general as this Case There are many instances where Breaches have been generally assigned and held ill that in Croke is so but the later Opinions are otherwise Affirmetur Judicium Pye versus Brereton A Lease was made of Tythes for three years rendring Rent at Michaelmas and Lady-day and an Action of Debt was brought for Rent arrear for two years Vpon Nil debet pleaded the Plaintiff had a Verdict and it was now moved in Arrest of Iudgment that the Declaration was too general for the Rent being reserved at two Feasts 2 Cro. 668. the Plaintiff ought to have shewed at which of those Feasts it was due But the Council for the Plaintiff said That it appears by the Declaration that two years of the three were expired so there is but one to come which makes it certain enough Curia This is helped by the Verdict but it had not been good upon a Demurrer DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. MEmorandum That in Trinity-Vacation last died Sir Francis North Baron of Guilford and Lord Keeper of the Great Seal of England at his House in Oxfordshire being a Man of great Learning and Temperance And Sir George Jefferies Baron of Wem and Chief Justice of the Kings-Bench had the Seal delivered to him at Windsor and was thereupon made Lord High Chancellor of England And Sir Edward Herbert one of the Kings Council succeeded him in the Place of Chief Justice There died also this Vacation Sir Thomas Walcott one of the Justices of the Kings-Bench and he was succeeded by Sir Robert Wright one of the Barons of the Exchequer Sir John Newton al' versus Stubbs IN an Action on the Case for Words Words laid to be spoke ad tenorem effectmu sequen ' not good The Plaintiffs declared that they were Iustices of the Peace for the County of Gloucester c. and that the Defendant spake these scandalous Words of them Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie Men out of their Estates postea eodem die c. they spoke these words Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie me and Mr. Creswick out of our Estates And afterwards these words were laid in Latin without an Anglice ad tenorem effectum sequen ' c. There was a Verdict for the Plaintiffs and entire damages and now Mr. Trindar moved in Arrest of Iudgment 1. That the words in the Declaration are laid in Latin Roll. Abr. 74. pl. 2. without an Anglice and without an Averment that the hearers did understand Latin 2. 'T is not expressly alledged that the Defendant spoke those very words for being laid ad tenorem effectum sequen ' something may be omitted which may alter the sense and meaning of them Cro. Eliz. 857. and for this very reason Iudgment was staied though the Court held the words to be actionable Rex versus Ayloff al' THey were Outlawed for High-Treason Treason and on Tuesday the 27th day of October they were brought to the Bar and a Rule of Court was made for their Execution on Fryday following The Chief Iustice said that there was no hardship in this proceeding to a Sentence upon an Outlawry because those Malefactors who wilfully flie from Iustice and a new Crime to their former Offence and therefore ought to have no benefit of the Law for tho' a Man is Guilty yet if he put himself upon his Tryal he may by his submissive Behaviour and shew of Repentance incline the King to mercy In Felonies which are of a lower nature than the Crimes for which these persons are attainted flight even for an Hour is a forfeiture of the Goods of the Criminal so likewise a Challenge to three Iuries is a defiance to Iustice and if that be so then certainly flying from it is both despising the mercy of the King and contemning the Iustice of the Nation They were both Executed on Frday the 30th of October following Dominus Rex versus Colson al' AN Information was exhibited against the Defendants Information for a Riot not good setting forth that they with others did riotously assemble themselves together to divert a Watercourse and that they set up a Bank in a certain place by which the Water was hindred from running to an antient Mill in so plentifull a manner as formerly c. Vpon Not Guilty pleaded it came to a Tryal and the Iury found that Quoad factionem Ripae the Defendants were Guilty and quoad Riotum not Guilty And now Mr. Williams moved in arrest of Iudgment because that by this Verdict the Defendants were acquitted of the charge in the Information which was the Riot and as for the erecting of the Bank an Action on the Case would lie and the Iudgment was accordingly arrested Mason versus Beldham Trin. 1 Jac. Rot. 408. THE Plaintiff brings his Action against the Defendant Quantum meruit will lie for Rent and sets forth That in consideration that he would suffer the Defendant to enjoy a House and three Water-Mills c. he promised to pay so much yearly as they were reasonably worth and avers that they were worth so much And upon a Demurrer the Question was whether this Action would lie for Rent It was argued for the Defendant that it would not lie Cro. Eliz. 242. 786 859. 2 Cro. 668. because it was a real Contract 'T is true there is a Case which seems to be otherwise 't is between Acton and Symonds Cro. Car. 414. which was in consideration that the Plaintiff would demise to the Defendant certain Lands for three years at the Rent of 25 l. by the year he promised to pay it this was held to be a personal Promise grounded upon a real Contract and by the Opinion of three Iudges the Action did lie because there was an express promise alledged which must also be proved But Iustice Croke was of a contrary Opinion Mr. Pollexfen contra If a Lease be made for years reserving a Sum in gross for Rent and which is made certain by the Lease in such case an Action of Debt will lie for the Rent in arrear But if where no Sum certain is reserved as in this Case a Quantum meruit will lie and no reason can be given why a Man may not have such an Action for the Rent of his Land as well as for his Horse or Chamber And Iudgment was given for the Plaintiff Anonymus THere was a Libel in the Spiritual Court for scandalous Words Prohibition for words where some are actionable and others not Viz. She is Bitch a Whore an old Bawd And a Prohibition was now prayed by Mr. Pollexfen because some of the words were actionable at Law and some punishable in the Spiritual Court and therefore prayed that it might go Quoad those words which were actionable at Law The Chief Iustice granted
' Francisco Wythens Mil ' Justiciariis Richardo Holloway Mil ' Justiciariis Thoma Walcot Mil ' Justiciariis MEmorandum That the First day of this Term Sir Thomas Jones Chief Justice of the Common-Pleas had his Quietus and Sir Henry Beddingfield one of the Justices of the same Court succeeded him in that Office Likewise the Honourable William Mountagu Esq Lord Chief Baron of the Exchequer had his Quietus and Sir Edward Atkyns one of the Barons of the same Court succeeded him Sir Job Charleton one of the Justices of the Common-Pleas had his Quietus but was made Chief Justice of Chester and Sir Edward Lutwich the King's Serjeant was made one of the Justices of the Common-Pleas and Serjeant Heath was made one of the Barons of the Exchequer Okel versus Hodgkinson THE Father and Son join in a Fine in order to make a Settlement upon the second Wife of the Father who was only Tenant by the Curtesie the Remainder in Tail to his said Son One of the Cognizors died after the Caption and before the Return of the Writ of Covenant and now a Writ of Error was brought to Reverse it and this was assigned for Error Curia If it had been in the Case of a Purchasor for a valuable Consideration the Court would have shewed him some favour but it being to do a wrong to a young Man they would leave it open to the Law THE first day of this Term being the 22th day of April there was a Call of Serjeants viz. Sir John Holt of Grays-Inn Recorder of London who was made Kings Serjeant Sir Ambrose Phillips made also Kings Serjeant Christopher Milton John Powell John Tate William Rawlinson George Hutchins William Killingworth Hugh Hodges and Thomas Geers They all appeared that day at the Chancery-Bar where having taken the Oaths the Lord Chancellor Jefferies made a short Speech to them after which they delivered a Ring to him praying him to deliver it to the King They went from the Inner-Temple-Hall to Westminster and Counted at the Common-Pleas and gave Rings the Motto whereof was DEUS REX LEX Dominus Rex versus Saloway SAloway drowned himself in a Pond and the Coroners Enquest found him Non Compos Mentis because 't is more generally supposed that a Man in his Senses will not be Felo de se The Kings Councel moved for a Melius Inquirendum and that the Inquisition might be quashed for that it sets forth Quod pred Defend circa horam octavam ante meridiem in quoddam stagnum se projecit per abundantiam aquae ibidem statim suffocat emergit ' erat which is insensible Pemberton Serjeant contra Here is no Exception taken to the substance of the Inquisition and the word suffocat had been sufficient if the word emergit ' had been left out The Court were of Opinion that there being another word in this Inquisition which carries the sense 't is therefore sufficient but if it had stood singly upon this word Emergit ' it had not been good And this Fact happening about the time of the general Pardon the Court was of Opinion that where an Interest is vested in the King a Pardon of all Forfeitures will not divest it but that nothing was vested here before Inquisition found 2. It was objected that this Inquisition ought to set forth that Saloway came by his death by this means Et nullo alio modo quocunque To which it was answered by Pemberton that in matters of Form only the Iudges have sent for the Coroner into Court and ordered him to amend it Rodney versus Strode AN Action on the Case was brought against three Defendants one of them suffered Iudgment to go by default In a joynt Action the Jury may sever the Damages and the other two pleaded Not Guilty The Cause was tryed the last Assises at Exeter and it was for imposing the Crime of Treason upon the Plaintiff and for assaulting and imprisoning of him there was a Verdict for the Plaintiff and 1000 l. damages against Mr. Strode and 50 l. against the other Defendant who pleaded The Plaintiff entred a nolle prosequi against him who let the Iudgment go by default and against the other Defendant for the 50 l. damages and took judgment only against Mr. Strode Serjeant Pemberton moved for a new Trial by reason of the excessive Damages which were not proportioned to the quality of the Plaintiff he being a Man of mean Fortune But it was opposed by the Plaintiff for that the Defendant pursued him as a Traytor and when he was apprehended for that Crime he caused him to be arrested for 1000 l. at the Suit of another person to whom he was not indebted so that upon consideration of the Circumstances of the Case the Court refused to grant a new Tryal Then Serjeant Pemberton for the Defendants moved in arrest of Iudgment and for cause shewed that the Iury have found both guilty and assessed several Damages which they cannot do because this is a joynt Action to which the Defendants have pleaded jointly and being found guilty modo forma the Iury cannot assess the damages severally for the damage is the same by the one as the other Cro. Eliz. 860. Austen vers Millard al' and therefore it hath been adjudged that where an Action of Battery was brought against three and one pleaded not guilty and the other two Son Assault demesne and several damages found against them it was held ill for that very reason because it was a joint offence 'T is true where there are divers Defendants and damages assessed severally the Plaintiff hath his election to take execution de melioribus damnis but this is when the Trials are at several times So 't is where they plead several Pleas Cro. Car. 239. Walsh versus Bishop as in an Action of Battery one pleads not guiity and the other justifies and both Issues are found for the Plaintiff in such case he may enter a non pros against one and take Iudgment against the other because their Pleas are several but where they plead jointly the Iury cannot sever the Damages But Mr. 1 Bulst 157. Sampson vers Cramfield al' Rast Entr. 677. b. Pollexfen for the Plaintiff insisted that even in this case damages may be assessed severally for where two Defendants are sued for the same Battery and they plead the same Plea yet damages may be assessed severally So was Trebarefoot and Greenway 's Case in this Court which was an Action for an Assault and Battery and false Imprisonment one of the Defendants pleaded not Guilty and the other justified Issue was joined and there was a Verdict for the Plaintiff and damages assessed severally the Plaintiff entred a nolle prosequi as to one and took judgment against the other and upon this a Writ of Error was brought in this Court and the Iudgment was affirmed So if an Action of Trespass be brought against two for taking of 100 l.
