5 Ed. 4. 6. Now for Authorities I confess there are great ones against me 2 Cro. fol. 335. Heath Ridley Moor. 838. Courtney versus Glanvill My Lord Coke in his Chapter of Praemunire 22 Ed. 4. fol. 37. But the greatest Authority against me is the case of Throgmorton Finch reported by my Lord Coke in his Treatise of Pleas of the Crown Chapter Praemunire But the practice has béen contrary not one person attainted of a Praemunire for that cause In King James his time the matter was referred to the Counsel who all agreed that the Chancery was not meant within the Statute which Opinions are inrolled in Chancery And the King upon the report of their Reasons ordered the Chancellor to proceed as he had done and from that time to this I do not find that this point ever came in question And so he prayed Iudgment for the Defendant Saunders As to that objection that at the time when this Statute was made there were no proceedings in Equity I answer that granting it to be true yet there is the same mischief The proceedings in one part of the Chancery are coram Domino Rege in Cancellaria but an English Bill is directed to the Lord Keeper and decreed so that there is a difference in the proceedings of the same Court But admit that Courts of Equity are the Kings Courts yet they are aliae Curiae if they hold plea of matters out of their Iurisdiction 16 Ri. 2. cap. 5. Rolls first part 381. There is a common objection that if there were no relief in Chancery a man might be ruined for the Common Law is rigorous and adheres strictly to its rules I cannot answer this Objection better then it is answered to my hand in Dr. Stud. lib. 1. cap. 18. he cited 13 Ri. 2. num 30. Sir Robert Cotton's Records It is to be considered what is understood by being impeached Now the words of another Act will explain that viz. 4 H. 4. cap. 23. by that Act it appears that it is to draw a Iudgment in question any other way then by Writ of Error or Attaint One would think this Statute so fully penned that there were no room for an evasion There was a temporary Statute which is at large in Rastall 31 H. 6. cap. 2. in which there is this clause viz. That no matter determinable at Common Law shall be heard elsewhere A fortiori no matter determined at Common Law shall be drawn in question elsewhere He cited 22 Ed. 4. 36. Sir Moyle Finch Throgmorton 2 Inst 335. and Glanvill Courtney's case He put them also in mind of the Article against Cardinal Woolsey in Coke's Jurisdiction of Courts tit Chancery So he prayed Iudgment for the Plaintiff Keeling It is fit that this cause be adjourned into the Exchequer-chamber for the Opinions of all the Iudges to be had in it We know what heats there were betwixt my Lord Coke Ellesmere which we ought to avoid Turner Benny A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Action upon the Case wherein the Plaintiff declared that it was agréeed betwéen himself and the Defendant that the Plaintiff should surrender to the use of the Defendant certain Copy-hold Lands and that the Defendant should pay for those Lands a certain sum of money and then he sets forth that he did surrender the said Lands into the hands of two Tenants of the Manor out of Court secundum consuetudinem c. Exception The promise is to surrender generally which must be understood of a surrender to the Lord or to his Steward and the Declaration sets forth a surrender to two Tenants which is an imperfect surrender 1 Cro. 299. Keeling But in that case there are not the words secundum consuetudinem as in this case Jones Hill 22 Car. 1. Rot. 1735. betwixt Treburn Purchas two points were adjudged 1. That when there is an agréement for a surrender generally then such a particular surrender is naught 2. That the alledging of a surrender secundum consuetudinem is not sufficient but it ought to be laid that there was such a Custom within the Manor and then that according to that Custom he surrendred into c. accordingly is 3 Cro. 385. Coleman contra We do say that we were to surrender generally and then we aver that actually we did surrender secundum consuetudinem and if we had said no more it had béen well enough Then the adding into the hands of two Tenants c. I take it that it shall not hurt Besides we need not to alledge a performance because it is a mutual promise and he cited Camphugh Brathwait's case Hob. Twisden I remember the case of Treborne he was my Clyent And the reason of the Iudgment is in Combe's case 9th Rep. because the Tenants are themselves but Attornies And they compared it to this case I am bound to levy a Fine it may be done either in Court or by Commission but I must go and know of the person to whom I am bound how he will have it and he must direct me In the principal case the Iudgment was affirm'd Nisi c. Turner Davies AUdita Querela The point was this viz. an Administrator recovers damages in an Action of Trover and Conversion for Goods of the Intestate taken out of the possession of the Administrator himself then his Administration is revoked and the question is whether he shall have Execution of the Iudgment notwithstanding the revocation of his Administration Saunders I conceive he cannot for the Administration being revoked his Authority is gone Doctor Druries case in the 8th Report is plain And there is a President in the new book of Entries 89. Barrell I conceive he may take our Execution for it is not in right of his Administration he lays the Conversion in his own time and he might in this case have declared in his own name and he cited and urged the reason of Pakman's case 6th Report 1 Cro. Keeling He might bring the Action in his own name but the Goods shall be Assets If Goods come to the possession of an Administrator and his Administration be repealed he shall be charged as Executor of his own wrong now in this case the Administration being repealed shall he sue Execution to subject himself to an Action when done Twisden I think it hath béen ruled that he cannot take out Execution because his Title is taken away Iudgment per Cur. versus Defendentem Jordan Martin EXception was taken to an Avowry for a Rent-charge that the Avowant having distrained the Beasts of a Stranger for his Rent does not say that they were levant couchant Coleman The Beasts of a Stranger are not liable to a Distress unless they be levant couchant Roll. Distress 668. 672. Reignold's case Twisd Where there is a Custom for the Lord to seize the best Beast for a Heriot and the Lord does seize the
persons who were all capable that there was no difference betwixt that case and this Ellis said that in Floyd Gregories case reported in Jones it was made a point and that Jones in his argument denied the case of Hunt Singleton he said that himself and Sir Rowland Wainscott reported it and that nothing was said of that point but that my Lord Coke followed the Report of Serjeant Bridgeman who was three or four years their puisne and that he mistook the case Milword Ingram THe Plaintiff declares in an Action of the case upon a quantum meruit for 40 shillings and upon an Indebitat Assumpsit for 40 shillings likewise The Defendant acknowledged the promises but further says that the Plaintiff and he accounted together for divers sums of money and that upon the foot of the Account the Defendant was found to be endebted to the Plaintiff in 3 shillings and that the Plaintiff in consideration that the Defendant promised to pay him those 3 shillings discharged him of all demands The Plaintiff demurred The Court gave Iudgment against the demurrer 1. They held that if two men being mutually endebted to each other do account together and the one is found in arrear so much and there be an express agréement to pay the sum found to be in arrear and each to stand discharged of all other demands that this is a good discharge in Law and the parties cannot resort to the original Contracts But North Ch. Just said if there were but one Debt betwixt them entring into an account for that would not determine the Contract 2. They held also that any promise might well be discharged by paroll but not after it is broken for then it is a Debt Jones Wait. SHrewsbury Cotton are Towns adjoining Sir Samuel Jones is Tenant in Tail of Lands in both Towns Shrewsbury Cotton are both within the Liberties of the Town of Shrewsbury Sir Samuel Jones suffers a Common Recovery of all his Lands in both Vills but the Praecipe was of two Messuages and Closes thereunto belonging these were in Shrewsbury and of c. mentioning those in Cotton lying and being in the Ville of Shrewsbury in the Liberties thereof And whether by this Recovery the Lands lying in Cotton which is a distinct Ville of it self not named in the Recovery pass or not was the question Serjeant Jones argued against the Recovery He cited Cr. Jac. 575. in Monk Butler's case Cr. Car. 269 270. 276. he said the Writ of Covenant upon which a Fine is levied is a personal Action but a Common Recovery is a real Action and the Land it self demanded in the Praecipe There is no President he said of such a Recovery He cited a case Hill 22 23 Car. 2. Rot. 223. Hutton 106. Marche's Reports one Johnson Baker's case which he said was the case in point and resolved for him But the Court were all of Opinion that the Lands in Cotton passed And gave Iudgment accordingly Ellis said if the Recovery were erroneous at least they ought to allo 〈…〉 t till it were reversed Lepping Kedgewin AN Action in the nature of a Conspiracy was brought by the Plaintiff against the Defendant in which the Declaration was insufficient The Defendant pleaded an ill plea but Iudgment was given against the Plaintiff upon the insufficiency of the Declaration Which ought to have been entred Quod Defendens eat inde sine die but by mistake or out of design it was entred Quia placitum praedictum in forma praedicta superius placitat ' materiaque in eodem contenta bonum sufficiens in lege existit c. ideo consideratum est per Cur ' quod Quer ' nil capiat per billam The Plaintiff brings a new Action and declares aright The Defendant pleads the Iudgment in the former Action and recites the Record verbatim as it was To which the Plaintiff demurred And Iudgment was given for the Plaintiff nisi causa c. North Chief Justice There is no question but that if a man mistakes his Declaration and the Defendant demurs the Plaintiff may set it right in a second Action But here it is objected that the Iudgment is given upon the Defendants plea. Suppose a Declaration be faulty and the Defendant take no advantage of it but pleads a plea in bar and the Plaintiff takes issue and the right of the matter is found for the Defendant I hold that in this case the Plaintiff shall never bring his Action about again for he is estopped by the Verdict Or suppose such a Plaintiff demur to the plea in bar there by his demurrer he confesseth the fact if well pleaded and this estops him as much as a Verdict would But if the plea were not good then there is no Estoppel And we must take notice of the Defendants plea for upon the matter as that falls out to be good or otherwise the second Action will be maintainable or not The other Iudges agreed with him in omnibus Atkinson Rawson THe Plaintiff declares against the Defendant as Executor The Defendant pleads that the Testator made his Will and that he the Defendant suscepto super se onere Testamenti praedict c. did pay divers sums of money due upon specialties and that there was a Debt owing by the Testator to the Defendants Wife and that he retained so much of the Testators Goods as to satisfie that Debt and that he had no other Assets The Plaintiff demurred because for ought appears the Defendant is an Executor de son tort and then he cannot retain for his own debt The Plaintiffs naming him in his Declaration Executor of the Testament of c. will not make for him for that he does of necessity he cannot declare against him any other way and of that Opinion was all the Court viz. that he ought to entitle himself to the Executorship that it may appear to the Court that he is such a person as may retain And accordingly Iudgment was given for the Plaintiff Term. Hill 27 28 Car. II. in Com. Banco Smith's Case A Man dies leaving Issue by two several Venters viz. by the first three Sons and by the second two Daughters One of the Sons dies intestate the elder of the two surviving Brothers takes out Administration and Sir Lionel Jenkins Iudge of the Prerogative Court would compell the Administrator to make distribution to the Sisters of the half-blood He prayed a Prohibition but it was denied upon advice by all the Iudges for that the Sisters of the half-blood being a kin to the Intestate and not in remotiori gradu then the Brother of the whole blood must be accounted in equal degree Anonymus AN Action was brought against four men viz. two Attornies and two Solicitors for being Attornies and Solicitors in a cause against the Plaintiff in an inferiour Court falso malitiose knowing that there was no cause of Action against him and
