood c. Habendum for the Life of Ann and covenanted quod licitum foret for the said Corbet to take House-boot c. That he assigned his Interest to Ann and that the Defendant as her Servant took the Trees and upon Demurrer the Plea was held naught because though a Servant having justified by force of a Covenant he did not shew the Indenture 2 Cro. 291. Purfrey versus Grimes 6 Rep. Bellamy's Case 1 Leon. 309. Rol. Rep. 20. If a thing will pass without a Deed yet if the Party pleads a Deed and makes a Title thereby he must come with a * profert hic in Curia As to the Objection That there was a Departure he argued to the contrary For the Defendant in his Rejoynder insists only on that which was most material and the Plaintiff in his Replication had given him occasion thus to Rejoyn and though he had left out some of the time mentioned in the Bar yet the would hurt the Pleadings because a fair Issue was tendred for if at the time of the conversion he was joyntly seised he could not be entituled to the Action alone Judgment And afterwards in Trinity-Term following the Chief Iustice delivered the Opinion of the Court That the Plea was good in Barr though pleaded in Abatement and the Defendant hath election to plead either in Barr or Abatement the nature of a Plea in Abatement is to intitle the Plaintiff to a better Writ but here the Defendant shews that the Plaintiff hath no cause of Action and so it shall be taken to be in Barr And it hath been expressly resolved That where the Plea is in Abatement if it be of necessity that the Defendant must disclose matter of barr he shall have his election to take it either by way of Barr or Abatement 2 Roll. Rep. 64. Salkil versus Shilton So where Waste was brought in the tenet the Tenant pleads a Surrender to the Lessor and demands Iudgment if he should be charged in the tenet because it should have been in the tenuit and this was held a good Plea 10 H. 7.11 Whereupon Iudgment was given for the Defendant the Chief Iustice at first doubting about the Departure and advised the Plaintiff to wave his Demurrer and to take issue upon payment of Costs Daws versus Harrison THE Plaintiff intitles himself as Administrator to Daws Administration pleaded and not loci istius ordinarius good and shews that Administration was granted to him by the Official of the Bishop of Carlisle but did not alledge him to be loci istius Ordinarius And Jones Serjeant demurred to the Declaration because it did not appear that the Official had any Iurisdiction Pl. Com. 277. a. 31. H. 6. 13. Fitz. Judg. 35. 22 H. 6. 52. 36 H. 6. 32 33. Sed non allocatur For the whole Court were of Opinion That the Declaration was good and that he shall be intended to have Iurisdiction but if it had been in the Case of a Peculiar Cro Jac. 556. Palm 97. Sid. 322. it cannot be intended that they have any authority unless set forth And so Iudgment was given for the Plaintiff Mason versus Caesar IN Trespass for pulling down of Hedges Commoner may abate Hedges made upon his Common the Defendant pleads that he had right of Common in the place where c. and the Hedges were made upon his Common so that he could not in ea parte enjoy his Common in tam amplo modo c. and so justifies the pulling them down And they were at issue whether the Defendant could enjoy the Common in tam amplo modo c. and there was a Verdict for the Defendant and Iudgment being staied 'till moved on the other side Scroggs Serjeant moved in Arrest of Iudgment because the Plea was ill and the Issue frivolous for 't is impossible that he should have Common where the Hedges are 5 Rep. 100. 9 Rep. 55. And therefore the Defendant ought to have brought an Action upon the Case or a quod permittat He cannot abate the Hedges though he might have pulled down so much as might have opened a Way to his Common 2 Cro. 195 229. The Lord hath an Interest in the Soil and a Commoner hath no authority to do any thing but to enter and put in his Beasts and not to throw down Quick-Set Hedges for that is a shelter to his Beasts But the Court were of Opinion That the Defendant might abate the Hedges for thereby he did not meddle with the Soil but only pulled down the erection and the Book of 29 E. 3. 6. was express in this point Vide 17 H. 7. 10. 16 H. 7. 8. 33 H. 6. 31. 