on the 29th day of April seize the Goods of the said Toplady that after the seizure and before any Venditioni exponas viz. 4 Maij an Extent which is a Prerogative Writ issued out of the Exchequer against two persons who were indebted to the King and by inquisition this Toplady was found to be indebted to them whereupon parcel of the Goods in the Declaration was seized by the Sheriffs upon the said Extent and sold and the Mony paid to the Creditors but before the said Sale or any execution of the Exchequer Process a Commission of Bankrupcy was had against Toplady and that the Commissioners on the second of June assigned the Goods to the Plaintiff The Question was whether this Extent did not come too late And it was held it did or whether the Fi. Fa. was well executed so that the Assignees of the Bankrupts Estate could not have a Title to those Goods which were taken before in Execution and so in Custodia Legis And it was held that they had no Title Fitzgerald versus Villiers WRIE of Error upon a Iudgment in Dower Infant must appear by Guardian and the Error assigned was that the Tenant in Dower was an Infant and no Warrant was alledged of the admission of any Guardian 29 Assise pl. 67. Bridg. 74. Lib. Entr. 45. Hut 92. 4 Co. 53. Lit. 92. Hetl. 52. 3 Cro. 158. Moor 434. Hob. 5. that it might appear to be the act of the Court 't is true an Infant may sue by Prochein Amy but shall not appear by Attorny but by Guardian because 't is intended by Law that he hath not sufficient discretion to chuse an Attorny therefore 't is provided that he appear per Guardianum which is done by the Court who are always careful of Infancy and a special Entry is made upon the Roll. Viz. Per Guardianum ad hoc per Curiam admissum c. 2. The Appearance is by the Guardian in his own Name Viz. Et praedicta Katherina Fitzgerald per Richardum Power Guardianum suum venit dicit quod ipse c. it should have been in the name of the Party quod ipsa c. Adjurnatur Harrison versus Austin A Settlement was made as followeth Viz. What words amount to a Covenant to stand seised That if I have no Issue and in case I dye without Issue of my Body lawfully begotten then I give grant and confirm my Land c. to my Kinswoman Sarah Stokes to have and to hold the same to the use of my self for Life and after my decease to the use of the said Sarah and the Heirs of her Body to be begotten with Remainders over c. The Question was whether this did amount to a Covenant to stand seised so as to raise an use to Sarah without transmutation of the possession The Objection against it was Sid. 26. Moor 687. Dyer 96. 2 Roll. Abr. 786. Winch 59. Plowd 300. that Vses are created chiefly by the intention of the Parties and that by these words grant and confirm the Feoffor did intend the Land should pass at Common Law so it could not be a Covenant to stand seised 't is like the Case where a Letter of Attorny is in the Deed or a Covenant to make Livery there nothing shall pass by way of use but the possession according to the course of the Common Law and therefore there being neither Livery and Seisin or Attornment no use will pass to Sarah It cannot be a Bargain and Sale for that is only where a Recompence is on each side to make the Contract good besides 2 Inst 672. the Deed is not inrolled To this it was answered 1 Vent 137. that it shall be construed to be a Covenant to stand seised though the formal words are wanting to make it so and for that purpose it was compared to Fox 's Case 8 Co. 93. who being seised in Fee devised his Land to C. for Life remainder over for Life reserving a Rent and afterwards by Indenture in consideration of Mony did demise grant and set the same Lands to D. for 99 years reserving a Rent the Lessee for Life did not attorn in which Case there was not one word of any use or any attornment to make it pass by Grant and the Question was whether this Lease for years shall amount to a Bargain and Sale so that the Reversion together with the Rent shall pass to the Lessee without Attornment Hob. 277. and it was held that by construction of Law it did amount to a Bargain and Sale for the words import as much And in this Case it was adjudged that it was a Covenant to stand seised Hexham versus Coniers IN Ejectment the Plaintiff declared de uno Messuagio sive Tenemento An Ejectment will lye for a Tenement and had a Verdict but Iudgment was arrested because an Ejectment will not lye of a Tenement for 't is a word of an uncertain signification it may be an Advowson House or Land but it is good in Dower so is Messuagium sive Tenementum vocat ' the Black Swan for this addition makes it certain that the Tenement intended is a House Rex versus Bunny A Motion was made for a Melius inquirendum to be directed to a Coroner who had returned his Inquisition upon the death of Bunny that he was not compos mentis when in truth he was Felo de se But it was opposed by Serjeant Pemberton and Mr. Pollexfen who said that the Law gives great credit to the Inquest of a Coroner and that a Melius inquirendum is seldom or never granted tho' it appear to the Court upon Affidavits that the Party had his Senses Mod. Rep. 82. It hath been granted where any fault is in the Coroner or any incertainty in the Inquisition returned That there is such a Writ it cannot be denied Cro. Eliz. 371. but 't is generally granted upon Offices or Tenures and directed to the Sheriff 3 Keb. 800. but never to a Coroner in the case of a Felo de se who makes his Enquiry super visum Corporis DE Term. Sancti Mich. Anno 4 Jac. II. in Banco Regis 1688. In Trinity-Vacation last Mr. Justice Holloway and Mr. Justice Thomas Powell had their Quietus and Mr. Serjeant Baldock and Mr. Serjeant Stringer were made Justices of this Court And Mr. Justice Allibon who was a Roman Catholick died in the same Vacation and Sir John Powell one of the Barons of the Exchequer was made a Justice of this Court Sir Thomas Jennor another of the Barons of the Exchequer was made a Justice of the Common-Pleas and Mr. Serjeant Rotheram and Mr. Serjeant Ingoldby were made Barons of the Exchequer Wright Chief Justice Powel Justices Baldock Justices Stringer Justices Shuttleworth versus Garnet Intratur Trin. 1 Willielmi Mariae Rotulo 965. THE Defendant was Tenant of Customary Lands held of the Manor of A. of which Manor B. was Lord
The Third PART OF Modern Reports BEING A COLLECTION Of Several SPECIAL CASES IN THE COURT OF King's-Bench In the last Years of the Reign of King Charles II. In the Reign of King James II. And in the two first Years of his present MAJESTY TOGETHER WITH The Resolutions and Judgments thereupon None of these Cases ever Printed before Indignor quicquam reprehendi non quia crassè Compositum illepidéve putetur sed quia nuper Hor. Epist 2.1 Carefully Collected by a Learned Hand LONDON Printed by the Assigns of Rich. and Edw. Atkins Esqrs for Charles Harper at the Flower de Luce over-against St. Dunstan's Church in Fleetstreet 1700. Mr Ambrose Holbech of Mollington. in the County of Warwick 1702 TO THE PROFESSORS OF THE Common Law OF ENGLAND Gentlemen ALL Human Laws are either Natural or Civil The Law of Nature which is also the Moral Law is at all times and in all places the same and so will always continue By Civil Laws I mean such as are established by Human Policy which with us are either Customs or Statutes and these have also some resemblance to Natural Laws because they are for the most part introduced by the concurrent Reason of Men and Reason is the Law of Nature Customs are made by Time and Usage and do thereby obtain the force of Laws in particular places and Nations but no otherwise than upon supposition that they were reasonable at the beginning To these may be added such Laws which are usually called Responsa Prudentum which together with Customs make a great part of our Municipal Laws And because 't is impossible that future Evils should be foreseen by the Wisdom of Mankind so as to prevent them therefore 't is very reasonable that positive Laws should be instituted by the Legislative Power which we call Statutes and those are either Commands or Prohibitions always enacted upon some present Emergencies and may be altered or repealed according as the Manners of Men change or as the Conjuncture of Affairs require for the publick Good I do not find this Nation was governed by any settled Laws from the time of William called the Conqueror till 9 H. 3. but by the irregular Power of the Norman King and of those who immediately succeeded him 'T is true he swore to preserve approbatas antiquas Leges Angliae but 't is as true that the same Force which compelled our Forefathers to submit did likewise exact their Obedience to the Customs of Normandy some of which we retain to this very day It was then a term of Reproach to be called an Englishman as if that denomination imported to be a Slave This made the lesser Barons that is the Freeholders or those which had such Lordships which are now called Court-Barons take up Arms to regain their ancient Rights and by that means they obtained a Grant of their old Laws from some of those Kings which was called Magna Charta Libertatum but living in a tumultuous Age they did never quietly enjoy those Liberties for notwithstanding that Charter many Infringements were made upon them which they continued in Arms to defend insomuch that in the Seventeenth Year of King John they delivered to that King a Schedule of their ancient Customs in Writing desiring that he would establish them by another Grant which was done accordingly But this Charter was as little observed as the former for the Norman Customs did still interfere with St. Edward's Laws and the People were miserably divided by those Innovations till Anno 9 H. 3. the Great Charter was established by Authority of Parliament From that time those ancient Laws and Customs were had again in repute they were revived by that Grant which was only declaratory of them and because a more exact Obedience and Conformity might be given to them for the future therefore did his Successor the good King Edward I. encourage the Lawyers in his time to reduce them into Order and Writing which was done accordingly about the middle of his Reign by John Breton not the Bishop of Hereford but a Judge of the King's Bench for as Mr. Selden has observed the Bishop of that Name died Anno 3 E. 1. And in that Book which is now called Breton the Statute of W. 2. is cited which was made 13 E. 1. and therefore it could not be penned by the Bishop unless he could quote a Statute which was not made till above ten years after his Death This is one of the first Systems extant of our Laws 'T is true the Book called The Mirror of Justice was written before but many Additions were made to it in this King's Reign by Andrew Horn a learned Man in that Age. There was likewise a small Tract then written by Sir Ralph Hengham Lord Chief Justice of the Common Pleas which only treats of Essoins and Defaults in Writs of Right Writs of Assize and Dower and therefore cannot be called a Body of our Laws I must admit that two such Books were written by the Lord Chief Justice Glanvil and Justice Bracton the one in the Reign of Henry the Second and the other in the time of Henry the Third but not one more of that Nature almost in the space of two hundred Years for I do not think the Book which the Lord Chancellor Fortescue wrote in the Reign of King Henry the Sixth can be properly called a System of Law It was published by him for these purposes first to obviate the design of two great Favourites the Dukes of Exeter and Suffolk who had used some endeavours to introduce the Imperial Law and therefore he shewed the Excellency of the Common Law above that and in the next place it was intended to soften the warlike Temper of the young Prince Edward by inclining him to the Study of those Laws by which he was to govern his People and to instruct him in some Occurrences therein The Abridgment by Baron Statham and the Year-Books are for the most part made up with Cases then depending in the several Courts at Westminster and with the Opinions and Resolutions of Judges which I rather call Responsa Prudentum than Systems of Law The next Attempt in that kind was made by Justice Littleton in the Seventh Year of Edward the Fourth who hath taught succeeding Ages with great Judgment and Learning in his Profession but 't is now two hundred and thirty Years since he wrote and many alterations have been made in the Law since his time I only mention these things to shew the necessity of new Books and that the old Volumes are not so useful now as formerly because many of the great Titles of which they were composed are now quite disused they are mentioned by my Lord Hales in his Preface to the Lord Chief Justice Roll's Abridgment which I shall not repeat and those very Titles make the greatest part of Justice Littleton's Tenures But amongst all the Old Tenures and Customs I admire that of Burrough English should still
