versus Lascomb 267 Duck versus Vincent 33 E. EDwards versus Roberts 24 Edwards versus Weeks 259 Ellis versus Yarborough 177 Escourt versus Cole 58 Evered versus Hone 293 F. FOrrest qui tam c. versus Wire 246 Frosdick versus Sterling 269 G. GIlmore versus the Executor of Shooter 310 Godfrey versus Godfrey 303 Goffe versus Elkin 239 Goodwin qui tam c. versus Butcher 67 H. HAll versus Carter 304 Hambleton vers Scrogs Mil ' 296 Hammond versus Howel 218 Harding versus Ferne 177 Harman's Case 176 Harris's Case 101 Harwood and Binks versus Hillyard 268 Hayes versus Bickerstaffe 34 Hickman Mil ' versus Thorn and others 104 Hill versus Thorn 309 Higginson versus Martin 195 Hill versus Pheasant 54 Hocket Vxor versus Stiddolp Vxer 66 Hollis Mil ' versus Carre 86 Howard Mil ' versus the Queens Trustees 173 I. JAmes versus Johnson 143 James versus Trollup 320 Ingram versus Tothil 93 Jones's Case 198 Ipsley versus Turk 193 Ironmongers Company versus Naylor 185 K. KEndrick versus Bartland 253 The King versus the Bishop of Rochester 1 The King versus Tourvil 52 The King versus Moor 128 Keen versus Kirby 32 L. LAne versus Robinson 102 Lee versus Brown 69 Lever versus Hosier 47 Loyd versus Langford 174 Long 's Case 181 M. MARY Magdalen Bermonsey Church 222 Major versus Grigg 213 Mayor and Comminalty of London versus Gatford 39 Mason versus Stratton 36 Mason versus Caesar 65 Mendyke versus Stint 271 Milward versus Ingram 43 Mires versus Solebay 242 Moor versus Pitt 287 Morris versus Philpot 108 N. NAyler versus Sharpless 23 Nichols versus Ramsel 280 Norris versus Palmer 51 Norris versus Trist 78 Northumberland's Countess of Case 182 Nurse versus Yearworth 8 O. OSbaston versus Stanhop 50 Osborn versus Wright 296 Otway Mil ' versus Holdips 266 P. PAge versus Tulse al' 83 Paget versus Vossius 223 Parrington versus Lee 311 Peck versus Hill 136 Penrice and Wyn's Case 306 Piggot versus the Earl of Salisbury 109 Plummer versus Whitchot Mil ' 119 Prince versus Rawson 51 Put versus Roster 318 Q. QUadring versus Downes al 176 R. RAnds Mil ' versus Trip 199 Randals Case 308 Read versus Dawson 139 Reder versus Bradley 101 Reed versus Hatton 25 Richards versus Sely 79 Rose versus Standen 294 Rozal versus Lampen 42 S. SAms versus Dangerfield 31 Samways versus Eldslly 73 Scoble versus Skelton 318 Searl versus Long 264 Searl versus Bunion 70 Sambrook versus Fettiplace 283 Sharp versus Hubbard 58 Shaw Mil ' versus a Burgess of Colchester 228 Shaxton versus Shaxton 305 Shaftsbury Earl of versus Lord Digby 98 Sherrard versus Smith 103 Simpson versus Ellis 36 Singleton versus Bawtry 168 Smallwood versus Brickhouse 315 Smith versus Tracy 204 Smith versus Shelberry 33 Smith versus Hall 31 Smith versus Feverel 6 Snow al' versus Wiseman 60 Southcot versus Stowel 207 Spring versus Eve 240 Squib versus Hole 29 Strangford versus Green 227 Staples versus Alden 309 Steed versus Berryer 313 Stephens versus Austin 185 Styleman versus Patrick 141 Steward versus Allen 264 Stoutfield 's Case 77 Strangford versus Green 227 Stroud versus Bishop of Bath and Wells 183 Stubbins versus Bird al' 63 Suffeild versus Baskervil 36 T. TAyler versus Biddal 289 Taylor versus Baker 214 Thorp versus Fowle 58 Threadneedle versus Lynam 57 Tissard versus Warcup 279 Townsend Lord versus Hughs 150 Trevil versus Ingram 281 Trotter versus Blake 229 Turner Sir William 's Case 144 V. VAughan versus Wood 56 W. WAkeman versus Blackwel 70 Walwyn versus Awberry 254 Warden of the Fleet 's Case 221 Waterfield versus the Bishop of Chichester 118 Week's Case 278 Wells versus Wright 285 Whitrong versus Blaney 10 Wilcox versus the Servants of Sir Fuller Skipwith 4 Wilkinson versus Loyd Mil ' 82 Williamson versus Hancock 14 Wilson versus Drake 20 Wilson versus Ducket 61 Windam Lady 's Case 294 Wine versus Rider al' 67 Woodward versus Aston 95 Wright versus Bull 304 ERRATA PAge 6. Line 31. for Defendant read Plaintiff p. 58. l. 15. after out r. of p. 79. l. 19. after according read to p. 143. l. 17. for and r. one p. 145. l. 25. for by r. in p. 180. l. 40. for Plaintiff r. Sheriff p. 200. l. 22. for Defendant r. the Plaintiff and for the word Replication r. Plea DE Termino Sancti Hill Annis 26 27 Car. II. in Communi Banco Coram Francisco North Milite Capital Justic ' Hugone Wyndham Milite Justic ' Roberto Atkins Milite Justic ' Willielmo Ellis Milite Justic ' The King versus the Bishop of Rochester and Sir Francis Clark IN a Quare Impedit a special Verdict was found Quare Impedit Mod. Rep. 195. Grant of the King where the first Clause is certain and a mistake in another yet the Grant is good wherein the Case was thus The Mannor of Laburn to which the Advowson of the Church of Laburn was appendant did by the dissolution of Monasteries Anno * 31 H. 8. c. 13. 31 H. 8. come to the King who granted the said Mannor to the Archbishop of Canterbury excepting the Advowson and afterwards the said Archbishop regrants the same to King H. 8. and the Advowson of the Church of Laburn aforesaid and then King H. 8. grants the said Mannor of Laburn Advocation̄ Ecclesiae de Laburn dicto Archiepiscopo having named him before dudum spectan̄ and which was regranted to the said King by the said Archbishop and lately belonging to the Abbot of G. c. adeo plene as the said Archbishop or Abbot had it or as it was in our hands by any ways or means howsoever And whether the Advowson passed by this last Grant was the Question Three Iustices absente North gave Iudgment for the Defendant that the Advowson did pass by this Grant Iustice Ellis in his Argument said That it was plain that when the Mannor came to H. 8. the Advowson was appendant but when it was granted to the Archbishop and the Advowson excepted it then became in gross and therefore could never afterward be appendant James and Johnson 's Case Postea As an Aere once disunited from the Mannor can never after be part of that Mannor Liford's Case 7 Co. And 't is as plain that before the Statute de Praerogativa Regis cap. 15. That in the ease of the King by the Grant of a Mannor the Advowson though not named passed much more if it be named in any part of the Deéd as if it be in the Habendum though not in the Premisses but that must be intended of an Advowson appendant 10 Co. 63. And though Advowsons are excepted by that Statute yet in case of Restitution an Advowson will pass by the Words Adeo plene integre though not named In this