2 Ass 12. And nothing was said concerning the Plea and so the Defendant had Iudgment Hocket and his Wife versus Stiddolph and his Wife Verdict cured a bad Declaration IN an Action of Assault and Battery brought by the Plaintiff and his Wife against the Defendant and his Wife the Iury found quoad the beating of the Plaintiffs Wife only that the Defendants are Guilty and quoad resid ' they find for the Defendants And it was moved in arrest of Iudgment by Scroggs Serjeant That the Declaration is not good because the Husband * Yelv. 106. Drury versus Dennis Sid. 376. joyns with the Wife which he ought not to do upon his own shewing for as to the Battery made upon him he ought to have brought his Action alone and the finding of the Iury will not help the Declaration which is ill in substance and thereupon Iudgment was staied but being moved again the next Term the Court were all of Opinion That the Declaration was cured by the Verdict and so Iudgment was given for the Plaintiff Goodwin qui tam c. versus Butcher AN Information was brought upon the Statute of 32 H. 8. Buying a pretended Title cap. 9. made against buying pretended Titles which gives a Forfeiture of the value of the Land purchased unless the Seller was in possession within a
Construction can be made of them but that an Estate in possession was thereby intended to pass 4. Object That this Fine and Grant must be construed to enure according to the intent of the Parties ut res magis valeat and they never intended to make a Forfeiture Answ Certainly no Man ever intended to make a Forfeiture of his own Estate those are generally the effects of Ignorance and not of the Will as the Case of Gimlet and Sands Cro. Car. * 1 Roll. Abr. 856. 391. where Tenant in Fee makes a Feoffment to two to the use of himself for Life then to the use of his Wife for Life Remainder in Tail to his Son and Heir Remainder to his own right Heirs and afterwards he made another Feoffment to Smith with Warranty the Mother and Son join in another Feoffment adjudged that this was a Forfeiture of her Estate for life though she had no notice of the Warranty made by her Husband for the Feoffment made by him was a publick Act upon the Land and she ought to have taken notice of it and though by her joining in the Feoffment with her Son she did not intend to forfeit her Estate yet the Law adjudges according to what is done But in the Case at Barr the intention of the Parties may be collected by the Act done and there is great reason to presume that the Parties thereby intended to displace the Reversion for the Husband joyning in the Fine and in the Warranty if it was no divesting the Warranty is of no use Another Objection has been only mentioned which is that admitting this should amount to a displacing if the Estate had been in possession yet in this Case it would not because it was prevented by the Lease for years in being But that cannot hinder the execution of this Fine 't is a Fine sur concessit which is executory in its nature and doth not pass any Estate or take any effect 'till executed and so is the Book 41 5. 3. 14. b. But in this Case the Fine was executed which may be by matter in pais as well as by Scire facias and as to this purpose may be executed by the entry of the Conusor 1 Rep. 106. Dyer 376. b. without suing out any Execution 38 Ed. 3. Brook tit Scire facias 199. If there had been a Fine executed there would have beén little doubt left in this Case and by the Attornment of the Lessee for years it must be admitted that this Fine was executed as 8 Ed. 3. f. 44. For a Fine of a Reversion may be executed to all purposes by the Attornment of the Lessee for years and if so when a Fine executory is once executed 't is as good as a Fine sur Conusance de droit come ceo to make a forfeiture of the particular Estate Where a Feoffment is made and a Lease for years is in being the Feoffment is not good because in such case there must be a present transposition of the Estate Postea Moor and Pitt which is hindred by the Lease But in case of a Fine which is a Feoffment upon Record a Lease for years is no impediment or displacing of the Reversion for if Tenant in Tayl expectant upon a Lease for years levy a Fine 't is a discontinuance of the Tayl and notwithstanding this Lease the Fine has such an operation upon the Free-hold that it displaces the Reversion in Fee Co. Lit. 332. And therefore if a Lease for years prevents not a Discontinuance it will much less hinder a displacing in this case But no Iudgment was given now in this Case another matter being debated whether the Plaintiff could have Iudgment because he was barred by the Statute of Limitations for it did not appear that he had been in possession for twenty years past and the Verdict hath not found any Claim or that the Plaintiff was within the Proviso of the Act. Waterfield versus the Bishop of Chichester Oath Ex Officio not to be administred A Prohibition was granted last Easter-Term to the Bishop of Chichester upon a Suggestion made by Waterfield that he being chosen Churchwarden of the Parish Church of Arundel in the County of Sussex the Bishop tendered him an Oath ex officio which was that he should Present every Parishioner who had done any Offence