mistaken in that Action and being in the wrong was barred but that will be no Bar where a right Action is brought as if I deliver a Bond to another for advice who refusing to redeliver it I bring an Action of Trespass and am barred either by Verdict or Demurrer yet I may bring Detinue Trespass and Detinue are not the same Actions Pro Def. and therefore a Iudgment in one shall be no bar to the other but where two Actions are brought for one thing to be recovered in such case a Recovery in one shall be a bar to the other There is no substantial difference between Trespass and Trover for the disposing of the Goods in the one case is the same with the Conversion in the other the taking vi armis and likewise the Conversion are both tortious and therefore either Action may be well brought But for the Reasons given by the Plaintiffs Council he had Iudgment by the Opinion of the Chief Iustice and the other two Iudges Jones and Raymond of which Iustice Dolben did very much doubt Dominus Rex versus Sir Robert Atkins Knight of the Bath al' AN Indictment was found at the Quarter Sessions held for the County of the City of Bristol 4 Octob. 33 Car. 2. The County of the City of Bristolâ— against Sir Robert Atkins Knight of the Bath and Recorder and Senior Alderman of the said City Sir John Knight Alderman John Lawford Alderman and Joseph Creswick Alderman setting forth 1. That King Henry the VII th by his Charter dated 17 Decemb 15 Regni sui granted to the Mayor and Commonalty of the Town of Bristol the now City of Bristol being then a Town and to their Successors That if any shall procure abett or maintain any Debate and Discord upon the Election of the Mayor or other Minister he shall be punished instantly by the Mayor and two Aldermen to be chosen and named by the Mayor after the quantity and quality of his offence according to the Laws and Custom of the Realm 2. That according to the Priviledges granted by Queen Elizabeth to the Mayor and Commonalty of the said City and their Successors by Charter dated 28 June 23d of her Reign After which time as the Indictment sets forth the said Town was made a City there have been or ought to have been from the time of the making the said Charter twelve Aldermen whereof the Recorder was to be and now is one 3. That according to the Priviledges so as aforesaid granted by all the time aforesaid which is from the time of the Charter after the death of every Alderman the Mayor and the rest of the surviving Aldermen eorum major pars ad summonitionem of the said Mayor being called together have accustomed to choose another person of the circumspect Citizens to be an Alderman in the place of him so deceased and the Mayor and Aldermen by the same Privileges so granted have been and ought to be Iustices of the Peace for the said City 4. That continually after the time of the said Charter of Queen Elizabeth the Recorder and the rest of the Aldermen were and ought to be of the Privy Council de privato Concilio of the Mayor in particular Cases concerning the Government of the City whensoever the Mayor shall call them together And such Privy Council by all the time aforesaid which still is from the said Charter of Queen Elizabeth have not accustomed nor ought not to be called together to transact any Business belonging to that Council unless by the Summons and in the presence of the Mayor That after the death of one Sir John Lloyd being at his death an Alderman of the said City the said Sir Robert Atkins then being Recorder Sir John Knight John Lawford Esquire and Joseph Creswick being all Aldermen then of the City and free Burgesses of the City to make debate and discord upon the Election of an Alderman in the place of the Alderman so dead 8 March 33 Car. 2. in the Parish and Ward of St. Andrew within the said City did conspire to hold a Privy Council of the Aldermen of the said City and therein to choose an Alderman sine summonitione in absentia contra voluntatem Richardi Hart Militis then being Mayor of the City And in pursuance of their said wicked Conspiracy the day and year aforesaid entred by force and arms into the Tolzey and in the Chamber of the Council of the Mayor and Commonalty of the said City commonly called The Council House and there riotously c. did assemble and the same day and year they the said four Aldermen una cum aliis Aldermannis which must be two more Aldermen at the least which makes six and there were but five more in all then in being taking the Mayor in the said rest of the Aldermen not knowing their purposes held a Privy Council of Aldermen and then and there as much as in them lay chose Thomas Day for an Alderman in the place of Sir John Lloyd sine aliqua summonitione per praedictum Richardum Hart then Mayor to meet and in his absence and against his Will And they farther caused to be entred in the Common Council-Book the said Election as an Order of the Privy Council in which Book the Acts of the Mayor and Aldermen in their Privy Council are commonly written from whence great Discord hath risen c. Which Indictment was tryed at the Assises at Bristol by Nisi Prius and the Defendants found guilty and thereupon Sir Robert Atkins one of the Defendants having then lately before this Case been one of the Judges of the Common Pleas but then discharged of his Place after eight years sitting there secure came into the Court of Kings Bench and in Arrest of Iudgment argued his own Case not as Council nor at the Bar but in the Court in his Cloak having a Chair set for him by the Order of the Lord Chief Iustice and said as followeth 1. The Indictment in the first place mentions the Letters Patents of King H. 7. made to the Mayor and Commonalty of Bristol that the Mayor with two Aldermen such as he should choose should by their discretions according to Law punish such as should make debate and discord at the Elections of Officers They have not pursued this course against us but gone the ordinary way of Indictment and therefore I shall not need to speak to it 2. The Indictment in the next place proceeds to mention Letters Patents of Queen Elizabeth granted to the Mayor and Commonalty in the 23d year of her Reign which provides that there shall be twelve Aldermen and how upon the death or removal of an Alderman a new one should be chosen that is by the Mayor and the surviving Aldermen and the greater number of them being call'd together as the Indictment suggests by the Summons of the Mayor The whole Indictment and the Offence we are charged with being
it because the words were an entire Sentence and spoken altogether at the same time and therefore if a Prohibition should not go it would be a double vexation DE Termino Paschae Anno 1 Jac. II. in Banco Regis 1685. Earl of Yarmouth versus Darrel THE Plaintiff brought an Action on the Case Grant of the King of sole Printing not good setting forth Letters Patents of King Charles the II. by which the Sole Printing of Blank Writs Bonds and Indentures were granted to him excepting such Forms which belonged to the Custom-House and which were formerly granted to Sir Roger L'Estrange that this Grant was to continue for the space of 30 Years and that the Defendant had notice thereof and had printed 500 Blank Bonds which he laid to his damage of the sum of 40 l. Vpon Not Guilty pleaded the Iury found a special Verdict the substance of which was that the Defendant was a Stationer and that the Company of Stationers for the space of 40 years last past before the granting of these Letters Patents had constantly printed Blank Bonds and so made a general conclusion Mr. Trindar argued for the Plaintiff and the only Question was Whether this Patent did vest a sole Interest in the Plaintiff exclusive to all others In his Argument he insisted on these Points 1. That the King hath a Prerogative in Printing and may grant it Exclusive to others 2. That this Prerogative extends to the Case at the Bar. That he hath such a Prerogative 't is confirm'd by constant Vsage for such Grants have been made by the Kings of England ever since Printing was invented But to instance in a few Viz. The Patent for Printing of Law-Books was granted to one More on the 19th day of January in the 15th year of King James the I. And when that Patent was expired another was granted to Atkyns and others on the 15th day of November in the 12th year of King Charles the II. In 23. Eliz. a Patent was granted to the Company of Stationers for the sole Printing of Psalm-Books and Psalters for the space of 30 years And on the 8th of August 31 Eliz. the like Patent was granted to Christopher Barker for Life Another Patent to the Company of Stationers for printing of Corderius c. These and many more of the like nature shew what the constant usage hath been Now the Statute of Monopolies doth not reach to this Case because of the Proviso therein to exempt all such Grants of sole Printing and by the Statute of King Charles the II. for regulating of the Press 14 Car. 2. cap. 33. 't is Enacted That no person shall Print any Copy which any other hath or shall be granted to him by Letters Patents and whereof he hath the sole Right and Priviledge to Print And upon the breaches of these Statutes several Iudgments have been given Between Streater and Roper in this Court Mich. 24 Car. 2. Rot. 237. 't is true the Iudgment was against the Plaintiff but upon a Writ of Error brought in Parliament that Iudgment was reversed The same Term there was a Iudgment given upon a special Verdict in the Common-Pleas for the Plaintiffs Hill 35 Car. 2. B. R. Rot. 99. who were the Company of Stationers against Seymour for Printing of Almanacks And they obtained the like Iudgment against Wright for Printing of Psalters and Psalm-Books Now to apply this to the principal Case 't is to be considered that these Books for which the sole Printing was so claimed were of a publick nature and importance relating to the good and benefit of the Subjects and so likewise are Blank Bonds for there may be false and vitious Impressions to the ruin and destruction of many innocent people And as a farther Argument that the King hath this Prerogative 't is likewise to be considered that where no individual person can claim a Property in a thing there the King hath a Right vested in him by Law and it cannot be pretended that any particular person hath a Right to Print those Bonds therefore the finding that such were printed by the Company for above 40 years is immaterial because there being an inherent Prerogative in the King whenever he exerts it all other persons are bound up who were at liberty before To prove which the Iudgment in the Case of the East-India Company is express in point for before that Patent the subject had liberty to Trade to those places prohibited by that Grant but afterwards they were restrained by that Grant Neither is this in the nature of a Monopoly 11 Co. 84. 't is not like that of the sole Grant of making Cards which hath been adjudged void and with great reason because that Grant reached to prohibit a whole Trade and therefore differs from this Case for the Defendant may print other Instruments or Books and exercise his Trade in some other lawful and profitable Commodities and so might the Merchants in the Case of the East-India Company for they were restrained by the Patent as to particular places but might Trade to any other part of the World Neither will the Subjects in general receive any prejudice by this or such like Grants for if the Patentees make ill use of their Priviledges tho' it cannot be properly called an Office yet 't is a Trust and a Scire Facias will lie to repeal their Grants It was argued by the Councel for the Defendant E contra That the Verdict having found that the Company of Stationers had used to print those Bonds for above 40 years before the making of this Grant the Question will be Whether they are now divested of a Right so long enjoyed And as to that 't is not a new thing to object That notwithstanding such Grants yet other persons have insisted on a Right to Print and have printed accordingly Thus the sole Printing of Law-Books was granted to one Atkyns yet the Reports of Iustice Jones and my Lord Chief Iustice Vaughan were printed without the direction of the Patentees Printing as 't is a manual Occupation makes no alteration in this Case for the King hath as great a Prerogative in Writing any thing that is of a publick Nature as he hath in Printing of it Now considering Printing as an Art exclusive from the thing printed this Patent is not good For if a Man invent a new Art and another should learn it before the Inventor can obtain a Patent if afterwards granted 't is void Then consider it in relation to the thing printed 1 Roll. 4. 11 Co. 53. id which in this Case are Blank-Bonds 't is not a new Invention because the Company of Stationers have printed such above 40 years and for that reason this Patent is void for where the Invention is not New there Trade shall not be restrained No Man can receive any prejudice by the printing of such Bonds for they are of no Vse till filled up 't is only a bare Manufacture
Paper Book by the then Attorny General but by reason of a stroak cross them the Clerk omitted them in engrossing the Iudgment But upon a Motion the Court held this amendable at the Common Law Curia The Error is only a Misentry of the Writ of Enquiry and amendable without paying of Costs Mr. Aston the Secondary said that Costs were never paid in this Court upon such Amendments nor in the Common Pleas until my Lord Chief Iustice Vaughan's time but he altered the Practice and made that Rule that if you amend after a Writ of Error brought you must pay Costs Holcomb versus Petit. A Devastavit was brought against an Administrator of a rightful Executor who pleaded an insufficient Plea Administrator of a rightful ful Executor is liable to a Devastavit 30 Car. 2. c. 7. and upon a Demurrer the Question was upon the Statute of 30 Car. 2. The Title whereof is An Act to enable Creditors to recover Debts of Executors and Administrators of Executors in their own wrong which is introductory of a new Law and charges those who were not chargeable before at the Common Law but it enacts That when Executors of persons who are Executors de son tort or Administrators shall convert the Goods of any person deceased that they shall be liable as their Testator or Intestate would have been Gold held that he shall not be charged for where an Act of Parliament charges an Executor in such case an Administrator shall be likewise charged but if an Administrator be charged that shall never extend to an Executor The Rule is A majori ad minus valet Argumentum sed non e contra therefore the rightful Executor shall not be charged by this Act which only makes Executors of Executors de son tort lyable Pollexfen contra There can be no reason given why the Act should make an Administrator of an Administrator lyable to a Devastavit and not an Administrator of an Executor de son tort for the mischief will be the same and therefore a rightful Executor who wasts the Testator's Goods ought to be charged The Recital of this Act is large enough the Preamble is general and the enacting Clause expresseth Executors and Administrators of Executors de son tort but then it also mentions Administrators but not such who are their Administrators de son tort Now the Word Administrator is in it self a general Word and extends to any one who meddles with the personal Estate so that the Preamble being general and the Act remedial 't is within the same mischief Curia The Word Administrator is very comprehensive for when an Executor pleadeth he saith Plene administravit If a rightful Executor waste the Goods he is a kind of an Administrator de son tort for abusing of the Trust There is no Superiority between an Executor or an Administrator for by this Act they are both equal in power as to the Goods of the deceased Iudgment was given that the Administrator of the rightful Executor shall be liable Jenings versus Hankeys 'T IS enacted by the Statute of 13 Car. Where an Informer shall be a Witness though he hath part of the Penalty 13 Car. 2. c. 10. 2. That they who kill course hunt or take away Red or Fallow Deer in any Ground where Deer are kept c. or are aiding therein if such are convicted by Confession or Oath of one Witness before one Justice of the Peace within six Months after the Offence done shall forfeit 20 l. one Moiety to the Informer the other to the Owner of the Deer to be levied by Distress by Warrant under the Justice's Hand The Defendant was convicted by the Oath of the Informer and Mr. Shower moved that it might be quashed because the Informer is not to be admitted as a Witness he being to have a Moiety of the Forfeiture The Party to an usurious Contract shall not be admitted as an Evidence to prove the Vsury 12 Co. 68. 