Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	action_n	defendant_n	plaintiff_n	1,723	5	10.0998	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A28801	Examen legum Angliæ, or, The laws of England examined, by Scripture, antiquity and reason cujus author anagrammat[os] est, A gomoz boa oz̄ bary.	Booth, A., 17th cent.; Boon, A.	1656 (1656)	Wing B3738; ESTC R38641	162,879	175

without oath But all the witnesses who are to give evidence for the Common-wealth are sworne and if it fall out as somtimes it doth that a witness sworne speaks any thing material to clear the Prisoner especially if he do any whit contradict the Testimony of any other brought against the Prisoner then the Court useth to be in an (i) This I observed to be very usually practised by the Judges as a piece of high injustice but since the late Warrs the Judges are more just and indiff●rent and moderate in this point heat and great inquiry is made how such a witness came to be sworne and if it appear he was brought in by any Sollicitor or friend of the Prisoners then such a man is checked or threatned most commonly and the Prisoner must endure all this Injus●ice for it is no better nor can any man defend it in foro Conscientiae for every man ought to have as much favour means allowed him to clear himself as his Accuser hath to charge him and somewhat more according to the rules of Scripture The con●rary was used against our Lord Christ Mark 14.59 63. Luke 22.71 John 3.11 Job 29.16 14. The payment of fines upon Writs of (i) Sr Edward Coke saith that the reason of these fines was because the King lost the benefit of the Amerciaments which he should have had upon the judgment or nonsuite Coke Inst 2 part in Stat. mod Levand fines 18 Ed. 1. pag. 511. So that fines were then the Conclusion of suits but now they are used to prevent suits and to settle estates about which then was no controversie And for other original Writs they are the beginnings of suits and therefore ought to be had without fine there being no Amerciaments lost thereby The fine upon the Writ of Covenant prolic●ntia concordandi is said by Sir Edward Coke to be the Kings silver which is a grosse mistake for that is paid besides the fine and post-fine upon the same Writ Coke Inst 2 part pag. 511. Covenant as well as other fines upon Original Writs are an oppression and a late exaction and seem to be contrary to Magna Charta Doct. Stud. Chap. 8. fol. 18. 6. Fines ought to be paid for Off●nces as a Mulct or Punishment but it is in no sort any Offence to leavy or sue forth a Fine for Assurance of Lands purchased nor to seek for remedy against wrongs by Suit in Law These Fines were all taken away by a Law as I take it to be but Fines upon Writs of Entry and Writs of Covenant are since set up again upon a meer pretence That the Fines themselves may be erroneous for want of payment of the Money called The Kings Silver to which the Fine upon the Alienation hath no affinity or relation that Silver being anciently but Ten-pence but this is at least Six shillings eight pence if the Lands be above Forty shillings by the year and it may be twenty shillings or twenty pounds being regularly the Tenth part of the yearly value as the Lands Conveyed are rated by the Commissioners and the post-Fine is half as much more The like may be said of Damna Clericorum which is the Tenth part of the Damages clear recovered in any Action and was anciently paid to the Priests who were Clerks in all Courts but since was allowed to the Protonotors and their Clerks This being a kinde of Tything had a Superstitious beginning but is lately discharged as all other Fines are but those upon Writs of Entry and Covenant which yet remain as an oppression If it be said That this is necessary as part of the Lord Protectors Revenue It is to be considered That the want of that is to be supplied by payment of (k) Tit. Liv. l. 39. p. 1051. f. 1052. G. Those taxes are most necessary which are imposed upon curiosities and dainties as rich Perfumes clo●h of gold and silver Silks Cyp●ess Laces rich Colours Pea●ls Diamonds and other Precious Stones all kinde of works of Gold silver and enamell'd Coaches and Chariots c. Bodin Repub. l. 6. c. 2. p. 670 671. Hawk Dom. l. 2. p 111. Taxes Toll (l) Rom. 13.6 Taxes are as proper for upholding of Soveraignty as the Law it self Bod. Rep l. 1. c. 10. p. 177. Jun. Brut. vind cont Tyra p. 85 86. Tribute or Custome allovved by our Saviour and the Apostle to be paid to the Roman Heathen Emperors Mat. 22.21 Rom. 13.6 7. Luke 20.25 that is an indifferent payment by just proportion of Taxing But this now used by way of such Fines is a meer Oppression or Punishment of particular men for no Offence Ezek. 45.8 Amos 4.1 5.12 Jam. 2.6 Isa 52.45 15. All manner of Pleadings and Proceedings both in Law and Equity are stuffed with falshood and lyes This is evident in every mans practise and needs no proof and of necessity must be so whilest the Law continues