Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	descend_v	heir_n	warranty_n	1,409	5	13.8406	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A64839	The reports of Sir Peyton Ventris Kt., late one of the justices of the Common-pleas in two parts : the first part containing select cases adjudged in the Kings-Bench, in the reign of K. Charles II, with three learned arguments, one in the Kings-Bench, by Sir Francis North, when Attorney General, and two in the Exchequer by Sir Matthew Hale, when Lord Chief Baron : with two tables, one of the cases, and the other of the principal matters : the second part containing choice cases adjudged in the Common-pleas, in the reigns of K. Charles II and K. James II and in the three first years of the reign of His now Majesty K. William and the late Q. Mary, while he was a judge in the said court, with the pleadings to the same : also several cases and pleadings thereupon in the Exchequer-Chamber upon writs of error from the Kings-Bench : together with many remarkable and curious cases in the Court of Chancery : whereto are added three exact tables, one of the cases, the other of the principal matters, and the third of the pleadings : with the allowance and approbation of the Lord Keeper an all the judges.	Ventris, Peyton, Sir, 1645-1691.; Guilford, Francis North, Baron, 1637-1685.; Hale, Matthew, Sir, 1609-1676.; England and Wales. Court of King's Bench.; England and Wales. Court of Common Pleas.	1696 (1696)	Wing V235; ESTC R7440	737,128	910

looks upon as the Medium that derives the one Discent from the other then the Attainder of the Father would hinder the Discent between the Brothers But the Attainder of the Father doth not hinder the Discent between the Brothers Therefore the Father is not such a Medium or Nexus as is look'd upon by Law as the means deriving such Discent between the two Brothers Both the former Propositions and indeed the Illustration and Enforcement of the whole reason will be evidenced by the comparison of three Cases the two former of the Cases evincing the truth of the first Proposition and the later proving the second Proposition The First is Gravers's Case 10 Eliz. Dyer 274. The younger Brother hath Issue and is attaint of Treason and dies the elder Brother having a Title to a Petition of Right dies without Issue without a Restitution the other Brothers Son hath lost that Title for though that Title were in an Ancestor that was not attainted yet his Father that is the Medium whereby he must convey that Title was Attainted and so the Discent is obstructed On the other side the Case of Courtney in Cro. Car. 241. Henry Courtney had Issue Edward and is attaint of Treason and dies Edward purchaseth Lands and dies without Issue the Sisters and Sisters Children of Henry are disabled to inherit Edward yet neither Edward nor his Aunts were attainted nor their Blood corrupted as is before manifested but only Henry tho' the Land could not discend immediately from Edward yet because he who nevertheless was the Medium whereby the Aunts must derive their Pedigree and Consanguinity to Edward was attainted the Discent was obstructed till a restitution in Blood But suppose that the Grandfather of Edward was attainted and not Henry this could not have hindred the Discent from Edward to his Aunts because the Attainder had been paramount that Consanguinity which was between Henry and his Sisters as Brothers and Sisters and that is proved by the third Case In 40 41 Eliz. in the Exchequer Hobbies Case William Hobby had Issue Philip and Mary and is attainted of Treason and dies Philip purchaseth Lands and dies without Issue Ruled that notwithstanding the Attainder Mary shall inherit because the Discent between Philip and Mary was immediate and the Law regards not the disability of the Father and in that Case all the Reasons that have been objected against the Discent in the Case at Bar were objected If it be objected that in that Case the Mother was not attainted which might preserve the Legal Blood between Philip and Mary I Answer That that would not serve admitting the disability of the Parents were not at all considerable for if it disable the Blood of the Father which is derived to the Son it would infallibly destroy the Discent to Mary the Sister for she could not inherit her Brother in the capacity of Heir to the part of the Mother if by the Attainder she had been disabled to take as Heir by the Fathers Blood 49 E. 3. 12. If the Heir on the part of the Father be attainted the Land shall escheat and shall never discend to the Heir of the Mother because notwithstanding the Attainder the Law looks upon it as in esse but otherwise it is in case of an Alien as hath been before shewn for if the Son purchase Land and have no Kindred on the part of his Father but an Alien it shall discend to the Heir of the part of the Mother And altho' the Blood both of the Father and the Mother were in Mary yet if she were disabled in the Blood of her Father by his Attainder she could never intitle her self by the Blood of her Mother I have done with this Reason there remain two Principal Objections to be answered Object 1. The Father in the Case at Bar is the Fountain from whence the Blood of John and George is derived and their Consanguinity ariseth not from one to another but from their Father which is the common vinculum to them both and therefore this disability in the Parents destroys the Civil Relation of Hereditary Blood between the two Brothers I Answer First The very same Objection might be and indeed was made in Hobbies Case but prevailed not Secondly But further no man will say but that the Blood of the Father and Mother are necessary to derive Consanguinity in the Son for the Blood of the Father without the Mother is impossible to be derived to the Children and yet no man will deny that if the one or the other were Denizen born their Children should inherit one the other Thirdly But the truth is the Father and the Mother are the Blood Natural to both the Sons but it is the Law into which by their Birth or Naturalization they are translated that is the Fountain of the Civil or Hereditary Blood the Parents are the common Vinculum the Fonntain of their Blood that aliquod tertium in quo conveniunt in regno naturali but it is the Law of the Land into which by their birth or naturalization they are transplanted the Commune Vinculum that aliquod tertium in quo conveniunt in Regno Civili Object 2. But all their blood that they have is derived from their Parents and they can take no other blood but what they have from them and if that blood which the Parents transmit be stained and void of Hereditary Quality no hereditary blood can intervene between them I Answer It is true that their natural blood is derived from their Parents and as it is that that makes them Brothers Sons so it is that that makes them their blood but yet the civil qualification of their blood which makes them inheritable one to the other is from another Fountain viz. the Law of the Land and this Law finding them Legitimate untrinque conjunctos sanguine parentali naturali and so natural Brothers and finding them transplanted into the civil rights of this Kingdom by their birth here or Naturalization which is all one doth superinduce and close the natural Consanguinity with a civil hereditary Quality whereby they may inherit one the other For Instance A. Grandfather and B. his Wife both Aliens have Issue C. a Son born here who hath Issue D. a Son also born here No body can deny that C. hath all his natural blood from A. and B. and no where else nor is that blood that he hath so from them an inheritable blood yet is it unquestionable that D. shall inherit C. and D. hath no natural blood but what he hath from C. nor C. no natural blood but what he hath from A. and B. But true it is the Law doth superinduce that civil hereditary Quality upon the blood of C. by his birth in England tho' as he took it from his Father and Mother it was void of that Quality the Law of Nature made him indeed Son but it was the Law of England that gave him a capacity to be an