but it was denied for the Court agréed the Writ well issued Some have made a difference between the King's Bench and the Common Pleas as if an Execution might go into Wales upon a Iudgment obtained in the King's Bench but aliter if in the Common-Pleas But the Law is the same in both Courts Mich. 1653. betwéen Wyn and Griffith this very Case came in question and there it was held that Execution goes into Wales as well as into any part of England upon a Iudgment in the Courts of Westminster In 2 Bulstr 54. Hall versus Rotheram it was held that a Ca. sa shall go into Wales against the Bail upon a Iudgment recovered in the Kings-Bench here against the Principal Of the same Opinion was Iustice Atkins and that the Defendant cannot averr against the Sheriffs Return nor a Bishops Certificate and the true reason is given by my Lord Coke in 2 Inst 452. for the Sheriff is but an Officer and hath no day in Court to justifie his Return In special Cases Exception may be made to the Sheriffs Return but this is by reason of the special provision that is made for the doing of it by the Statute of W. 2. cap. 39. as in case too small Issues be returned or that the Sheriff return a Rescous the Party in his Averment must alledge of what value the Issues are 2dly That notwithstanding the common saying Breve Domini Regis non currit in Walliam yet a Fi. Fa. Ca. Sa. or any Execution whatsoever may issue into Wales upon a Iudgment obtained here And to prove this he considered 1. How Wales formerly stood in relation to England 2. How it stood before it was united by the Statute of H. 8. 3. How it now stands since the Vnion 1. And as to the first of these England and Wales were once but one Nation they used the same Language Laws and Religion and so continued till the time of the Roman Conquest before which they were both comprehended under one name viz. The Isle of Great Britain But when the Romans came those Britains who would not submit to their yoak betook themselves to such places where they thought themselves most secure which were the Mountains in Wales and from whence they came again soon after the Romans were drove away by their dissentions here and then these Britains enjoyed their ancient Rights as before After this came the Saxons and gave them another disturbance and then the Kingdom was divided into an Heptarchy and then also and not till then began the Welsh to be distinguished from the English but yet at that time they had great Possessions in England viz. Gloucester part of Worcester Hereford Shrewsbury which they kept till King Offa drove them out of the plaine Countries and made them fly for shelter into those Mountainous parts in Wales where they now continue Cambden 15. And 't is observable that though Wales had Kings and Princes yet the King of England had Superiority over them for to him they were Homagers Cambden 67. The Word Princeps implying a Subordinate Dignity Selden's Titles of Honor 593. 2dly During the time of the Separation Wales had distinct Laws and Customs from those in England whence that saying took its effect viz. Breve Domini Regis non currit in Walliam yet the Parliament of England before that time made Laws to bind Wales As the Act of 25 Edw. 1. for confirmation of the old great Charter of the Liberties of England and of the Forests which enacts That certain Duties shall be paid for every Sack of Wool c. exported out of Wales 2 Inst 531. So the Statute 3 Edw. 1. cap. 17. which gives remedy if a Distress be taken and detained in a Castle and upon deliverance demanded by the Sheriff if the Lord of the Castle should refuse he might raise the Posse Comitatus and beat down the Castle and if such detainer or refusal be in the Marches of Wales the King as the Statute saith is Soveraign Lord of all and shall do right upon complaint and the Conquest was not made till 9 E. 1. so that at that time likewise though Wales had Princes of its own Vaugh. 400. yet the Kings of England were Sovereigns to those Princes and though they had Laws of their own yet were they bound by those that were made here and though their Princes had ordinary remedial Writs yet in Cases extraordinary the Kings Writs here run into Wales and it was not for want of power but because there was no need for that it went so seldom and when the Kings Writ did issue it was necessary to direct it to the Sheriff of an English County for Wales was not then divided into Shires but afterwards by the Act called Statutum Walliae 12 Edw. 1. * 2 Inst 195. 4 Inst 239. it was divided into six Counties and then again by the Act of 27 H. 8. cap. 26. it was divided into the other six Counties But during this time there were frequent Hostilities between England and Wales until by the Conquest in Edw. 1. time they were united 'T is pretended that H. 3. Father to Edw. 1. was the Conqueror and 't is probable something considerable might be done in his time yet the absolute Conquest of the whole Dominion was made by Edw. 1. in whose time the aforesaid Statutum Walliae was made Vaugh. 414 415. and after that the Statute of 27 H. 8. to compleat the Vnion the end of which is declared to bring the Subjects of both to an entire Vnity and that it may be done with effect 't is enacted That the Laws of England be executed there ◠Bulst 54. for which reason it is held in 5 Co. Rep. Vaughan's Case fol. 49. that the Statutes of Jeofails do extend to Wales and in 2 Bulstr 156. * This was a Resolution upon no Debate the Sheriff of Radnor upon a Scire Fac̄ directed to him returned Breve Domini Regis non currit c. and was amerced 10 l. for his false Return Vide 19 H 6. 20. Fitzherb Trial pl. 40. tit Jurisdiction 13 E. 3. 23 24 34. idem Brief 621. Assize 382. It was objected That by express provision in 1 E. 6. cap. 10. Exigent and Proclamations shall be awarded out of the Courts of Westminster into Wales which if they might before this Law was then needless 'T is true the Opinion of the Parliament seems to be that had it not beén for this particular provision such Proclamations might not have issued for by 6 H. 8. cap. 4. Vaugh. 414. such Proclamations went but to the next County but they do not declare so and perhaps they might ground themselves upon that vulgar Error Breve Domini Regis non currit in Walliam which is not true unless the Clause be limited to original Writs only Objection That the Statute of 5 El. cap. 23. which enacts that the Excommunicato Capiendo shall be returned in the Kings-Bench