2 Rol. Abr. 685 because he is Testis in propria causa and by their Oath may avoid their own Bonds Mr. Pollexfen contra The Statute gives power to convict by the Oath of a credible Witness and such is the Informer 'T is not a material Objection to say That the Informer shall not be a Witness because he hath a Moiety of the Forfeiture for in Cases of the like nature the Informer is always a good Witness As upon the Statute for suppressing of Conventicles the Informer is a good Witness and yet he hath part of the Penalty for otherwise that Act would be of little force for if who sees the People met together be not a good Witness no Body else can Curia In the Statute of Robberies a Man swears for himself because there can be no other Witness he is a good Witness Harman versus Harman DEBT upon a Bond against an Administrator Notice of a Debt must be given to an Administrator who pleaded Fully administred and that he had not notice of this Bond before such a day In this Case a special Verdict was found upon which the Question was Whether Notice was necessary to be given of Debts of an inferior nature The Court gave no Opinion but they agreed that a Iudgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond and that 't is no Devastavit in an Executor to pay a Debt upon such a Contract before a Bond Debt Vaughan 94. of which he had no Notice So where an Obligor did afterwards enter into a Recognizance in the nature of a Statute 2 Anders 159. 1 Mod. 157. and Iudgment was against him upon the Bond and then he dyed his Executrix paid the Creditor upon the Statute and the Obligee brought a Scire Facias upon the Judgment on the Bond Debt and she pleaded payment of the Recognizance this was held a good Plea for she is not bound to take Notice of the Iudgments against the Testator without being acquainted therewith by his Creditors for she is in no wise privy to his Acts. DE Term. Sancti Mich. Anno 2 Jac. II. in Banco Regis 1686. Anonymus AN Information was exhibited against the Defendant for Perjury Perjury in a Deposition taken before Commissioners in Chancery setting forth that a Bill in Chancery was exhibited by one A. B. and the Proceedings thereon The Perjury was assigned in a Deposition made by the Defendant 30 Julii 1683. and taken in that Cause before Commissioners in the Country It was tried this day at the Barr and the Question was Whether the Return of the Commissioners that the Defendant made Oath before them shall be a sufficient Evidence to convict him of Perjury without their being present in Court to prove him the very same person Serjeant Pemberton for the Defendant admitted an Information will lie in this Case against him but the Commissioners must be here or some other person to prove that he was
contra As to the first Exception it was said that the Wardmote Court was held before the Mayor for the Iuries there are not to try any Matter but only to make Presentments which are carried before the Mayor Exceptions were taken against the Indictment which was for not serving at a Wardmote Inquest for such a year 1. Because 't is a thing not known at the Common Law that a Man should be of a Iury for a whole year The Indictment was that the Defendant was an Inhabitant of such a place and elected a Iury Man 2. But doth not say that he ought to hold the Office to which he was elected It was quashed Calthrop versus Axtel THE Husband being seized in Fee had Issue two Daughters Ejectment upon the Statute of Ph. Mar. for marrying under 16 without the Parents Consent Antea Hicks versus Gore and dyed his Wife survived who was then by Law Guardian in Socage to her Children one of which under the Age of sixteen years married one Mr. B. without her Mother's Consent by reason whereof her Estate became forfeited during life to her Sister by vertue of the Statute of 4 5 Ph. Mar. who now brought an Ejectment which was tried at the Bar. The Mother was produced as a Witness at this Trial against the married Daughter but it was objected against her that she was Tenant in Possession of the Lands in question under her other Daughter that some part of the Estate was in Houses and that she had made Leases thereof to several Tenants for 99 years c. and covenanted with the Lessees that she together with the Infants when of Age shall and will joyn to do any â—â—â—rther Act for the quiet enjoyment thereof therefore this is like the Case of a Bailiff or Steward who if they put themselves under such Covenants shall never be admitted as Witnesses in any Cause where the Title of such Lands shall come in question The Proofs that the Mother did not consent were That she made Affidavit of the whole matter and got the Lord Chief Iustice's Warrant to search Mr. B's Houss for her Daughter and upon application made to my Lord Chancellor she obtained a Writ of Ne exeat Regnum and got a Homine replegiando and gave notice of the Fact in the Gazett and exhibited an Information in the Crown Office against Mr. B. and his Father and his Maid Attorny General contra E contra The Preamble of this Act will be a Guide in this Case which is For that Maids of great Substance in Goods c. or having Lands in Fee have by Rewards and Gifts been allowed to contract Matrimony with unthrifty persons and thereupon have been conveied from their Parents by sleight or force c. Then it enacts That no person shall convey away a Maid under 16 years without her Parents Consent which Assent is not necessary within the meaning of this Act unless the Child be taken away either by sleight or force which must be proved The Mother was no good Guardian to these Children for she did set up one G. to be a Curator for her Daughter in the Spiritual Court to call her self to an accompt for the personal Estate of which her Husband died possessed she having given Security to exhibit a true Inventory This Accompt was stated in the Prerogative Court between her and the Curator to 300 l. only for which she gave Bond when in truth the Personal Estate was worth more and afterwards obtained a Decree in Chancery thinking thereby to bind the interest of the Infants In this Case it was said that there must be a continued refusal of the Mother for if she once agree though afterwards she disassent yet 't is an assent within the Statute There must likewise be proof of the stealing away Obrian versus Ram. Mich. 3 Jac. 2. Rot. 192. Angl ' ss Entry of a Writ of Error out of Ireland DOminus Rex mandavit praedilecto fideli Conciliario suo Willielmo Davis Militi Capitali Justic suo ad placita in Curia ipsius Domini Regis coram ipso Rege in Regno suo Hiberniae tenend ' assign ' Breve suum Clausum in haec verba ss Jacobus secundus Dei gratia Angliae Scotiae Franciae Hiberniae Rex Fidei defensor c. pradilecto fideli Conciliario nostro Willielmo Davis Militi Capital ' Justic ' nostro ad placita in Curia nostra coram nobis in Regno nostro Hiberniae tenend ' assign ' salutem Quia in Recordo Processu acetiam in redditione Judicii loquelae quae fuit in Curia nostra coram nobis in praed Regno nostro Hiberniae per Billam inter Abel Ram Mil. nuper dict Abel Ram de Civitate Dublin Alderman ' Elizabetham Grey de Civitate Dublin Viduam de quodam debito quod idem Abel a praefat ' Elizabetha exigebat Quae quidem Elizabetha postea cepit Donnough Obrian Armigerum in virum suum obiit Necnon in adjudications executions ejusdem Judicij super Breve nrÌ„um de Scire FacÌ„ extra eandem Curiam nostram coram nobis emanen ' versus ipsum praed In adjudicatione Executionis super Scire Fac. Donnogh in loquela praed ut dicitur Error intervenit manifestus ad grave dampnum ipsius Donnogh sicut ex querela sua accepimus Nos Error si quis fuerit modo debito corrigi partibus praed plenam celerem justiciam fieri volentes in hac parte vobis mandamus qd ' si judicium in loquela praed ' reddit ' ac adjudicationem executionis judicii praed super breve nostrum de Scire facÌ„ praed adjudicatÌ„ tunc record ' process tam loquel ' quam adjudicationis executionis judicii praed ' cum omnibus ea tangen ' nobis sub sigillo vestro distincte aperte mittatis hoc Breve ita qd ' ea habeamus in Crastino Ascentionis Domini ubicunque tunc fuerimus in Angl ' Ut inspect ' record ' process praed ' ulterius inde pro Errore illo corrigendo Fieri fac ' quod de jure fuerit faciend ' Et Scire fac praefat ' Abel qd ' tunc sit ibi ad procedend ' in loquela praed ' faciend ' ulterius recipiend ' quod dicta Curia consideraverit in praemissis Teste meipso apud Westm xxii Januarii Anno Regni nostri secundo Price Record ' Process The Return loquelae unde infra fir mentio cum omnibus ea tangen ' coram Dno Rege ubicunque c. ad diem locum infracontent ' mitto in quodam Record ' huic Brevi annex ' Scire feci Abel Ram qd ' tunc sit ibi ad procedend ' in loquela praed prout interius mihi praecipitur Respons ' W. Davis Placita coram Domino Rege apud the Kings Courts de Termino Sanctae Trinitatis Anno Regni Domini
Commitment and that for two reasons 1. Because the persons committing had not any Authority so to do for upon the Return it appears that they were committed by several Lords of the Council whereas it should have been by so many Lords in Council or by Order of Council 2. They ought not to be committed for this Fact which is only a Misdemeanour The Bishops are Peers and therefore the Process ought to be a Summons by way of Subpoena out of the Crown Office and not to commit them the first time If a Man comes in voluntarily he cannot be charged with an Information neither can a person who is found in Court by any Process be so charged if it be illegal as if a Peer be committed by Capias Iustice Allybon replyed that when a Commitment was made by the Lord Chief Iustice of this Court his Name is to the Warrant but not his Office 't is not said Committitur per Capitalem Justiciarium Angliae c. for he is known to be so and why should not a Commitment by such persons Dominos Concilij be as good as a Commitment by Sir Rob. Wright Capitalem Justiciarium That it was enough for the Officer to return his Warrant and when that is done the Court will presume that the Commitment was by the Power which the Lords in Council had and not by that Power which they had not To which it was answered by Mr. Finch that the Lord Chief Iustice always carries an Authority with him to commit where-ever he goes in England but the Lords of the Privy Council have not so large a Power for though they be Lords of the Council always yet they do not always act in Council Then the Statute of 17 Car. 1. cap. 10. was read in which there is mention made of a Commitment by the Lords of the Privy Concil c. But it was answered that that Statute was to relieve against illegal Commitments and those enumerated in that Act were such only and none else And it was strongly insisted that Peers of the Realm cannot be committed at the first instance for a Misdemeanour before Iudgment and that no President can be shewed where a Peer hath been brought in by Capias which is the first Process for a bare Misdemeanour The constant Proceedings in the Starr-Chamber upon such Informations were Crompt Jurisdiction 33. Dyer 315. 4 Inst 25. Regist 287. viz. First the Lord Chancellor sent a Letter to the person then if he did not appear an Attachment went forth The Kings Council answered Sir Baptist Hick's Case Hob. that a Peer may be committed for the Breach of the Peace for which Sureties are to be given and can there be any greater Breach of the Peace than a Libel against the King and Government 'T is certainly such a Breach of the Peace for which Sureties ought to be demanded for where there is any seditious Act there must be a Breach of the Peace and if Sureties are not given then the person must be committed The Objections were over-ruled by three Iudges Then the Information was read which in Substance was viz. That the King by vertue of his Prerogative did on the 4th day of April in the third year of his Reign publish his gracious Declaration for Liberty of Conscience which was set forth in haec verba That afterwards viz. 27 Aprilis in the fourth year of his Reign the King did publish another Declaration reciting the former in which he expressed his care that the Indulgence by him granted might be preserved c. that he caused this last Declaration to be printed and to manifest his favour more signally towards his Subjects on the 4th day of May 1688. it was Ordered in Council that his Declaration dated the 27th day of April last be read on two several days in all Churches and Chappels in the Kingdom and that the Bishops cause the same to be distributed through their several Diocesses c. That after the making of the said Order c. the Bishops naming them did consult and conspire amongst themselves to lessen the Authority and Prerogative of the King and to elude the said Order and in further prosecution of their said Conspiracy they with Force and Arms did on the 18th day of May c. unlawfully maliciously c. frame compose and write a Libel of the King subscribed by them which they caused to be published under the pretence of a Petition Then the Petition was set forth in haec verba In contemptum dicti Domini Regis c. The King's Council moved that the Defendants might plead instanter for so they said is the course of the Court when a Man is brought thither in Custody or appears upon Recognizance But the Council on the other side prayed an Imparlance and a Copy of the Information and argued that the Defendants ought not to plead instanter because their Plea ought to be put in Writing and that they ought to have time to consider what to plead that it was impossible to make any Defence when they did not know the Accusation and that the Practice of the Court anciently was with them 'T is true when a Subpoena is taken out and the Party doth not appear but is brought in by Capias he shall plead instanter and the reason is because he hath given delay to the Cause So 't is likewise in Cases of Felony or Treason but not to an Information for a Misdemeanour Then the Clerk of the Crown informed the Court that it was the Course to plead instanter in these following Cases viz. when the person appears upon a Recognizance or in propria persona or is a Prisoner in Custody upon any Information for a Misdemeanour where no Process issued out to call him in As to the Objection that the Defendants cannot make any Defence without a Copy of the Information the Vsage is otherwise even in Cases where a Man's Life is concerned and what greater difficulty can there be to defend an Accusation for a Misdemeanour than a Charge for High-Treason certainiy the Defendants all know whether they are innocent or not These Points being over-ruled by the Court the Archbishop offered a Plea in writing the Substance of which was that they naming all the Defendants were Peers of Parliament and ought not to be compelled to answer this Misdemeanour immediately but they ought to appear upon due Process of Law and upon their Appearance to have a Copy of the Information and afterwards to imparle and because they were not brought in by Process they pray the Iudgment of the Court. This Plea was offered to the end that what was denied before upon a Motion might be settled by the Opinion of the Court but it was over ruled Then they pleaded severally Not-Guilty and were tried at the Barr a Fortnight afterwards by a Middlesex Iury and acquitted Anonymus In the Common-Pleas AN Action of Debt was brought upon a Bond against the Defendant