in an Inferiour Court for want of infra Jurisdictionem Curiae 2 For variance between the Count and Plaint 6 But it lies not for some Omissions 5 A Writ of Error is a Supersedeas to an Execution 30. Yet the Judgment remains a Record 34 Exception 353 355 A Writ of Error returnable ad proximum Parliamentum not good Secus if to the day of Prorogation 31 266 No Writ of Error lies upon a Conviction before a Justice of Peace 33 In a Writ of Error if the Defendant dies the Writ is not abated Secus if the Plaintiff dies 34 Lies not to reverse a Judgment in a Qui tam nor upon the Statute de Scandalis Magnatis 49 What Records to be returned upon a Writ of Error 96 97 Where it lies upon a Judgment in a Scire facias and where not 168 Error in fact not assignable in the Exchequer Chamber 207 A Writ of Error that bears Teste before the Judgment good to remove the Record if Judgment be given before the Return 255 Escape See Baron and Feme VVhere a Prisoner Escapes by permission of the Sheriff he may be taken again by the Party Plaintiff 4 Debt against the Sheriff for a Voluntary Escape the Sheriff pleads that he took him again upon fresh Suit Good 211 217 Against the VVarden of the Fleet 269 The Lessor of the Custody of a Prison answerable for an Escape where his Lessee is insufficient 314 Escrow See Pleading Evidence See Statutes The party suffering admitted to give Evidence for the King to detect a Fraud 49 Exception See Feoffment Excommunication In Excommunication ipso facto no necessity of any Sentence of Excommunication 146 Excommunication pleaded to an Action per Literas testamentarias Good 222 How discharged where the Capias is not inroled according to the Statute 338 Execution Upon an Elegit the Sheriff ought to deliver Possession by Metes and Bounds or otherwise it may be quasht 259 Executor See Abatement Costs Return Of Infant Executors where to Sue by Guardian 40 54. VVhere by Attorney 40 102 103 If a Man names himself in an Action Executor or Administrator and it appears the Cause of Action was in his own right it shall be well enough and the calling himself Executor is but surplusage 119 VVhere the Executors promise in relation to the Testators Debt shall make the Debt his own 120 268 VVhere Interest is due for a Debt partly in the Testators life time and partly since and one Action brought and Judgment given for the whole this is manifestly Erroneous 199 VVhere chargeable in the Debet detinet and where in the detinet only 271 321 355 Cannot assume the Executorship for part and refuse for part 271 Debt doth not lie against the Executor of an Executor upon a Surmise of a Devastavit of the first Executor 292 Of the Executors renouncing 303 cannot refuse after Oath 335 Of Executor de son tort 349 VVhat Acts an Executor may do before Probat 370 Exposition of Words Obstrupabat 4 Or 62 148 Pair of Curtains and Vallence 71 106 Ad sequendum 74 Vt 73 74 Aliter vel alio modo 92 Mutuasset and mutuatus esset 109 Aromatarij 142 Centena 211 Issue 229 Land 260 Crates 304 Gubernatio Regimen 324 Exilium 326 Vestura terrae 393 Extinguishment Where two Closes are in the same Possession the Duty of Fencing is Extinguished and shall not Revive thô the Closes come after into several hands 97 F. False Latine DE sex bovibus instead of bobus no sufficient Cause to Arrest Judgment 17 Feoffment A Man makes a Feoffment of a Mannor excepting two Closes for the Life of the Feoffor only The two Closes descend to the Heir 106 Fine The Delivery of a Declaration in Ejectment upon the Lands is no Entry or Claim to avoid a Fine 42. So where an Action is brought and discontinued 45 A Fine cannot bar any Interest which was divested at the time of the Fine 56 Whether a Fine and Non-Claim bars the Interest of a Lessee in Trust 80 No Bar to a Mortgage 82 A Parish may contain many Vills and if a Fine may be levied of Lands in the Parish it carries whatsoever is in any of those Vills 170 Lessee for years makes a Feoffment and levies a Fine the Lessor shall have five years to Claim after the Term expired 241 Forcible Entry In an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with force because upon the finding a Restitution is to be awarded 23 Foreign Attachment See London Of Foreign Attachments by Custom how to be pleaded 236 G. Gaming See Statutes Guardian See Baron and Feme Executor Grant See Hundred GRant without Consideration hinders not the arising of a Contingent use 189 In Prescriptions or Usage time beyond Memory the Law presumes a Grant at first and the Grant lost 387. And therefore nothing can be prescribed for that cannot at this day be raised by Grant ibid. Of the Kings Grant 408 409 A Grant to a Town to be a County and no Grant of having a Sheriff void 407 H. Habeas Corpus See Statutes THo' the Return be Filed yet the Court may remand the Prisoner to the same Prison and not to the Marshalsey 330 346 Whether it lies to remove a Prisoner in Ireland 357 Half Blood The Sister of the Half Blood shall come in for distribution upon the Stat. 22 23 Car. 2. chap. 10. 316 317 323 Half Blood no Impediment to Administration 424 Harriot Where a Lease is made to commence on the Determination of another if the new Lessee dyes before his Term Commences whether a Harriot shall be due 91 Heir An implied Estate of Land shall not pass in a Will for an Heir shall not be defeated but upon a necessary Implication 323 376 A Man cannot by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser 372 379 Yet Heirs of the Body of his second Wife having a Son by the first is a good name of Purchase 381 Hospital Mastership of a Hospital not grantable in Reversion 151 Hundred A Hundred what it is and the Bayliff of a Hundred 403 The Grant of a Hundred good notwithstanding the Statutes 2 E. 3. 12. 14 E. 3. 9. 410 412. I. Imprisonment Where an Offence is Fineable if the Fine be tenderd there ought to be no Imprisonment 116 Indictment Where a Statute makes an Offence at Common Law more penal yet the Conclusion of the Indictment is not contra formam Statuti 13 A Man cannot be Indicted for saying of a Justice of Peace he understands not the Statutes of Excise but may be bound to Good Behoviour 10 16 Indictment of Forgery upon the Stat. 5 El. 4. where good and where not 23 24 Strictness of words not required in in an Order of Sessions thô it ought in an Indictment 37 For Manslaughter not quasht upon Motion 110.