Construction can be made of them but that an Estate in possession was thereby intended to pass 4. Object That this Fine and Grant must be construed to enure according to the intent of the Parties ut res magis valeat and they never intended to make a Forfeiture Answ Certainly no Man ever intended to make a Forfeiture of his own Estate those are generally the effects of Ignorance and not of the Will as the Case of Gimlet and Sands Cro. Car. * 1 Roll. Abr. 856. 391. where Tenant in Fee makes a Feoffment to two to the use of himself for Life then to the use of his Wife for Life Remainder in Tail to his Son and Heir Remainder to his own right Heirs and afterwards he made another Feoffment to Smith with Warranty the Mother and Son join in another Feoffment adjudged that this was a Forfeiture of her Estate for life though she had no notice of the Warranty made by her Husband for the Feoffment made by him was a publick Act upon the Land and she ought to have taken notice of it and though by her joining in the Feoffment with her Son she did not intend to forfeit her Estate yet the Law adjudges according to what is done But in the Case at Barr the intention of the Parties may be collected by the Act done and there is great reason to presume that the Parties thereby intended to displace the Reversion for the Husband joyning in the Fine and in the Warranty if it was no divesting the Warranty is of no use Another Objection has been only mentioned which is that admitting this should amount to a displacing if the Estate had been in possession yet in this Case it would not because it was prevented by the Lease for years in being But that cannot hinder the execution of this Fine 't is a Fine sur concessit which is executory in its nature and doth not pass any Estate or take any effect 'till executed and so is the Book 41 5. 3. 14. b. But in this Case the Fine was executed which may be by matter in pais as well as by Scire facias and as to this purpose may be executed by the entry of the Conusor 1 Rep. 106. Dyer 376. b. without suing out any Execution 38 Ed. 3. Brook tit Scire facias 199. If there had been a Fine executed there would have beén little doubt left in this Case and by the Attornment of the Lessee for years it must be admitted that this Fine was executed as 8 Ed. 3. f. 44. For a Fine of a Reversion may be executed to all purposes by the Attornment of the Lessee for years and if so when a Fine executory is once executed 't is as good as a Fine sur Conusance de droit come ceo to make a forfeiture of the particular Estate Where a Feoffment is made and a Lease for years is in being the Feoffment is not good because in such case there must be a present transposition of the Estate Postea Moor and Pitt which is hindred by the Lease But in case of a Fine which is a Feoffment upon Record a Lease for years is no impediment or displacing of the Reversion for if Tenant in Tayl expectant upon a Lease for years levy a Fine 't is a discontinuance of the Tayl and notwithstanding this Lease the Fine has such an operation upon the Free-hold that it displaces the Reversion in Fee Co. Lit. 332. And therefore if a Lease for years prevents not a Discontinuance it will much less hinder a displacing in this case But no Iudgment was given now in this Case another matter being debated whether the Plaintiff could have Iudgment because he was barred by the Statute of Limitations for it did not appear that he had been in possession for twenty years past and the Verdict hath not found any Claim or that the Plaintiff was within the Proviso of the Act. Waterfield versus the Bishop of Chichester Oath Ex Officio not to be administred A Prohibition was granted last Easter-Term to the Bishop of Chichester upon a Suggestion made by Waterfield that he being chosen Churchwarden of the Parish Church of Arundel in the County of Sussex the Bishop tendered him an Oath ex officio which was that he should Present every Parishioner who had done any Offence or neglected any Duty mentioned in certain Articles contained in a printed Book delivered to him some of which Articles concern the Church-warden himself and so in effect he was to swear against himself in case of any default which is expressly against the Statute of 13 Car. 2. Sid. 232 cap. 12. which prohibits any person having Ecclesiastical Iurisdiction to administer the Oath ex officio or any other Oath whereby the person to whom 't is administred may be charged to accuse himself of any criminal matter whereby he may be lyable to any Censure or punishment and because the Bishop had Excommunicated him for refusing such Oath he prayed a Prohibition which was granted quoad the compelling him to make any answer to the said Articles concerning himself and the Excommunication was discharged But now upon the motion of Serjeant Brampston a Consultation was awarded because it appeared by the Affidavit of the Commissary who tendred this Oath and likewise by the act of the Court that he was Excommunicated for refusing to take the Oath of a Church warden according to Law which was the only Oath tendred and therefore the ground of the Prohibition being false a Consultation was awarded In this Prohibition it was recited That the Bishop cannot give an Oath but in two cases viz. in matters Testamentary and Matrimonial whereas they have authority in many cases more 't is true also that until his Iurisdiction was increased by Act of Parliament he could hold Plea in none but those two causes 2 Inst 487 537. but by the Statute De circumspecte agatis and of Articuli Cleri he may now hold Plea in many other cases The Bishop informed the Lord Chief Iustice that the Plaintiff Waterfeild had caused 2000 of the Prohibitions to be printed in English and had dispersed them all over the Kingdom intituling them a true translated Copy of a Writ of Prohibition granted by the Lord Chief Iustice and other the Iustices of the Court of Common Pleas in Easter-Term 1676. against the Bishop of Chichester who had proceeded against and Excommunicated one Thomas Waterfield a Churchwarden for refusing to take the Oath usually tendred to persons in such Office by which Writ the Illegality of all such Oaths is declared and the said Bishop commanded to take off his Excommunication And this was declared by the Court to be a most seditious Libel and gave order to enquire after the Printer that he might be prosecuted Eleanor Plummer versus Sir Jeremy Whitchot Intr. Trin. 27 or 28 Car. 2. Rot. 301. in B. R. IN an Action of Debt for an Escape Vpon Nil debet