who makes a Lease of his Land shall forfeit it but this doth not conclude an Infant 4. There is not any necessity to construe an Infant to be within this Custom for 't is not found that the Lord was to have a Fine upon admittance and 't is no consequence to say that the Lord shall have a Fine because usually Fines are taken upon admittances 1 Leon. 100. 3 Leon. 221. for an Infant may be admitted to a Copyhold but not be bound to tender his Fine at any time during his Non-age Justice Gregory was of the same Opinion which he chiefly grounded upon Sir Richard Letchford's Case between which and the Case at the Barr he said there was no material difference only in that Case the Heir was beyond Sea and in this at the Barr 2 Cro. 226. Latch 199. Godb. 364. Jones 391. Dyer 104. he was an Infant 'T is very true that the Books mention a Seisure quousque 't is so said by Iustice Williams in Croke but he gives no reason for it 't is only an Opinion obiter but it is clear by many Authorities that Infants may be bound by Acts of necessity and so they may by a Custom Iustice Dolben of the same Opinion which he said was agreeable to the reason of the Law in parallel Cases An Infant is priviledged in a Fine for he is excepted by the Statute because he knows not how to make his Claim He said this was likewise agreeable to the Custom of 26 Mannors of which he was formerly Steward for in such Cases he always marked the Court Roll Nulla Proclamatio quia Infans It cannot be a Forfeiture quousque because an Infant is wholly exempted by the Custom and therefore 't is no Forfeiture at all 'T is an Objection of no moment to say that the Lord by this means will lose his Fine and that he hath no remedy to make the Infant when of Age to be admitted for no Fine is due to him before admittance But this Objection will be of less weight if the loss of the Infant be compared to that of the Lord who looseth only the Interest of a Fine before Admittance and shall this Infant who is now but three years of Age loose the Profits of his Estate for 18 years But there may be a way found out that neither may loose for if it should be that when the Infant comes of Age his Estate should be then forfeited if he doth not tender himself to be admitted after three Proclamations Now upon his admittance the Lord may set a reasonable Fine having respect to the length of time in which it was deteined from him Stowel's Case was no more but this viz. Pl. Com. 356. A Disseisor levied a Fine with Proclamations and lived three years his Heir being under Age and the five years incurred after the said Heir came of Age and then he entred within a year and his Entry was adjudged unlawful But that will not concern this Case because it was a Iudgment upon the Statute of H. 7. 4 H. 7. c. 24. for the five years being once attached and begun in the life of his Ancestor shall incurr and go on and bind the Infant if he do not pursue his Claim within that time after he comes of Age but 't is to be observed that my Lord Dyer in the Argument of that Case said nothing of a Seisure quousque The Chief Iustice was of a contrary Opinion from the other three Iustices and that the Iudgment ought to be reversed Because until the Infant is admitted the Estate remains in the Surrenderor and without an Admittance he cannot enter but by a special Custom to warrant it and for this reason 't is that the Surrenderor shall have an Action of Trespass against any person who enters because he shall be intended still in possession till the Admittance of another If so 2 Cro. 368. Yelv. 16. then Infancy cannot protect an Estate to which the Infant hath no Title till Admittance for till then he hath neither Jus in re nor Jus ad rem This is a Condition annexed to the Estate to be performed by the Infant by which he is bound notwithstanding his Non-age otherwise his Estate is forfeited The Custom which obligeth him to be admitted is to entitle the Lord of the Mannor to a Fine to which he hath a right Now Infancy was never yet extended to endanger that remedy which Men have to recover their Rights it has been often so far extended as to delay such a remedy but never to destroy it for if the Infant should die the Lord looseth the Fine and then another person is to be admitted but he cannot encrease the Fine upon him who is a Stranger for the neglect of the Infant 'T is true Bridg. 83. Yelv. 144. Poph. 127. where an Infant hath a Right it shall be preserved though a Fine be levied and the five years pass but in this Case he hath no Right before Admittance If a Feme Covert be an Heir to a Copyhold Estate where the like Custom is and she marrieth and the Husband after three Proclamations will not come and be admitted 't is a Forfeiture during the Coverture Now the reason in the Cases of Coverture and Infancy is the same for if there shall be a Seisure during the time the woman is Covert why not during the Infancy As to Sir Richard Letchford's Case the Heir was beyond Sea but when he came into England he desired to be admitted but this Infant never yet desired to be admitted he stands upon his Priviledge of Infancy But upon the Opinion of the other three Iustices the Iudgment was affirmed that the Custom doth not bind the Infant Carter versus Dowrich A Covenant to pay so much Mony to the Plaintiff or his Assigns as should be drawn upon the now Defendant by a Bill of Exchange Custom of Merchants where it must be particularly set forth c. The Breach was assigned in Non-payment The Defendant pleaded that the Plaintiff secundum legem Mercatorum did assign the Mony to be paid to A. who assigned it to B. to whom he paid 100 l. and tendred the rest drawn upon by Bill of Exchange c. And upon a Demurrer Mr. Pollexfen insisted that this was not a good Plea because the Defendant had not set forth the Custom of Merchants without which all these Assignments are void of which Custom the Court cannot take any judicial notice but it must be pleaded and 't is not sufficient to say that the Assignment was made secundum legem Mercatoriam but it must be secundum consuetudinem Mercatoriam otherwise 't is not good E contra E contra Litt. 182. It was argued that the Custom of Merchants is not a particular Custom and local but 't is of an universal extent and is a general Law of the Land The pleading it as 't is here is good for if an Action is brought against
quarter for by such means Diseases may be brought into a Family and a Man hath no security either for his Goods or Mony This was the Opinion of Iustice Twisden in Coutrell's Case Sid. 29. and it seems to be very natural and therefore the chief reason why power was given by the Statute to the Overseers to raise mony was that they might place poor Children to such who were willing to take them for Mony for otherwise they might compel a Man to receive his Enemy into his Service He relied on the Case of the King and Price Hillary 29 and 30th of Car. II. which was an Order of the like nature moved to be quashed And Iustice Twisden said in that Case that all the Iudges of England were of Opinion that the Iustices had not such a Power and therefore that Order was quashed 'T is plain that by the Statute of the 43 Eliz. E contra the Iustices may place out poor Children where they see it convenient and so the constant practice hath been so is the Resolution of the Iudges in Dalton which was brought in by the Lord Chief Iustice Hyde but denied so to be by Iustice Twisden for no other reason but because Iustice Jones did not concur with them In Price 's Case this matter was stirred again but there hath been nothing done pursuant to that Opinion Since then the Iustices have a power to place out poor Children 'T is no Objection to say that there may be an inconvenience in the exercise of that power by placing out Children to improper persons for if such things are done the Party hath a proper remedy by way of Appeal to the Sessions Three Iustices were of Opinion that the Iustices of Peace had such a Power and therefore they were for confirming the Order and Iustice Dolbin said it was so resolved in the Case of the King and Gilliflower in the Reign of King James the first Foster being then Chief Iustice tho' the Iudges in Price 's Case were of another Opinion The Chief Iustice was now likewise of a different Opinion for the Statute means something when it says that a Stock shall be raised by the Taxation of every Inhabitant c. for putting out of Children Apprentice There are no compulsory words in the Statute for that purpose nor any which oblige a Master to take an Apprentice and if not the Iustices have not power to compel a Man to take a poor Boy for possibly such may be a Thief or Spy in the Family But this Order was quashed for an apparent fault which was that the Statute has entrusted the Churchwardens and Overseers of the Poor by and with the Approbation of two Iustices to bind Apprentices c. And the Churchwardens are not mentioned in this Order DE Term. Sancti Hill Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Thirsby versus Helbot DEBT upon a Bond for performance of an Award Award void where a person who is a Stranger to the Submission is ordered to be a Surety Vpon Nullum Arbitrium pleaded the Plaintiff replyed and shewed an Award made which amongst other things was that the Defendant should be bound with Sureties such as the Plaintiff should approve in the Sum of 150 l. to be paid to him at such a time and that they should seal mutual Releases and assigned a Breach in not giving of this Bond. There was a Verdict for the Plaintiff and now Serjeant Pemberton moved in arrest of Iudgment that this was a void Award because 't is that the Defendant shall be bound with Sureties c. and then Releases to be given now the Sureties are Strangers to the Submission and therefore the Defendant is not bound to procure them He relied upon the Case of Barns and Fairchild 1 Roll. Abr. 259. which was an Award that all Controversies c. should cease and that one of the Parties should pay to the other 8 l. and that thereupon he should procure his Wife and Son to make such an Assurance c. this was held to be void because it was to bind such persons who were not Parties to the Submission Tremain Serjeant contra E contra That Cause doth not come up to this at the Barr because by this Award the Party was to sign a general Release whether the Defendant paid the Mony or not But the Court was of Opinion that the Award was void because it appointed the Party to enter into a Bond with such Sureties as the Plaintiff shall like and Releases then to be mutually given Now if the Plaintiff doth not like the Security given then he is not to seal a Release and so 't is but an Award of one side Savier versus Lenthal ASsisa ven ' recogn ' si Willielmus Lenthal Armiger Henricus Glover Armiger Johannes Philpot Generosus Thomas Cook Generosus Samuel Ellis Generosus injuste c. Assize disseisiverunt Thomam Savier de libero tenemento suo in Westm infra triginta annos c. Et unde idem Thomas Savier per Jacobum Holton Attornatum suum queritur quod disseisiverunt eum de officio Marr ' Maresc ' Domini Regis Dominae Reginae coram ipso Rege Regina cum pertin ' c. The Cryer made Proclamation and then called the Recognitors between Thomas Savier Demandant and William Lenthal Tenant who were all at the Bar and severally answered as they were called Then Mr. Goodwin of Greys-Inn arraigned the Assize in French but the Count being not in Parchment upon Record the Recognitors were for this time discharged and ordered to appear again the next day But the Council for the Tenant relied on the authority in Calvert's Case that the Title ought to be set forth in the Count Plo. Com. 403. 4 E. 4.6 which was not done now and therefore the Demandant ought to be nonsuited But the Writ being returnable that day was ex gratia Curiae adjourned to the Morrow afterward and if the Demandant did not then make a Title he must be nonsuited The next day the Iury appeared Then the Cryer called Thomas Savier the Demandant and then the Tenants and afterwards the Recognitors and the Assize being arraigned again the Demandant set forth his Title Then Sir Francis Winnington of Council for Mr. Lenthal one of the Tenants appeared after this manner Vouz avez icy le dit Williem Lenthal jeo prye oyer del Brief del Count. Then the other Tenants were called again three times and they not appearing Process was prayed against them Doe versus Dawson BAil was put in to an Action brought by the Plaintiff Bail liable if the Principal had two Terms after an Injunction dissolved and before he declared the Defendant obtained an Injunction to stay Proceedings at Law which was not dissolved for several Terms afterwards Then the Injunction was dissolved and the Plaintiff delivered his Declaration and had Iudgment by default