of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which th●re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been

gives the Action of Covenant to the Assignee of the Reversion saith That they shall have such Actions in like manner as the Lessors should have had Now if it had been brought by the Lessor it had béen transitory and so in the Case of an Assignment by Commissioners of Bankrupt the Assignee of the Commissioners of Bankrupt shall bring Debt as the first Creditor should have done But it was said on the other Side That the Statute intended not to assign it as a bare Chose en Action but to knit it to the Reversion and where it saith The Assignee shall have Remedy in like manner that is the same Remedy in substance And in the case of the Bankrupt's Debt the Contract is only assigned And in the 42 Ed. 3. cap. 3. it is said That an Action of Covenant lay for the Assignee at the Common Law But because the Court was not full it was thought fit this Case should be Adjourned till the next Term. Note It was said in this Case the Word Reddendum makes a Covenant Day and Pitts A Prohibition was moved for to stay a Suit in the Spiritual Court upon a Suggestion that it was for calling one Old Thief and Old Whore and if there were any such Words spoken they were spoken at the same time Which Suggestion was not good for the Words ought to have been fully confest And it was said by the Court That this Matter ought to have been pleaded there and if they had not admitted the Plea then to move for a Prohibition and not before Gilman and Wright BUrgh moved against Wright Steward of Havering Court in Essex for refusing to admit Gilman an Attorney in this Court to Appear for a man in an Action sued against him there alledging That the Attorneys of the Courts of Westminster might Practise in any Inferiour Court neither had they a Prescription or Charter to have a certain Number of Attorneys of their own and to exclude others But because it was the general Vsage of those Inferiour Courts to admit none but their own Attorneys tho' the Court seemed to incline That they ought not by Law to refuse Others and it was said to be so Adjudged in the 15th of Car. 1. in one Darcie's Case yet they would be Advised until the next Term. Note One who is Subpoena'd for a Witness may have a Writ of Priviledge to protect him from Arrests in going and returning Anonymus A Prohibition was granted to the Court of the Marches of Wales for that Lands being discended to an Infant which were subject to a Trust they had not only enjoyned the possession of those Lands but of other Lands discended to him And it was said by the Court That they could not Sequester Lands at all for the performance of a Decree of their Court to pay Money For they can only agere in personam non in rem Termino Sanctae Paschae Anno 21 Car. II. In Banco Regis Anonymus THe Sheriff Returned Non est inventus to a Writ brought against his own Bayliff and delivered to him But the Court Amerced him Forty shillings and he was ordered to amend his Return Anonymus TRover and Conversion was brought against Baron and Feme for that they ad usum proprium converterunt disposuerunt and held not to be good because the Wife cannot Convert with her Husband Skinner and Gunter c. A Bill in the nature of Conspiracy was brought against Three for that they 2 Cro. 667. Hob. 205 266. Conspiratione inter eos habita caused the Plaintiff to be Arrested in London on purpose to vex him and have him Imprisoned knowing that he was not able to find Bail whereas they had no cause of Action The Defendants pleaded Not guilty and the Issue was found only against one of them It was moved in Arrest of Judgment That the Declaration was Insufficient because it was not declared that the first Action was determined as no Conspiracy lies upon an Indictment before Acquittal But the Court inclined to disallow this for here the ground of the Action is the caussess troubling of him to put in Bail But when a man is Indicted he lies under the scandal of the Crime until he is acquitted Another Exception was That this Bill being in the nature of a Writ of Conspiracy there being One only found Guilty the Action fails But it was said True it is so in case of Conspiracy to Indict One of Felony but here 't is rather in nature of an Action upon the Case and the Conspiracy alledged by way of aggravation Fitz. N.B. 116. Et Adjornatur Anonymus AN Indictment was removed hither the last Term out of Middlesex against Edward S. of Perjury and he was named Edward all along in the Indictment unto the Conclusion and then it was sic praedictus Johannes commisit perjurium The Court was moved that this might be amended and it was said Indidictments removed out of London have béen amended by the Original for they do not certifie that but only a Transcript and a Jury have been resummoned to amend an Indictment found in this Court and in this case if by Examination of the Clerk of the Peace it appeared the Indictment certified varied from the Original it might be amended sed Curia advisare vult Nota If a Venire Facias be returned and not filed a new one may be taken out Thomas Burgen's Case AN Indictment was brought against Thomas Burgen for selling Ale in Black Pots not marked and doth not conclude contra formam Statuti and held to be good enough for the Common-Law appoints just Measures and tho' the Statute adds this circumstance yet the Crime being at the Common-Law the conclusion is as it ought to be Where a Statute makes an offence more Penal as that which deprives one that Steals the value of Five shillings out of a dwelling house in the day time of his Clergy yet the conclusion of an Indictment in that case is not contra formam Statuti Nota Where one is sued by a name with an Alias the Addition must ever be expressed after the first name Clerke and Cheney IN Trespass for breaking of his Close the Defendant justifies by reason of a way from his House thorough the place where usque a●tam viam regiam in parochia de D. vocat London Road and Issue was joyned upon the way and found for the Plaintiff Vid. Hob. 189. it was moved in Arrest of Judgment that there was no Issue joyned for the incertainty of the terminus ad quem whether this way should lead and one that justifies for a way if he alledges the place from whence and to which and that it leads over the place where 't is sufficient tho' he mistake the other mean passages of it and tho' this be the Defendants own Plea yet he may take exceptions to it not being certain enough to make an Issue Sed non allocatur for in regard it is found