Defendant should be charged to the value of the whole personal Estate or only for as much as he converted Serjeant Barrell argued That he ought to be charged for the whole because 1. He is made Executor by the Will and he is thereby compleat Executor before Probate to all intents but bringing of Actions 2. He has possession of the Goods and is chargeable in respect of that 3. He caused some to be sold and paid a Debt which is a sufficient administration There is found to discharge him 1. His refusal before the Ordinary But that being after he had so far intermeddled avails nothing Hensloe's case 9 Co. 37. An Executor de son tort he confessed should not be charged for more then he converted and shall discharge himself by delivering over the rest to the rightful Executor But the case is different of a rightful Executor that has taken upon him the burden of the Will The second thing found to discharge him is the granting of Administration to another but that is void because here is a rightful Executor that has administred in which case the Ordinary has no power to grant Administration Hob. 46. Keble Osbaston's case The third thing found to discharge him is the delivery of the Goods over to the Administrator but that will not avail him for himself became responsible by his having possession and he cannot discharge himself by delivering the Goods over to a stranger that has nothing to do with them If it be objected that by this means two persons will be chargeable in respect of the same Goods I answer that payment by either discharges both Cr. Car. Whitmore Porter's case The Court was of Opinion that the committing of Administration in this case is a mere void act A great inconvenience would ensue if men were allowed to Administer as far as they would themselves and then to set up a beggarly Administrator they would pay themselves their own Debts and deliver the residue of the Estate to one that 's worth nothing and cheat the rest of the Creditors If an Administrator bring an Action it is a good plea to say that the Executor made by the Will has administred Accordingly Iudgment was given for the Plaintiff Major Stubbing versus Birde Harrison REsolved that a plea may be a good plea in abatement though it contain matter that goes in bar they relyed upon the case in 10 H. 7. fol. 11. which they said was a case in point and Salkell Skelton's case 2 Rolls Reports and Iudgment was given accordingly Term. Trin. 28 Car. II. in Communi Banco PEr North Chief Iustice if there are Accounts betwéen two Merchants and one of them becomes Bankrupt the course is not to make the other who perhaps upon stating the Accounts is found endebted to the Bankrupt to pay the whole that originally was entrusted to him and to put him for the recovery of what the Bankrupt owes him into the same condition with the rest of the Creditors but to make him pay that only which appears due to Bankrupt on the foot of the Account otherwise it will be for Accounts betwixt them after the time of the others becoming Bankrupt if any such were Wing Jackson TRespass Quare vi armis the Defendant insultum fecit upon the Plaintiff was brought in the County Court and Iudgment there given for the Plaintiff But it was reversed here upon a Writ of false Iudgment because the County Court not being a Court of Record cannot fine the Defendant as he ought to be if the cause go against him because of the vi armis in the Declaration but an Action of Trespass without those words will lie in the County Court well enough Anonymus A Vicar libell'd in the Spiritual Court for Tythes of of young Cattle and surmised that the Defendant was seised of Lands in Middlesex of which Parish he was Vicar and that the Defendant had Common in a great Waste called Sedgemore-Common as belonging to his Land in Middlesex and put his Cattle into the said Common The Defendant prayed a Prohibition for that the Land where the Cattle went was not within the Parish of Middlesex The same Plaintiff libelled against the same Defendant for Tythes of Willow-Faggots who suggests to have a Prohibition the payment of 2 d. a year to the Rector for all Tythes of Willow The same Plaintiff libelled also for Tythes of Sheep The Defendant to have a Prohibition suggests that he took them in to feed after the Corn was reaped pro melioratione agriculturae infra terras arabiles non aliter As for the first of these no Prohibition was granted because of that clause in 2 Edw. 6. whereby it is enacted that Tythes of Cattle feeding in a Waste or Common where the Parish is not certainly known shall be paid to the Parson c. of the Parish where the owner of the Cattle lives For the second they held that a modus to the Rector is a good discharge against the Vicar For the third they held that the Parson ought not to have Tythe of the Corn and Sheep too which make the ground more profitable and to yield more Per quod c. Ingram versus Tothill Ren. REplevin Trevill leased to Ingram for 99 years if Joan Ingram his wife Anthony John Ingram his Sons should so long live rendring an Heriot or 40 shillings to the Lessor and his Assigns at the election of the Lessor his heirs and Assigns after their several deaths successive as they are named in the Indenture Trevill deviseth the Reversion John dyes and then Joan dies and the question was whether or no a Heriot were due to the Devisee upon the death of Joan. The Court agreed that the Avowry was faulty because it does not appear thereby whether Anthony Ingram was alive or not at the time of the distress taken for if he were dead the Lease would be determined North. Though Anthony were alive the Devisee of Trevill could not distrain for the Heriot for that the reservation is to him and his Assigns and although the Election to have the Heriot or 40 shillings given to the Lessor his heirs or Assigns yet that will not help the fault in the reservation Ellis There is another fault in the pleading for it is pleaded that Trevill made his Will in writing but it is not said that he dyed so seized for if the Estate of the Devisor were turned to a right at the time of his death the Will could not operate upon it Also it is said that the Avowant made his Election and that the Plaintiff habuit notitiam of his Election but it is not said by whom notice was given for these causes Iudgment was given for the Plaintiff It was urged likewise against the Avowant that no Heriot could be due in this case because Joan did not die first but the course of succession is interrupted and that a Heriot not being due of
But the Law in many cases takes notice of Parishes in civil affairs and Custom having by degrees introduced it we may allow of it in a Recovery as well as in a Fine Scroggs accordant If an Infant levy a Fine when he becomes of full age he shall be bound by the Deed that leads the Vses of the Fine as well as by the Fine it self because the Law looks upon both as one assurance So the Court was of Opinion that the Lands did pass It was then suggested that Iudgment ought not to be given notwithstanding for that the Plaintiff was dead But they said they would not stay Iudgment for that as this case was For between the Lessor of the Plaintiff and the Defendant there was another cause depending and tryed at the same Assizes when this issue was tryed and by agreément between the parties the Verdict in that cause was not drawn up but agreed that it should ensue the determination of this Verdict and the title to go accordingly Now the submission to this Rule was an implicite agreement not to take advantage of such occurrences as the death of the Plaintiff in an Ejectione firmae whom we know to be no wise concerned in point of interest and many times but an imaginary person It was said also to have Iudgment that there lived in the County where the Lands in question are a man of the same name with him that was made Plaintiff This the Court said was sufficient and that were there any of that name in rerum natura they would intend that he was the Plaintiff Cur̄ We take notice judicially that the Lessor of the Plaintiff is the person interested and therefore we punish the Plaintiff if he release the Action or release the damages Accordingly Iudgment was given Anonymus DEbt upon an Obligation was brought against the Heir of the Obligor hanging which Action another Action was brought against the same Heir upon another Obligation of his Ancestor Iudgment is given for the Plaintiffs in both Actions but the Plaintiff in the second Action obtains Iudgment first And which should be first satisfied was the question Barrel He shall be first satisfied that brought the first Action North. It is very clear That he for whom the first Iudgment was given shall be first satisfied For the Land is not bound till Iudgment be given But if the Heir after the first Action brought had aliened the Land which he had by descent and the Plaintiff in the second Action commenced after such alienation had obtained Iudgment and afterward the Plaintiff in the first Action had Iudgment likewise in that case the Plaintiff in the first Action should be satisfied and he in the second Action not at all What if the Sheriff return in such a case that the Defendant has Lands by descent which indeed are of his own purchase North. If the Sheriffs return cannot be traversed at least the party shall be relieved in an Ejectione firmae Dominus Rex versus Thorneborough Studly THe King brought a Quare Impedit against the Bishop of _____ and Thorneborough and Studly and declares That Queen Elizabeth was seised in see of the Advowson of Redriff in the County of Surrey and presented J. S. that the Quéen died and the Advowson descended to King James who died seized c. and so brings down the Advowson by descent to the King that now is Thorneborough the Patron pleads a Plea in Bar upon which the King demurs Studly the Incumbent pleads confessing Queen Elizabeths seisin in feé in right of her Crown but says that she in the second year of her Reign granted the Advowson to one Bosbill who granted to Ludwell who granted to Danson who granted to Hurlestone who granted to Thorneborough who presented the Defendant Studly and traverseth absque hoc that Queen Elizabeth died seized The Defendants Council produced the Letters Patents of secundo Reginae to Bosbill and his Heirs The King's Council give in evidence a Presentation made by Queen Elizabeth by usurpation anno 34 Regni sui of one Rider by which Presentation the Advowson was vested again in the Crown The Presentation was read in Court wherein the Queen recited that the Church was void and that it appertained to her to present North Chief Justice Is not the Queen deceived in this Presentation for she recites that it belongs to her to present which is not true If the Queen had intended to make an usurpation and her Clerk had been instituted she had gained the Fee-simple but here she recites that she had right Maynard When the King recites a particular Title and has no such Title his Presentation is void but not when his recital is general as it is here And this difference was agreed to in the Kings Bench in the Case of one Erasmus Dryden The Defendants Council shewed a Iudgment in a Quare Impedit against the same Rider at the suit of one Wingate in Queen Elizabeths time whereupon the Plaintiff had a writ to the Bishop and Rider was ousted Wingate claimed under the Letters Patents of the Second of the Queen viz. by a Grant of one Adie to himself to which Adie one Ludwell granted it anno 33 Eliz. Baldwin It appears by the Record of this Iudgment that a writ to the Bishop was awarded but no final Iudgment is given which ought to be after the three points of the writ enquired North. What is it that you call the final Iudgment there are two Iudgments in a Quare Impedit one that the Plaintiff shall have a writ to the Bishop and that is the final Iudgment that goes to the right betwixt the parties And the Iudgment at the Common Law There in another Iudgment to be given for Damages since the Stat. of West 2. cap. 5. after the points of the writ are enquired of Which Iudgment is not to be given but at the instance of the party Pemberton This Wingate that recovered was a stranger and had no title to have a Quare Impedit Now I take this difference where the King has a good Title no recovery against his Clerk shall affect the King's Title he shall not be prejudiced by a Recovery to which he is no party If the King have a defeasible Title as in our case by Vsurpation there if the rightful Patron recover against the King's Incumbent the King's Title shall be bound though he be not a party for his Title having no other Foundation than a Presentation when that is once avoided the Kings Title falls together with it But though the Kings Title be only by Vsurpation yet a Recovery against his Clerk by a stranger that has nothing to do with it shall not predudice the King covin may be betwixt them and the King be tried Now Wingate had no Right for he claimed by Grant from one Adie to whom Ludwell granted ann 33 Eliz. But we can prove this Grant by Ludwell to have been void for in the 29th of the