against the Common Prayer Book and the Defendant having forbid such Preaching the Lord told him that he did not like him upon which he spoke those Words so that the subject matter explained the sense for which reason it was adjudged that the Action would not lie 2. The scandal for which an Action may be brought within this Statute must be false for that word goes quite through the whole Act viz. false News false Lyes c. and the words here are so general that it cannot appear whether they are true or false for there can be no Iustification here as in case where a Man is charged with a particular Crime my Lord Townsend is not charged with any particular Act of Injustice as a Subject nor with any Misdemeanour as a Peer nor with any Offence in an Office If therefore in all Actions brought upon this Statute the Defendant may justifie and put the matter in Issue to try whether it be true or false and in this Case the Defendant can neither justifie nor traverse for this reason the Action will not lie That the Words are general and of a doubtful signification it cannot be denied for to say He is an unworthy Man imports no particular Crime Unworthy is a term of Relation as he is unworthy of my Friendship Acquaintance or Kindred and so may be applicable to any thing and a Lord may in many things be unworthy of a particular Mans Friendship as if he promises to pay a Sum of Mony at a day certain and faileth in the payment as 't is often seén such is an unworthy Man but that will not bear an Action He is an unworthy Man who invites another to Dinner to affront him but it will not bear an Action to say That a Lord invited me to a Dinner to abuse me neither will it be actionable to say He is an unworthy Man because such instances may be given of his Vnworthiness which will not bear an Action If my Lord had beén compared to any base and unworthy thing these Words might have béen actionable and that was the Case of the Lord Marquess of Dorchester it being said of him That there was no more value in him than in a Dog Then to say A Man acts against Law this is no Scandal because every Man who breaks a Penal Law and suffers the Penalty is not guilty of any Crime The Statute commands the burying in Woollen the Party buries one of his Family in Linnen in this he acts against the Law but if the Penalty is satisfied the Law is so likewise A Man who acts against Law acts against Reason because Lex est summa ratio but no instance is here given wherein he did thus act 'T is not said that he did act against Law wilfully or that he used to do any thing against Law and so cannot be like the Case of the Duke of Buckingham who brought an Action for these Words viz. You are used to do things against Law and put Cattle into a Castle where they cannot be replevied for there was not only an Vsage charged upon him but a particular instance of Oppression This Action lies for Words spoken of a Iudge of either Bench and of a Bishop as well as of a Peer Now if a Man should say A Judge acted against Law will an Action lie Because a Iudge may do a thing against Law and yet very justly and honestly unless all the Iudges were infallible and could not be subject to any mistakes which none will deny So if a Bishop return the Cause of his Refusal to admit a Clerk quia criminosus this is a Return against Law because 't is too general but if J. S. should say A Bishop acted against Law and shew that for Cause an Action would not lye If the the Lord Townsend had commanded his Bayliff to make a Distress without Cause that had been acting against Law and Reason He agreed the Words to be uncivil but not actionable for if such Construction should be made a Man must talk in Print or otherwise not speak any thing of a Peer for fear of an Action There are many Authorities where a Péer shall not have an Action for every trivial and slight Expression spoken of him As to say of a Péer He keeps none but Rogues and Rascals about him like himself by the Opinion of two Iustices Yelverton and Flemming the Action would not lie because they are Words of Scolding and this was the Case of the Earl of Lincoln Cro. Jac. 196. But the Court was divided the Defendant died and so the Writ abated Actions for Words have béen of late too much extended formerly there were not above two or three brought in many years and if this Statute should be much inlarged the Lords themselves will be prejudiced thereby by maintaining Actions one against another Vpon this Statute of 2 R. 2 c. 5 there was no Action brought till 13 H. 7. which was above an hundred years after the making of that Law and the occasion of making the Law was because the Duke of Lancaster who was then the first Prince of the Blood took notice that divers were so hardy as to speak of him several lying Words 1 R. 2. num 56. and therefore this Statute was made to punish those who devised false News and horrible and false Lies of any Peer c. whereby Discords might arise between the Lords and Commons and great Peril and Mischief to the Realm and quick Subversion thereof Now from the natural intent and construction of these Words in the Act can it be supposed that if one should say Such a Peer is an unworthy Man that the Kingdom would be presently in a flame and turned into a state of confusion and Civil War and to say That he acts against Law that the Government would thereby be in danger to be lost and quick Subversion would follow This cannot be the common and ordinary understanding of these Words If therefore the Plaintiff by speaking these Words was in no hazard nor any wise damnified if he was not touched in his Loyalty as a Péer nor in danger of his Life as a Subject if he was not thereby subjected to any Corporal or Pecuniary Punishment nor charged with any Breach of Oath nor with a particular Miscarriage in any Office if the Words are so general that they import no Scandal and are neither capable of any Iustification and lastly if they are not such horrible Lies as are intended to be punished by the Statute for these Reasons he concluded the Action would not lie and therefore prayed that the Iudgment might be arrested Serjeant Baldwin and Serjeant Barrel argued on the same side for the Defendant but nothing was mentioned by them which is not fully insisted on in the Argument of Serjeant Maynard for which Reason I have not reported their Arguments But Pemberton Serjeant who argued for the Plaintiff said Ex parte Quer. that it would conduce much to