or neglected any Duty mentioned in certain Articles contained in a printed Book delivered to him some of which Articles concern the Church-warden himself and so in effect he was to swear against himself in case of any default which is expressly against the Statute of 13 Car. 2. Sid. 232 cap. 12. which prohibits any person having Ecclesiastical Iurisdiction to administer the Oath ex officio or any other Oath whereby the person to whom 't is administred may be charged to accuse himself of any criminal matter whereby he may be lyable to any Censure or punishment and because the Bishop had Excommunicated him for refusing such Oath he prayed a Prohibition which was granted quoad the compelling him to make any answer to the said Articles concerning himself and the Excommunication was discharged But now upon the motion of Serjeant Brampston a Consultation was awarded because it appeared by the Affidavit of the Commissary who tendred this Oath and likewise by the act of the Court that he was Excommunicated for refusing to take the Oath of a Church warden according to Law which was the only Oath tendred and therefore the ground of the Prohibition being false a Consultation was awarded In this Prohibition it was recited That the Bishop cannot give an Oath but in two cases viz. in matters Testamentary and Matrimonial whereas they have authority in many cases more 't is true also that until his Iurisdiction was increased by Act of Parliament he could hold Plea in none but those two causes 2 Inst 487 537. but by the Statute De circumspecte agatis and of Articuli Cleri he may now hold Plea in many other cases The Bishop informed the Lord Chief Iustice that the Plaintiff Waterfeild had caused 2000 of the Prohibitions to be printed in English and had dispersed them all over the Kingdom intituling them a true translated Copy of a Writ of Prohibition granted by the Lord Chief Iustice and other the Iustices of the Court of Common Pleas in Easter-Term 1676. against the Bishop of Chichester who had proceeded against and Excommunicated one Thomas Waterfield a Churchwarden for refusing to take the Oath usually tendred to persons in such Office by which Writ the Illegality of all such Oaths is declared and the said Bishop commanded to take off his Excommunication And this was declared by the Court to be a most seditious Libel and gave order to enquire after the Printer that he might be prosecuted Eleanor Plummer versus Sir Jeremy Whitchot Intr. Trin. 27 or 28 Car. 2. Rot. 301. in B. R. IN an Action of Debt for an Escape Vpon Nil debet
unruly and endeavour to escape but 't is expresly against the Law to do it where there is no such reason because a Prison is for the safe Custody of Men and not to punish them 1 Inst 260. a. So that it appears by this that a stricter remedy was provided for Executions in Accompt than for those in Debt 3. There are certain persons also who are made chargeable by this Statute when the Execution is in Accompt who cannot be charged in Debt for the Statute Enacts That if the Party escape the Officer in whose Custody he is shall answer sive infra Libertatem sive extra so that the Gaoler shall be charged whether he be of a Franchise or of the County at large but if a Man is in Execution for Debt and then escapes the Gaoler is not lyable but the Sheriff though the * 3 Co. 71. Westby's Case Gaoler hath the Custody of the Body of one whom the late Sheriff did not deliver over to the present Sheriff So that in this also there is a difference upon this Statute between Actions of Accompt and Actions of Debt and therefore the Clause therein of Respondeat Superior being made upon a particular occasion only in the Case of Accompt shall not be extended to other Matters and can in no wise influence this Case which for other Reasons cannot be governed by that Rule if extended to all who have power to depute an Officer and thereby give him an Interest or to appoint one for a time 2. Point 1. Because he in Reversion is not in propriety of Speech a Superior for 't is not said that a Reversioner after an Estate for Life is Superior and of more accompt in the Law than he who hath the particular Estate but on the contrary he who hath the Fréehold is of greater accompt and regard in the Law than the Reversioner after him and if as it hath been objected both make but one Estate then there can be no Superiority and it would be very hard and difficult for any Man to prove that any Attendancy is made by the Tenant for Life upon him who hath the Reversion 2. Here is room enough within the Statute to satisfie that word Superior by a plain and clear construction without bringing in the Reversioner for if the Sheriff makes a Deputy or a Lord makes Bayliff of a Liberty the Sheriff and the