Penel post mortem praed J. W. licet sepius requisit̄ c. Conventionem suam praed Warrant̄ praed non tenuit sed infregit sed J. H. eidem J. W. tenere omnino recusavit adhuc recusat ad dam̄ c. 600 l. The Defendant pleads Representando quod eadem Penelope conventionem suam Warrant̄ praed a tempore levationis finis praed ex parte sua custodiend hucusque bene fideliter custodivit representandoque quod praed Hugo Stowell praed tempore intrationis ipsius Hugonis in tenementa praed non habuit aliquod Legale Jus aut titulum ad eadem tenementa c. pro placito eadem Penel dicit quod praed H. Stow. ipsum Johannem a possessione occupatiane tenementor non ejecit expulit amovit prout praed Johannes superius versus eam narravit hoc parat̄ est verificare Vpon this issue was taken and a Verdict for the Plaintiff was found and 300 l. damages And upon a motion in arrest of Iudgment the Cause was spoken to three or four times Jones pro Defendent̄ 1. It is considerable whether an Action will lie against a Feme upon a Covenant in a Fine levied by her when Covert-Baron It would be inconvenient that Land should be unalienable and therefore the Law enables a Feme Covert to levy a Fine Which Fine shall work by Estoppel and pass against her a good Interest But to make her liable to a personal Action thereupon to answer damages c. it were hard and it is Casus primae impressionis For the Plaintiff it was said there is little question but an Action of Covenant will well lie upon this warranty The Law enables a Feme Covert to corroborate the Estate she passes and to do all things incident If she levy a Fine of her Inheritance she may be vouched or a Warrantia Chartae c. thereupon be had against her and so is Roll versus Osborn Hob. 20. and if she can thus bind her Land a fortiori she may subject her self to a Covenant as in the Case at the Bar. If a Husband and Wife make a Lease for years and she accept the rent after his death she shall be liable to a Covenant This Point was agreed by the Council on both sides that a Covenant in this Case would lie against her and so this Court agreéd Twisd added That there was no question but a Covenant would lie upon a Fine For saith he sealing is not always necessary to found an Action of Covenant Thus Covenant lies against the Kings Lesseé by Patent upon his Covenant in the Patent though we know there is no sealing by the said Lessée Secondly It was urged on the Defendants behalf That the breach of Covenant is not well assigned for it is not shewed what Title Stowell had It is not only participially expressed Habens Legale c. but what is said is altogether general and uncertain Jus Legalem titulum ad tenementa praed ' so that the breach assigned is in effect no more but that Stowell entred and so the Covenant was broken If a man plead Indemn Conservat̄ he must shew how Gyll versus Gloss Yelverton 227. 8. 2 Cr. 312. Debt for Rent on a parol-Lease the Defendant pleads That the Plaintiff nil habuit in tenementis praedictis unde dimissionem praedictam facere potuit The Defendant replies Quod habuit c. in general without shewing in special what Estate he had that so it might appear to the Court that he had sufficient in the Lands whereout to make the Lease and therefore the Replication was adjudged naught It is true it was adjudged That after the Verdict it was helped by the Stat. of Jeoffails But that I conceive was because the issue though not very formal yet was upon the main point viz. Whether the Lessor had an Estate in the Tenements or no. For the true reason why a Verdict doth help in such a Case is because it is supposed that the matter left out was given in Evidence and that the Iudges did direct accordingly or else the Verdict could not have been found So in our Case If the issue had béen Whether Stowell had Right c. it might have been supposed and intended by his special Title and Estate made out and proved by trial But here the issue going off on a Collateral point it cannot be intended that any such matter was given in Evidence Jones and Pollexfen for the Plaintiff This Objection is against all the Precedents by which it appears that alledging generally as we do habens Legale Jus Titulum is good It is sufficient for a man to alledge that the Covenantor had no power to demise or was not seized c. without shewing any cause why or that any other person was seized c. 9 Co. 61. 2 Cr. 304. 369. 70. Co. Ent. 177. a. It it to be inquired upon Evidence Whether the party had a good Title or no and so the Court agreéd Thirdly Saunders for the Defendant said Though the Plaintiff was very wary bringing in the Right of Stowell with a Participle only so that we could not take issue upon it we could only protest yet I agreed that having taken issue upon one Point we must admit and do admit the rest of the matter in the Declaration But that is only as it is alledged Now here therefore we must admit that Stowell had Right and Title c. But we do not admit that he had a Title precedent to this Fine or had right otherwise than from and under the Plaintiff himself for that is not alledged And it shall never be intended no not after Verdict that Stowell had good and Eigne Right and Title before the Lease granted by the Fine but the contrary shall be intended And for that I rely upon Kirby versus Hansaker 2 Cr. 315. By all Iudges of C. B. and Scacc̄ in Cam. Scacc̄ in Point Nay that is a stronger Case than ours is For there the issue which was found for the Plaintiff was that the Recovery by Essex who answers to Stowell in our Case was not by Covin but by lawful Title And yet because it was not alledged that he had a good and Eigne Title it was held to be ill and not helped and the Iudgment was reversed The saying that Stowell ejected him c. Contra formam effectum Finis Warrant̄ praed ' or if it had been Contra formam effectum Conventionis praed ' is absurd and helps nothing For Stowell could not do so because he is not party to the Fine Jones for the Plaintiff It can never be intended that Stowell entred c. by a Title under us because it is alledg'd to be Contra formam effectum Finis Warrant ' praed ' Contra voluntatem ipsius J. W. eum a possessione sua Custodivit c. had it been by Lease under us the Defendant should have pleaded it
man that shall refuse to accept the Office of Alderman because they are a Court of Record and they may want Aldermen else So he was released It was moved for the Plaintiff that a person named in the simul cum being a material Witness might be struck out and it was granted Keel said That if nothing was proved against him he might be a Witness for the Defendant Clerke Heath EJectione firmae The Plaintiff claims by a Lease from Th. Prin Clerke Objected That Prin had not taken the Oath according to the Act for Vniformity whereupon he produced a Certificate of the Bishop that had only a small bit of Wax upon it Twisd If it were sealed though the Seal be broken off yet it may be read as we read Recoveries after the Seal broken off and I have seen Administration given in Evidence after the Seal broken off and so Wills and Déeds Accordingly it was read Obj. The Church is ipso facto void by the Act of Vniformity if the Incumbent had no Episcopal Ordination So they shewed that Prin was ordained by a Bishop It was likewise proved that he had declared his assent and consent to the Common Prayer in due time before St. Bartholomew's day Then it was urged that the Act does not confirm the Plaintiffs Lessor in this living for that it is not a living with Cure of Souls for it has a Vicarage endowed Twisd If it be a living without Cure the Act does not extend to it Mr. Solicitor The Presentation does not mention Cure of Souls So they read a Presentation of a Rector and another of a Vicar in neither of which any mention was made of Cure of Souls but the Vicars was residendo If both be presentative the Cure shall be intended to be in the Vicar Keeling Why may not both have the Cure Sol. If the Vicar be endow'd the Rector is discharged of Residence by Act of Parliament Twisd Synodals and Procurations are duties due to the Ordinary which Vicars when the Parsonages are impropriated always pay but I question whether they that come into a Church by Presentation to and Institution by the Bishop have not always the Cure of Souls It is true in Donatives where the Ministers do not come in by the Bishops Institution there is no Cure but they that come in by Institution of the Bishop have their power delegated to them from him and generally have Cure of Souls Solic There are several Rectories without Cure Twisd When came Rectories in Morton After the Counsel of Lateran and Vicars came in in the Seventeenth year of King John Moreton Before the Councel of Lateran the Bishop did provide Teachers and received the Tythes himself but since he hath appointed others to the charge and saith accipe curam tuam meam Keeling Twisden It is said so by my Lord Coke but not done Twisden Wherever there is a Cure of Souls the Church is visitable either by the Bishop if it belong to him if to a Lay-man he must make Delegates if to the King my Lord Kéeper does it And where a man comes in by Presentation he is prima facie visitable by the Bishop Keeling I take it that whoever comes in under the Bishops Institution hath the Cure Twisden Grendon's Case is expresly That the Bishop hath the Cure of Souls of all the Diocess and doth by Institution transfer it to the Parson so that prima facie he that is instituted hath the Cure The Vicarage is derived out of the Parsonage and if the Vicar come to poverty the Parson is bound to maintain him Twisd There is an Appropriation to a Corporation the Corporation cannot have Cure of Souls being a body Politick but when they appoint a Vicar he coming under the Bishop by Institution hath Cure of Souls and a Donative when it comes to be Presentative hath Cure of Souls Keeling agreed Twisd We hold that when the Rector comes in by Institution the Bishop hath power to visit him for his Doctrine and his life for he hath the particular Cure but the Bishop the general and that the Bishop hath power to deprive him Abbot Moore THe Plaintiff declares That whereas one William Moore was indebted to him 210 l. and whereas the said William Moore had an Annuity out of the Defendants Lands That the Defendant in consideration that the Plaintiff had agréed that the Defendant should pay so much money to the Plaintiff the Defendant did promise to pay it After a Verdict it was objected in arrest of Iudgment that here was not any consideration and the Court was of that opinion Then the Plaintiff would have discontinued but the Court would not suffer that after a Verdict Sir Edward Thurland moved to quash an Order made by the Iustices of the Peace for one to serve as Constable in Homeby Moreton If a Leet neglect to chuse a Constable upon complaint to the Iustices of Peace they shall by the Statute appoint a Constable Twisd In this case there are Affidavits that there never was any Constable there And I cannot tell whether or no the Iustices of Peace can erect a Constablewick where never any was before if he will not be sworn let them indict him for not executing the Office and let him traverse that there never was any such Office there Keeling Go and be sworn or if the Iustices of the Peace commit you bring your Action of False Imprisonment Twisd If there be a Court Leet that hath the choice of a petty Constable the Iustices of Peace cannot chuse there And if it be in the Hundred I doubt whether the Iustices of Peace can make more Constables then were before High-Constables were not ab origine but came in with Iustices of the Peace 10 H. 4. Keel Morton cont Moreton The book of Villarum in the Exchequer sets out all the Vills and there cannot be a Constablewick created at this day In this case the Court ordered him to be sworn Thurl If they chuse a Parliament-mans Servant Constable they cannot swear him Twisd I do not think the priviledge extends to the Tenant of a Parliament man but to his Servant Blissett Wincott TWo persons committed for being at a Conventicle were brought up by Habeas Corpus Twisd To meet in Conventicles in such numbers as may be affrighting to the people and in such numbers as the Constable cannot suppress is a breach of the Peace and of a persons Recognizance for the good behaviour Note this was after the late Act against Conventicles expired Lee Edwards AN Action upon the Case was brought upon two promises 1. In consideration the Plaintiff would bestow his labour and pains about the Defendants Daughter and would cure her he did promise to pay so much for his labour and pains and would also pay for the Medicaments 2. That in consideration he had cured her he did promise to pay c. Raymond moved in arrest of Iudgment that he did not aver
