existens liberum tenementum ipsius Janae manu forti ingressi sunt c. Exception was taken to it because it was not adtunc existens liberum tenementum ipsius Janae To which it was Answered That altho' in an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with Force because upon the finding of it a Restitution is to be awarded and where 't is generally existens liberum tenementum it may be referred as well to the time of the Indictment as to the Entry yet here 't is not material because no Restitution is to be awarded but the Malefactors being convicted by the View of the Iustices are to be Fined and Imprisoned And the President in Mr. Dalton's Book of Justice of the Peace fo 356. makes no mention of whose Freehold at all But however here existens liberum tenementum shall be referred to the Complainant tho' there be not adtunc and of that Opinion were the Court But Twisden was of Opinion that it was not necessary to be alledged in this Case at all Postea Sir Andrew Henley versus Dr. Burstall IN an Action upon the Case the Plaintiff declared That he being a Justice of Peace the Defendant had Indicted him for rescuing of a Vagabond out of the Constables hands who brought him before him so that the Law could not be executed against him It was said To Indict a man for such a Crime in the Execution of his Office was Actionable and it has been often Resolved That an Action would lye for Indicting a man of Barretry and in the Book of Assize 13. for Indicting one for Trespass And to this the Court did incline but they would further Advise Postea The King versus Ring ERror to Reverse a Judgment in an Indictment of Forgery against Ring upon the Statute of 5 Eliz. cap. 4. for that he Scienter subdole falsò fabricavit quoddam falsum factum scriptum Indentatum Barganiae venditionis which was said to be Inrolled per quod Harrison Keymer Henry Keymer did sell to J.S. such Lands and then sets forth the Indenture verbatim quod postea praedict ' Ring praedict ' Chartam esse falsam contrafactam vi armis pronunciavit publicavit and this was ea intentione ad perturbandum statum titulum interesse of Harrison and Henry Keymer and their Heirs The first Error assigned was That the Indictment was for Forging of a Deed of Bargain and Sale and the Indentures set forth were a Lease and Release Also it did not appear in what Court it was Inrolled and it must be Inrolled at one of the Four Courts at Westminster or before the Justices of the Peace at the Sessions to be a Bargain and Sale and whereas the Indictment is for Forgery of a Deed per quod Harrison and Henry Keymer did sell only one of them was party to the Deed set forth And it ought to have been in quo continetur that they did sell and not They did sell whereas the Deed was Forged which as was said is oppositum in objecto And where it is that Sciens praedictam Chartam esse falsam vi Armis pronunciavit publicavit it was said it ought to have been Vi armis praedictam Chartam pronunciavit publicavit And for this Vauxes Case in 4 Co. was cited where it is Nich. nesciens praedictum potum cum veneno fore intoxicatum sed fidem adhibens dictae persuasioni dicti W. recepit bibit and because it was not praedictum venenum recepit bibit it was held insufficient for Indictments must have precise certainty fo 44. Another Exception was That this Forgery was said to be ea intentione ad perturbandum statum titulum interesse of them and their Heirs and it did not appear that they had a Freehold and the punishment inflicted by the Statute is more severe when the Forgery is to disturb the Freehold than when it only concerns a Chattel Also it ought to appear in whom the Freehold was at the time of the Forgery as an Indictment of Forcible Entry upon the Statute of 8 H. 6. must express in whom the Freehold was at the time of the Force Et Adjornatur Anonymus UPon Process against one the Sheriff returned a Non est inventus and an Affidavit was made That the Defendant was one of the Sheriffs Bailiffs and the Sheriff was amerced Anonymus IN Trover and Conversion against Baron and Feme the Plaintiff declared Quod ad usum proprium converterunt which was naught because it must only be ad usum of the Husband and yet it may be converterunt if she were present yet whatever she doth is the act of her Husband 1 Cro. Sir Andrew Henley and Dr. Burstall THe Case was move◠again and spoken to in Arrest of Judgment That no Action would lye for proceeding against a man by Indictment and it would discourage all legal Prosecutions of Offences and 4 Co. 14 b. was cited where it is resolved That no Action lies for Exhibiting of Articles to a Justice of the Peace against one tho' the matter he false nor for preferring a Scandalous Bill in the Star Chamber concerning things whereof the Court had Iurisdiction But an Action upon the Case or Conspiracy lies where Life or Member are brought in jeopardy by a malicious Indictment But notwithstanding the Court Resolved That the Plaintiff should have Judgment Tho' 't was further alledged That there was no Issue joyned for in the Pleading and Ioyning of the Issue the Defendants Christian Name was mistaken but the Court would amend that it being rightly named before in the Record Ante. The King and Serjent AN Indictment of Forcible Entry