Lord are properly the Superiors 3. This word Superior is used in the Statute made the same year with this cap. 2. in signification agreeable with the Case in question for it recites that where Lords of Fees distrain their Tenants for Rents and Services and they having replevied their Cattle do alien or sell them so that a Return cannot be made then it provides that the Sheriff or Bailiff shall take Pledges to prosecute the Suit before they make deliverance of the Distress and if the Bayliff be not able to restore that is if he take insufficient Pledges the Superior shall answer by which the Parliament could mean no other than the Lord of that Liberty for if it should be otherwise there would be no end of Superiors as if there is a Bailiwick in Fee of a Liberty and the Bayliff thereof grants it for Life in this Case there are two Superiors for the Lord of the Bayliff is one and the Bayliff himself is another which cannot be 2 Inst 382. There is a Congruity in Law in saying the Sheriff and Lord are Superiors but there can be none in making the Reversioner a Superior The Lord may lose the Liberty if his Bayliff for Life or in Fee commit a Forfeiture as by not attending the Iustices in Eyre but a Reversion cannot be lost by the Forfeiture of the Tenant for Life if the Bayliff make an ill Execution of a Writ or suffer the Party to escape the Lord shall answer so if the Marshal of England appoint a Marshal there may be a Forfeiture of his Office because 't is but still the same Office and therefore the Case in Cro. Eliz. 386. where 't is said If an Office be granted for Life the Forfeiture of Tenant for Life shall be the Forfeiture of the whole Office is mistaken for in Moor pl. 987. 't is held otherwise and upon the true difference between a Deputy and a Granteé for Life for in the first Case there may be a Forfeiture of the Superior because 't is still but the same Office but in the other Case the Superior shall not forfeit for any Misdemeanour of the Grantée for Life because he hath the Freehold of the whole Office and the other nothing but the Reversion and therefore if the Defendant be liable in this Case 't is in respect 1. That he hath granted the Estate 2. That he hath the Reversion or Residue after the Life of the Grantee He cannot be charged in respect that he hath granted the Estate because the Freehold is gone and in another neither can he be charged in respect of the Reversion because then not only his Heir but the Assigneé of the Reversion will be chargeable also which cannot be As to the second Point of this Argument if the Defendant is not chargeable by this Statute he is not to be charged at the Common Law Sid. 306 397. 2. Because the Common Law doth not give an Action of Debt for an Escape but an Action on the Case only neither doth it give any Remedy but against the Party offending As to the Case that hath beén objected upon the Statute de Scaccario where the several Officers in the Exchequer shall answer in their degrées of Superiority that cannot be applicable to this Case because there can be no proportion betweén things which concern the Kings Revenue and Prerogative and those of a common person The Cases of the Coroner and the Sheriff and of the recommending of a Receiver to the King are not like this Case because the King cannot inform himself of the sufficiency of the Party recommended and therefore 't is but reasonable that he who recommends should be liable and can it be said that when the Defendant was about to sell this Office to one Norwood which he hath since done that if a Stranger had recommended Norwood and he had proved insufficient that the Stranger would have béen liable As for the Civil Law and the Authorities therein cited to govern this Case he did not answer them because they judge after their Law and the Common Lawyers after another way This Office hath béen granted time out of mind for Life and no doubt but many Escapes have been made but never was any Action brought against him in the Reversion before now The Court of Common Pleas always examine the sufficiency of the Grantee for Life which shews that in all succession of Ages the Opinions of Learned Men were that no Escape could be brought against the Reversioner for if so what need is there of such Examination This was urged