from the 20th of November for five years And the question upon a special Verdict was whether this were a good or a void Lease Serjeant Jones There are many cases in which the Law rejects the limitation of the commencement of a Lease if it be impossible as from the 31st of September or the like now this being altogether uncertain and since there is nothing to determine your Iudgments what November he meant whether last-past or next-ensuing it amounts to an impossible limitation Rolls tit Estate placito 7. 849. ibid. placito 10. betwixt Elmes Leaves Baldwin contra The Law will reject an impossible limitation but not an uncertain limitation Vaughan Atkyns The Law rejects an impossible limitation because it cannot be any part of the parties agreement but an uncertain limitation vitiates the Lease because it was part of the agreement but we cannot determine it not knowing how the Contract was There are many examples of Leases being void for uncertainty of commencements which could not have béen adjudged void if the limitation in this case were good Wyndham Ellis contra And that it should begin from the time of the delivery It was moved afterward and Ellis being absent it was ruled by Vaughan Atkyns against Wyndham's Opinion and Iudgment was arrested Fowle Doble's Case FOrmedon in the Remainder The case was thus There were three Sisters the eldest was Tenant in Tail of a fourth part of 140 Acres c. in thrée Villes A. B. C. the Remainder in Fee-simple to the other two the Tenant in Tail takes Husband Dr. Doble the Defendant The Husband and Wife levy a Fine sur conisance de droit to the use of them two and the heirs of the body of the Wife the Remainder in Fee to the right Heirs of the Husband and this Fine was with warranty against them and the heits of the wife The wife dies without issue living the Husband against whom Lucy and Ruth the other two Sisters to whom the Remainder in Feé was limited bring a Formedon in the Remainder The Defendant as to part of the Lands in demand viz. 100 Acres pleaded Non-tenure and that such a one was Tenant To that plea the Plaintiff demurred As to the rest of the Lands he pleaded this Fine with warranty The Plaintiffs made a frivolous replication to which the Defendants demurred The Plaintiffs Councel excepted to the Defendants plea of Non-tenure 1. That he does not express in which of the Villes the 100 Acres lie 5 Ed. 3. 140. in the old Print 184. 33 H. 6. 51. Sir John Stanley's case But this was over-ruled for the Formedon being of so many several Acres he is not obliged to shew where those lie that he pleads Non-tenure of he tells the Plaintiff who is the Tenant which is enough for him 2. Because he that pleads Non-tenure in abatement ought to set forth who was Tenant die impetrationis brevis orig c. But this was over-ruled also for he says that himself was not Tenant die impetrationis brevis origin but that such another eodem die was Tenant which is certain enough When the Tenant pleads Non-tenure to the whole he needs not set forth who is Tenant otherwise when he pleads Non-tenure of part 11 H. 4. 15. 33 H. 6. 51. At the Common Law if the Tenant had pleaded Non-tenure as to part it would have abated all the Writ 36 H. 6. 6. but by the Statute of the 25 Ed. 3. cap. 16. it was enacted that by the exception of Non-tenure of parcel no Writ should be abated but only for that parcel whereof the Non-tenure was alledged A third exception was taken to the pleading of the Fine viz. because he pleaded a Fine levied of a fourth part without saying in how many parts to be divided This was also over-ruled and 1 Leon. 114. was cited where a difference is taken betwixt a Writ and a Fine and in a Fine it is said to be good that being but a common assurance aliter in a Writ 19 Ed. 3. Fitz. br̄e 244. This exception seems level'd against the Plaintiffs own Writ in which he demands a fourth part without saying in how many parts to be divided The matter in Law was whether or no this warranty being against the husband and wife and the heirs of the wife were a bar to the Plaintiffs or survived to the Husband and it was resolved to be a bar for this warranty as to the Husband was destroyed as soon as it was created the same breath that created it put an end to it for the Husband warranted during his life only and took back as large an Estate as he warranted which destroys his warranty and this is Littleton's Text if a man make a feoffment in Feé with warranty and take back an Estate in Fee the warranty is gone But the destruction of the husbands warranty does not affect the wives 20 H. 7. 1. and Sym's case upon which Ellis said he much relyed Herberts case 3 Rep. can give no rule here for that here the husband is seiz'd only in right of the wife Vaughan said That if the Fine in this case had beén levied to a stranger for life or in Fée who had béen impleaded by another stranger that in that case the Tenant ought to have vouched the surviving husband as well as the heir of the wife or else he would have lost his warranty 2. He said if the Fine had been levied to the use of a stranger who had been impleaded by the heirs of the wife he questioned whether or no the Tenant could have rebutted them for any more then a moity and he questioned the resolution of Sym's case 8 Rep. there is a Case cited in Symme's case out of the 45 Edw. 3. 23. which is expresly against the resolution of the case it is said in the Reports that no Iudgment was given in that case which is false and that the case is not well abridged by Brook which is also false If in case of a voucher a man loseth his warranty that does not vouch all that are bound why should not one that 's rebutted have the like advantage There is a resolution quoted in Sym's case out of 5 Edw. 2. Fitz. tit garranty 78 upon which the Iudgment is said to be founded being as is there said a case in point but he conceived not for Harvey that gave the rule said le tenant poit barrer vous touts ergo un sole in the case there were several co-heirs and if all were demandants all might have been barred and if one be demandant there 's no question but she may be rebutted for her part But Sym's case is quite otherwise for there one person is co-heir to the garranty that is not heir to any part of the Land In 6 Ed. 3. 50. there is a case resolved upon the ground and reason of the 45 Ed. 3. for these reasons he said he could not rely upon Sym's case He agreed
have but one Elegit At another day the Iudges gave their Opinions severally that Iudgment ought to be given in this Court upon the whole Record for that it is an entire Record and the Execution one and if Iudgment were to be given there upon the demurrer there must be two Executions And because the Record shall not be remanded Twisden said the Record it self was here and that it had been so adjudged in King and Holland's case and in Dawkes Batter's case though my Lord Chief Baron being then at the Bar urged strongly that it was but the tenour of the Record that was sent hither And it is a Maxim in Law that if a Record be here once it never goes out again for that here it is coram ipso Rege so that if we do not give Iudgment here there will be a failer of Iustice because we cannot send the Record back The Iury that tries the Issue must assess the damages upon the demurrer The Record must not be split in this case Accordingly Iudgment was given here Willbraham Snow TRover Conversion Vpon Issue Not-guilty the Iury find a special Verdict viz. that one Talbot recovered in an Action of Debt against one Wimb and had a Fierr facias directed to the Sheriff of Chester whereupon he took the Goods into his possession and that being in his possession the Defendant took them away and converted them c. and the sole point was whether the possession which the Sheriff has of Goods by him levied upon an Execution is sufficient to enable him to bring an Action of Trover Winnington I conceive the Action does not lie An Action of Trover and Conversion is an Action in the right and two things are to be proved in it viz. a Property in the Plaintiff and a Conversion in the Defendant I confess that in some cases though the Plaintiff have not the absolute property of the Goods yet as to the Defendants being a wrong-doer he may have a sufficient property to maintain the Action against him But I hold that in this case the property is not at all altered by the seizure of the Goods upon a Fieri facias for that he cited Dyer 98 99. Yelvert 44. This case is something like that of Commissioners of Bankrupts they have power to sell and grant and assign but they cannot bring an Action their Assignees must bring all Actions It is true a Sheriff in this case may bring an Action of Trespass because he has possession but Trover is grounded upon the right and there must be a Property in the Plaintiff to support that whereas the Sheriff takes the Goods by vertue of a nude Authority As when a man deviseth that his Executors shall sell his Land they have but a nude Authority Cur. The Sheriff may well have an Action of Trover in this case As for the case in Yelvert 44. there the Sheriff seiz'd upon a Fieri facias then his Office determined then he sold the Goods and the Defendant brought Trover And it was holden that the Property was in the Defendant by reason of the determining of the Sheriffs Office and because a new Fieri facias must be taken out for that a venditioni exponas cannot issue to the new Sheriff They compared this case to that of a Carryer who is accountable for the Goods that he receives and may have Trover or Trespass at his Election Twisden said the Commissioners of Bankrupts might have an Action of Trover if they did actually seize any Goods of the Bankrupts as they might by Law Rainsford said let the Property after the seizure of Goods upon an Execution remain in the Defendant or be transferred to the Plaintiff since the Sheriff is answerable for them and comes to the possession of them by the Law it is reasonable that he should have as ample remedy to recover damages for the taking of them from him as a Carryer has that comes to the possession of Goods by the delivery of the party Morton said if Goods are taken into the custody of a Sheriff and the Defendant afterward become Bankrupt the Statute of Bankrupts shall not reach them which proves the Property not to be in the Defendant Twisd I know it hath been urged several times at the Assizes that a Sheriff ought to have Trespass and not Trover and Counsel have pressed hard for a special Verdict Morton My Lord Chief Justice Brampston said he would never deny a special Verdict while he lived if Counsel did desire it Gavell Perked ACtion for words viz. You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen Vpon Issue Not-guilty there was a special Verdict found Jones The Declaration says further whereby her Husband did conceive an evil Opinion of her and refused to cohabit with her But the Iury not having found any such special damage the question is whether the words in themselves are Actionable without any relation had to the damage alledged I confess that to call one Bawd is not Actionable for that is a term of reproach used in Scolding and does not imply any act whereof the Temporal Courts take notice for one may be said to be a Bawd to her self But where one is said to be a Bawd in such actions as these it is actionable 27 H. 8. 14. If one say that another holds Bawdry it is Actionable 1 Cro. 329. Thou keepest a Whore in thy House to pull out my Throat these words have been adjudged to be Actionable for that they express an act done and so are special and not general railing words In Dimock's case 1 Cro. 393. Two Iustices were of Opinion that the word Pimp was Actionable of it self But I do not relie upon that or the word Bawd but taking the words all together they explain one another the latter words show the meaning of the former viz. that her Pimping and Bawdry consisted in bringing young men and women together and what she brought them together for is sufficiently expressed in the words Pimp and Bawd viz. that she brought them together to be naught And that is such a Slander as if it be true she may be indicted for it and is punishable at the Common Law The Court was of the same Opinion and gave Iudgment for the Plaintiff Nisi c. Healy Warde ERror of a Iudgment in Hull Weston The Action is brought upon a promise cum inde requisitus foret and does not say cum inde requisitus foret infra Jurisdictionem Twisd Though the agreement be general cum inde requisitus foret yet if he does request within the Iurisdiction it is good enough and so it has been ruled and this Error was disallowed Boswill Coats TWo several Legacies are given by Will to Alice Coats and John Coats the Executors deposit these Legacies in a third persons hand for them and take a Bond of that third person conditioned That if the Obligor at the request of