as it now is In the Upper Bench all the Pleadings are said to be before the Lord Protector himself and so were said to be before the King himself although he never came into the Court. The Defendant is alwayes said to be in the Custody of the Marshal of the Marshalsey although he never came there but John Doo and Richard Roo were in conceit his Manucaptors In an Action at Law of Trespass for Assault and Battery brought for a box on the Ear the Plaintiff declares That the Defendant with Force and Arms viz. with Swords Staves and Knives did make an assault upon him and did him beat wound and evilly intreat so that it was despaired of his life In an Action of Trespass for driving Sheep over a plowed Land the Plaintiff declares That the Defendant with Force and Arms his Close c. did break and his Grass to the value of Forty shillings there late growing with his feet in walking did tread down and consume And his other Grass there late growing to the value of Forty shillings with his Cattel that is to say Horses Oxen Cowes Hogs and Sheep then and there lately feeding did eat up tread down and consume In all cases where the Plaintiffs by Law were to put in Pledges and where the Defendant put in Common Bayle or where the Defendant is to be summoned John Doo and Richard Roo John Den and Richard Fen and the like devised Names are said to be the men The Returns of most Writs are false That the Defendant is not found when he was never looked for nor the Writ in the County whither it is directed but purposely so returned that the Plaintiff may have an Alias and so a Pluries to the Exigent Upon a Habeas Corpus to remove a Prisoner being in the Goale Ki●th Return Brev. fo 259. if the Plaintiff will not pay the Sheriff for removing the Prisoner what he demands the Sheriff returns That the Writ came too late or that the Defendant languisheth in Prison so that he cannot

have his Body at Westminster at the day of the Return of the Writ without danger of death So if a Prisoner be bailed and a Bond given for Appearance if the Bond be ●uffi●ient the Sheriff will return That he hath taken the Body of the Defendant and hath it ready at the day and sometimes when the Defendant is Arrested and at liberty the Sheriff will return That he hath the Defendants body in Prison and that he languisheth when he goes abroad but is not minded to appear to answer the Suit The Common Barre and the story about Black-acre and White-acre and such things as are invented when men give to others colour of Title as an inducement to some other matter All which things are repugnant to Honesty and Simplicity The like may be said of Proceedings in Courts of Equity If a man sue for Lands to which he pretends an Equitable Right as a ground of Equity to make his Bill hold he usually alledgeth That the Plaintiff hath lost his Evidences That they are come to the Defendants hands That the Plaintiff can maintain no Action at Law for them because he knows not the Dates nor Contents of them nor whether they be in Boxes Bags or Chests and divers other such other false surmises when the Plaintiff hath the Evidences in his own Custody In a Bi●l where a man sues to have an Agreement performed it 's usually alledged That the Witnesses to prove the Agreement are dead beyond the Seas or in remote places unknown or so impotent that they cannot be produced at any Tryal West Symb. 2 part Tit. Fines sec 112. Old Natura Brevium fo 20 and many such-like So likewise in a Commission to take the Cognizance of a Fine it 's alledged That the Cognizors are so impotent that they cannot travel to a Westminster without danger of death when they are in perfect health These and many more lyes and falshoods are made and entred of Record every Term which are clearly sinful and ought to be reformed Job 13.4 Acts 5.3 4. Coloss 3.9 Revel 21.27 22.15 Luke 19.8 16. The uncertainty of the Law for want of a standing Rule the Law it self being but meer Opinion is a matter of great prejudice and causeth an excessive charge many times to the Suitors The Judges being (l) Bodin Repub. l. 3. c. 5. p. 325. The Magistrate is a living or breathing Law There hath been a Judgement upon a Writ of Error in the Exchequer Chamber given by all the Judges That no Information will lie in any Court at Westminster but in the proper County before the Justices and yet such Informations are constantly brought and prosecuted every Term contrary to that Judgement grounded upon the Statute of 21 Jac. c. 4. called the Speaking Law very frequently differing in their Opinions and sometimes the same Judges when Lawyers have given that under their hands for Law which when they have come to be Judges upon second thoughts they have judged otherwise although such Judges have been known and reputed to be men of Integrity and clear Judgement And this uncertainty is not onely about the highest Apexes of the Law but in things of ordinary concernment As about Waste abundance of Money hath