of which is that he will be rather scorned than obeyed It hath been objected that the Words are general and charge him not with any act Answ The Scandal is the greater for 't is not so bad to say A Man did such a particular thing against Law and Reason as to say He acts against Law which is as much as to say his constant course and practice is such And to say that the Words might be meant of breaking a Penal Law that is a foreign Construction for the plain sense is he acts against the known Laws of the Kingdom and his practice and designs are so to do for he will be guided neither by Law or Reason Object It has been objected that the Scandal must be false But whether true or not there can be no justification here because they are so general that they cannot be put in Issue Answ He agreed that no Action would lye upon this Statute if the words were true but in some Cases the divulging of a Scandal was an Offence at the Common Law now to argue as on the other side that the Defendant cannot justifie and therefore an Action will not lye is a false Consequence because words may be scandalous and derogatory to the dignity of a Peer and yet the subject matter may not be put in Issue He agreed also that occasional Circumstances may extenuate and excuse the Words though ill in themselves but this cannot be applied to the Case in question because the Words were not mitigated The Defendant pleaded Not Guilty and insisted on his Innocence the Iury have found him Guilty which is an aggravation of his Crime if he would have extenuated them by any occasion upon which they were spoken he should have pleaded it specially or offered it in Evidence neither of which was done This Act is to be taken favourably for him against whom the Words are spoken because 't is to prevent great Mischiefs which may fall out in the Kingdom by rude and uncivil discourses and in such Cases 't is usual for Courts rather to enlarge the remedy than to admit of any extenuation for which reasons he prayed that the Plantiff might have his Iudgment It was argued by Serjeant Calthrop on the same side and to the same effect Afterwards this Term all the Iudges argued this Case Argument at the Bench. seriatim at the Bench. And first Iustice Scroggs said That the greatness of the Damages given should not prevail with him either on the one side or the other at the Common Law no Action would lye for such Words though spoken of a Peer for such Actions were not formerly much countenanced but now since a Remedy is given by the Statute Words should not be construed either in a rigid or mild sense but according to the genuine and natural meaning and agreeable to the common understanding of all Men. At the Barr the strained sense for the Plaintiff is that these Words import He is no Man of Honour and for the Defendant that they import no Scandal and that no more was meant by them but what may be said of every Man 'T is true in respect of God Almighty we are all Vnworthy but the subsequent Clause explains what unworthiness the Defendant intended for he infers him to be Unworthy because he acts against Law and Reason Now whether the Words thus explained fix any Crime on the Plaintiff is next to be considered and he was of Opinion that they did fix a Crime upon him for to say He is an unworthy Man is as much as to say He is a vitious person and is the same as to call him a corrupt Man which in the Case of a Peer is actionable for general words are sufficient to support such an Action though not for a common person To say a Man acts against Law and Reason is no Crime if he do it ignorantly and therefore if he had said My Lord was a weak Man for he acts against Law and Reason such words had not been actionable but these Words as spoken do not relate to his Vnderstanding but to his Morals they relate to him also as a Peer though the contrary has been objected that they relate to him only as a Man which is too nice a distinction for to distinguish between a Man and his Peerage is like the distinction between the person of the King and his Authority which hath been often exploded the words affect him in all qualities and all relations It has been also objected that the Words are too general and like the Case of the Bishops Return that a Man is criminosus which is not good But though they are general in the Case of a Peer they are actionable for to say of a Bishop That he is a wicked Man these are as general words and yet an Action will lye It has been also objected That general Words cannot be justified but he was of another Opinion as if the Plaintiff who was Lord Lieutenant of the County had laid an unequal charge upon a Man who upon complaint made to him ordered such charge to stand and that his will in such case should be a Law If the person should thereupon say That the Lord had done Unworthily and both against Law and Reason those words might have been justified by shewing the special matter either in Pleading or Evidence 'T is too late now to examine whether an Action will lye upon this Statute that must be taken for granted and therefore was not much insisted on by those who argued for the Defendant for the Authorities are very plain that such Actions have been allowed upon this Statute The Words as here laid to be spoken are not so bad as the Defendant might speak but they are so bad that an Action will lye for them and though they are general yet many Cases might be put of general words which import a Crime and were adjudged actionable The Earl of Leicester's Case He is an Oppressor The Lord of Winchester's Case He kept me in Prison 'till I gave him a Release these words were held actionable because the plain inference from them is That they were Oppressors The Lord Abergavenny's Case He sent for me and put me into Little Ease It might be presumed that that Lord was a Iustice of Peace as most Peers are in their Counties and that what he did was by colour of his Authority so are all the Cases cited by those who argued for the Plaintiff in some of which the words were strained to import a Crime and yet adjudged actionable especially in the Case of the Lord Marquess of Dorchester He is to be valued no more than a Dog which are less slanderous Words than those at the Bar because the slander is more direct and positive It appears by all these Cases that the Iudges have always construed in favour of these Actions and this has been done in all probability to prevent those dangers that otherwise might ensue if the Lords