Assurances c. of Land not being the Lands of the late King Queen Prince c. and not being Land sold for any pretended Delinquency since the first of June 1641. and all Statutes and Judgments suffered by the Offenders from being impeached from which it appears that the Parliament lookt upon entailed Lands as forfeited for if Estates made to others upon a valuable consideration had need of a Proviso to save them from Forfeiture à fortiori the Estates out of which those are derived have need of such a saving and therefore must be forfeit by the Act for which Reasons these Lands are forfeited As to the great Objection which hath been made and insisted on the other side and which is Trudgeons Case 22 Eliz. 1 Inst 130. Where Tenant in Tail was attainted in a Praemunire and it was adjudged that he should forfeit his Land but during his Life for though the Statue of 16 R. 2. cap. cap. 5. Enacts That in such Case their Lands Tenements Goods and Chattels shall be forfeited to the King yet that must be understood of such an Estate as he may lawfully forfeit and that is during his own life and therefore being general Words they do not take away the force of the Statute de donis so that his Lands in Fee-simple for life c. shall be forfeited but the Land entailed shall not during his life But the Answer is plain For in the Reign of R. 2. when the Statute of Praemunire was made Estates Tail were under a Perpetuity by the said Statute de donis which Statute is now much weakened in the Point of Alienation and the Law is quite altered since that time and 't is apparent by multitude of Presidents that such strict Constructions have not been made since that time to preserve Estates Tail from Forfeitures without special and particular Words 4 Co. 164. and therefore in the Case of Adams and Lambert which is a Case in Point the Iudges there construed Estates Tail to be forfeit for want of special Words in the Statute of 1 E. 6. cap. 14. to save it and that was only a Law made for suppressing of superstitious Vses upon a politick consideration but this is a much greater Offence intended to be punished by this Act in which there are demonstrations both from the Words and intent of the Law-makers to make this Estate forfeited to the Crown than in that Case so much relied on And Iudgment was given accordingly Wyld died before Iudgment was given but Iustice Twisden said he was of that Opinion and Jones Iustice concurred Basset versus Salter After an Escape the Plaintiff may have a Ca. Sa. or Sci. Fa. against the Sheriff IN an Action for an Escape the Question was whether the Plaintiff may take out a Ca. Sa. or have a Fi. Fa. against the Defendant after the Sheriff or Gaoler voluntarily suffer him to escape but the Court would not suffer it to be argued because it had been lately settled that it was at the Election of the Plaintiff to do either and upon a Writ of Error brought in the Exchequer-Chamber the Iudges there were of the same Opinion But in the Lord Chief Iustice Vaughan's time the Court of Common Pleas were divided but 't is since settled 1 Roll. Abridg. 901 902. If there be an Escape by the Plaintiffs consent though he did not intend it the Law is hard that the Debt should be thereby discharged as where one was in execution in the Kings Bench and some Proposals were made to the Plaintiff in behalf of the Prisoner who seeing there was some likelyhood of an Accomodation consented to a Meeting in London and desired the Prisoner might be there who came accordingly and this was held to be an Escape with the * If it had been by the consent of the Sheriff he could never take him again but the Plaintiff might Sid. 330. consent of the Plaintiff and he could never after be in Execution at his Suit for the same Matter Peck versus Hill In Communi Banco Bond good given in discharge of another Mod. Rep. 221. DEBT upon a Bond brought against the Defendant as Administrator who pleads that he gave another Bond in his own Name in discharge of the first Bond and upon Issue joined it was found for the Defendant and it was moved that Iudgment might not be entred hereupon because it was a bad Plea But North Chief Iustice and Wyndham and Scroggs Iustices were of Opinion that it was a good Plea because there was other Security given than what the Plaintiff had before for upon the first Bond he was only lyable de bonis Intestatoris but now he might be charged in his own Right Co. Lit. 122. b. which may be well said to be in full satisfaction of the first Obligation for where the Condition is for payment of Mony to the Party himself there if he accept any collateral thing in satisfaction 't is good If a Security be given by a Stranger it may discharge a former Bond and this in effect is given by such And 't is not like the Case in Hobert where a Bond was given by the same Party upon that very day a former Bond was payable and adjudged not a good discharge for the Obligee was in no better condition than he was before Iustice Atkins doubted but inclined that one Bond cannot be discharged by giving another though the Discharge be applied to the Condition of the Bond and for this he cited Cro. Car. 85. Cro. Eliz. 716 727. which was a Case adjudged so in Point