construed to be a gift of the Stuff unto her and I shall not be charged in any Action for it besides consider the inconveniencies which will follow if an Action of Trover should be against the husband for then the husband shall be barred of all those helps which my Brothers who maintain that Opinion have allowed unto him and have made reasons for which an Action of the case should lye against him on the Contract namely the Iurors are to examine and set the price or value and the necessity and fitness of things with relation to the degree of the husband whereby care is taken that the husband have no wrong for in an Action of Trover the Iury cannot examine any of those matters but are to enquire only of the property of the Plaintiff and the Conversion by the Defendant and to give damages according to the value of the Goods and so it shall be in the power of the wife to take up what she pleaseth and to have what she lists without reference unto the degrée or respect to the Estate of her husband and he shall be charged with it nolens volens It is objected that the Iury is to judge what is fit for the Wives degrée that they are trusted with the reasonableness of the price and are to examine the value and also the necessity of the things or Apparel Alas poor man what a Iudicature is set up here to decide the private differences between husband and wife the Wife will have a Velvet Gown and a Satten Petticoat the husband thinks Mohair or Farendon for a Gown and watered Tabby for a Petticoat is as fashionable and fitter for his quality The husband says that a plain Lawn Gorget of 10 s. pleaseth him and suits best with his condition the Wife will have a Flanders Lace or pointed Handkerchief of 40 l. and takes it up at the Exchange A Iury of Mercers Silk-men Sempsters and Exchange-men are very excellent and very indifferent Iudges to decide this controversie It is not for their avail and support to be against the wife that they may put off their brayded Wares to the wife upon trust at their own price and then sue the husband for the money Are not a Iury of Drapers and Milliners bound to favour the Mercer or Exchange-men to day that they may do the like for them to morrow And besides what matter of Fact and of that only the Law hath made Iurors the Iudges is there in the fitness of the Commodities with reference to the degree of the husband and whether this or that thing be the most necessary for the wife The matter of Fact is to find that the wife wanted necessary Apparel and that she bought such and such Wares of the Plaintiff at such a price to cloath her self and leaves the fitness of the one and the reasonableness of the other to the Court for that is matter of Law whereof the Iurors have no Conusance Lessée for life of a House puts his Goods therein makes his Executors and dies whosoever hath the House after his death yet his Executors shall have frée Entry Egress and Regress to carry their Testators Goods out of the House by reasonable time Litt. 69. And this reasonable time shall be adjudged by the discretion of the Iustices before whom the cause depends upon the true state of the matter and not by the Iury Co. super Littleton 56. b. So it is in case of Fines for Admittance Customs and Services if the Question be whether the same be reasonable or not for reasonableness belongs to the knowledge of Law 4 Rep. 27. Hubarts case Lessée for life makes a Lease for years and dies within the term in an Action of Trespass brought by the first Lessor against the Lesseé for years he ought by his Plea to set forth what day his Lessor dyed and at what place where the Land lies and at what day he did leave the possession and so leave it to the discretion of the Court whether he did quit the possession in reasonable time or not 22 E. 4. 18. Soinors case The fitness or necessary of Apparel and the reasonableness of the price shall be judged by the Court upon the circumstance of the matter as the same appears by the Pleadings or is found by the Iury but the Iurors are not Iudges thereof Again there is a twofold necessity necessitas simplex vel absoluta and necessitas qualificata vel convenientiae of a simple or absolute necessity in the case of Apparel or Food for a Feme Covert the Law of the Land takes notice and provides remedy for the wife if the husband refuse or neglect to do it But if it be only necessitas convenientiae whether this or that Apparel this or that meat or drink be most necessary or convenient for any wife the Law makes no person Iudge thereof but the husband himself and in those cases no man is to put his hand betwéen the bone and the flesh I will conclude the general question or first point with the Iudgment of Sr. Thomas Smith in his book of the Common-wealth of England lib. 1. cap. 11. fo 23. The naturallest and first conjunction of two towards the making a further Society of continuance is of the husband and wife each having care of the Family the man to get to travel abroad to defend the wife to save to stay at home and distribute that which is gotten for the nurture of the Children and Family is the first and most natural but primate apparence of one of the best kind of Common-wealths where not one always but sometime and in some things another bears rule which to maintain God hath given to the man greater wit better strength better courage to compell the woman to obey by reason or force and to the woman beauty fair Countenance and sweet words to make the man obey her again for love Thus each obeyeth and commandeth the other and they two together rule the House so long as they remain together in one I wish with all my heart that the women of this age would learn thus to obey and thus to command their husbands so will they want for nothing that is fit and these kind of Flesh-flies shall not suck up or devour their Husbands Estates by illegal tricks I am come now to this particular case as it stands before us on this Record Admit that the husband were chargeable by Law by the Contract of his wife yet Iudgment ought to be given against the Plaintiff upon this Declaration as this Verdict is found First the Declaration is That the Defendant was indebted to the Plaintiff in 90 l. for Wares and Merchandizes by the Plaintiff to him before that time sold and delivered and the Verdict finds that the Wares were not sold and delivered to the Defendant but the same were sold to his wife without his privity or consent So it appears that the Plaintiff hath mistaken his Action upon
cannot deprive us of the benefit of the Common Law and in the Vice-Chancellors Court they proceed by the Civil Law If you allow this demand there will be a failer of Justice for the Defendants being a Corporation cannot be arrested they can make no stipulation the Vice-Chancellors Court cannot issue Distringas's against there Lands nor can they be excommunicated Presidents we find of Corporations suing there as Plaintiffs in which case the afore-mentioned inconvenience does not ensue but none of Actions brought against Corporations Maynard contra Servants to Colledges and Officers of Corporations have been allowed the priviledge of the Vniversity which they could not have in their own right and if in their Masters right a fortiori their Masters shall enjoy it The word persona in the demand will include a Corporation well enough Vaughan Chief Justice Perhaps the words atque confirmat ' c. in the demand of Conisance are not material for the priviledges of the Vniversity are grounded on their Patents which are good in Law whether confirm'd by Parliament or not The word persona does include Corporations 2 Inst 536. per Coke upon the Statute of 31 Eliz. cap. 7. of Cottages and Inmates A demand of Conisance is not in derogation of the Common Law for the King may by Law grant tenere placita though it may fall out to be in derogation of Westminster-Hall Nor will there be a failer of Justice for when a Corporation is Defendant they make them give Bond and put in Stipulators that they will satisfie the Iudgment and if they do not perform the Condition of their Bond they commit their Bail They have enjoyed these priviledges some hundreds of years ago The rest of the Iudges agreed that the Vniversity ought to have Conisance But Atkyns objected against the form of the demand that the word persona privilegiata cannot comprehend a Corporation in a demand of Conisance howsoever the sense may carry it in an Act of Parliament Ellis Wyndham If neither Schollars nor priviledged persons had been mentioned but an express demand made of Conisance in this particular cause it had then been sufficient and then a fault if it be one in Surplusage and a matter that comes in by way of Preface shall not hurt Atkyns It is not a Preface they lay it as the foundation and ground of their claim The demand was allowed as to matter and form Rogers Danvers DEbt against S. Danvers and D. Danvers Executors of G. Danvers upon a Bond of 100 l. entred into by the Testator The Defendants pleaded that G. Danvers the Testator had acknowledged a Recognisance in the nature of a Statute Staple of 1200 l. to J. S. and that they have no assets ultra c. The Plaintiff replied that D. Danvers one of the Defendants was bound together with the Testator in that Statute to which the Defendants demur Baldwin pro Defendente If this plea were not good we might be doubly charged It is true one of us acknowledged the Statute likewise but in this Action we are sued as Executors And this Statute of 1200 l. was joynt and several so that the Conisee may at his Election either sue the surviving Conisor or the Executors of him that is dead so that the Testators Goods that are in our hands are lyable to this Statute It runs concesserunt se utrumque eorum if it were joynt the charge would survive and then it were against us It is common for Executors upon pleinment administer pleaded to give in Evidence payment of Bonds in which themselves were bound with the Testator and sometimes such persons are made Executors for their security The Opinion of the Court was against the Plaintiff whereupon he prayed leave to discontinue and had it Amie Andrews ASsumpsit The Plaintiff declares that whereas the Father of the Defendant was endebted to him in 20 l. for Malt sold and promised to pay it that the Defendant in consideration that the Plaintiff would bring two Witnesses before a Iustice of Peace who upon their Oaths should depose that the Defendants Father was so endebted to the Plaintiff and promised payment assumed and promised to pay the money then avers that he did bring two Witnesses c. who did swear c. The Defendant pleaded non Assumpsit which being found against him he moved by Sergeant Baldwin in Arrest of Iudgment that the consideration was not lawful because a Iustice of Peace not having power to administer an Oath in this case it is an extrajudicial Oath and consequently unlawful And Vaughan was of Opinion that every Oath not legally administred and taken is within the Statute against prophane swearing And he said it would be of dangerous consequence to countenance these extrajudicial Oaths for that it would tend to the overthrowing of Legal proofs Wyndham Atkins thought it was not a prophane Oath nor within the Statute of King James because it tended to the determining of a controversie And accordingly the Plaintiff had Iudgment Horton Wilson A Prohibition was prayed to stay a Suit in the Spiritual Court commenced by a Proctor for his Fees Vaughan Wyndham No Court can better judge of the Fees that have been due and usual there then themselves Most of their Fees are appointed by constitutions Provincial and they prove them by them A Proctor lately libell'd in the Spiritual Court for his Fees and amongst other things demanded a groat for every Instrument that had been read in the cause the Client pretended that he ought to have but 4 d. for all They gave Sentence for the Defendant the Plaintiff appealed and then a Prohibition was prayed in the Court of Kings Bench. The Opinion of the Court was that the Libell for his Fees was most proper for the Spiritual Court but that because the Plaintiff there demanded a customary Fee that it ought to be determin'd by Law whether such a Fee were customary or no and accordingly they granted a Prohibition in that case It is like the case of a modus for Tythes for whatever ariseth out of the custom of the Kingdom is properly determinable at Common Law But in this case they were of Opinion that the Spiritual Court ought not to be prohibited and therefore granted a Prohibition quoad some other particulars in the Libell which were of temporal cognisance but not as to the suit for Fees Wyndham said if there had been an actual Contract upon the Retainer the Plaintiff ought to have sued at Law Atkyns thought a Prohibition ought to go for the whole Fées he said had no relation to the Iurisdiction of the Spiritual Court nor to the cause in which the Proctor was retain'd No Suit ought to be suffered in the Spiritual Court when the Plaintiff has a remedy at Law as here he might in an Action upon the case for the Retainer is an implied Contract A difference about the grant of the Office of Register in a Bishops Court shall be