First A Sufficient Consideration Secondly A Deed as in Callard and Callard's Case in 3 Cro. and in Popham's Reports and hath been often Resoved since Thirdly A Seisin in the Covenantor of the Lands at the time of the Deed For a man cannot Covenant to stand seised to an Vse of Lands which he shall after purchase Fourthly A Clear and apparent Intent Fifthly Apt and proper Words And the two last things are wanting in our Case I agree the word Covenant is not necessary so there be other Words sufficient in Law and to declare the parties Intent for all Words will not serve A man Covenanted upon good Consideration that his Feoffees should stand seised It was Resolved that no Use should anise upon it 1 Cro. 856. So Sir Thomas Seymor's Case Where a Covenant was upon good Consideration to levy a Fine to certain Vses and no Fine was after levied It was Resolved that the Covenant did not raise any Vse Dyer 96. Therefore 't is usual to express in such Deeds of Covenant that if the Conveyances therein contained be not executed that then the party shall from henceforth stand seised And where it is said in Vivian's Case Dyer 302. One having given granted and released to his Brother and his Heirs certain Mannors and no Livery made that Plowden would have averred that the Deed was made pro Fraterno amore and so should raise an Use Vnder the Favour of the Court I deny that Opinion of Plowden to be Law And in Debb and Peplewell's Case it is said That the Land was enjoyed against the Release And in Moor pl. 267. One Covenanted in Consideration of Marriage to let his Land discend remain or come to his Daughter It was Resolved no Use did arise thereupon In this Conveyance there are not any Words that sound in Covenant the only word that looks towards an Use is the word Bargain and Sell. and in Ward and Lambert's Case in 3 Cro. 394. it is held That if one gives or bargains and sells Land to his Son it shall not amount to a Covenant to stand seised for want of apt words Now the other are all words of Common Law Give Crant Alien Enfeoff and Confirm There is also a clause of Special Warranty in the Deed and a Covenant to make further assurance by Fine Recovery c. as great a preparation at Common Law as could be And if the Parties intend the Land shall pass at the Common Law by Transmutation of Possession there shall no use arise Co. Lit. 49. Charter of Feoffment to the Son it shall raise no use if no Livery be made The word Dedi in this Deed imports a General Warranty which is not qualified by the Special Warranty after yet if the Land pass by way of use there can be only a Rebutter and so no use of the General Warranty The Authorities since have not béen concurrent with Debb and Poplewells Case but contrary to it And I rely upon the Cases of Pitfeild and Pierce and Forster and Forster in this Court which have been remembred on the other side but no answered And whereas it is said That the Habend is after the Death of them which conveyed the Land they are in that respect stronger than the Case at Bar for by that it appears they could not intend a Conveyance at the Common Law which doth not allow such kind of Limitations therefore it must be by way of use or no way Yet it was resolved they should not pass so It would introduce universal ignorance and carelesness in such as draw Conveyances if the Court should apply their Art to give them effect however they were penned and it is a Rule Politia legibus non leges Politiis adaptantur The Court after heaving the Case twice argued were all of Opinion That the Land should pass by way of Covenant to stand seized and Hale cited Hob. 277. who doth there commend the Judges who are curious and almost subtil to invent reasons and means to make Acts effectual according to the just intent of the parties They all held clearly That words proper for a Conveyance at Common Law would raise an Use as Demise and Grant have béen adjudged to amount to a Bargain and Sale without other words And they said Pitfields and Pierces Case was adjudged upon the absurd contrivance of the Conveyance and so Foster and Fosters Case in this Court and for that in that case the Deed was Articles of Agreement preparatory to what the party intended after and the case in Moor Pl. 267. where there was a Covenant in Consideration of Marriage to suffer the Land to remain descend or come to the Daughter no Use did arise there for the incertainty how it was intended the Daughter should take And they said That if they should not construe an Use to arise by such Conveyance as in the case at Bar it would overthrow all Conveyances by Lease and Release And for the Objection of the Warranty in the Deed it is well known there is so in most Conveyances to Uses Wherefore they gave Iudgment for the Plaintiff Note This Iudgment was afterwards affirmed upon Error brought in the Exchequer Chamber Anonymus AN Indictment was brought for using of a Trade to which he had not béen bound an Apprentice It was moved to quash it because it was not alledged that he did not use the Trade 5 Eliz. for if he did he is excepted out of the Statute But the Court did not much regard that exception Tho' they said it had béen often allowed but it cannot here be intended it being so long since the Statute was made Secondly It was for using the Trade Aromatarij without an Anglicè so it could not be known what Trade was meant and tho' that word is often used for a Grocer yet it must be so Englished or else it shall not be taken for that Trade more than another And for this Cause the Court quashed the Indictment Note If a Man be taken upon a Warrant de securitate pacis or any criminal cause he is not to be charged with Actions unless the Court gives leave which they will rarely do The Case of the Heirs of the Earl of Southampton KIng James by his Leters Petents Enrolled in this Court granted to the E. of Southampton all Deodands within the Mannor of Ditchfield An Inquisition was certified here that a Deodand was forfeited within the said Mannor and Process went out thereupon The Court were moved in behalf of the Daughters and Heirs of the Earl whether they should be driven to set forth their Title in pleading for if so the charges would far exceed the value of the Deodand and it would be very inconvenient that every new Heir should be forced to plead upon every Deodand that happens But the Court said in regard the Letters Patents are here Enrolled and that it appeared by the Inquisition that this Deodand was forfeited within the Mannor it should suffice without pleading

should be informed what their course is and has been and therefore let us hear the Civilians as to this point Post The King and Marlow THe Defendant being a Printer was indicted for his second Offence for Printing of a Seditious Book contrary to the Act of 14 Car. 2. cap. 33. and being found Guilty at the Sessions of the Old Baily the Iudgment was given That he should be for ever disabled to exercise the Art or Mistery of Printing and pay 20 l Fine and to stand in the Pillory And a Writ of Error was brought and Errors were assigned in the Judgment as varying from the words of the Act. For First The Act is That he should be disabled to exercise the Art and Mistery of Printing or Founding of Letters And the Judgment is only to disable him from Printing Secondly The Act is That he shall receive such further punishment by Fine Imprisonment or other Corporal Punishment And the Judgment is both for a Fine and Corporal Punishment when it ought not to be for both Curia The first is as it should be for Printing and Founding of Letters are two distinct Trades and the words are to be taken respectively to such Trade as the Defendant is of Again 't is a Rule that a Man shall not Assign an Error in that which is for his advantage But the second was held an Error for that the Act did not intend a Fine and Corporal Punishment both and therefore the Judgment was reversed Termino Sancti Michaelis Anno 29 Car. II. In Banco Regis Davis versus Price IN Error upon a Judgment in the Common Bench in an Action of Trover where Iudgment was given by default The Error was assigned in the Declaration which was de decem Juvencis Anglice Bullocks and Heifers and not said how many of one and of the other But it was answered that the Latin word being proper and of known signification the Anglice was void according to Osborns Case 10 Co. But the Court reversed the Judgment and cited the Case before in this Court Trover de viginti ovibus matricibus agnis And it was resolved to be naught for not ascertaining the number of each But Twisden said there