Heir Male of the Body of the Devisor had by this Limitation an Estate Tayl as by Purchase and that the Inheritance in Fee simple did not vest in Francis 2. If Thomas the Covenantor had no Estate executed in him yet William his Son in this Case may take by way of future springing use because the Limitation of an Estate upon a Covenant to stand seised may be made to commence after the Ancestors Death for the old Seisin of the Covenantor is enough to support it There is a great difference between a Feoffment to Vses and a Covenant to stand seised for by the Feoffment the Estate is executed presently 1 Co. 154. Rector of Cheddington's Case So if there be a Feoffment to A. for Life Remainder to B. in Fee if A. refuse B. shall enter presently because the Feoffor parted with his whole Estate but if this had been in the Case of a Covenant to stand seised if A. had refused the Covenantor should have enjoyed it again till after the death of A. by way of springing use like the Case of Parsons and Willis 2 Roll. Abr. 794. Where a Man Covenants with B. That if he doth not marry he will stand seised to the use of B. and his Heirs B. dies the Covenantor doth not marry this Vse arises as well to the Heir of B. as to B. himself if he had been living and he shall have the Land in the nature of a descent But if William cannot take it either by purchase or by descent he shall take it 3. Per formam doni as special Heir to Thomas This Case was compared to that in Littleton Sect. 23. If Lands are given to a Man and the heirs Females of his Body if there be a Son the Daughter is not Heir but yet she shall take it for voluntas donatoris c. So if Lands are given to a Man and the Heirs Males of his Body the youngest Son shall have it after the death of the eldest leaving Issue only Daughters for these are descents secundum formam doni So in this Case the Estate Tail vested in Edward and when he died without Issue it comes to William per formam doni Object The Case of Greswold in 4 5 Ph. Mariae Dyer 156. seems to be express against this Opinion which was that Greswold was seised in Fee and made a Grant for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs he had Issue two Sons and dyed the eldest Son had Issue a Daughter and dyed and if the Daughter or her Vncle should have the Land was the question in that Case And it was adjudged that the Limitation of the Remainder was void because Greswold could not make his right Heir a Purchasor without departing with the whole Fee Postea Brittain and Charnock and therefore Iudgment was given against the special Heir in Tail for the Heir general which was the Daughter Answ Admit that Case to be Law yet the Iudges there differed in their Arguments 'T is not like this at Bar for that Case was not upon a Covenant to stand seised but upon a Deed indented and so a Conveyance at the Common Law But for an Authority in the point the Case of Pybus and Mitford was cited and relied on which was Trin. 24 Car. 2. Rot. 703. Mod. Rep. 159. 1 Ventris 372. adjudged by Hales Chief Iustice Rainsford and Wild but Iustice Twisden was of a contrary Opinion Serjeant Stroud who argued on the other side made three Points 1. Whether this Limitation be good in its creation 2. If the Estate Tail be well executed in Thomas the Covenantor 3. If it be good and well executed whether when Edward died without Issue the whole Estate Tail was not spent 1. And as to the first Point he held that this Limitation to the Heirs Males of Thomas was void in the creation because a Man cannot make himself or his own right Heir a Purchasor unless he will part with the whole Estate in Fee Dyer 309 b. If A. being seised in Fee makes a Lease for Life to B. the Remainder to himself for years this Remainder is void so if it had been to himself for Life because he hath an Estate in Fee and he cannot reserve to himself a lesser Estate than he had before 42 Ass 2. If I give Lands to A. for Life the Remainder to my self for Life the Remainder in Fee to B after the death of A. in this Case B. shall enter for the Remainder to me was void 1 H. 5. 8. 42 Edw. 3. 5. Bro. Estate 66. Dyer 69. b. 'T is true these Cases are put at the Common Law but the Statute of Vses makes no alteration for according to the Rules laid down in Chudleigh's Case by my Lord Chief Iustice Popham 1 Co. 138. 1. Vses are odious and so the Law will not favour them 2. A Rule at Common Law shall not be broke to vest an Vse and the Vses here cannot vest without breaking of a Rule in Law 3. Vses are raised so privately that he who takes them may not know when they vest and for that reason they are not to be favoured 4. The Statute annexes both the Possession and the Vse together as they vest and divest both together Moor 713. 2 Co. 91. Co. Lit. 22. Moor 284. 2. As to the second Point The Estate is not executed in Thomas and therefore William cannot take it by descent Heirs of his Body or Heirs Male are good Words of Limitation to take by Purchase from a Stranger but not from an Ancestor for there he shall take by descent and for this there is an Authority Co. Lit. 26. b. John had Issue by his Wife Roberga Robert and Mawd John dies Michael gave Lands to Roberga and to the Heirs of her Husband on her Body begotten Roberga in this Case had but an Estate for Life for the Fee Tail vested in Robert and when he died without Issue his Sister Maud was Tenant in Tail per formam Doni and in a Formedon she counted as Heir to Robert which she was not neither was she Heir to her Father at the time of the Gift yet it was held good for the Words Viz. Heirs of the Body of the Father were Words of Purchase in this Case If therefore no Vse for Life vested in Thomas then William cannot take by descent Dyer 156. Co. Lit. 22. Hob. 31. Dyer 309. 1 Co. 154. Lord Paget's Case cited in Hob. 151. 3. To the third Point Admitting both the former to be against him yet since Edward is dead without Issue the Estate Tail is spent But the whole Court were of Opinion Judgment That William should Inherit this Land in question for though at the Common Law a Man cannot be Donor and Donee without he part with the whole Estate yet 't is otherwise upon a Covenant to stand seised to Vses And if any other Construction should be made