3 Willielmi Judicium Iudgment was given for the Defendant absente Dolbin Iustice who was also of the same Opinion It was held that the Custom was well alledged both as to the manner and matter 't is true all Customs must have reasonable beginnings but it would be very difficult to assign a lawful commencement for such a Custom as this is so it would be for the Custom of Gavelkind or Burrough English which are circumscribed to particular places and since 't is sufficient to alledge a Custom by reason of the place where t is used it may be as reasonable in this Case to say that there hath been an ancient Ferry-Boat kept in this place 't is but only an inducement to the Custom which did not consist so much in having a Right to the Passage as to be discharged of Toll This might have a lawful beginning either by a Grant of the Lord to the Ancestors of the Defendant or by the agreement of the Inhabitants A Custom alledged for all the Occupiers of a Close in such a Parish to have a Foot-way Cro. Car. 419. Co. Lit. 110. b. Cro. Eliz. 746. 1 Roll. Rep. 216. c. is not good the reason is because the Plaintiff ought to prescribe in him who hath the Inheritance but where a thing is of necessity and no manner of profit or charge in the Soil of another but only a thing in discharge or for a Way to a Market or to be quit of Toll in such cases not only a particular person but the Inhabitaints of a Vill may alledge a Prescription This may be as well alledged as a Custom to turn a Plow upon another mans Land or for a Fisherman to mend his Nets there 'T is good as to the matter for 't is only an easment 't is like a Custom alledged for a Gateway or Watercourse and for such things Inhabitants of a Vill Cro. Eliz. 441. or all the Parishioners of a Parish may alledge a Custom or Vsage in the place 2. Point But as to the Plea in Bar 't is not good because the execting of a Bridge is but laying out a Way t is a voluntary act and no man by reason of his own act can be discharged of what he is to do upon the interest he hath in the Ferry If the Defendant had petitioned the King to destroy the Ferry and got a Patent to erect a Bridge and had brought a Writ ad quod dampnum and it had been found by inquisition to be no damage to the People then he might safely have built this Bridge 3. But notwithstanding the Plea is not good yet the Plaintiff can have no advantage of it because he cannot have an Action on the Case for this matter for by his own shewing 't is a common Passage Cro. Car. 132 167. 1 Inst 56. a. Cro. Eliz. 664. 13 Co. 33. Davis 57. which is no more than a common High-way now for disturbing him in such a Passage no Action on the Case will lie unless he had alledged some particular damage done to himself for if he could maintain such an Action any other person is entituled to the like and this would be to multiply Suits which the Law will not allow but hath provided a more apt and convenient remedy which is by presentment in the Leet If Toll had been extorted from him F. N. B. 94. 22 H. 6.12 then an Action on the Case had been the proper remedy but no such thing appeared upon this Declaration Prince 's Case THE Suggestion in a Prohibition was that Prince was seized of the Rectory of Shrewsby ut de feodo jure and that he being so seised de jure ought to present a Vicar to the said place but that the Bishop of the Diocess had of his own accord appointed a person thereunto This Exception was taken to it viz. He doth not say that he was Impropriator but only that he was seised of the Rectory in Fee so it not appearing that he had it Impropriate he ought no to present the Vicar Iustice Dolben replied That in several places in Middlesex the Abbots of Westminster did send Monks to say Mass and so the Vicaridges were not endowed but he put in and displaced whom he pleased That he had heard my Lord Chief Iustice Hales often say that the Abbot had as much reason to displace such Men as he had his Butler or other Servant Curia Declare upon the Prohibition and try the Cause Harrison versus Hayward Pasch 2 Gulielmi Rot. 187. AN Agreement was made to assign a Stock upon Request When a thing is to be done upon request the performance must be when the person requires it and the Defendant cannot plead that he was ready to assign after the promise made and for non-performance an Action was now brought setting forth the Agreement and that the Plaintiff did request the Defendant at such a time c. The Defendant pleaded that he was ready to assign the Stock after the promise made c. and upon a Demurrer it was ruled if the thing was not to be done upon Request then the Defendant was bound to do it in a convenient time after the promise but it being to be done upon request the time when the Plaintiff will require the performance of the Agreement is the time when the Defendant must do it Iudgment pro Quer. Thompson versus Leach WRit of Error upon a Iudgment in Ejectment given in the Common-Pleas Surrender not good without acceptance of the Surrendree 2 Vent 198. the Case upon the special Verdict was thus Viz. Simon Leach was Tenant for Life of the Lands in question with Remainder in contingency to his first second and third Son in Tail Male Remainder to Sir Simon Leach in Tail c. This Settlement was made by the Will of Nicholas Leach who was seised in Fee The Tenant for Life two months before he had a Son born did in the absence of Sir Simon Leach the Remainder man in Tail seal and deliver a Writing by which he did Grant Surrender and Release the Lands which he had for Life to the use of Sir Simon Leach and his Heirs and continued in possession five years afterwards and then and not before Sir Simon Leach did accept and agree to this Surrender and entred upon the Premisses But that about four years before he thus agreed to it Simon Leach the Tenant for Life had a Son born named Charles Lessor of the Plaintiff to whom the Remainder in contingency was thus limited The Tenant for Life died then Sir Simon Leach suffered a Common Recovery in order to bar those Remainders 1. The Question was whether this was a legal and good Surrender of the Premisses to vest the Freehold immediately in Sir Simon Leach without his Assent before Charles Leach the Son of Simon Leach the Surrenderor was born so as to make him a good Tenant to the Precipe upon which the Recovery was
the Neglect in this Case was in the Servant the Action may be brought against all the Owners for it is grounded quasi ex contractu though there was no actual Agreement between the Plaintiff and them And as to this purpose 2 Sand. 345. Hob. 206. Hutt 121. 1 Mod. 198. 't is like the Case where a Sheriff levies Goods upon an Execution which are rescued out of the hands of his Bailiffs this appearing upon the Retorn an Action of Debt will lie against him though there was no actual Contract between the Plaintiff and him for he having taken the Goods in Execution there is quasi a Contract in Law to answer them to the Plaintiff 2. As to the second Point it was ruled that Not-Guilty was a good Plea to any Mis-feazance whatsoever and that a Plea in Abatement viz. that the rest of the Owners super se susceperunt simul cum Defendente absque hoc quod Defendens super se suscepit tantum had been no more than the general Issue 3 Cro. 554. Vering versus More but he hath not pleaded thus Iustice Dolben agreed that the Action ought to be brought against all the Proprietors it being upon a Promise created by Law but he was Opinion that this Matter might have been pleaded in Abatement Gold versus Strode AN Action was brought in Somersetshire and the Plaintiff recovered and had Iudgment and died Intestate Gold the now Plaintiff took out Letters of Administration to the said Intestate in the Court of the Bishop of Bath and Wells and afterwards brought a Scire Facias upon that Iudgment against the Defendant to shew Cause quare Executionem habere non debeat He had Iudgment upon this Scire Facias and the Defendant was taken in Execution and escaped An Action of Debt was brought by the said Gold against this Defendant Strode who was then Sheriff for the Escape and the Plaintiff had a Verdict It was moved in arrest of Iudgment and for Cause shewen that if the Administration was void then all the dependencies upon it are void also and so the Plaintiff can have no Title to this Action Now the Administration is void because the entring upon Record of the first Iudgment recovered by the Intestate in the County of Middlesex where the Records are kept made him have bona notabilia in several Counties and then by the Law Administration ought not to be committed to the Plaintiff in an inferior Diocess but in the Prerogative Court Curia The Sheriff shall not take advantage of this since the Iudgment was given upon the Scire Fac. and the Capias ad satisfaciendum issuing out against the then Defendant directed to the Sheriff made him an Officer of this Court and the Iudgment shall not be questioned by him for admitting it to be a Recovery without a Title yet he shall take no advantage of it till the Iudgment is reversed 'T is not a void but an erronious Iudgment and when a person is in execution upon such a Iudgment and Escapes and then an Action is brought against the Goaler or Sheriff 8 Co. 141. and Iudgment and Execution thereon though the first Iudgment upon which the party was in execution should be afterwards reversed yet the Iudgment against the Goaler being upon a collateral thing executed shall still remain in force The Ca. Sa. 21 E. 4. 23. b. Cro. El. 164. Moor 274. 2 Cro. 3. 1 Rol. Abr. 809 God b. 403. 2 Leon. 84. was a sufficient authority to the Sheriff to take the Body though grounded upon an erronious Iudgment and that Execution shall be good till avoided by Error and no false Imprisonment will lie against the Goaler or Sheriff upon such an Arrest Coghil versus Freelove In the Common-Pleas DEBT for Rent was brought against the Defendant as Administratrix of Thomas Freelove her late Husband deceased Debt for Rent incurred after an assignment by an Administrator for the privity of Contract is not determined by the death of the intestate 2 Vent 209. in which Action the Plaintiff declared That on the 1st of May 21 Car. 2. he did by Indenture demise to the said Thomas Freelove one Messuage and certain Lands in Bushey in Hertfordshire Habendum from Lady day then last past for and during the term of 21 years under a yearly Rent that by virtue thereof he entred and was possessed That on the 7th of March 1685. the said Thomas Freelove died Intestate and that the next day Administration of his Goods and Chattels was granted to the Defendant and that 78 l. was in arrear for Rent due at such a time for which this Action was now brought in the Detinet The Defendant confessed the Lease prout c. and the death of the Intestate and that the Administration was granted to her but saith that before the Rent was due she by Articles made between her of the one part and Samuel Freelove of the other part did assign the said Indenture and all her right title and interest thereunto and which she had in the Premisses unto the said Samuel Freelove who entred and was possessed that the Plaintiff had notice of this Assignment before he brought this Action but nothing was said of his acceptance To this Plea the Plaintiff demurred and the Defendant joined in Demurrer And Iudgment was given by the Opinion of the whole Court for the Plaintiff against the Authorities following Viz. Cro. Eliz. 555. 'T is true in Overton and Sydal 's Case it was resolved that if an Executor of Lessee for years assign his Interest Debt for Rent will not lye against him after such Assignment the reason there given was because the personal privity of the Contract is determined by the death of the Lessee as to the Debt it self and for the same reason the Executor shall not be lyable to the Rent after the death of the Lessee if such Lessee doth make an assignment of his Term in his life-time My Lord Coke mentioning this Case 3 Co. 24. a. in his third Report affirms that it was resolved by Popham Chief Iustice and the whole Court that if an Executor of a Lessee for years assign his Interest Debt will not lye against him for Rent due after such an Assignment Pop. 120. but my Lord Popham himself in Reporting that very Case tells us he was of another Opinion which was that so long as the Covenant in the Lease hath the nature and essence of a Contract it shall bind the Executor of the Lessee who as well to that as to many other purposes represents the person of the Testator and is privy to his Contracts T is true my Lord Popham held in that Case that the Action did not lye but because it was brought by the Successor of a Prebendary upon a Lease made by him in his life-time who being a single Corporation the personal Contract was determined by his death But the same Case reported by others Moor 251.
Bradburn versus Kennerdale 318 Brason versus Deane 39 Brett versus Whitchott 96 Bridgham versus Frontee 94 Broad versus Piper 268 Burgh's Case 67 C. CAlthrop versus Axtel 168 Capel versus Saltonstal 249 Carter versus Dowrish 226 Chapman versus Lamphire 155 Clarke versus Hoskins 79 Claxton versus Swift 86 Coghil versus Freelove 325 Cole versus Knight 277 Cross versus Garnett 261 D. DAvies Case 246 Dawling versus Venman 108 Dixon versus Robinson 107 Dobson versus Thornigrove 112 Doe versus Dawson 274 Dorrington versus Edwyn 56 E. ECcleston versus Speke 258 Evans versus Crocker 198 F. FItzgerald versus Villiers 236 Fisher versus Wrenn 250 Franshaw versus Bradshaw 235 Friend versus Bouchier 81 G. GRandison Lord versus Countess of Dover 23 Grantham Mil ' his Case 120 Godfrey versus Eversden 264 Gold versus Strode 324 Goring versus Deering 156 H. HAcket versus Herne 134 Hall versus Wybank 311 Hamson Serjeant his Case 89 Hanchet versus Thelwell 104 Harman versus Harman 115 Harrison versus Austin 237 Harrison versus Heyward 295 Hebblethwait versus Palmes 48 Hexam versus Coniers 238 Heyward versus Guppee 191 Hicks versus Gore 84 Hyley versus Hyley 228 Hinton versus Roffey 35 Hitchins versus Bassett 203 Hobbs qui tam versus Young 313 Hoile versus Clerke 218 Holcomb versus Petit 113 Holloway's Case 42 Horner's Company versus Barlow 158 I. JAckson versus Warren 78 Jefferies Mil ' versus Watkyns 161 Jennings versus Hankeys 114 Joyner versus Pritchard 103 K. KEllow versus Rowden 253 King versus Dilliston 221 Knight versus Cole 277 Knight Mil ' Case 117 Kingston versus Herbert 119 The King against Ayloffe 72 The King against Armstrong Mil ' 47 The King against Atkyns Mil ' 3 The King against Barns 42 The King against Baxter 68 The King against Beale 124 The King against Bunny 238 The King against Cony al' 37 The King against Colson al' 72 The King against Dangerfield 68 The King against Darby 139 The King against Fairfax 269 The King against G l. 97 The King against Griffith 201 The King against Grimes al' 220 The King against Hethersel 80 The King against Hinton al' 122 The King against Hockenhal 167 The King against Inhabitants of Malden The King against Johnson 241 The King against Kingsmill 199 The King against Lenthal 143 The King against Marsh al' 66 The King against Plowright al' 94 The King against Rosewell 52 The King against Saloway 100 The King against Sellars 167 The King against Silcox 280 The King against Sparks 78 The King against Warden of the Fleet 335 L. LAngford versus Webber 132 Lambert versus Thurston 275 Lea versus Libb 262 Leigh's Case 332 Letchmere versus Thorowgood 236 Lidcott versus Willows 229 Lock versus Norborne 141 Lutwich versus Piggot 268 M. MAcklesfield Earl 41 Malloon versus Fitzgerald 28 Marsh