was a Trover brought de Viginti averiis ivz. Bobus agnis c. and Viginti was applied to each Species and held well It was offered in this case to distinguish it from the case de Ovibus matricibus agnis that there the Latin was of two sorts Sed non allocatur for the words here being Equivocal it was all one Dutton versus Pool AN Assumpsit the Plaintiff declared That his Wives Father being seized of certain Lands now descended to the Defendant and about to cut a Thousand pounds worth of Timber off from the said Lands to raise a Portion for his said Daughter the Defendant promised to the Father in Consideration that he would forbear to fell the Timber that he would pay the said Daughter 1000 l After Verdict upon Non Assumpsit for the Plaintiff it was moved in Arrest of Judgment that the Father ought to have brought this Action and not the Husband and Wife and there was a case shewn to be adjudged in the Common Bench Hillary 23 and 24 Car. 2. Rot. 1538. between Pine and Norris where the Son promised the Father that in Consideration that he would Surrender a Copyhold to him that he would pay a certain Sum to his Sister for which she brought the Action and then held that it would lie for none but the Father for where the Party to whom the Promise is to be performed is not concerned in the meritorious cause of it he cannot bring the Action But if a Promise were to a Man that if his Daughter should Marry his Son he would give her 1000 l there because the Daughter does the Act which is the Consideration she may bring the Action On the contrary the Case was cited 1 Rolls 32. Starkey and Miln where in Consideration of certain Goods sold the Promise was to pay part of the Money to another there that other might bring the Action And it differs from the case where Money is delivered to A. to pay over to B. B. may bring Debt Yelv. 24. If the Father had in the Case at Bar cut the Trees And the Son had said Let me have the Trees and I will pay the Daughter so much that had been the same with the Case before cited 1 Roll. and it doth not seem to differ as it is 1 Cro. 163. Rookwook Case where the Father being about to charge the Land with a Rent of 4 l per Annum to his Younger Sons the Eldest promised that if he would forbear to charge the Land he would pay the 4 l per Annum and the Sons upon this brought the Assumpsit and recovered Sed vide librum that Promise is said expresly to be made to the Sons who were present Vid. 1 Cro. 619.652 Levett and Haws Case where the Promise was made to a Man in Consideration that he had agreed that his Son should Mary his Daughter and to settle such a Joynture upon her that he would give the Son 200 l with her and for this the Father brought the Action and held well brought tho' the Court seemed to incline that the Son might also have brought it And the Court here inclined for the Plaintiffs Sed Adjornatur Post Saunders versus Williams IN an Action upon the Case the Plaintiff Declared that he was seised in Fee of one Acre and possessed for a certain number of years in another Acre and had a Common in Black-acre for Beasts levant and couchant thereupon and that the Defendant put his Beasts in the place and disturbed him The Defendant pleaded a Title of Common to himself also there Vpon which Issue was joyned and found for the Plaintiff and it was now moved in Arrest of Judgment that the Plaintiff had made no Title to the Common by Prescription or otherwise Sed non allocatur The Defendant being a Wrong-doer And the same Matter was Adjudged in the Court between St. John and Moody St. Mich. 27 Car. 2. quod vide ante and in the 2 Cro. 43.122 3 Cro. 500. Robinson versus Woolly THe Case was this Term Argued again And Holt Argued That the Induction tho' executed by the Archdeacon after the New Bishop was Consecrated was sufficient The Bishop is only to Admit and Institute and to send a Mandate to the Archdeacon to Induct who is to do it de communi Jure and therefore if the Bishop hath Admitted and Instituted and made a Mandate for Induction 't is a sufficient Excuse for him in a Quare impedit 11 H. 4. 9. for the Bishop is meerly a Spiritual Officer A Prebendary is to be Inducted by the Dean and Chapter Pl. Com. 529. But 't is Objected That the Archdeacon does not Induct ex Officio ●ut a Mandate from the Bishop is requisite scilicet First The

George because being descended from an Alien the Law takes no notice of them as to this purpose otherwise 't is if the said Nicholas had been a Denizen born and Attainted because in such a case though he could not take himself by Discent he could obstruct the Discent to the younger Brother so the Land would Escheat Thirdly That the Case of George the Son naturalized and the Case of John his Son as in reterence to John the Earl and the Discent from him will be all one if George had survived him John the Earl might have inherited so will John his Son who jure Representationis is the same with his Father Et è Converso These things being unquestionably to be admitted before I come to the Argument of the Case I shall premise certain General Observations First Touching Discents Secondly Touching the Capacities of Incapacities of an Alien Thirdly Touching Naturalizations Touching Discents I shall consider First The Rule whereby they are to be Governed Secondly The various kinds of Discents or hereditary Successions Concerning the Rule of Discents we must not govern our selves therein by the General Notions of Law or Proximity of Nature but by the Principal Laws of the Country where the Question ariseth for the various Countries have variously disposed the manner of Discents even in the same Law or Degree of Proximity For Instance The Father is certainly as near of Kin to the Son as the Son is to the Father and is nearer in Proximity than a Brother and therefore shall be preferred as next of Kin in an Administration 3 Rep. Ratcliffs Case Yet touching the Succession of the Father to the purchase of his Son the Laws of several Countries variously provide First According to the Jews for want of Issue of the Son the Father succeeds excluding the Brother and that hath been the Vse and Construction of the Jewish Doctors upon Number 27. Selden de Successionibus Hebr. Cap. 12. But the Mother was wholly excluded Secondly According to the Greeks the Provision for the Succession of the Father is left doubtful Petit Leges 1 6. fol. 6. According to the Romans or Civil Law by the Construction of the Law of the Twelve Tables the Father succeeds in the purchase of the Son for want of Issue of the Son under the Title of Proximus Agnatus and accordingly was their Vsage tho' my Lord Coke supposed the contrary Co. Lit. 5. But to settle all the Institutes of Justinian Lib. 3. Tit. 3. in an Authentick Collection 8. Tit. de Haered ' ab intestato venientibus the Son dying without Issue his Brothers and Sisters Father and Mother do succeed him in a kind of Coparcenary as well to Lands as Goods According to the Customs of Normandy which in some things have a Cognition with the Laws of England the Son dying without Issue his Brothers are preferred before the Father but the Father is preferred before the Vncles Terrien lib. 6. c. 6. la Customier de Normandie cap. Descheants 5. According to the Laws of England the Son dying without Issue or Brother or Sister the Father cannot succeed but it descends to the Vncle. And it is a Maxim of the English Law An Inheritance cannot Lineally ascend Consequently the Question being in this Case touching a Discent of Lands in England it must be Ruled and Disputed according to the Grounds and