Issue joyned 144 Arrest In the Palace Yard sitting the Court the Officer was committed and the Party discharged upon Common Bail 181 Assignee Of a Devisee is not an Assignee to take where Rent is reserved to a Man and his Assigns 93 Audita Querela Upon the Act of Indempnity and Judgment for the Plaintiff 37 Where it lyeth 49 Assumpsit Where there are mutual Promises and where not 33 34 Where one Promise may be pleaded in discharge of another 44 Promise before a Breach may be discharged by Parol ibid. Assurance Condition to pay Mony upon making such assurance Payment is pleaded but doth not say when assurance made not good 33 Avowry For taking of a Herriot tempore quo being left out and yet good 4 5 Averment Vide Consideration Where it need not be of a sufficiency of a Common in the Plea 276 Avoidance Grant thereof by a Chapter doth not bind the Successor 56 Where there is an Agreement between three for a Presentation by turns a Grant of the next Avoidance by one though the Church be full is good 97 Authority Where to be pursued 79 How it differs from an Interest ibid. Where 't is coupled with an Interest 't is assignable 318 Acts done by one in reputed Authority are favoured by Law 194 Award Pleaded under Hand and not under Seal not good 77 78 An Umpire was chosen after the day in the Submission who made an Award and good 169 170 That all Suits shall cease it amounts to a Release 227 228 One may submit for another and good 228 Of a lesser Sum in satisfaction of a greater good 303 304 A thing awarded not in the Submismission 't is void and the Award good 309 Submission of a particular difference and a general Release awarded if no other Controversie 't is good 309 Of all differences till such a day and a Release awarded to be given of all ten days after if no more Controversies do appear within that time 't is good ibid. B. Bail Vide fol. 28. ARE liable though the Principal is in Execution 312 Action on the Case lieth against the Sheriff for refusing of Bail 31 32 It is not to be allowed in a Scandalum Magnatum 215 Barr. Where the Plaintiff misconceived his Action it shall be no barr to a new one 294 319 Baron and Feme Where they shall joyn in an Action of Assault 66 How she may make a Will with her Husbands assent 170 Where the Agreement of her Husband is good before Marriage 172 How he must shew his disassent after her death ibid. If he once assent he cannot afterwards disagree ibid. What Acts amount to testifie his Consent and what his Disagreement 172 173 Where he shall bring the Action alone upon a Covenant made to both 217 When the Action if not discharged shall survive to her they must both join 269 270 Whether he shall make distribution of the Estate of his Wife dying intestate 20 21 22 He makes a Will and his Wife Executrix she dies before Probate Administration shall be to the next of the Kin of the Husband 101 Bond. Where one may be given in discharge of another 136 137 With an insensible Condition the Bond is good and the Condition void 285 To render himself a Prisoner or pay the Mony in behalf of a third person good 304 305 Breach Where 't is assigned according to the words of the Covenant and good 139 Cannot be assigned upon a Proviso but upon an express Covenant 37 C. Carrier JUstification for that he was robbed the Plea is ill in Substance 270 271 Church Prescription to have an Isle therein no good Cause for a Prohibition 283 Bishop cannot appoint Commissioners to rate a Parish for repair of a Church 8 How a Rate shall be made for the the building thereof 222 Common and Commoner Where a Licence from the Lord is pleaded to a Surcharge you must alledge that there is sufficient Common besides 6 7 May abate Hedges made upon his Commom 65 66 Where it must be for Cattle Levant and Couchant 185 Where he justified by a Plea amounting to the general Issue and held good 274 275 Tenants in Common Need not join in an Action of Waste 61 Must join in the personalty 62 Common Pleas Court Cannot grant a Habeas Corpus in criminal Causes 198 Cannot take Sureties for the good Behaviour ibid. Condition Precedent what words will amount to it 33 34 Paying and performing make not a Condition 34 35 Where the Acceptance of a collateral thing by the Obligee shall be a good performance of the Condition 137 Disjunctive Condition the power of election is in the Obligee 200 303 Where 't is with a Penalty the power of election is in the Obligor 200 All Conditions with a Penalty are made in favour of the Obligor ibid. Where 't is dispensed withal by the Act of God and of the Party 201 Where the Obligee had dispensed with one part of the Condition the other is discharged 202 To make such a Conveyance as the Council of the Obligee shall direct if he refuse the Obligor may procure the Conveyance to be made 203 204 Of a Bond where 't is not performed by the return of a Ship 267 To do a thing to a Stranger where it ought to be performed 309 What words make a Condition and not a Covenant and e contra 35 75 76 Continuando A Trespass longer than he can prove Damages shall be recovered for what he can prove before 253 Consideration In a Grant not repugnant to a former may be averred 250 Conveyance At Common Law there must be an actual Entry to make it good otherwise upon the Statute of Uses 251 Where several things make but one Conveyance 233 Construction Shall not be made to work a wrong 116 Copyhold A Covenant that he shall enjoy it for one year sic de anno in annum amounts to a Lease to make a Forfeiture 81 If he refuse to pay the Fine having probable cause so to do the Lord cannot bring his Ejectment for a Forfeiture 229 Costs Allowed for disturbing the Plaintiff in his Common though it be in the nature of a Trespass 141 142 Covenant Where it lies in the personalty tho' the Grant be executed by the Statute of Uses which makes a distress the proper Remedy 138 139 The words paying and performing make a Covenant and not a Condition 35 91 92 Where a Breach shall be assigned upon it but not on a Proviso 36 37 Where they are mutual and where not 74 75 76 The words povisum agreatum est make a Covenant 77 Where the word Covenant shall amount to an Agreement and where to a Lease 80 It is intended to levy a Fine whether this is a Covenant or not 89 90 What Agreement under Hand and Seal will amount to a Covenant 89 Assignee Covenant lies against him after assignment 139 Covenant to stand seised how it differs from a Feoffment to Uses 208 209