the Wife does but nominate what person shall take by the Will This is a plain case and free from uncertainty and ambiguity which else the word dispose will be liable to But Iudgment was given ut supra Howell versus King TRespass for driving Cattel over the Plaintiffs ground The case was A. has a way over B's ground to Black-Acre and drives his Beasts over A's ground to Black-acre and then to another place lying beyond Black-acre And whether this was lawful or no was the question upon a demurrer It was urged that when his Beasts were at Black-acre he might drive them whither he would Rolls 391. nu 40. 11 H. 4. 82. Brook tit chimin On the other side it was said that by this means the Defendant might purchase a hundred or a thousand Acres adjoyning to Black-acre to which he prescribes to have a way by which means the Plaintiff would lose the benefit of his Land and that a Prescription presupposed a grant and ought to be continued according to the intent of its original Creation The whole Court agreed to this And Iudgment was given for the Plaintiff Warren qui tam c. versus Sayre THe Court agreed in this case that an Information for not coming to Church may be brought upon the Stat. of 23 Eliz. only reciting the clause in it that has reference to Stat. 1. of the Queen and that this is the best and surest way of declaring Term. Hill 26 27 Car. II. in Com. Banco Williamson Hancock Hill 24 25 Car. 2. Rot. 679. TEnant for life the Remainder in Tail Tenant for life levies a Fine to J. S. and his heirs to the use of himself for years and after to the use of Hannah and Susan Prinne and their heirs if such a sum of money were unpaid by the Conusor and if the money were paid then to the use of the Conisor and his heirs And this Fine was with general warranty The Tenant for life died the money unpaid and the warranty descended upon the Remainder-man in Tail And the question was whether the Remainder-man were bound by this warranty or not Serjeant Maynard argued that because the Estate of the Land is transferred in the Post before the warranty attaches in the Remainder-man that therefore it should be no Bar. He agréed that a man that comes in by the limitation of an use shall be an Assignee within the Statute of 32 H. 8. cap. 34. by an equitable construction of the Statute because he comes in by the limitation of the party and not purely by Act in Law but this case of ours is upon a collateral garranty which is a positive Law and a thing so remote from solid reason and equity that it is not to be stretch'd beyond the maxime That the Cestuy que use in this case shall not vouch is confessed on all hands and there is the same reason why he should not rebutt He said the resolution mentioned in Lincoln Colledge case was not in the case nor could be the warranty there was a particular warranty contra tunc Abbatem Westmonasteriensem successores suos which Abby was dissolved long before that case came in question He said Justice Jones upon the arguing of Spirt Bence's case reported in Cr. Car. said that he had been present at the Iudgment in Lincoln Colledge case and that there was no such resolution as is there reported Serjeant Baldwin argued on the other side that at the Common Law many persons might rebutt that could not take advantage of a warranty by way of Voucher as the Lord by Escheat the Lord of a Villain a Stranger a Tenant in possession 35 Ass placito 9. 11 Ass placito 3. 45 Ed. 3. 18. placito 11. 42 Ed. 3. 19. b. a fortiori he said he that is in by the limitation of an use being in by the act of the party though the Law co-operate with it to perfect the assurance shall rebutt The Court was of Opinion that the Cestuy que use might rebutt that though Voucher lies in privity an abater or intruder might rebutt F. N. B. 135. 1 Inst 385. As to Serjeant Maynard's Objection that he is in the Post they said they had adjudged lately in Fowle Doble's case that a Cestuy que use might rebutt So it was held in Spirt Bence's case Cr. Car. and in Jones 199. Kendal Foxe's case That Report in Lincoln Colledge case whether there were any resolution in the case or no is founded upon so good reason that Conveyances since have gone according to it Atkyns said there was a difficult clause in the Statute of Uses viz. That all and singular person and persons c. which at any time on this side the first day of May c. 1536. c. shall have c. By this clause they that came in by the limitation of an use before that day were to have the like advantages by Voucher or Rebutter as if they had béen within the degrees If the Parliament thought it reasonable why was it limited to that time Certainly the makers of that Law intended to destroy Vses utterly and that there should not be for the future any Conveyances to Vses But they supposed that it would be some small time before all people would take notice of the Statute and make their Conveyances accordingly and that might be the reason of this clause But since contrary to their expectations Vses are continued he could easily be satisfied he said that Cestuy que use should rebutt Wyndham was of Opinion that Cestuy que use might vouch he said there was no Authority against it but only Opinions obiter They all agreed for the Defendant and Iudgment was given accordingly Rogers versus Davenant Parson of White-Chappel NOrth Chief Justice The Spiritual Court may compell Parishioners to repair their Parish-Church if it be out of Repair and may Excommunicate every one of them till it be repaired and those that are willing to contribute must be absolved till the greater part of them agrée to assess a Tax but the Court cannot assess them towards it it is like to a Bridge or a High-way a Distringas shall issue against the Inhabitants to make them Repair it but neither the Kings Court nor the Iustices of Peace can impose a Tax for it Wyndham Atkyns Ellis accorded The Church-Wardens cannot none but a Parliament can impose a Tax but the greater part of the Parish can make a By-Law and to this purpose they are a Corporation But if a Tax be illegally imposed as by a Commission from the Bishop to the Parson and some of the Parishioners to assess a Tax yet if it be assented to and confirmed by the major part of the Parishioners they in the Spiritual Court may proceed to Excommunicate those that refuse to pay it Compton Vx. versus Ireland Mich. 26 Car. 2. Rot. 691. SCire facias by the Plaintiffs as Executors to have Execution of a Iudgment
desirous to have the money paid before the day took another Bond for the same sum payable sooner and that this was in full satisfaction of the former Bond upon this plea the Plaintiff took issue and it was found against him And Serjeant Maynard moved that notwithstanding this Verdict Iudgment ought to be given for the Plaintiff for that the Defendant by his plea has confessed the Action and to say that another Bond was given in satisfaction is nothing to the purpose Hob. 68. so that upon the whole it appears that the Plaintiff has the right and he ought to have Iudgment 2 Cr. 139. 8 Co. 93. a. and day was given to shew cause why the Plaintiff should not have Iudgment Vide infra hoc eodem Termino Savill against the Hundred of THe Plaintiff in an Action upon the Stat. of Wint. had a Verdict and it was moved in arrest of Iudgment that the Felonious taking is not said to be in the High-way 2 Cro. 469 675. North. An Action lies upon the Stat. of Winton though the Robbery be not committed in the High-way to which the Court-agreed and the Prothonotaries said that the Entries were frequently so Per quod c. Calthrop Philippo ONe J. S. had recovered a Debt against Calthrop and procured a Writ of Execution to Philippo the then Sheriff of D. but before that Writ was executed Calthrop procured a Supersedeas to the same Philippo who when his year was out delivered over all the Writs to the new Sheriff save this Supersedeas which not being delivered J. S. procures a new Writ of Execution to the new Sheriff upon which the Goods of Calthrop being taken he brings his Action against Philippo for not delivering over the Supersedeas After a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Action would not lie for that the Sheriff is not bound to deliver over a Supersedeas 1. Because it is not a Writ that has a return 2. Because it is only the Sheriffs Warrant for not obeying the Writ of Execution The Prothonotaries said that the course was to take out a new Writ to the new Sheriff Serjeant Strode argued that the Supersedeas ought to be delivered over because the Kings Writ to the old Sheriff is Quod Com' praedict ' cum pertinentiis uno cum rotulis brevibus memorandis omnibus officium illud tangentibus quae in custodia sua existunt liberet c. Reg. 295. 3 Co. 72. Westby's case Besides the Supersedeas is for the Defendants benefit and there is no reason why the Capias should be delivered over which is for the Plaintiffs benefit and not the Supersedeas which is for the Defendants And he said an Action will lie for not delilivering over some Writs to the new Sheriff though those Writs are not returnable as a Writ of Estrepement The Court inclined to his Opinion but it was adjourned to a further day on which day it was not moved Bascawin Herle versus Cooke THo Cook granted a Rent-charge of 200 l. per annum to Bascawin Herle for the life of Mary Cook habend ' to them their heirs and assigns ad opus usum of Mary and in the Indenture covenanted to pay the rent ad opus usum of Mary Bascawin Herle upon this bring an Action of Covenant and assign the breach in not paying the Rent to themselves ad opus usum of Mary The Defendant demurs 1. Because the words in which the breach is assign'd contain a negative pregnant Baldwin for the Plaintiff we assign the breach in the words of the Covenant Cur ' accord 2. Because the Plaintiff does not say that the money was not paid to Mary it would satisfie the Covenant 3. This Rent-charge is executed to Mary by the Stat. of Uses and she ought to have distrained for it for she having a remedy the Plaintiffs out of whom the Rent is transferred by the Statute cannot bring this Action Hereupon two questions were made 1. Whether this remedy by Action of Covenant be transferred to Mary by the Stat. of Uses or not And 2dly if not whether the Covenant were discharged or not North Wyndham When the Statute transfers an Estate it transfers together with it such remedies only as by Law are incident to that Estate and not collateral ones Atkyns accordant There is a clause in the Statute of 27 H. 8. c. 10. which gives the Cestuy que use of a Rent all such remedies as he would have had if the Rent had been actually and really granted to him but that has place only where one is seized of Lands in trust that another shall have a Rent out of them not where a Rent is granted to one to the use of another They agreed also that the Covenant was not discharged And gave Iudgment for the Plaintiff Nisi c. Higden versus VVhitechurch Executor of Dethicke A Udita Querela The Plaintiff declares that himself and one Prettyman became bound to the Testator for the payment of a certain sum that in an Action brought against him he was Outlawed that Dethick afterward brought another Action upon the same Bond against Prettyman and had Iudgment that Prettyman was taken by a Cap. ad satisfaciend ' and imprisoned and paid the Debt and was released by Dethick's consent upon this matter the Plaintiff here prays to be relieved against this Iudgment and Outlawry The Defendant protestando that the Debt was not satisfied pleads the Outlawry in disability The Plaintiff demurs Baldw. for the Plaintiff Non datur exceptio ejus rei cujus petitur dissolutio He resembled this to the cases of bringing a Writ of Error or Attaint in neither of which Outlawry is pleadable 3 Cr. 225. 7 H. 4. 39. 7 H. 6. 44. Seyse contra Outlawry is a good plea in Audita querela 2 Cr. 425. 8 Co. 141. this case is not within the maxime that has been cited a writ of Error and Attaint is within it for in both them the Iudgment it self is to be reversed But in an Audita querela you admit the Iudgment to be good only upon some equitable matter arising since you pray that no Execution may be upon it Vide 6 Ed. 4. 9. b. Jason Kite's case Mich. 12 Car. 2. Rot. 385. Adj. Pasch 13. Cur ' accord ' If the Iudgment had been erroneous and a writ of Error had been brought the Outlawry which was but a superstructure would fall by consequence but an Audita querela meddles not with the Iudgment the Plaintiff here has no remedy but to sue out his Charter of Pardon Blythe Hill supra 221. THe case being moved again appeared to be thus viz. The Plaintiff brought an Action of Debt upon a Bond against the Defendant as heir to the Obligor The Defendant pleaded that the Obligor his Ancestor dyed intestate and that one J. S. had taken out Letters of Administration and had given the Plaintiff