and Detainer was preferred against Serjent and the Iury found as to the Detainer with Force Billa vera but as to the Entry Ignoramus And it was moved to quash this Indictment because they ought to have found all or none and of that Opinion was the Court Ante. Rumsey and Rawson THe Case was moved again by Mr. Solicitor That the Plaintiff having Intituled the Parson to Common for 200 Sheep levant and couchant and that these Beasts were levant and couchant and that he put them in by the Licence of the Parson He ought to have shewn That the Licence was by Deed being to take a Profit in alieno solo and the Statute which gives remedy after Verdict when he doth not say Hic in Curia prolat ' doth not aid this And 't is necessary to plead a thing by Deed whose nature requires it But to this it was Answered by Jones 2 Cro. 424 That a Parol Licence was sufficient in this Case being only to take the Profit unica vice there passing no Estate in it And the Plantiff had Iudgment Pomfret versus Ricroft IN Covenant the Plaintiff declares That the Defendant demised unto him a certain Messuage excepting a piece
Covenant the Plaintiff declared That the Defendant demised to him a House with the use of a Pump and that he suffered it to be so out of Repair that it became Useless To this Declaration the Defendant demurs and Counsel being heard on either side divers times the Court delivered their Opinions severally Keeling Rainsford and Moreton held that the Action did lye the Use of the Pump being part of the things demised which Words make a Covenant as in 4 Co. Noke's Case and in 5 Co. Spencer's Case If a man let an House together with Estovers to be taken in the Wood of the Lessor and afterwards the Wood is stubbed up there Covenant lies for the Lessee And Rainsford put this Case If a mans Lets the Middle Rooms of his House to one and the Vpper to another and lets the Roof of the House decay he conceived Covenant would lie for the Lessee of the middle Rooms And if a Parson makes a Lease and then Resigns he is liable to Covenant as in 12 H. 4. And the Lessee would be at a mischief for he should be a Trespasser to Enter and Repair and if the Lessor ousts the Lessee of any of the things demised 't is clear the Covenant lies and this is as much an ouster as can be in this case where the Lessor is possessed himself And so Iudgment was given for the Plaintiff against the Opinion of Twisden who held strongly to the contrary for he said he might have an Action upon the Case and so remedy for his Damage Also he held clearly That he might Enter and Repair as if one Licence another to lay Pipes in his Ground to convey Water he may justifie an Entry to Repair the Pipes And he cited a Case adjudged in 9 Jac. where one by Licence erected a Cock of Hay in anothers Ground And it was held That the Owner of the Soil might put in his Beasts into that Ground but he that had the Licence might by vertue of that Licence also fence in his Hay Quando aliquid conceditur conceditur id sine quo res ipsa uti non potest and he said that he never met with a Case where Covenant would lie but upon an actual ouster either by a Stranger that hath eigne Title or the Lessor himself And this was a non feasans and in that he differenced it from the Case of Estovers being an actual Tort to stub the Wood up and in Covenant upon an ouster of a Term if it be not incurred Iudgment shall be to recover the Term it self as F. N. B. 145. which cannot be in this Case for the Sheriff cannot put him into possession of the use of the Pump neither is it fit that he should recover Damages for all the Term for it may be the Pump will be presently repaired And he conceived that if the Lessor Cuts down Trées growing upon the Land Demised no Covenant lies yet the Trees are Demised with the rest Ante. Anonymus A Draws a Bill upon B. to the use of C. and Vpon Non-payment C. Protests the Bill he cannot Sue A. unless he gives him notice that the Bill is Protested for A. may have the Effects of B. in his Hands by which he may satisfie himself Note It was said if an Action to recover Lands of which a Fine was Levied were brought and discontinued by the Demandant this would not amount to a Claim Glyn versus Smith A Scire facias upon a Record in the Kings Bench where the Action is brought by Original must alledge a place where the Court was holden because 't is Ambulatory and the Writs returnable there are coram nobis ubicunque tunc fuerimus in Angliâ But it is otherwise upon Records in the Common Pleas for that is confined to a certain place by Magna Charta Anonymus IT was moved to quash a Return of a Rescous because it was Mandavi Ballivis who took him virtute Warr ' praed ' And it was said Mandavi did not imply that it was in Writing But the Exception was disallowed by the Court. Anonymus IF the Party that brings an Audita Querela be out of Prison the Court will Bail him though grounded upon a surmise of a matter of Fact as payment c. But if he be in Prison not unless there be a Specialty Parries Case DIvers Deeds and Evidences were shewn to Counsel for his Opinion of the Title to certain Lands which were to be sold He delivers them to one Parry a Scrivener by the consent of the Parties Parry finding a Deed to concern the interest of a third