Habens legale jus titulum need not shew what Title the disturber had after Verdict 213 In a Bond to pay 40 l. when an Accompt is stated by two Attornies to be chosen between the Parties 't is a Covenant and not a solvendum 266 Breach is assigned relating to three Covenants and concludes sic Conventionem fregit 't is good 311 Where an Agreement to pay will amount to a Covenant 269 Covenants reciprocal cannot be pleaded in bar to each other 34 75 76 309 Breach where assigned and not necessary to aver performance on the part of the Plaintiff 309 Court Inferiour the cause of Action must arise within the Jurisdiction 30 Judgment therein arrested because the Damages were laid to 30 l. 101 102 For not saying that the Jurors were electi ad triand ' 102 Taliter processum fuit and the proceedings not set forth at large well enough in a Plea but not in a Writ of Error 102 195 Vi armis contra pacem whether good or not 102 Cannot hold Plea for work done without the Jurisdiction though the Promise be made within 141 Cause of Action must appear to be within the Jurisdiction to oust the Courts above 197 Where it doth not appear that the Court was held either by Grant or Prescription good 197 198 If the cause of Action doth not appear to be within the Jurisdiction though there is a Judgment recovered below yet an Action of Trespass will lye and false Imprisonment upon the taking out of that Judgment 197 If upon Evidence it appear that the cause of Action did arise extra Jurisdictionem the Plaintiff must be non-suit 273 If Jurisdiction be admitted in pleading and Verdict and Judgment thereon t is too late for a Prohibition Ibid. Court Ecclesiastical In what Case a Bishop shall administer an Oath in Temporal Matters 118 Custom One cannot be pleaded in bar to another 105 In pleading it must be strictly alledged 41 Where 't is a reasonable Custom for the Lord to have derelict Lands 107 D. Day Vide Plea WHere 't is excluded being alledged in the Declaration it makes the Plea ill 146 'T is but punctum temporis and of no consideration in the Law 281 Release of all demands usque 26 April a Bond dated that day is not released 281 Debt Upon the Sheriffs Bond will be good though the Statute be not pleaded 36 Will lye upon the Contract where the whole Term is assigned 174 175 176 Whether it will lye for a Fine set by a Steward for 't is ex quasi contractu 230 It must be upon the Contract or ex quasi contractu 262 Deed. Where 't is lost the Party must make Oath of it to entitle himself to a Bill in Equity to have it performed in Specie 173 Demand Must be made where an Interest is to be determined 264 Devise To a Man and his Heirs if the Devisee die in the Life time of the Devisor his Heir takes nothing 313 Republication makes it a new Will ibid. To the Heir at Law makes a Limitation and not a Condition 7 To an Infant in ventre sa mere if there is a sufficient description of him 't is good 9 Where the word paying makes a Fee where not 26 To him till he be of Age then to him in Fee he dyed within Age yet a Free-hold vested in him presently 289 To him in Fee when of Age if he dye before then to the Heirs of the Body of R. and their Heirs he died living R. within Age his Sister and Heir shall take by way of Executory devise 289 Executory devise how it differs from a contingent Remainder at Common Law ibid. Construction of words therein 290 Departure From his Plea 31 Disability By a Statute where it ought to be removed by the Party to enable himself to execute an Office 299 Discharge By Parol good before the breach of promise but not afterwards 259 Discontinuance Where amendable 316 In pleading the Plaintiff declared of taking several things the Defenant justifies as to part and saith nothing of the residue 259 In the Adjournment of a Court where a day certain is not given 59 Distress Cannot be of Sheaves of Corn in Shocks for Rent 61 Distribution Shall be equally made amongst the Children of the whole and half Blood 204 205 206 Disturbance Coactus fuit to pay is a sufficient Disturbance 55 E. Escape THE Plaintiff declared upon Process in an Inferiour Court and the Bond was not made infra Jurisdictionem the Action would not lye 29 30 Debt thereon lies against the Warden of the Fleet as Superior where the Grantee for Life is insufficient 119 After an Escape the Plaintiff may have a Capias ad satisfaciendum or Scire facias at his Election 136 Whether it will lye against the Sheriff for taking insufficient Bail 181 Election In disjunctive Conditions where the Election is in the Obligor 201 304 'T is at the Plaintiffs Election to have a Ca. Sa. or Scire facias after an Escape 136 Enclosure Where a Custom is good to Enclose in a Common Field 105 Entry Not necessary to avoid an Estate in case of a Limitation 7 Error Where a Writ of Error will lye upon a Fine in the Old Bayly 219 Error in Fact cannot be assigned in the Exchequer-Chamber 194 If one be dead after the Judgment he must be named in a Writ of Error 285 Where a Judgment shall be avoided by a Plea without a Writ of Error 276 Estate Where the word Body makes an Estate for Life and no Tail 16 Estoppel Good by a Fine levied by a Remainder man in Tail 90 No Uses can be declared of a Fine by Estoppel 90 One who has no Estate levies a Fine 't is good by Estoppel 115 Evidence A Decree in Chancery or Sentence in in the Ecclesiastical Court read as Evidence of the fact 231 232 Excuse If one Man doth not perform his Covenant 't is no Excuse for the breach on the other side 75 76 What is a good Plea by way of Excuse and what not 27 28 29 Executor De son tort cannot retain 51 Where the Judgment shall be de bonis Testatoris 108 What is requisite to make an Executor 147 What must be done when he refuseth Ibid. De son tort where he may be of a Term but not of a Term in futuro because he cannot enter 175 Cannot plead non detinet where the Testator could not plead nil debet 266 Executor of an Executor de son tort where not liable at Law 293 294 Where he pleads a Judgment kept on Foot by fraud 36 Explain A Man grants Tenementa praedicta then follows totum quicquid habet whether these subsequent words shall explain or enlarge the Grant 112 113 c. Execution Payment of the Mony to the Marshal the Defendant may be taken again in Execution at the Suit of the Plaintiff 212 213 Executory Decree Is of no force in Equity 232 Existen
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