versus Cutler 41 Mason versus Beldham 73 Mather versus Mills 252 Matthews versus Cary 137 Mayor and Cominalty of Norwich versus Johnson 90 Merchants Adventurers versus Rebow 126 Mordant versus Thorold 281 Moss versus Archer 135 N. NEwton al' versus Stubbs 71 Newton Mil ' versus Creswick 165 Newton versus Trigg 327 Norwich Mayor c. versus Johnson 90 O. OBrian versus Ram 170 Okel versus Hodgkinson 99 Osborn versus Steward 230 P. PAine versus Partrich 289 Palmer versus Allicock 58 Panton versus Earl of Bath 227 Parkinson's Case 265 Pawley versus Ludlow 87 Peak versus Mather 103 Perkins versus Titus 132 Pitt versus Brereton 70 Plimouth Countess versus Throgmorton 153 Pool versus Trumbull 56 Price versus Davies 152 Prince's Case 295 Proctor versus Burdet 69 Prodgers versus Frazier 43 Proud versus Piper 268 Prowse versus Wilcox 163 Putt versus Rawsterne 1 R. REves versus Phelpes 264 Reeves versus Winnington 45 Roberts versus Pain 67 Rodney versus Strode 101 Roe versus Clargis Mil ' 26 Rowsby versus Manning 330 S. SAvier versus Lenthall 273 Shipley versus Chappel 232 Shotter versus Friend 283 Shuttleworth versus Garnat 239 Smith versus Goodier 36 Smith versus Peirce 195 T. TAyler versus Brindley 136 Thirsby versus Helbott 272 Thompson versus Leach 296 Idem versus Eundem 301 Tippet versus Hawkey 263 U. UPton versus Dawkin 97 W. WHitehal versus Squire 276 Wytham Mil ' versus Dutton Mil ' 159 Woodward's Case 211 Y. YArmouth Earl versus Dorrell 75 Young versus Inhabitants of Tottenham 258 DE Term. Sancti Mich. Anno 34 Car. II. in Banco Regis 1682. Sir Francis Pemberton Chief Justice Sir Thomas Jones Justices Sir William Dolben Justices Sir Thomas Raymond Justices Putt versus Rawstern Mil ' AN Action of Trespass was formerly brought for taking of Goods c. and upon Not-guilty pleaded Trespass is no Barr to Trover for the same Goods Raymond 472 the Defendant had a Verdict The same Plaintiff now brought Trover against the same Defendant for those Goods The Defendant pleads in Barr the Iudgment in the former Action of Trespass and upon a Demurrer the Question was Whether a Iudgment in Trespass vi armis may be pleaded in Bar to an Action of Trover for the same Goods This Case was argued by Mr. Saunders for the Plaintiff and by Mr. Pollexfen for the Defendant And to prove that it was no Bar Lacon versus Bernard Cro. Car. 35. Hutt 81. Stiles 202. a Case was cited to be adjudged in the Common Pleas in the 20th year of King James which was an Action of Trover and Conversion of one hundred Sheep The Defendant pleaded a former Iudgment in Trespass brought against him quare cepit abduxit those Sheep and that the Plaintiff in that Action recovered 2 d. damages and that both Actions were for the same thing The Plaintiff replied that the two pence damages were recoverd for the chasing and not for the value of the Cattle and upon a Demurrer had Iudgment For the smalness of the damages implies it was for the chasing and it shall therefore be intended that he had his Cattle again and that the Conversion was afterwards My Lord Coke in Ferrer's Case tells us Ferrer 's Case 6 Co. 7. Cro. Eliz. 676. Co. Ent. 39. Cro. Jac. 15. that a Recovery by Verdict Confession or upon a Demurrer in a personal Action is a good Bar to an Action of the like nature and for the same thing but that must be understood where the same Evidence will maintain both the Actions Iustice Croke reports the same Case to be ended by Arbitration but that it was the Opinion of my Lord Anderson and Iustice Glanvil that Trover and Trespass are Actions of different natures and one may be brought where the other cannot be maintained as upon a demand and denial Trover will lie but not Trespass vi armis because the taking was not tortious And therefore it may be well intended that when the Plaintiff brought Trespass he was
for to such the Defendant Preached and to them he declared the power given unto him by God to heal them by Prayer Then he tells them that their King is wicked and having insinuated this Doctrine into their Minds he then bids them stand to their Principles in opposing and subduing wicked Kings 'T is objected that there ought to have been a precedent Discourse of the King but the Presidents are otherwise In 33 H. 8. Rot. 17. There was an Indictment against the Lord Grey for words spoken against the King without setting forth any precedent Discourse of him So was my Lord Cobham 's Case in 12 Jac. for that he proditorie dixit pro palavit haec verba viz. It will never be well for England until the King and his Cubbs are killed without an Avernient that the words were spoken de Rege And in William 's Case 2 Roll Rep. 88. Reported by my Lord Rolls who was Indicted for High Treason for writing two Books in which were many Traiterous Assertions but no Averment of any previous Discourse concerning the King all these Indictments were thus viz. Dixit such words de Domino Rege Therefore the Indictment is good in form if the words therein contained amount to Treason now they do import Treason or not if they do import it then 't is unnecessary to aver that they were spoken de Rege because it cannot be intended to be Treason against any other King If a Man should say that he would go to Whitehal and kill the King 't is not necessary to averr any precedent Discourse de Rege In Actions on the Case for Words there must be an Averment of the person because many men are of the same Name but in Indictments the form will govern the Case Several Traitors have suffered Death in such Cases as this at Bar and many learned Men in all Ages have attended this Court and this Objection was never made till now and therefore the Presidents being without this Averment de Rege where the overt Act is by words Iudgment was prayed against the Prisoner Curia Words may be an overt Act but then they must be so certain and positive as plainly to denote the intention of the speaker If a Man should tell another that he would drive the King out of England there needs no averment that such words were spoken de Rege because they tend immediately to depose the King but if he had said that he would go to Whitehal and destroy his Enemies that is not Treason without an Averment c. Iudgment was arrested DE Term. Sancti Hill Anno 36 Car. II. in Banco Regis 1684. Pool versus Trumbal THE Defendant was sued in the Spiritual Court for Dilapidations 25 Car. 2. cap. 5. and pleaded the general Pardon by which all Offences Contempts Penalties c. were pardoned and for this reason he prayed a Prohibition but it was denied because the Statute never intended to pardon any satisfaction for Damages but only to take away Temporal Punishments Dorrington versus Edwin Mich. 36 Car. II. Rot. 277. SCire Facias against Pledges in a Replevin brought by Pleint Sci. Fac. will lye against pledges in Replevin by pleint setting forth that John Temple did levy a Pleint in the Sheriffs Court of London for the taking of three Baggs of Mony in which Suit he found Pledges de prosequendo de retorno habendo if it should be awarded That this Pleint was transmitted out of that Court into the Hustings and by * If it had not been a Court of Record it might have been remov'd by Re falo Dalt 425. 9 Hob. 6.58 13 Ed. 1. cap. 2. F. N. B. 74. F. Dalt 273. Certiorari removed into the Kings-Bench where the Plaintiff declared as aforesaid c. Dorrington avowed the taking c. and Temple was Non-suited and thereupon a Retorn ' Habend ' was awarded to the Sheriff who returned elongat ' c. Then a Sci. Fa. was brought against the Pledges upon the Statute of Westm 2. which provides that where Lords upon Replevins cannot obtain Justice in Inferiour Courts against their Tenants when such Lords are attached at their Tenants Suits they may have a Recordari to remove the Plea before the Justices c. and the Sheriff shall not only take Pledges of the Plaintiff to prosecute his Suit but also to return the Cattle if a Return be awarded c. The Defendants appeared and prayed Oyer of the Certiorari which was returned by the Mayor and Sheriffs only without the Aldermen And upon a Demurrer the Question was Whether a Scire Facias will lie against them by virtue of this Statute they being only Pledges in Replevin brought by Pleint without Writ This Case was argued by Mr. Pollexfen for the Defendants And for the Defendants it was said that they could not be charged by this Scire Facias because the Pleint was removed by Certiorari and thereby the Plaintiff Dorrington had lost the benefit he had against the Pledges in the Sheriffs Court This Case was compared to other Actions in inferior Courts which if removed by Habeas Corpus the Bail below are discharged of course By the Common Law there were no Pledges of Retorn ' habend Dyer 246. for before this Statute the Sheriff could not make a Replevin without the King 's Writ Now he hath power to take Pledges but if he will make deliverance of the Goods ad querelam alicujus sine brevi the fault is still in him for he may * Dalt 434. compel the Party to bring a Writ and then the Pledges will be liable because it will appear who they are And therefore it hath been adjudged Cro. Car. 446. that where a Replevin is brought by Writ the Sheriff cannot make deliverance without taking Pledges because if the Plaintiff should recover he hath a remedy against them by Scire Facias but if he recover upon a Replevin brought by Pleint Cro. Car. 594. the Iudgment shall not be avoided by assigning the want of Pledges for Error because in such Case the Sheriff is not by Law obliged to take Pledges 2. This Scire Facias is brought too soon for there ought to go an Alias Pluries Retorn ' habend before the Return of Elongata and then and not before the Scire Facias is properly brought The Pledges are answerable E contra and the Scire Facias is well brought and this grounded upon the Statute of W. 2. which directs Pledges to be taken before the delivery of the Goods It takes notice that Replevins were sued in inferior Courts by the Tenants against their Lords who had distrained for Rents due for Services or Customs and that such Lords could not have Iustice done in those Courts and therefore to remedy this mischief the Statute gives the Writ Recordare c. to remove the Pleint before the Iustices and because such Tenants after they had replevied their Cattle did usually
the first words the Legacy is released then the subsequent words viz. all Actions Suits and demands whatsoever which he had against the Defendant as Executor of Lawford must mean something 'T is true where general words are at the beginning of a Release and particular words follow if the general words agree with those which are particular the Deed shall be construed according to the special words But where there are such words at first and the conclusion is with general words as 't is in this Case both shall stand for the Rule is Generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa 8 Co. 154. b. These words do also Release not only such Actions which he had in his own Right but also as Executor to Mr. Lawford If a Man hath a Lease in right of his Wife as Executrix to her former Husband and he grants all his Right and Title therein by this Grant the Right which he had by his Wife doth pass for the word His doth imply a propriety in possession But per totam Curiam Curia Iudgment was given for the Plaintiff If an Executor hath Goods of the Testators and also other Goods in his own Right and then grants omnia bona sua in strictness the Goods which he hath as Executor do not pass because they are not bona sua but so called because of the Possession which he hath and therefore it must be a great strein to make general words which are properly applicable to things which a Man hath in his own Right to extend to things which he hath as Executor It was never the intent of the Party to release more than what he had in his own Right and that appears by the Recital of the Legacy of 5 l. and therefore the words which follow must have a construction according to the intent of Donning at the time of the making the Release and shall be tied up to the foregoing words and then nothing will be discharged but the Legacy As if a Lease for years be made Dyer 255. and the Lessor enters into a Bond that he will suffer the Lessee quietly to enjoy during the Term without trouble of the Lessor or any other person if an Entry should be made upon the Lessee without the procurement or knowledge of the Lessor the Condition is not broken for the last words are tied up to the word suffer If the Legacy had not been released by particular words it would not have been discharged by a Release of all Actions and Demands whatsoever and therefore there would be a great inconvenience if these general words should be construed to Release any thing besides this Legacy for suppose there are two Executors and one refuseth to Administer but meeting with a Debtor of the Testator gives him a Release of all Actions will this amount to an acceptance of the Administration Certainly it will not The words in this Case are not of that extent as to Release Actions as an Execuror for 't is a Release which goeth to the right 'T is like the Case where one of the Avowants released the Plaintiff after the taking of the Cattel 1 Roll. Rep. 246. which was adjudged void upon a Demurrer because he had not then any Suit or Demand against the Plaintiff but had distreined the Beasts as Bayliff and in right of another Iustice Dolben cited a Case adjudged in B. R. in the year 1669. it was between Stokes and Stokes The Plaintiff released all which he had in his own Right there was a Bond in which his Name was used in Trust for another and afterwards he brought an Action of Debt upon that Bond to which the Release was pleaded The Plaintiff replied that the Release was only of all such Actions which he had in his own right and not such which he had in the right of another upon this they were at Issue and the Plaintiff had a Verdict and Mr. Sympson moved in Arrest of Iudgment that this Bond must be in his own Right But the Court affirmed the Iudgment Anonymus AN Action on the Case was brought for these words Words where actionable without a Colloquium viz. He stole the Colonel's Cupboard-Cloth It was made a Question whether these words were actionable there being no precedent discourse laid in the Declaration either of the Colonel or his Cupboard-Cloath But the Court held the words actionable for 't is a charge of Felony and if such words as now laid in this Declaration are not actionable any person may be scandalized for 't is and must be actionable to say of a Man that he stole my Lord's Horses or the Parson's Sheep tho' it doth not appear to what Lord or Parson they did belong Rex versus Silcot THE Defendant was convicted before a Iustice of the Peace Conviction for keeping a Gun not having a 100 l. per Annum and doth not say when 33 H. 8. c. 6. upon the Statute of H. 8. for keeping of a Gun and upon proof it did appear that he had not 100 l. per Annum The Record of the Conviction was removed into B. R. and this Exception was taken to it viz. non habuisset 100 l. per Annum but doth not say when for it may be that he had one hundred pound per Annum at the time when he kept a Gun but not when he was Convicted It was answered that the words non habuisset shall relate to all times past and is as much as to say nunquam habuit and the conclusion being contra formam Statuti must explain such words which seem to be doubtful This was compared to the Case where Debt was brought upon the Statute of R. 1 R. 3. c. 3. 3. for taking away of Goods before the Plaintiff was convicted of the Felony laid to his charge contra formam Statuti he being only committed upon suspicion now though he did not alledge that the Goods were taken Cro. Eliz. 749. for this cause it shall be intended they were so taken when no other cause is shewed Curia This is a conviction before a Iustice of the Peace and therefore the time when the Offence was committed should be certainly alledged viz. that the Defendant praedict Anno die had not 100 l. per Annum for which reason it was quashed Bisse versus Harcourt Hill 1 Gulielmi Rot. 217. THE Plaintiff brought an Action for 400l Replication not well concluded for so much Mony had and received of him by the Defendant The Defendant pleaded an Attainder of High Treason in Abatement and therefore ought not to answer the Declaration The Plaintiff replied that after he was Attainted and before this Action brought he was pardoned and concludes thus Unde petit Judicium dampna sua The Defendant demurs and for cause shewed Rast Ent. 663. b. 681. Co. Ent. 160. that the Replication is not well concluded for dampna sua