is 24 Ed. 3. 30. Pl. 27. which is our very case The King brings a Quare Impedit for a Church appendant to a Mannor as a Guardian the Defendant makes a Title and traverseth the Title alledged by the King in his Count viz. the appendancy the King replies and Traverses the Defendants Title For this cause the Defendant demurs and Iudgment was for the King In this case it doth not appear in the pleading that the King was in by matter of Record and so it is our very case For the King may be in by possession by virtue of a Wardship without matter of Record by Entry c. Stamf. Prerog 54. I rely upon these two Cases But 7 H. 8. Keil 175. is somewhat to the purpose Per Fitz. In a Ravishment of Ward by the King if the Defendant make a Title and traverse the Kings Title the Kings Attorney may maintain the Kings Title and Traverse the Defendants Title I think there is no difference betwéen the Kings being in possession by matter of Record and by matter of Fact Again If matter of Record be necessary here is enough viz. The Queens Presentation under the Great Seal of England And here is a descent which is and must be Jure Coronae It is unreasonable that a Subject should turn the King out of possession by him that hath no Title This is a Prerog Case As to the Statutes objected by my Brother Archer they concern not this case The first enables the Patron to counterplead But here the Patron pleads The rest concern the Kings Presenting En auter droit But here it is in his own Right I think the King in our case may fly upon the Defendants Title and there is no inconvenience in it For the Kings Title is not a bare suggestion For it is confessed by the Defendant that the Quéen did Present But he alledges it was by Lapse For another reason I think Iudgment ought to be for the King viz. because the Defendant has committed the first fault For his Bar is naught in that he has traversed the Queens Seisin in Grosse whereas he ought to have traversed the Queens Presentment modo forma For where the Title is by a Seisin in Grosse it is repugnant to admit the Presentment and deny the Seisin in Grosse because the Presentment makes it a Seisin in Grosse 10 H. 7. 27. Pl. 7. in point and so is my Lord Buckhurst's Case in 1 Leonard 154. The traverse here is a matter of substance But if it be but Form it is all one For the King is not within the Statute 27 El. cap. 5. So he concluded that Iudgment ought to be given for the King Doctor Lee's Case A Motion was made by Raymond for a Writ of Priviledge to be discharged from the Office of Expenditour to which he was elected and appointed by the Commissioners of Sewers in some part of Kent in respect of some Lands he had within the Levell He insisted that the Doctor was an Ecclesiastical person Archdeacon of Rochester where his constant attendance is required Adding that the Office to which he was appointed was but a mean Office being in the nature of that of a Bayliff to receive and pay some small sums of money and that the Lands in respect whereof he is elected were let to a Tenant V. 1. Cr. 585. Abdy's case It was objected against this that this Archdeacons Predecessors did execute this Office and the Court ordered that notice should be given and cause shewn why the Doctor should not do the like Afterward Rainesford Morton only being in Court it was ruled he should be priviledged Because he is a Clergy-man F. B. 175. r. But I think for another reason viz. because the Land is in Lease and the Tenant if any ought to do the Office Take the Writ Lucy Lutterell vid. versus George Reynell Esq George Turbervile Esq John Cory Ann Cory THe Plaintiff as Administratrix to Jane Lutterell durante minori aetate of Alexander Lutterell the Plaintiffs second Son declared against the Defendants in an Action of Trespass for that they simul cum John Chappell c. did take away 4000 l. of the moneys numbred of the said Jane upon the 20th day of October 1680. and so for seven days following the like sums ad damnum of 32000 l. Upon a full hearing of Witnesses on both sides the Iury found two of the Defendants guilty and gave 6000 l. damages and the others not guilty A new Trial was afterwards moved for and denied At the Trial Mr. Attorney General excepted against the Evidence that if it were true it destroyed the Plaintiffs Action inasmuch as it amounted to prove the Defendants guilty of Felony and that the Law will not suffer a man to smooth a Felony and bring Trespass for that which is a king of Robbery Indeed said he if they had been acquitted or found guilty of the Felony the Action would lye and therefore it may be maintained against Mrs. Cory who was as likewise was William Maynard acquitted upon an Indictment of Felony for this matter but not against the rest But my Lord Chief Baron declared and it was agreed that it should not lye in the mouth of the party to say that himself was a Thief and therefore not guilty of the Trespass But perhaps if it had appeared upon the Declaration the Defendant ought to have been discharged of the Trespass Quaere what the Law would be if it appeared upon the pleading or were found by special Verdict My Lord Ch. Baron did also declare and it was agréed that whereas W. Maynard one of the Witnesses for the Plaintiff was guilty as appeared by his own Evidence together with the Defendants but was left out of the Declaration that he might be a Witness for the Plaintiff that he was a good and legal Witness but his credit was lessened by it for that he swore in his own discharge For that when these Defendants should be convicted and have satisfied the Condemnation he might plead the same in Bar of an Action brought against himself But those in the simul cum were no Witnesses Several witnesses were received and allowed to prove that William Maynard did at several times discourse and declare the same things and to the like purpose that he testified now And my Lord Chief Baron said though a hear-say was not to be allowed as a direct Evidence yet it might be made use of to this purpose viz. to prove that William Maynard was constant to himself whereby his Testimony was Corroborated One Thorne formerly Mr. Reynell's Servant being Subpoened by the Plaintiff to give Evidence at this trial did not appear But it being sworn by the Exeter Waggoner that Thorne came so far on his Iourney hitherward as Blandford and there fell so sick that he was not able to travel any further his Depositions in Chancery in a Suit there between these parties about this matter were admitted to be read
the Lady Ann Countess of Newport all that my House called Newport-house and all other my Lands c. in the County of Middlesex for her life And after her death I give and bequeath the premisses to my Grand-child Ann Knollis viz. the Plaintiff and to the heirs of her body Provided always and upon condition that she marry with the consent of my said Wife and the Earl of Warwick and the Earl of Manchester or of the major part of them And in case she marry without such consent or happen to dye without Issue Then I give and bequeath it to George Porter viz. the Defendant The Earl dyed Ann the Plaintiff married Charles the Plaintiff she being then about fourteen or fifteen years old without the consent of either of the Trustees And thereupon now a Bill was preferred to be relieved against this Condition and Forfeiture because she had no notice of this Condition and Limitation made to her c. To this the Defendant had demurred but that was over-ruled Afterwards there were several Depositions c. made and testified on each side the effect of which was this On the Plaintiffs part it was proved by several that it was always the Earls intention that the Plaintiff should have this Estate and that they never heard of this purpose to put any Condition upon her and believed that he did not intend to give away the Inheritance from her But that this Clause in the Will was only in terrorem and Cautionary to make her the more obsequious to her Grandmother The two Earls swore that they had no notice of this Clause in the Will but if they had they think it possible such reasons might have been offered as might have induced them to give their consents to the Marriage and that now they do consent to and approve of the same Some proof was made that the Countess of Newport had some design that the Plaintiff should not have this Estate but that the Defendant should have it But at last even she viz. the Countess was reconciled and did declare that she forgave the Plaintiffs Marriage and that she shewed great affection to a Child which the Plaintiff had and directed that when she was dead the Plaintiff and her Child should be let into the possession of the premisses and should enjoy them c. It was proved also that when there had been a Treaty concerning the Marriage betweén my Lord Morpeth and the Plaintiff and the Plaintiff would not marry him her Grandmother said she should marry where she would she would take no further care about her the Countess was dead at the time of this Suit It was proved that Mr. Fry was of a good Family and that the Defendant had 5000 l. appointed and provided for him by his Grandfather by the same Will On the Defendants part It was sworn by the said late Countess of Newport viz. In an answer made formerly to a Bill brought against her by the now Defendant for preferring of Testimony which was ordered to be read that the Marriage was private and without her consent and approbation and that she did not conceive it to be a fit and proportionable Marriage he being a younger Brother and having no Estate The like was sworn by the Earl of Portland the said Countesses then Husband and that it appeared she leapt over a Wall by means of a Wheel-Barrow set up against it to go to be married and that as soon as the Trusteés did know of the Marriage they did disavow and dislike it and so declared themselves several times and said That had they had any hint of it they would have prevented it Others swore that the Earl of Portland declared upon the day of her going away That he never consented thereto and that the Countess desired then that he would not do any thing like it and that the Earl of Warwick said He would have lost one of his Arms rather then have consented to the said Marriage On hearing of this Cause before the Master of the Rolls viz. Sir Harbottle Grimstone Baronet the Plaintiff obtained a decretal Order viz. That Anne the Plaintiff and her Heirs should hold the Premisses quietly against the Defendant and his Heirs and that there should be an Injunction perpetual against the Defendant and all claiming under him And now there was an Appeal thereupon and re-hearing before Sir Orlando Bridgman Knight then Lord-Keeper assisted by the two Lord Chief Justices and the Chief Baron before whom it was argued thus Serjeant Maynard The Plaintiff ought not to have relief in this Case The Plaintiffs Mother had a sufficient provision by the Earl of Newport's Care And therefore there is less reason that this Estate should be added to the Daughter The noble Lords the Trusteés when the thing was fresh did disapprove the Marriage however they may consent thereunto now The Devise was to the Plaintiff but in tail and afterwards to the Defendant We disparage not Mr. Fry in blood nor Family But people do not marry for that only but for Recompence and like Fortune There was a publique Fame or Report it is to be presumed of this Will in the house and were there not yet it was against her Duty and against Nature that she should decline asking her Grand-Mothers consent and Mr. Fry in Honour and Conscience ought to have asked it And therefore this practice ought not to receive the least encouragement in Equity 'T is true when there was a Demurrer it was over-ruled because the Bill prayed to be relieved against a Forfeiture for which there might be good cause in Equity But now it does not appear there is any in the Case The Estate is now in the Defendant and that not by any act of his own but by the Devisor and the Plaintiff this is a Limitation not a Condition For my Lord Newport had Sons It is somewhat of the same effect with a Condition though it is not so We have a Title by the Will of the dead and the act of the other party without fraud or other act of us and therefore it ought not to be defeated I take a difference betweén a devise of Land and money For Land is not originally devisable though Money is By the Civil Law and amongst civil Lawyers it has beén made a question Whether there shall be Relief against such a Limitation in a Devise But be that how it will Chattels are small things but a Freéhold setled ought not to be devested thus No man can make a Limitation in his Will better and stronger to disappoint his Devise conditionally than this is made If my Lord Newport had béen alive would he have liked such a practice upon his Grand-daughters as want of Notice In Organ's Case and Sir Julius Caesar's Case there was a Grant to an Infant on condition to pay 10 s. and no Notice given thereof before 't was payable yet because no body was bound to give notice it was adjudged