Reasons of the Laws of England Secondly Touching the Second the Division of Discents are of two kinds First Lineal as from the Father or Grandfather to the Son or Grandson Secondly Collateral or Transversal as from Brother to Brother Vncle to Nephew or è converso And both these are again of two sorts First Immediate as in Lineals from Father to Son Secondly Mediate as in Lineals from Grandfather to Grandson the Father dying in the Life of the Grandfather when the Father is the medium differens of the Discent Thirdly In Collaterals from the Vncle to the Nephew or from the Nephew to the Vncle where the Father is likewise the medium differens And I call this a Mediate Discent tho' as to many purposes it be Immediate for the Father dying in the Life of the Grandfather the Son succeeds in point of Discent of the Laws immediately to the Grandfather and in a Writ of Entry shall be supposed in the Per to the Grandfather and not in the Per and Cui But I call it a Mediate Discent because the Father is the medium through or by whom the Son derives his Title to the Grandfather Therefore if any man thinks the term of Mediate Discent not properly used he may if he please use the words of Mediate or Immediate Ancestors Words are imposed to signifie Things and therefore the Terms being explained what I mean by them I shall retain the Terms of Mediate or Immediate Discents This distinction of Discents or Relations between Ancestor and Heir and Hereditary Succession will be of use throughout this whole Debate In Immediate Discents there can be no Impediment but what arises in the parties themselves For Instance The Father seised of Lands the Impediment that hinders the Discent must be either in the Father or the Son as if the Father or the Son be Attaint or an Alien In Immediate Discents a Disability of being an Alien or Attaint in him that I call a medius Ancestor will disable a person to take by Discent tho' he himself hath no such Disability For Instance In Lineal Discents If the Father be Attaint or an Alien and hath Issue a Denizen born and dies in the life of the Grandfather the Grandfather dies seised the Son shall not take but the Land shall Escheat In Collateral Discents A. and B. Brothers A. is an Alien or Attainted and hath Issue C. a Denizen born B. purchaseth Lands and dies without Issue C. shall not inherit for A. which was the Medius Ancestor or medium differens of this Discent was incapable Dyer 274. Gray's Case And this is apparent in this very Case for by this means Patrick tho' a Denizen and the Son of an Elder Brother is disabled to inherit the Earl A. and B. Brothers A. is an Alien or person Attainted and hath Issue C. and dies and C. purchaseth Lands and dies without Issue B. his Vncle shall not inherit for the Reason before-going for A. is a Medius which was disabled This is Courtney's Case And if in our Case Patrick the Son of Nicholas altho' a Denizen born had purchased Lands and died without Issue John his Vncle should not have Inherited him by reason of the Disability of Nicholas and yet Nicholas himself had he not been an Alien could not immediately have Inherited to his Son but yet he is a Block in the way to John See the Reason 17 E. 4. cap. 1. But this must be intended of such as are absolute Impediments as Attainder or Alien not Temporary suspensions As in the Lord Delaware's Case in 10 Co. But in any Discents the Impediment of

Alien they might inherit their Mother and consequently they might inherit one the other It hath been endeavoured to be Answered that it is not possible the Mother could be an English Woman because the Sons are found to be Aliens But that will not be so altho' an English Man marry an Alien beyond the Seas and having there Issue the Issue will be Denizens as hath been often Resolved Yet it is without question that if an English Woman go beyond the Seas and marry an Alien and have Issue born beyond the Seas the Issue are Aliens for the Wife was sub potestate viri and yet the Issue born in England should inherit tho' the Husband be an Alien But the true Answer is That in this Case Robert the Husband being an Alien born out of the Allegiance of the Crown of England and marrying and having all his Issues born there She shall not be presumed an English Woman but shall be presumed a Native in Scotland where her Husband lived and had Issue unless the contrary had been expresly found Now touching the Point in question it is true that Sir Edw. Coke in his Littl. fo 8. is of another Opinion He says That if an Alien have two Sons born in England and one dye without Issue the other shall not inherit him But I take the Law to be the contrary First I will shew what Reasons do not move me Secondly What Reasons do convince and satisfie me It doth not move me thus to conclude because there is no defectus Parriae or Nationis or Ligeantiae of either of the Brothers for tho' there be no personal defect in either of the Extreams yet it may be possible that a consequential Impediment arising from another Ancestor may hinder the Discent and this is apparent in the Case in question for Patrick the Son of Nicholas the Elder Brother of John the Earl hath no Defectus Ligeantiae for he was naturalized yet the Land shall not Discend from John the Earl to Patrick by reason of the defect of Nicholas his Father neither doth it move me that George or John his Son do not claim the Land from Robert the Father but from John the Earl for if the Grandfather be seized the Father is an Alien The Son of Denizen born the Father dies in the Life of the Grandfather the Son shall not inherit by reason of the defect of the Father tho' he claim nothing from him but from the Grandfather But the Reasons that satisfie me are these three in order as they are propounded My first Reason is because the Discent from a Brother to a Brother tho' it be a Collateral Discent yet it is an Immediate Discent and consequently upon what hath been premised at first unless we can find a disability or impediment in them no impediment in another Ancestor will hinder the Discent between them Now to prove this Discent immediate I shall use these three ensuing Instances or Evidences First In point of Pleading one Brother shall derive himself as Heir to another without mentioning another Ancestor this hath been at large insisted on by others and therefore I shall pass it over Secondly According to the computation of Degrees according to the Laws of England Brother and Brother make one Degree and the Brother is distant from his Brother and Sister in the first degree of Consanguinity According to the Civil Law the Brother is in the second Degre from the Brother for they make one Degree from the Brother to the Father and from the Father a second Degree to the other Brother but yet they say in Collaterals Nullus est proximior Fratre ideoque in Collateralibus nullus est primus Gradus sed secundus Gradus obtinet vocem primi Inst lib. 3. Tit. B. de Gradibus Consaguinitatis According to the Cannon Law Frater Frater Soror Soror sunt in primo Gradu Decret ' gratian Laus 35. quest 5. ad sedem and therefore their Laws prohibiting Marriage in the fourth Degree take Brother and Sister to be the first Degree of the fourth The Laws of England in computation of the Degrees of Consanguinity agree with the Common Law and reckon the Brother and Brother to be the first Degree and this is apparent by Littl ' sect 20. and the Objection of Lord Coke thereupon and the Book of 31 E. 3. Hollands Case cited by Littleton And with this likewise agrees the Laws and Custome of Normandy which tho' in some things