and therefore this Plea upon Demurrer should have been over-ruled yet since Issue was taken upon it and a Verdict for the Defendant the Plea is helped by the Statute of Jeofails 32 H. 8. here being a direct Affirmative and Negative But as to that the Chief Iustice and Scroggs Iustice replied that an immaterial Issue no ways arising from the Matter is not helped as an Action of Debt upon a Bond laid to be made in London and the Defendant saith that it was made in Middlesex and this is tried 't is not aided by the Statute but there must be a Repleader But because it was sworn that the Obligor who was the intestate was alive four years after the time that the second Bond was given and for that reason it could not be given upon the accompt of the Defendants being liable as Administrator but must be intended a Bond to secure a Debt of his own therefore a new Trial was granted Cook and others versus Herle Covenant will lie in the personalty tho' the Grant be executed by the Statute of Uses which makes a Distress the proper remedy Mod. Rep. 223. IN Covenant the Case was this Charles Cook made a Iointure to Mary his Wife for life and died without Issue the Land descended to Thomas Cook his Brother and Heir who grants an Annuity or Rent Charge of 200 l. per
against the Common Prayer Book and the Defendant having forbid such Preaching the Lord told him that he did not like him upon which he spoke those Words so that the subject matter explained the sense for which reason it was adjudged that the Action would not lie 2. The scandal for which an Action may be brought within this Statute must be false for that word goes quite through the whole Act viz. false News false Lyes c. and the words here are so general that it cannot appear whether they are true or false for there can be no Iustification here as in case where a Man is charged with a particular Crime my Lord Townsend is not charged with any particular Act of Injustice as a Subject nor with any Misdemeanour as a Peer nor with any Offence in an Office If therefore in all Actions brought upon this Statute the Defendant may justifie and put the matter in Issue to try whether it be true or false and in this Case the Defendant can neither justifie nor traverse for this reason the Action will not lie That the Words are general and of a doubtful signification it cannot be denied for to say He is an unworthy Man imports no particular Crime Unworthy is a term of Relation as he is unworthy of my Friendship Acquaintance or Kindred and so may be applicable to any thing and a Lord may in many things be unworthy of a particular Mans Friendship as if he promises to pay a Sum of Mony at a day certain and faileth in the payment as 't is often seén such is an unworthy Man but that will not bear an Action He is an unworthy Man who invites another to Dinner to affront him but it will not bear an Action to say That a Lord invited me to a Dinner to abuse me neither will it be actionable to say He is an unworthy Man because such instances may be given of his Vnworthiness which will not bear an Action If my Lord had beén compared to any base and unworthy thing these Words might have béen actionable and that was the Case of the Lord Marquess of Dorchester it being said of him That there was no more value in him than in a Dog Then to say A Man acts against Law this is no Scandal because every Man who breaks a Penal Law and suffers the Penalty is not guilty of any Crime The Statute commands the burying in Woollen the Party buries one of his Family in Linnen in this he acts against the Law but if the Penalty is satisfied the Law is so likewise A Man who acts against Law acts against Reason because Lex est summa ratio but no instance is here given wherein he did thus act 'T is not said that he did act against Law wilfully or that he used to do any thing against Law and so cannot be like the Case of the Duke of Buckingham who brought an Action for these Words viz. You are used to do things against Law and put Cattle into a Castle where they cannot be replevied for there was not only an Vsage charged upon him but a particular instance of Oppression This Action lies for Words spoken of a Iudge of either Bench and of a Bishop as well as of a Peer Now if a Man should say A Judge acted against Law will an Action lie Because a Iudge may do a thing against Law and yet very justly and honestly unless all the Iudges were infallible and could not be subject to any mistakes which none will deny So if a Bishop return the Cause of his Refusal to admit a Clerk quia criminosus this is a Return against Law because 't is too general but if J. S. should say A Bishop acted against Law and shew that for Cause an Action would not lye If the the Lord Townsend had