had bona notab in divers Diocesses and the Archbishop of Canterbury committed Administration to the Defendant and concludes in Bar. V. Divers exceptions taken to the Plea 239 V. Administrators Evidence V. Copy A suspension of a rent may be given in Evidence upon nil debet pleaded 35 118 Evidence of a Deed. 94 An Action of Debt brought upon an Escape May a fresh Suit be given in Evidence upon nil debet pleaded 116 Copies and Exemplifications allowed to be given in Evidence when the Originals are burnt 117 Pleinment administer pleaded Payment of some Debts c. and delivering over the residue of the personal Estate to the Infant Executor when he comes of age may be given in Evidence 174 In an Action of Assumpsit grounded upon a Promise in Law payment may be given in Evidence not where the Action is grounded upon an express Promise 210 Hear-says how far allowable in Evidence 283 Depositions in Chancery allow'd to be read 283 284 F. False Imprisonment IN an Action of false Imprisonment the Defendant Justifies by vertue of a Warrant out of a Court within the County Palatine of Durham V. 170 171 172. several exceptions to the pleading The Defendant in false Imprisonment justifies by vertue of an Order of the Court of Chancery nought 272 Felony To cut down Corn and carry it away at the same time is no Felony But to cut it down and lay it by and carry it away afterwards is Felony 89 Feme sole Merchant V. 26. Fieri facias The Sheriff may execute a Writ of Fieri facias upon the Goods of the Defendant in the hands of his Administrator he dying after the Teste of the Writ and before Execution 188 Fine V. Ejectione firmae An interest for years in what Cases bar'd by a Fine and in what not 217 Fishing Common and several Pischary and fishing in publick and in private Rivers 105 106 Forcible Entry Enditement of forcible Entry 73 Forfeiture A man settles a term in trust for himself during his life and afterwards in trust for several of his Friends provided that if he have any issue of his body at the time of his death the trust shall cease and the assignment be to the use of such issue provided also that if he be minded to change the Uses that he may have power so to do by writing in the presence of two or more Witnesses or by his last Will. Then he commits Treason and is attainted by Act of Parliament and dies having issue Male at the time of his death but without making any revocation of the Uses of this settlement no more of this term is forfeited than during his own life only 16 17 38 39 40 Forma Pauperis A man that is admitted in Forma pauperis is not to have a new Trial nor is suffer'd to remove an Action out of an inferior Court 268 Formedon in Descender Exceptions to the Count. 219 220 Foreign Attachment Whether or no is a Debt due to a Corporation within the Custom of Foreign Attachment 212 Fraudulent Conveyance A Deed may be voluntary and yet not fraudulent V. 119 G. Gager de Ley. A Man cannot wage his Law in an Action brought upon a Prescription for a duty 121 Gardian Infant Tenant in a Common Recovery is admitted by Gardian ad sequendum whether that be Error or not 48 49 Gavelkind A Rent de novo granted out of gavelkind-Gavelkind-land shall descend according to the descent of the Land 96 97 c. Grant le Roy. V. 195 196 c. H. Habeas Corpus WHat time to plead has the party that comes in upon a Habeas Corpus 1 Habeas Corpus to remove one out of the Cinque-Ports 20 V. Excise Though the Return be filed the Court of Kings Bench may remand or commit the Prisoner to the Marshalsey at their Election 144 A Member of the House of Lords committed by the House for a Contempt cannot be set at liberty the Court of Kings Bench upon a Habeas Corpus be the Cause of his Commitment what it will 144 145 146 c. Habeas Corpus though returnable two days after the end of the Term yet ties up the inferior Court 195 Whether does a Habeas corpus ad subjiciendum lie in Court of Common Pleas 235 Heir Two Actions of Debt against an Heir upon two several Obligations of his Ancestor The Plaintiff in the second Action obtains Judgment first and whether shall be first satisfied 253 I. Jeoffails WAnt of an averment helpt after Verdict 14 V. 199 Inclosures Inquisition upon the Statute against pulling down Inclosures 66 Indebitatus assumpsit Indebitat assumpsit pro opere facto lies well enough 8 For money received of the Plaintiff by one Thomas Buckner by the appointment and to the use of the Defendant Good after a Verdict 42 Lies not against the Executors of a Treasurer of Sub-Treasurer of a Church or the like 163 An Action is brought upon an indebitat assumpsit and quantum meruit the Defendant pleads That the Plaintiff and himself accounted together and that the Plaintiff in consideration that the Defendant promised to pay him what was found due to him upon the foot of the Account discharged him of all former Contracts 205 206. and held to be a good Plea Indebitat assumpsit will not lie upon a Bill of Exchange accepted 285 286 Indebit assumpsit for Wares sold and no Evidence given of an agreement for the price 295 Indictment An Act of Parliament creates a new Offence and appoints other ways of proceeding than by Endictment yet if there are no negative words an Indictment lies 34 Indictment for these words viz. When ever a Burgess of Hull puts on his Gown Satan enters into him 35 Moved to quash an Inditement because the year of our Lord in the caption was in figures 78 Infant A man declares That the Defendant in consideration that the Plaintiff would let him take so much of his Grass promised c. held to be good Consideration though the Plaintiff were an Infant 25 V. tit Appearance V. tit Apprentice V. tit Recovery V. tit Notice Information An Information does not lie against a Lord for taking unreasonable Distresses of several of his Tenants 71 288 V. tit Recusants Intendments V. 67. Issue V. 72. Judge No Action upon the Case lies against a Judge upon a wrongful commitment 184 185 Juries If a Knight be but return'd on a Jury when a Peer is concern'd it 's not material whether he appear and give his Verdict or no 226 L. Labourers AN Enditement for retaining a Servant without a Testimonial from his last Master quasht for imperfection 78 Lease A Licence to enjoy till such a time whether it be a Lease or no and how to be pleaded 14 15 Uncertain limitations and impossible limitations of commencements of Leases 180 A Bishops Lease good upon which the whole rent is reserved upon part of what was accustomably demised 203 204 Libel V. 58. Limitation V. Condition
Limitation of Estates A man deviseth a term to one for life the remainder to another for life and if the remainder man for life die without issue of his body begotten then to a stranger whether is this a good Limitation or not 50 51 c. V. A term setled in trust with remainders to persons not in being 114 115 V. Covenant to stand seiz'd A man Covenants to stand seiz'd to the use of his eldest Son and the Heirs-males of his body remainder to the use of the Heirs-males of his own body remainder to his own right Heirs 226 237 238 Limitation of Actions What Actions between Merchants are within the Statute of Limitations and what not 70 71 268 269 The Statute of Limitations how to be pleaded 89 Action upon the Case against a Sheriff for that he levied such a sum of money at the Plaintiffs Suit and did not bring the money into Court at the day of the return of the Writ Whether is this Action within the Statute of Limitations or not 245 Livery A man chosen by a Company in London to be of the Livery and refusing to serve cannot be committed 10 Livery deins le view A woman makes a Feoffment and gives Livery within the View then she marries with the Feoffee before he enters whether has this entermarriage destroyed the operation of the Livery within the view 91 M. Mandamus A Writ of Mandamus to the Master and Fellows of a Colledge in Oxford to restore a Fellow whether it lies or not 82 83 c. Market Action upon the Case for keeping a Market in prejudice of the Plaintiffs Market does well lie although the Defendant does not keep his Market on the same day that the Plaintiff keep his 69 Melius inquirendum V. 82 Misericordia Whether ought a Misericordia or a Capiatur to be entred upon a relicta verificatione 73 Misnosmer V. Cap. Excommunic Monopoly Whether is the Patent of Incorporation to the Canary-Company a Monopoly or not 18 Monstrans de faits The Plaintiff in Quare Impedit declared upon a Grant of an Advowson to his Ancestor and says in his Declaration Hic in cur ' prolat but has it not to shew moved That forasmuch as the Defendant had gotten the Deed into his hands the Plaintiff might take advantage of a Copy thereof which appeared in an Inquisition found temp-Edw sexti and denied 266 N. Non-claim DOes not bar a Title to enter for a Condition broken 4 Non-conformists A Case upon the Oxford-Act against Non-conformist-Ministers V. 68 Non-tenure Non-tenure pleaded in abatement 281 Non-tenure when a Plea in Bar and when only in abatement 249 250 Notice When requisite and when not and whether Infancy be any excuse in such case or not 86 87 c. 300 301 302 303 c. Novel-assignment in Trespass V. 89. Nusance It is no Nusance to stop a Prospect so the light be not darkned 55 Whether is it a Nusance for a Rope-dancer to erect a Stage in a Town or City 76 V. 168 169 V. 202 O. Oath EXtra Judicial Oath V. Action upon the Case Obligation Whether or no may a second Bond be given is satisfaction of a former 221 225 Officer Investiture does not make an Officer when he is created by Patent 123 Orphan A man brought to the Bar by Habeas Corpus being committed by the Court of Aldermen for marrying a City-Orphan 77 79 80 Outlawry V. 90. Oyer Of Letters Patents V. 69 P. Pardon WHat is pardoned by a Pardon of all Offences 102 Parliament V. Habeas Corpus Partners in Trade One of them becomes Bankrupt the other shall not be charged with the whole otherwise if one of them die 45 Pasture Whether is a Custom to have a several Pasture excluding the Lord a good Custom or not 74 Pension A Parson has a Pension by Prescription How may he recover it 218 Perjury In a Court-Baron indictable 55 Physicians The calling of a Physician does not Priviledge a person that 's chosen Constable 22 Pleading An Executor pleads several Judgments in Bar but for the last he does not mention when it was enter'd nor when obtain'd and the Plea was held to be naught upon a general Demurrer 50 A Surrender into the hands of two Tenants of the Mannor out of Court secundum consuetudinem c. without saying that there was a Custom in the Mannor to warrant such a Surrender 61 62 V. A customary way of Pleading in Bristow to an Action of Debt upon a Bond. 96 Pleading to an Inditement for not repairing the High-ways 112 Pleading in an Action upon the Case upon a promise to pay money in consideration of forbearance 169 V. Tit. Prerog Possessio fratris V. 120 Praemunire An Action upon the Statute of Praemunire for impeaching in the Chancery a Judgment given in the Kings Bench whether it lies or not 59 60 Prerogative Whether may the King relinquish his own and traverse the Title shewn for the party or not and in what Cases 276 277 278 Prescription A Prescription for Toll 104 105 231 232 A. prescribes for a way over B's ground to Black-acre and drives his Beasts over B's ground to Black-acre and then to a place beyond Black-acre adjudged upon a Demurrer That he could not lawfully do so 190 191 Presentment Quasht because it does not express before whom the Sessions were held 24 Printing Whether are the Letters Patents good in Law whereby the sole-Printing of Almanacks is granted to the Company of Stationers 256 257 Priviledge An Arch-Deacon priviledged from the Office of Expenditor to the Commissioners of Sewers 282 V. Tit. Physician Prohibition To stay proceedings upon a Libel against one for teaching School denied 3 To stay a Suit for calling a woman Whore deny'd 21 22 Incumbent of a Donative cited into the Spiritual Court for marrying without Licence prays a Prohibition denied 22 Whether shall a Prohibition go to an Inferiour Court for holding Plea when the cause of Action ariseth out of their Jurisdiction till after such time as the Defendant has pleaded to the Jurisdiction and that his Plea be disallowed 63 64 81 A Prohibition prayed for that in the Spiritual Court they cited the Minister of a Donative to take a faculty to Preach from the Bishop 90 Moved for a Prohibition to the Spiritual Court because they proceeded to the Probate of a Will that contained devises of Lands as well as bequests of personal things 90 Prohibition to stay a Suit by a Proctor for his Fees denied 167 Promise How a Promise may be discharged 205 206 262 Q. Quare Impedit WHen in a Declaration in Quare Impedit the Plaintiff must alledge his Presentation tempore pacis and when he needs not 230 Process in Quare Impedit upon non-appearance of the Defendant by the Statute of Marlebridge cap. 12. 248 249 Two Judgments in a Quare Impedit 254 255 Que estate A thing that lies in grant may be claimed as appurtenant to a Mannor by a Que estate