they differ from the Law of England as is before observed yet in this particular and divers other touching Discents they agree with it Vid. Glov Com. super Customeir de Normandy in Cap. de Escheat Et doir un ' Scavoir que tonque le Custome de paijs de Normandy pur compter les Degrees en Line Collateral solonque les Cannoists deux freres ont le primier Degree eont que en Degree My third Evidence that the Discent between Brothers is immediate this viz. the Discent between Brothers differs from all others Collateral Discents whatsoever for in other Discents Collateral the half Blood doth inherit but in a Discent between Brothers the half Blood doth impede the Discent which argues that the Discent is immediate The Vncle of the part of the Father hath no more of the Blood of the Mother than the Brother of the Second Venter The Brother by the second Venter hath the immediate Blood of the Father which the Vncle viz the Fathers Brother hath not but only as they meet in the Grandfather The Brother of the half Blood is nearer of Blood than the Vncle and therefore shall be preferred in the Administration And so it hath been resolved in 5 E. 6. in Browns Case and tho' the Book of 5 E. 6. B. Administration 47. mistakes the Law in preferring the Brother of the half Blood before the Mother yet it had been right in the case of a Competition between him and the Vncle. And yet the Vncle is preferred in the Discent before the Brother of the half Blood and the reason is because that is a mediate Discent mediante Patre but the Discent to the Brother must be immediate if at all and therefore the half Blood impedes it Again it is apparent that if in the Line between Brother and Brother the Law took notice of the Father as the Medium thereof the Brother by the second Venter should rather succeed the other Brother because he is Heir to his Father therefore in a Discent between Brothers the Law respects only the mediate relation of the Brothers as Brothers and not in respect of their Father tho' it is true the Bosom or Foundation of their Consanguinity is in the Father and Mother My second principal Reason is to prove that the disability of the Father doth not at all hinder the Discent between the Brothers immediate is this If the Father in case of a Discent between Brothers were such an Ancestor as the Law

tit ' Act ' Case 120. So 9 H. 6. 60. Action against an Escheator who had taken an Office whereby the Party was found to hold of J.S. and he retorned one whereby he was said to hold the Moiety in Capite Where an Officer does any thing against the Duty of his Place and Office and a Damage thereby accrues to the Party an Action lies 'T is positively affirmed here he had the greater Number Archer of the same Opinion This is a wilful dental of the duty of the Defendants Place and for the particular Damage an Action lies 'T was said there might be many Competitors and all might bring Actions No for 't is averred that the Plaintiff had the greatest Number An Action lies against an Arch-Deacon for not inducting F. N. B. 94. So if a Sheriff will not execute a Writ of Seisin an Action lies against him An Action lies against an Ordinary for admitting a wrong Patrons Clerk against a Verdict in a jure patronatus Hob. 318. I agree to the Case put at the Bar that upon a Writ de Coronatore eligendo if the Sheriff will not retorn him Coroner who was chosen by the major part an Action upon the Case lies tho' I know no Authority for it in point Vid. 6 E. 4. 9. b. Pl. 21. A man that has a Title to an Office before he has possession shall have an Action upon the Case after an Assize 21 E. 4. 23. is as memorable a Case for the purpose as any I know there Fairfax gives good advice to Pleaders to mind Actions upon the Case and then he said the use of the Subpoena would not be so frequent Hob. 205. Action for suing double Execution I think Actions upon the Case should be according to Justice Fairfax's his advice favoured in Courts of Justice Tyrrell Perhaps there never was such an Action which is an Argument against it Litt. 107. but I think it lies Action lies not against a Lord for not admitting a Copy-holder nor against Feoffees in trust for refusing to make a Feofment or a Tenant for refusing to Attorn or against a Foeffor for refusing to make Livery according to the Charter but it lies against an Officer or against a Clerk for refusing to enroll This Action is for Damages for being prevented of having the Office and not for the Office it self The Cases of the Copy-holders c. are not to be compared to this for there are proper Remedies for them as Subpoena's and other Writs at the Common Law but here is none De cetero non recedunt Partes a Curia nostra sine Remedio ne Curia deficeret in Justitia exhibenda says the Statute And my Lord Coke says 't is a Maxim in Law that no Action lies for the Ward against the Lord which disparages him but the next of Kin may enter Co. Lit. 107. An Action lies as much for injurious preventing him of having the Office as for hindring in of him the executing of it after that he is in For Actions of the Case are not of any certain Form but vary according to the Circumstances It was objected That every Action upon the Case supposes dammens injuriam now here was no Election 't is impossible to know whether he should be an Officer Answ The Custom is alledged positive that he which hath the greater Number is elected ipso facto again qui destruit medium destruit finem 't is as bad as if he had turned him out of his Office It may be tried whether he were duly elected and 't is in effect tried here there cannot be multiplicity of Actions brought by this this Mayor will make himself sole Iudge and Arbiter and dispose of Elections which should be Popular and as my Brother hath said an Action of the Case lies for a possibility of Damage Vaughan Chief Justice contra That wherein I am satisfied is that no Damage appears suppose none had been elected he should not have an Action more than any person in the Town If a Mayor will not elect a Burgess or a Sheriff a Knight no Action lies because there is no Election If an Officer will not elect at all 't is against his Duty and so 't is if he do it unduly but he is punishable in a publick way by Information or it may be by Indictment If 20 had stood must each have recovered the value of the Place Object But there is an Averment that he was chosen by the greater Number Answ That can't be put in Issue or known or tried suppose the Election were by Ballots c. should he have an Action for not opening the Box. In the Case of the Coroner there is apparent Damage and 't is against the Statute and in the Case of Induction there is a certain loss I take it that 't is not Actionable to call a man Bastard while his Father is alive the Books are cross in it nay if Land had Discended I doubt it without a Special Damage no more than to say one had no Title to his Land The Case of the Market is close but there the Person damnified is certain and the thing leads to deprive him of the benefit of the Kings Grant But my Brothers have given the Rule take Iudgment King of Grayes Inn versus Sir Edward Lake ACtion for that whereas he was bred up to the Law and practised it and had many Persons of Honour and others his Clients and thereby got Money and maintained his Family c. The Defendant falso malitiose wrote a Letter to Ann Countess of Lincoln who was the Plaintiffs Client containing that the Plaintiff would give vexatious and ill Councel and stir up a Suit and that he would milk her Purse and fill his own large Pockets c. per quod he lost the said Countess and other Clients Vpon not Guilty pleaded and a Verdict for the Plaintiff It being moved in Arrest of Iudgment Wyld Archer and Tyrrell held that the Action lay 't is a Scandalous Letter concerning his Profession and here is a Special Damage He does give bad Counsel spoken of a Lawyer judged Actionable so Dunce stirring up Suits is taken in malam partem Vaughan Chief Justice I must submit to the Rule given but am of another Opinion In ancient Books we do not read of an Action for Words unless the Slander concerned Life 'T was held not actionable to call Villain unless 't were added he was lain in wait to be seised the growth of these Actions will spoil all communications a man shall not say such an Inn or such Wine is not good Their progress extends to all Professions to say a man was not a good Surveyor has been held actionable The words spoken here have no more relation to the Plaintiffs Profession than to say of a Lawyer he hath a Red Nose or but a little Head to say one had the use of a Womans Body is a slander it being an ideom of speech for lying with