been spent to know what power is given to a Termer by these words To hold c. (m) Coke lib. 4. fol. 62 63. Herlackendens Case compared with Iewes Boles his Case Coke lib. 11. fol. 81 82 83. See the many Cases there cited without Impeachment of Waste whether he be onely discharged of unvoluntary Waste or whether the Termer may take down fixed Wainscot or such-like which he set up or whether he may not cut down Timber-Trees and pluck down houses and further whether he may not take all the Materials to his own use If I mistake not all these things have been judged Negatively and Affirmatively And the last Solemn Judgement was That in such a case a Termer might commit wilful Waste and take all the Materials to his own use which is Repugnant to all former Judgements and yet all the Judges are not now of the same Opinion in some of the Cases above-mentioned It were an easie matter to set down twenty such Cases where the Judges have been divided and in divers Cases where one Court hath agreed the other Judges upon a Writ of Error being the greater number in the Exchequer Chamber have reversed their Judgements The like uncertainty is found in every mans practice in (n) There are many Controversies concerning Actions upon the Case for words and many times words of high concernment are adjudged not to bear Action and for others of less concernment judgement hath been given Corn. Tacitus observes That the Romans Laws were swayed hither and thither by Might Ambition and Corruption and all was for want of a standing Rule Tacit. Annal. lib. 1. cap. 1. pag. 2. ordinary things as whether in an Indebitatus Assumpsit for Wares and Merchandize upon a Non assumpsit pleaded the Plaintiff shall not be put to prove That the Money demanded grew due for such things as are mentioned in the Declaration or whether he may give in Evidence That it grew due for Rent or other things not mentioned Whether upon a Lease by Paroll an Action upon the Case will lie for Arrears of Rent Whether a man to an Action of Trespass o● Assault Battery and Wounding may plead to the wounding Son assault Demesne Within Thirty years it was commonly held for Law That if a man strike me with a Stick I might not cut him with a Sword but now of late the common use is to justifie the whole Battery both Beating and Wounding If a man were minded he might fill a Book with such Uncertainties And this is that which caused King James to tell Wilson Histor Great Brit. p. 96. Sir Edward Coke That he had inserted into his Books many extravagant Opinions for good Law which were not Law and therefore commanded him To Review and Correct them and bring them to him to be perused And the same Judge is also charged That he could turn the Edge of the Law any way and strike with that weapon whom he pleased (p) That Law which like the Lesbian Rule is so pliant that it may be turned every way loseth the force of a Law and becomes like a Nose of Wax and so the Judge who is but the Minister of the Law becomes the Master of the Law Bodin lib. 6. cap. 6. pag. 760. answerable to what a Learned Chancellour said once upon the Bench Such a Lord Chancellor was of that Opinion and I am of this Opinion If there were nothing in the Law faulty besides this it were worthy to be perused and amended for the Judges being the Speaking Law the Law is nothing but th●ir (q) Cock Essay p. 111. Opinions contrary to that Truth which ought to be in all Laws But the Judicial Law of Moses shall never be found

of the Moral and Judicial Laws As for the Ceremonial Law that was not properly belonging to distributive Justice but concerned every particular man as the immediate service of God To conclude this point If the Law were just and equal as it ought to be there were no need of any Court of Equity And the Law as now it is having need of such Courts of Equity as these are is an Oppression of the People and so clearly against the (r) Isa 10.1 Law of God The Court of Wards was a Court mixt of Law and Equity and there he that was but a Termer or (s) Sewals case Court Wards Carol. 7. Tenant of Lands holden in Capite or Knights-Service for any long time as 100 years or above was adjudged in the Kings Case to dye seised because that he had the Land and the Reversion was worth little or nothing And these long Leases were made to defraud the Lord of his Wards So if a mans Lands were in the hands of Trustees at the time of his death they decreed the Land to descend to his Heir as to some purposes The Court of Exchequer is likewise a mixt Court insomuch that if a mans Land were extended for Debt due to the King or a Judgement against him upon a Recognizance the Court might and usually did moderate the rigour by installing the Debt and sometimes discharged it upon matter pleaded And this is agreeable to Law that such Debts should not be levied to the great grievance of the Subject Here Equity and Law are brought together which I remember not to commend the Court of Wards which was