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.
the Indictment for be it before or after the Offence the Iury ought to find according to the truth of the Case upon the Evidence for they are sworn ad veritatem dicendam c. This must be assigned for Error for if the contrary be said 't is against the Record the Custos Brevium having retorned that the Fine was taken 30 July which could not be in Trinity Term for that ended 8 July otherwise 't is repugnant to it self Econtra It was argued that this is not assignable for Error Dyer 220. b. 12 Co. 124. 't is true if the Party had died before the Entry of the King's Silver it had been Error but if afterwards 't is not so Thus was the Case of Warnecomb and Carril which was Husband and Wife levied a Fine of the Lands of the Wife and this was by Dedimus in the Lent Vacation she being then but 19 years of Age the King's Silver was entred in Hillary Term before and she died in the Easter week and upon a Motion made the first day of Easter Term to stay the engrossing of the Fine it was denied by the Court for they held it to be a good Fine Another reason why this is not assignable for Error 2 Cro. 11. Yelv. 33. is because 't is directly against the Record which is of Trinity Term and can be of no other Term and to prove this he cited Arundel's Case where a Writ of Error was brought to reverse a Fine taken before Roger Manwood Esq in his Circuit he being then one of the Iustices of the Common-Pleas and the Dedimus was returned per Rogerum Manwood Militem for he was Knighted and made Chief Baron the Eerm following the Fine passed and this was afterwards assigned for Trror that he who took the Caption was not a Knight but it being directly against the Record they would not intend him to be the same person to whom the Writ was directed Adjurnatur Afterwards the Fine was affirmed Lock versus Norborne UPon a Trial at Bar in Ejectment for Lands in Wiltshire Verdict shall only be given in Evidence amongst privies the Case was thus Viz. Mary Philpot in the year 1678. made a Settlement by Lease and Release to her self for Life then to Trustees to support contingent Remainders then to her first second and third Son in Tail Male c. then to Thomas Arundel in Tail Male with divers Remainders over It was objected at the Tryal that she had no power to make such Settlement because in the year 1676. her Husband had setled the Lands in question upon her for Life and upon the Issue of his Body c. and for want of such Issue then upon George Philpot in Tail Male with several Remainders over the Remainder to Mary Philpot in Fee Proviso that upon the tender of a Guinea to George Philpot by the said Mary the Limitations as to him should be void George Philpot having afterwards made a Lease of this Land to try the Title the Trustees brought an Ejectment but because the tender of the Guinea could not be proved there was a Verdict for the Defendant And now Mr. Philpot would have given that Verdict in Evidence at this Trial but was not suffered by the Court for if one Man hath a Title to several Lands and if he should bring Ejectments against several Defendants and recover against one he shall not give that Verdict in Evidence against the rest because the Party against whom that Verdict was had may be relieved against it if 't is not good but the rest cannot tho' they claim under the same Title and all make the same defence So if two Tenants will defend a Title in Ejectment and a Verdict should be had against one of them it shall not be read against the other unless by Rule of Court But if an Ancestor hath a Verdict the Heir may give it in Evidence because he is privy to it for he who produceth a Verdict must be either party or privy to it and it shall never be received against different persons if it doth not appear that they are united in Interest Therefore a Verdict against A. shall never be read against B. for it may happen that one did not make a good defence which the other may do The tender of the Guinea was now proved DE Term. Sancti Hill Anno 3 Jac. II. in Banco Regis 1687 8. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Powis Attorny General Wm. Williams Sollicitor General THIS Vacation Sir Robert Sawyer had his Quietus and Sir Thomas Powis was made Attorny General and Sir William Williams of Greys-Inn was made Sollicitor General Rex versus Lenthal AN Inquifition was taken in the second year of this King under the Great Seal of England by which it was found that the Office of Marshal of the Kings-Bench did concern the Administration of Iustice and that Mr. Lenthal was seised thereof in Fee and that upon his Marriage he had setled the said Office upon Sir Edward Norris and Mr. Coghill and their Heirs in Truff that they should permit him to execute the same during his Life c. That the said Trustees had neglected to give their attendance or to execute the said Office themselves that this Canveyance was made by Mr. Lenthal without the notice of this Court that he received the Profits and afterwards granted the said Office to Cooling for Life That Cross and his Wife had obtained a Iudgment in this Court against Bromley and had sued forth Erecution for the Debt and Damages for which he was committed to the custody of the said Cooling and being so in Execution did go at large They find that Cooling had not sufficient to answer Cross and his Wise for the said Debt c. whereupon they impleaded Mr. Lenthal in the Common-Pleas for 121 l. 2 s. 4 d. to answer as superior that at the Trial Mr. Lenthal gave this secret Deed of Settlement in Evidence whereupon the Plaintiffs in that Action were non-suited ad dampnum c. They find that Cooling went out of the said Office and the Trustees neglecting the execution thereof Mr. Lenthal granted the same to Glover for Life that during the time he executed this Office one Wordal was convicted of Forgery and commited to his Custody and that he permitted him voluntarily to Escape by which the said Office was forfeited to the King The King had granted the Office to the Lord Hunsdon Sir Edward Norris and Mr. Coghill come in and plead that Mr. Lenthal was seised in Fee and that he made a Settlement of the Office upon his Marriage with Mrs. Lucy Dunch with whom he had 5000 l. Portion viz. upon them and their Heirs in trust prout in the Inquisition and that he did execute the Office by-their permission Mr Lenthal pleads and admits the Grant to Sir Edward Norris and the other Trustee bearing date such a day c. but saith that the next
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
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
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
Comissarius especially in the Case of a Fellow of a College which is a thing of private design and doth not concern the Publick 265 Vse If a Letter of Attorny is in a Deed or a Covenant to make Livery nothing passes by way of Use 237 W. Waies See Action for wrong 9. Prescription 1. IN Actions for not repairing them it must be alledged that the Defendant reparare debet 291 2. Action on the Case doth not lie by any particular person for not repairing unless he hath a particular damage but an Indictment is te proper remedy ibid. 3. Custom for all occupyers of a Close in such a Parish to have a Foot-way not good for the Plaintiff ought to prescribe in him who hath the Inheritance 294 Waste See Baron and Feme 7. It lay at Common-Law only against Tenant by the Curtesie or in Dower 90 2. It was given by the Statute of Gloucester against Tenant for life or years and treble Damages ibid. 3. It lies against an Executor de son tort of a Term for years 93 4. It lies against an Administrator of a rightful Executor though the Statute doth charge only Executors de son tort and Administrators that they shall be liable as the Executor or intestate 113 Wills See Exposition Devise A subsequent Will may be made so as to consist and stand with a former 204 2. It may also revoke part and confirm part of aformer Will ibid. 3. If two Wills are made without Dates they are both void otherwise of Codicils 208 4. Two Witnesses to a Will and two to a Codicil annexed to the same Will one of the Witnesses to the Codicil was a Witness to the Will the third person is not a good Witness to the Will for he never did see it 262 Witnesses A Witness at a Trial had made a Bargain with the Plaintiff who promised her 1000 l. if she recovered she was not allowed to be sworn 85 2. Informer shall be a good Witness to convict a Man for Deer-stealing tho' he has a Moiety of the Forfeiture 114 115 3. 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