and the Preferment of Her in Marriage and other good and valuable Considerations Give Grant Bargain and Sell Alien Enfeoff and Confirm unto the said Jane and her Heirs the said Lands And in the said Deed there was a Covenant that after due execution c. the said Jane should quietly enjoy and also a clause of warranty and the Iury found that there was no other Consideration than what was expressed in the Deed ut supra this Deed could not enure as a Bargain and Sale but it was adjudged that it should work as a Covenant to stand seised and Watts and Dix's Case was also cited Sty 188 204 where Rolls said if Lands are passed for Mony only the Deed ought to be enrolled but if for Mony and Natural Affection the Land will pass without Enrollment The Court here in the Principal Case inclined that this Grant would work as a Covenant to stand seised But Pollexfen Chief Justice was of Opinion that it ought to have been so pleaded and not to use the words concessit assign transposuit which is to plead it as a Grant at Common Law Powell and Ventris did conceive that it was pleaded sufficiently in regard it was said that by virtue of the Deed and Statute of Vses he became seised but leave was given by the Court to amend the Plea as the Defendant should see cause Bland versus Haselrig alios QUarto Jacobi Secundi the Case was an Assumpsit was brought against four who pleaded non Assumpsit infra sex annos and the Verdict was that one of the Defendants did assume infra sex annos and the other non assumpsit And it was moved that no Iudgment could be given against the Defendant upon whom the Verdict was found for this is an Indeb assump for Goods sold and 't is an intire contract and they must all be found to promise or else 't is against the Plaintiff Torts are in their nature several so one Defendant may be found guilty and the other not guilty but 't is not so in Actions grounded upon Contract Pollexfen Chief Justice Powel and Rokeby were of Opinion in this Case That the Plaintiff could not have Iudgment Ventris inclined to the contrary he admitted if an Indebitat ' assumpsit be brought against four and they plead non assumps and found that one of them assumed this is against the Plaintiff for he fails in his Action But in the case at Bar it may be taken that they did all promise at first and that one of them only renewed the promise within six years The plea of non assumpsit infra sex annos implies a promise at first and if one should renew his promise within six years 't is reason it should bind him and the Plaintiff must sue them all or else he will vary from the Original Contract But the Chief Justice seemed to be of an Opinion that if the promise were renewed within the six years yet if not upon a new Consideration it should not bind and if there were a new Consideration the Action will lie against him that promised alone Sed Quaere for the common Practice is upon a Plea of the Statute of Limitations to prove only a renewing the Promise without any further Consideration but a bare owning the Debt is not taken to be sufficient Quaere if the first Consideration upon repeating the Promise within six years be not enough to raise a new Cause of Action Iudgment was given for the Defendant Westby's Case WEstby brought an Action by Original and the Instructions to Cursitor for drawing of the Writ were Westby but the Writ was Westly and so all the Proceedings Afterwards the Court upon a motion ordered the Cursitor to attend who satisfied the Court that the Instructions were right and so they ordered the Original to be amended in Court and this without any application to the Chancery or Order from thence and they amended all the proceedings after Termino Paschae Anno 2 Willielmi Wariae In Communi Banco Ellis versus Yates IN an Action of Trespass the Writ was brought and so recited Quare clausum fregit herbam ibid ' crescent ' conculcavit consumpsit averia fugavit and the Declaration was Quare clausum herbam ibid ' crescent ' conculcavit consumpsit bidentes c. fugavit alia enormia c. Vpon Not guilty pleaded a Verdict was found for the Plaintiff It was moved in Arrest of Iudgment that fregit was omitted in the Declaration so one of the Trespasses contained in the Writ viz. the Clausum fregit was not mentioned in the Declaration and if the Writ contains more than is Declared for this is a Variance not aided by the Verdict 1 Cro. 329. Haselop and Chaplin where a Replevin was de averiis and declares only of an Horse and for that the Judgment was Reversed in a Writ of Error So where the Writ was Quare clausum fregit and the Declaration Quare clausum 1 Cro. 185. Edwards and Watkin Pollexfen Chief Justice and Rokeby were of that Opinion that Judgment should be arrested Ventris contra Powel being absent because the treading and consuming of the Grass necessarily implied a breach of the Close for there could not be an Entry without a Breach So the Declaration by necessary Intendment comprehended all that was in the Writ and to support the Verdict it was reasonable to intend no other breach of the Close than by a bare Entry But the other two said That there might be given in Evidence a breach of a Gate or Hedge and Damages might be given for that and then there was no ground for such Damage set forth in the Declaration And by the Opinion of the Chief Justice and Rokeby the Judgment was stayed Vid. Keilway 187. B. finding in a Verdict upon a Writ of Forcible Entry that the Defendant expulit disseisivit c. this implies it was Vi armis and yet that is the very point of the Action The Warden of the Fleet 's Case A Motion was made by the Warden of the Fleet for a Writ of Priviledge sitting the Parliament alledging that he was obliged to attend the House of Lords and therefore ought to be priviledged from Suits and divers Presidents were shewn where Writs of the like nature were granted to the Warden of the Fleet upon Motion one whereof was 2 Car. 1. and divers since that time some whereof appeared to be upon hearing of Counsel on both sides And the Court were at first inclined to grant him the like Writ but it being afterwards made appear to the Court that he was sued upon Escapes and the Court considering the great inconvenience that would ensue thereupon and being of Opinion that it was in their Discretion whether they would grant such Writ upon Motion or no. For they could not Iudicially take notice of this Priviledge of Parliament and therefore in case he had such Priviledge the Court said he might plead it