commanded his Bayliff to make a Distress without Cause that had been acting against Law and Reason He agreed the Words to be uncivil but not actionable for if such Construction should be made a Man must talk in Print or otherwise not speak any thing of a Peer for fear of an Action There are many Authorities where a Péer shall not have an Action for every trivial and slight Expression spoken of him As to say of a Péer He keeps none but Rogues and Rascals about him like himself by the Opinion of two Iustices Yelverton and Flemming the Action would not lie because they are Words of Scolding and this was the Case of the Earl of Lincoln Cro. Jac. 196. But the Court was divided the Defendant died and so the Writ abated Actions for Words have béen of late too much extended formerly there were not above two or three brought in many years and if this Statute should be much inlarged the Lords themselves will be prejudiced thereby by maintaining Actions one against another Vpon this Statute of 2 R. 2 c. 5 there was no Action brought till 13 H. 7. which was above an hundred years after the making of that Law and the occasion of making the Law was because the Duke of Lancaster who was then the first Prince of the Blood took notice that divers were so hardy as to speak of him several lying Words 1 R. 2. num 56. and therefore this Statute was made to punish those who devised false News and horrible and false Lies of any Peer c. whereby Discords might arise between the Lords and Commons and great Peril and Mischief to the Realm and quick Subversion thereof Now from the natural intent and construction of these Words in the Act can it be supposed that if one should say Such a Peer is an unworthy Man that the Kingdom would be presently in a flame and turned into a state of confusion and Civil War and to say That he acts against Law that the Government would thereby be in danger to be lost and quick Subversion would follow This cannot be the common and ordinary understanding of these Words If therefore the Plaintiff by speaking these Words was in no hazard nor any wise damnified if he was not touched in his Loyalty as a Péer nor in danger of his Life as a Subject if he was not thereby subjected to any Corporal or Pecuniary Punishment nor charged with any Breach of Oath nor with a particular Miscarriage in any Office if the Words are so general that they import no Scandal and are neither capable of any Iustification and lastly if they are not such horrible Lies as are intended to be punished by the Statute for these Reasons he concluded the Action would not lie and therefore prayed that the Iudgment might be arrested Serjeant Baldwin and Serjeant Barrel argued on the same side for the Defendant but nothing was mentioned by them which is not fully insisted on in the Argument of Serjeant Maynard for which Reason I have not reported their Arguments But Pemberton Serjeant who argued for the Plaintiff said Ex parte Quer. that it would conduce much to
inconvenient that the Capias against the Defendant should be delivered to the new Sheriff and not the Supersedeas which was to admit the Charge and not the Discharge Westby's Case 3 Co. 73. And it was the constant practice not only to deliver the Supersedeas but the very Book in which 't is allowed and this he said appeared by the Certificates of many Vnder-Sheriffs which he had in his hand 2. If the Sheriff hath an Exigent against B. who appears and brings a Supersedeas to the old Sheriff and then a new Sheriff is made if he hath not the Supersedeas he may return him outlawed by vertue of the Exigent so in the Case of a Iudgment set aside for Fraud or Practice and a Supersedeas granted and the like in the case of an Estrepment which is never returned and it would be an endless work upon the coming in of every Sheriff to renew this Writ As to the Objection that the old Sheriff may have occasion to plead it As often as such occasion happens he may have recourse to it in the Office of the new Sheriff and he can have no Title to it by the direction of the Writ for that is Vicecomiti Berks and not to him by express Christian and Sirname and of that Opinion was all the Court and Iudgment was given accordingly nisi causa c. Hamond versus Howel Recorder of London An Action will not lie against a Judge for what he doth judicially tho' erroniously Mod. Rep. 184. FAlse Imprisonment The Defendant pleads specially the Substance of which was that there was a Commission of Oyer and Terminer directed to him amongst others c. and that before him and the other Commissioners Mr. Penn and Mr. Mead two Preachers were indicted for being at a Conventicle to which Indictment they pleaded Not-Guilty and this was to be tried by a Iury whereof the Plaintiff was one and