person gives it to him and upon complaint to the Court they commanded him to produce the Deed that it might be delivered back again to the Parties they conceiving it an abuse in his practice which was under the Regulation of this Court Anonymus IN Replevin in the Court at Canterbury the Defendant avowed for Rent Afterward this was removed by the Plaintiff into the Kings-Bench and the Defendant prayed a Procedendo because Canterbury was a County of it self and no Assizes there and so the Cause could not be tried But the Court denied it saying it was their own fault that they had not the Assizes there and every Subject had the liberty of removing his Suit into a Superiour Court Twisden said He had formerly known it to be denied in an Ejectment Girlington versus Pitfield IN an Action upon the Case for malitiously prosecuting of an Indictment of Perjury against him of which he was acquitted upon Not guilty pleaded it appeared upon the Evidence that the Defendant was a Justice of the Peace and procured some as Witnesses to appear against him and his own name was endorsed upon the Indictment to give Evidence The Court agreed that this did not make him a Prosecutor for if a Iustice of the Peace knows any person that can give Evidence against one that is indicted he ought to cause him to do it But it was proved on the Defendant's side That this Indictment was drawn up by an Order of the Sessions Wherefore Keeling Chief Justice said That the Plaintiff deserved to be bound to his Good Behaviour for bringing of this Action Horne versus Ivie IN Trespass for taking of a Ship and Sails the Defendant justified by a command from the Governours and Society of the Trade into the Canaries who were Incorporated by that name and had the sole Trade granted to them with a Forfeiture of all such Goods as should be imported hither from thence by any person not of their Company and that the Ship of the Plaintiff brought Goods from thence To this the Plaintiff Demurred His Counsel did not much insist upon the validity of the Patent because it was a Monopoly though it was said to be also against divers Statutes to Prohibit Merchants frèe trading to forein parts as 9 E. 3. cap. 1. 25 Ed. 3. cap. 2. 11 R. 2. cap. 7 and that there could grow no Forfeiture of
in an Inferiour Court for want of infra Jurisdictionem Curiae 2 For variance between the Count and Plaint 6 But it lies not for some Omissions 5 A Writ of Error is a Supersedeas to an Execution 30. Yet the Judgment remains a Record 34 Exception 353 355 A Writ of Error returnable ad proximum Parliamentum not good Secus if to the day of Prorogation 31 266 No Writ of Error lies upon a Conviction before a Justice of Peace 33 In a Writ of Error if the Defendant dies the Writ is not abated Secus if the Plaintiff dies 34 Lies not to reverse a Judgment in a Qui tam nor upon the Statute de Scandalis Magnatis 49 What Records to be returned upon a Writ of Error 96 97 Where it lies upon a Judgment in a Scire facias and where not 168 Error in fact not assignable in the Exchequer Chamber 207 A Writ of Error that bears Teste before the Judgment good to remove the Record if Judgment be given before the Return 255 Escape See Baron and Feme VVhere a Prisoner Escapes by permission of the Sheriff he may be taken again by the Party Plaintiff 4 Debt against the Sheriff for a Voluntary Escape the Sheriff pleads that he took him again upon fresh Suit Good 211 217 Against the VVarden of the Fleet 269 The Lessor of the Custody of a Prison answerable for an Escape where his Lessee is insufficient 314 Escrow See Pleading Evidence See Statutes The party suffering admitted to give Evidence for the King to detect a Fraud 49 Exception See Feoffment Excommunication In Excommunication ipso facto no necessity of any Sentence of Excommunication 146 Excommunication pleaded to an Action per Literas testamentarias Good 222 How discharged where the Capias is not inroled according to the Statute 338 Execution Upon an Elegit the Sheriff ought to deliver Possession by Metes and Bounds or otherwise it may be quasht 259 Executor See Abatement Costs Return Of Infant Executors where to Sue by Guardian 40 54. VVhere by Attorney 40 102 103 If a Man names himself in an Action Executor or Administrator and it appears the Cause of Action was in his own right it shall be well enough and the calling himself Executor is but surplusage 119 VVhere the Executors promise in relation to the Testators Debt shall make the Debt his own 120 268 VVhere Interest is due for a Debt partly in the Testators life time and partly since and one Action brought and Judgment given for the whole this is manifestly Erroneous 199 VVhere chargeable in the Debet detinet and where in the detinet only 271 321 355 Cannot assume the Executorship for part and refuse for part 271 Debt doth not lie against the Executor of an Executor upon a Surmise of a Devastavit of the first Executor 292 Of the Executors renouncing 303 cannot refuse after Oath 335 Of Executor de son tort 349 VVhat Acts an Executor may do before Probat 370 Exposition of Words Obstrupabat 4 Or 62 148 Pair of Curtains and Vallence 71 106 Ad sequendum 74 Vt 73 74 Aliter vel alio modo 92 Mutuasset and mutuatus esset 109 Aromatarij 142 Centena 211 Issue 229 Land 