a heavy Burthen nor yet the Exchequer in every thing but to shew That Law and Equity have been and may be both dispensed in one Court as is herein before set forth And what hath been said upon the Bench by the (t) Sir John Smith L. Keeper his Speech in Chancery Lord Keeper or Lord Chancellor in my hearing viz. That the Lord Chancellor in that Court was trusted with the Kings Conscience but he could not delegate it to another as if the King in respect of his Soveraignty had power to dispense with the Law which the Judges might not do without delegacy from him (u) The Judge as well as the Prince may judge according to conscience and what is right in the one is right in the other and that which is wrong in on● why should it not be wrong in the o●her It 's lawful for no man in judgement to swerve from Equity and Conscience Bod. Rep. lib. 6. cap. 6. pag. 768. This is an unreasonable Conceit to think that any Authority or Power on Earth can give any liberty to swerve from the Rule of Gods Word and Right Reason It were to put that upon the Supreme Magistrate as was said of one of the Popes That he was Nec homo nec Deus sed inter utrumque And so much in general of this matter CHAP. X. That all such as chiefly require a remedy in a Court of Equity may easily be determined by the Judges in Courts of Law if the Law were amended as it ought to be And herein that which is usually said for the upholding of Courts of Equity is answered THat which in the former Chapter is said concerning a Debtor having relief onely in Equity against the Penalty of a Bond or in an Action brought upon a single Bill which is paid being things most common in every mans practice I have therein sufficiently answered and cleared it That the Judges of Law might easily determine all such Causes without a Court of Equity The Court of Chancery was anciently Officina Justitiae and the Lord Chancellor used to sit as Chief Justice of the Common Pleas and no mention made of a Court of Equity until the Reign of H 6. and Ed. 4. Coke Inst 2 part p. 552 by ordering the Plaintiff to take and accept what is due upon the Bond or any Specialty wherein there is a Penalty and by admitting the Defendant to plead payment at the day to a single Bill And where Money is not paid at the day to allow Damages for the time according to the Plaintiffs loss So joyning Law and Equity together to make up perfect Justice and that is all which needs in such cases Those things which are most stood upon for upholding of these two Courts or Distinct Powers and Jurisdictions are such as these following Object 1. First it 's said That in cases of Mortgages forfeited there is no remedy at the Common Law a This is against Gods Law and the Law of Charity 1 Cor. 6.8 9. 1 Thess 4.6 Matth. 7.12 Luk. 6.31 but the Mortgager must lose his Land fot how little soever it be Mortgaged without any relief elswhere but in Equity And therefore this being a matter of great Concernment ought to be remedied in a Court of Equity Answ 1. If it be remembred what is said before concerning Bonds and other Specialties with Penalties that partly answereth this Objection for in an Action of Trespass and Ejectment if the Defendant might have liberty upon the general Issue pleaded to give in Evidence what the original Debt was for which the Lands were Mortgaged and what Profits have been taken by the Mortgagees the Debt and Damages for the Money may suddenly be computed or found by a Jury And if the Judges in such case as in case of a forfeited Bond enforce the Mortgagee or his Heir in case he bring the Action to accept the same principal Debt and Damages with reasonable Costs if he did not formerly refuse it without more ado and release or assign the Mortgage which might be easily done with a little Amendment of the Law What use were there of a Court of Equity Obj. 2. The like may be said concerning Covenants or Conditions broken in other cases where a man Covenants to pay Rent or make repairs or hath an Estate with a Proviso or subject to a Condition of Re-entry for non-payment of Money (b) This extremity of rigour is the worst Oppression in the Commonwealth a transgression of Gods Law Isa 58.6 Ezek. 18.7 Eccles. 5.8 1 Sam. 12.3 and for performance of Covenants enters into a Bond of a great Penalty or shall lose some considerable Estate for some petty neglect or non-payment of some some small sum of Money as I have known a Lease worth Five hundred pounds at least lost for non-payment of Five pounds Answ In these cases the course above-mentioned is a sufficient Remedy to finde out the Damage sustained by the non-performance of the Covenant which may be as well done with a little Alteration in an Action of Debt upon the Bond as upon an Action of Covenant which is ordinarily in use and in case of a Condition broken to ascertain the Damages and appoint the Plaintiff to accept thereof as aforesaid This is remedied partly by the late Ordinance for Regulation of the Chancery