that after the Witnesses were sworn and examined in the Cause he and his Fellows found the Prisoners Penn and Mead Not-Guilty whereby they were acquitted quia the Plaintiff male se gesserit in acquitting them both against the direction of the Court in Matter of Law and against plain Evidence the Defendant and the other Commissioners then on the Bench fined the Iury 40 Marks a-piece and for Non-payment committed them to New-gate c. The Plaintiff replies de injuria sua propria absque hoc that he and his Fellows acquitted Penn and Mead against Evidence and to this the Defendant demurred Serjeant Goodfellow who would have argued for the Defendant said that he would not offer to speak to that Point whether a Iudge can fine a Iury for giving a Verdict contrary to Evidence since the Case was so lately and solemnly resolved by all the Iudges of England in * Vaugh. 146. Bushel's Case that he could not fine a Iury for so doing But admit a Iudge cannot fine a Iury yet if he doth no Action will lie against him for so doing because 't is done as a Iudge 12 H. 4. 3. 27 Ass pl. 12. 1 Roll. Abr. 92. Liter Q. pl. 1. But the Court told him that he neéd not to labour that Point but desired to hear the Argument on the other side what could be said for the Plaintiff Serjeant Newdigate argued that this Action would lie 1. It must be admitted that the Imprisonment of the Iury was unlawful and then the consequence will be that all that was done at that time by the Commissioners or Iudges was both against Magna Charta and other Acts of Parliament the Petition of Right c. and therefore their Proceedings were void or at least very irregular to imprison a Iury-man without Presentment or due Process in Law and consequently the party injured shall have an Action for his false Imprisonment In 10 H. 6. f. 17. In an Action brought for false Imprisonment the Defendant justifies the Commitment to be for Suspicion of Felony but because he did not shew the ground of such Suspicion the Iustification was not good The Trial of Penn and Mead and all incidents thereunto as swearing the Iury examining of the Witnesses taking of the Verdict and acquitting the Prisoner were all within the Commission but the fining of the Iury and the imprisoning of them for Non-payment thereof was not justifiable by their Commission and therefore what was done therein was not as Commissioners or Iudges If this Action will not lie then the Party has a Wrong done for which he can have no remedy for the order for paying of the Fine was made at the Old-Bayly upon which no Writ of Error will lie and though the Objection that no Action will lie against a Iudge of Record for what he doth quatenus a Iudge be great the Reason of which is because the King himself is de jure to do Iustice to his Subjects and because he cannot distribute it himself to all persons he doth therefore delegate his Power to his Iudges and if they misbehave themselves the King himself shall call them to account and no other person 12 Co. 24 25. But that concerns not this Case because what was done here was not warranted by the Commission and therefore the Defendant did not act as a Iudge and this difference hath beén taken and allowed that in the Case of an Officer if the Court hath Iurisdiction of the Cause no Action will lie against him for doing what is contrary to his Duty but if all the Proceédings are coram non Judice and so void an Action doth lie 10 Co. 77. So in the Case of a Iustice of the Peace or Constable where he excéeds his particular Iurisdiction so if a Iudge of Nisi Prius doth any thing not warranted by his Commission 't is void And that the Commissioners here had no power to impose this Fine he argued from the very nature of the pretended Offence which was neither a Crime or in any wise punishable because what the Plaintiff did was upon his Oath and for that reason it hath béen adjudged in the Case * Bridgman 131. Agard and Wild that an Action would not lie against one of the Grand Iury after an acquittal for procuring one to be indicted for Barretry because he is upon his Oath and it cannot be presumed that what he did was in Malice The Habeas Corpus gives the Party Liberty but no Recompence for his Imprisonment that must be by an Action of False Imprisonment if otherwise there would be a failure of Iustice and it might encourage the Iudges to act ad libitum especially in inferior Courts where Mayors and Bayliffs might punish Iuries at their pleasures which would not only be a grievance to the Subject but a prejudice to the King himself because no Iuries would appear where they are subject to such arbitrary Procéedings An Action on the Case lies against a Iustice of the Peace for refusing to take an Oath of a Robbery committed 1 Leon. 323.