intestate leaving one Son an Infant Administration was granted durante minore aetate he died before 17. whether Administration de bonis non of the Father shall be granted to the next of Kin of him or his Son 61 62 7. Whether an Interest is vested in an Infant where Administration is granted durante minore aetate so that if he die before 17. it goes to his Executor 61 8. Before the Statute of Distribution if there was but one Child he had a right of Administration but it was only personal and if he died before it was granted to him by the Court it would not go to his Executor 62 9. Husband hath a right of Administration to the Goods of the Wife because the Marriage is quasi a Gift in Law 64 10. If Administration had been granted to a Stranger before the Statute of Distributions and no Appeal within fourteen days he who had right though beyond Sea was barred 64 11. Husband and Wife Administratrix to her first Husband recover in Debt the Wife died and the Husband brought a Scire Facias to have Execution it will not lie by him alone because it was a Demand by the Wife as Administratrix in auter droit ibid. 12. Judgment was had in Somersetshire the Plaintiff died intestate Administration is committed by an inferior Diocess 't is void because the Entry of the Judgment in Middlesex where the Records are kept made him have bona notabilia in several Diocesses and so Administration ought to be granted in the Prerogative 324 13. If the Intestate hath two Sons and no Wife each have a Moiety of the personal Estate if but one an interest is vested in him 59 14. At Common Law none had a Right to an Intestate's Estate but the Ordinary was to distribute it to Pious Uses ibid. Admiral and Admiralty There was a Sentence in the Admiralty for taking of a Ship and afterwards Trover was brought for taking of the same Ship whether it lies or not 194 2. Pawning of a Ship for Necessaries at Land and a Libel was exhibited in the Admiralty whether good or not 244 3. Where things arising upon Lands may be sued for in the Admiralty 245 Addition See Indictment Where it makes a thing certain as an Ejectment de Tenemento is incertain but with the addition vocat ' the Black Swan 't is made certain 238 Admittance See Baron and Feme 9. A Custom cannot warrant an incertain Fine upon an Admittance to a Copyhold 133 2. The Lord may refuse to admit without a tender of the Fine where 't is certain ibid. 3. Where 't is incertain the Lord is to admit first and then to set the Fine ibid. 4. Custom that upon every Admission the Tenant should pay a years value of the Land as it was worth tempore admissionis t is good 132 5. For a Fine upon an Admission an Action of Debt will lye for though it favours of the realty yet 't is a certain duty 230 6. Before Admittance the Estate is in the Surrenderor and he shall have an Action of Trespass against any person who enters before another is admitted 226 7. Before an Admittance the Surrendree cannot enter but by special Custom to warrant it 225 Affidavit See Action on the Case for a Wrong 4. See Baron and Feme 11. Infant 21. Agreement and Disagreement Whether assent is necessary to a Surrender it being a Conveyance at the Common Law 't is not necessary in Devises or in any Conveyances directed by particular Statutes or by Custom 298 2. Whether the Estate shall be in the Surrendree immediately upon the execution of the Deed if he doth not shew some disassent to it 300 3. Agreement is not so much necessary to perfect a Conveyance as a Disagreement is to make it void ibid. 4. A Feoffment to three and Livery is made to one the Estate is in all till disagreement 301 Alien Leases made to Alien Artificers are void by the Statute of 32 H. 8. This Statute was pleaded by an Alien who was a Vintner and held to be no Artificer 94 Amendment See Mistrial Costs 2. 1. Of the Distringas by the Roll after a Verdict the Day and Place of Assizes being left out 78 2. In matters of Form the Court have sent for a Coroner to amend his Inquisition 101 3. Of a Mis-entry of a Writ of Enquiry without paying of Costs 113 4. Return to an Homine Replegiando amended by Rule of Court 120 5. A Riot was laid to be committed after the Indictment it was amended being only a Misprision of the Clerk 167 6. Where matter of Form is cured by a Verdict but 't is not amendable upon a Demurrer 235 7. Scire Facias upon a Recognizance to have Execution for 1000 l. juxta formam Recuperationis it should have been recognitionis amended after a Demurrer 251 Amerciament See Court 3. 1. Differs from a Fine for that is the act of the Court but an Amerciament is the act of the Jury 138 2. It need not be to a Sum certain for that may be affered 138 3. A Bailiff of a Liberty cannot distrein for an Amerciament Virtute officii but he ought to set forth the taking Virtute Warranti ibid. Appeal Against three for a Murder the Count was that O. gave the wound of which the person died the Jury found that L. gave the wound and that O. and M. were assisting this varies from the Count and yet held good 121 2. The Wound was given in one County and the Death ensued in another and the Party was Tryed where the Wound was given and held good ibid. 3. At Common Law it was at the Election of the Appellant to bring the Appeal in either County and the Tryal to be by a Jury of both but now it may be brought in the County where the Party died 122 4. Whether Auter foitz Convict of Man-Slaughter is a good Plea to an Appeal of Murder 156 157 5. If a Woman be slain her next of Kin shall maintain an Appeal 157 6. How many things are required by the Statute of Gloucester to be alledged in an Appeal of Murder 158 7. The Appellee pleaded in Abatement but did not plead over to the Felony whether good or not 267 8. Where the Appellee must plead in propria persona and where per Attornatum 268 Apportionment Where a Contract under Hand and Seal for a Sum certain shall not be apportioned in an Action pro Rata as if it be for a Years Service the Plaintiff must serve a Year and aver it tho' the Contract is executory 153 2. But if a Promise is for a Years Board an Action may be brought for three Quarters of a Year for if there is a Variance between the Agreement and the Declaration 't is for the benefit of the Defendant 154 Apprentice Whether Justices of Peace have any power to compel men to take poor Children Apprentices since the Statute gives power to Church-wardens to raise
IT lies to remove Causes and Orders from an inferior Jurisdiction where 't is not prohibited in express words by any Statute 95 2. Will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes quaere whether it lies to the Royal Franchise of Ely 230 Charter Usage shall expound ancient Charters 9 2 The Common Law doth operate with it ibid. 3. One Clause of a Charter may expound another 10 4. A Charter which establishes a Corporation must provide for a new Election in order to a Succession otherwise the Common Law will not help 13 Church See Prohibition Commitment By the Lord Chancellor and several others Dominos Concilii for a Misdemeanour whether it should not be Dominos in Concilio 213 2. Of a Peer for a Misdemeanour which amounts to a Breach of the Peace for which Sureties are to be given 214 3. When a person is brought in by a Capias for any offence he ought to plead instanter 215 Common and Commoner See Ioytenancy 4 Ioynt Action 7 Prescription 7 A Common cannot pass without Deed and if the Plaintiff sheweth a Que Estate he must produce the Deed 52 2. If a Prescription is made for a Common and doth not say for Cattle Levant and Couchant 't is not good 162 246 3. But this fault is cured by a Verdict 162 Confederacy See Indictment Condition See Infant 2. Notice 2 4. A bare denial without doing any more is no Breach of the Condition 31 2. How it differs from a Limitation 32 3. To restrain Marriage to the consent of particular persons is void ibid. 4. Where 't is of two parts in the disjunctive and both possible at the time of the Bond given and one becomes impossible afterwards by the Act of God the Obligor is not bound to perform the other part for the Condition being made for his benefit shall be taken very beneficially for him who had election to perform either part 233 5. When the Condition is but of one part 't is otherwise as if A. promise B. that if C. do not appear such a day at Westminster he will pay 20 s. C. died before the day the Mony must be paid 234 6. Condition was to pay Rent at Michaelmas or Lady-day during the Life of a Woman or within thirty days after she died after the Feast but within the thirty days the payment which was due at the Feast was discharged thereby ibid. 7. To save harmless Non damnificatus generally is a good Plea but if it be to save harmless acquit and discharge then 't is not good without shewing how acquitted and discharged 252 Confederacy See Agreement Consideration See Action on the Case Construction Where it shall be made of an Act of Parliament according to the intent of the Law-makers 33 2. Where it shall be made of an entire Sentence so as the intent of the Law may appear 220 3. Where particular words are in the first part of a Sentence and general words follow both shall stand 278 279 Contract Where an Agreement is entire to do or perform a thing for a certain Sum it shall not be apportioned pro rata for the performance of part 153 2. There must be a recompence of each side to make the Contract good 237 Copyhold and Copyholders See Baron and Feme 8 9. Lord may seize the Land of a Copyholder till a Fine is paid 222 2. A Man by Custom may assign a person to take the Profits of a Copyhold Estate during the Minority of an Infant without rendring an accompt when he comes of Age ibid. Corporation See Charter 4. In all proceedings which concern a Corporation it must be alledged that there is one and how erected whether by Grant or Prescription 6 2. Mayor hath no more Power than an Alderman in the Coporation where he is Mayor 9 3. Is not of the Quorum for electing of an Alderman 10 4. The Mayor is named in the Grant as part of the Name of the Corporation and is not of the Quorum without naming him to be so 9 10 5. He is a Mayor in respect of Reverence but not of Power 11 6. At the Common Law neither his Name or Office require his presence at the choosing of an Alderman 11 14 7. He cannot act eo nomine but by the express Power given in the Charter 12 8. Elections of Officers of a Corporation must be free 21 9. Mayor of a Corporation is no Officer at the Common Law 12 10. Original of Corporation was preservation of Trade ibid. 11. Corporation by Charter without setting forth their Duty or Office hath no Power ibid. 12. A Company in London made a By-Law that none of them should buy such a Commodity within 24 Miles of London but two Men 't is too large to bind at such a distance out of their Jurisdiction 159 Costs See Amendment 3. Trespass for breaking of a Close and impounding of Cattel and Damages given under 40 s. the Plaintiff shall have his Costs 39 2. Amendment after a Writ of Error brought Costs must be paid 113 Covenant See Local Action Where a thing is lawful at the time of the Covenant made and afterterwards prohibited by Law yet the Covenant is binding 39 2. To find Meat Drink and other Necessaries the Breach was assigned in not finding Meat Drink alia necessaria and entire Damages though this Breach was too general yet 't is good for it may be as general as the Covenant 69 3. There must be such certainty in it that if the Defendant should be sued again he may plead the former Recovery in Bar ibid. 4. Need not so much certainty in assigning a Breach upon a Covenant as upon a Bond for performance of Covenants ibid. 5. For quiet enjoyment the Breach was that a Stranger habens jus titulum and doth not say what Title for it may be under the Plaintiff himself therefore not well assigned 135 6. To make an Assignment according to an Agreement between the Partis as Council should direct whether the Council of the Plaintiff or Defendant should advise 192 7. Give grant and confirm are words at the Common Law where they shall be taken to amount to a Covenant to stand seized 237 Court Cause not to be removed out of an inferiour Court unless the Habeas Corpus is delivered to the Steward before Issue or Demurrer joyned so as 't is joyned within six Weeks after Arrest or Appearance 85 2. If the Cause is tried in an inferior Court the Steward not being an Utter Barister an Attachment shall go ibid. 3. Amerciament in a Court Leet is a Duty vested in the Lord for which he may distrain 138 4. Presentment in a Court Leet is the proper remedy when a Man is disturbed in a common Passage or Way 294 Custom See Admittance Infant 10. Prescription 8. Pleading 12. Must have nothing to support it but Usuage 133 2. 'T is made of repeated Acts ibid. 3. Must be very