260 Crates 304 Gubernatio Regimen 324 Exilium 326 Vestura terrae 393 Extinguishment Where two Closes are in the same Possession the Duty of Fencing is Extinguished and shall not Revive thô the Closes come after into several hands 97 F. False Latine DE sex bovibus instead of bobus no sufficient Cause to Arrest Judgment 17 Feoffment A Man makes a Feoffment of a Mannor excepting two Closes for the Life of the Feoffor only The two Closes descend to the Heir 106 Fine The Delivery of a Declaration in Ejectment upon the Lands is no Entry or Claim to avoid a Fine 42. So where an Action is brought and discontinued 45 A Fine cannot bar any Interest which was divested at the time of the Fine 56 Whether a Fine and Non-Claim bars the Interest of a Lessee in Trust 80 No Bar to a Mortgage 82 A Parish may contain many Vills and if a Fine may be levied of Lands in the Parish it carries whatsoever is in any of those Vills 170 Lessee for years makes a Feoffment and levies a Fine the Lessor shall have five years to Claim after the Term expired 241 Forcible Entry In an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with force because upon the finding a Restitution is to be awarded 23 Foreign Attachment See London Of Foreign Attachments by Custom how to be pleaded 236 G. Gaming See Statutes Guardian See Baron and Feme Executor Grant See Hundred GRant without Consideration hinders not the arising of a Contingent use 189 In Prescriptions or Usage time beyond Memory the Law presumes a Grant at first and the Grant lost 387. And therefore nothing can be prescribed for that cannot at this day be raised by Grant ibid. Of the Kings Grant 408 409 A Grant to a Town to be a County and no Grant of having a Sheriff void 407 H. Habeas Corpus See Statutes THo' the Return be Filed yet the Court may remand the Prisoner to the same Prison and not to the Marshalsey 330 346 Whether it lies to remove a Prisoner in Ireland 357 Half Blood The Sister of the Half Blood shall come in for distribution upon the Stat. 22 23 Car. 2. chap. 10. 316 317 323 Half Blood no Impediment to Administration 424 Harriot Where a Lease is made to commence on the Determination of another if the new Lessee dyes before his Term Commences whether a Harriot shall be due 91 Heir An implied Estate of Land shall not pass in a Will for an Heir shall not be defeated but upon a necessary Implication 323 376 A Man cannot by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser 372 379 Yet Heirs of the Body of his second Wife having a Son by the first is a good name of Purchase 381 Hospital Mastership of a Hospital not grantable in Reversion 151 Hundred A Hundred what it is and the Bayliff of a Hundred 403 The Grant of a Hundred good notwithstanding the Statutes 2 E. 3. 12. 14 E. 3. 9. 410 412. I. Imprisonment Where an Offence is Fineable if the Fine be tenderd there ought to be no Imprisonment 116 Indictment Where a Statute makes an Offence at Common Law more penal yet the Conclusion of the Indictment is not contra formam Statuti 13 A Man cannot be Indicted for saying of a Justice of Peace he understands not the Statutes of Excise but may be bound to Good Behoviour 10 16 Indictment of Forgery upon the Stat. 5 El. 4. where good and where not 23 24 Strictness of words not required in in an Order of Sessions thô it ought in an Indictment 37 For Manslaughter not quasht upon Motion 110.
the Statute are to King James and in administring the Oath King Charles is named 171 172 The Ecclesiastical Court may make Defendants answer upon Oath as the Chancery doth 339 Obligation If two be bound joyntly and one be sued he cannot demur unless he aver the other is living And if there be two Obligees one cannot sue unless he avers the other is dead 34 A Release of one Joint Obligee of all Actions c. upon his own account does not discharge the Obligation 35 I do acknowledge to E. H. by me 20 l upon demand for doing the Work in my Garden Adjudged upon Demurrer to be a good Bond 238 Office and Officer Whether acceptance of a second Grant of an Office be a surrender of the first 297 An Act begun by one Officer and left imperfect what remains for his Successor 319 320. Outlawry Reverst for want of the Words pro Comitatu and why 108 P. Pardon See Witness WHere good without mentioning the Indictment 207 Parliament See Error The Three Estates See King Pasture Custom for Copyholders to have sole Feeding in a Certain Waste it is not needful to alledge that the Beasts were Levant and Couchant Here also a Copyholder may license others without Deed to put on their Beasts 165 Peace See Indictments Ac. Case Formality of Words where necessary in the Proceedings of Justices of Peace 39 Justices of Peace their Proceedings in relation to Bastard Children 48 59 210 310 336 Upon a Forcible Entry 308 Order of Sessions final in relation to a settlement of the Poor 310 King's Bench may judge of Fines imposed at Sessions and mitigate them 336 Perjury See Indictment One gave Evidence at a Trial and afterwards made Affidavit that he was perjured and suborn'd for which Affidavit an Information of Perjury was exhibited against him and he found guilty of Perjury in swearing he was perjured 182 Pleading See Escape Trespass In Debt upon Obligation the Defendant pleads that he delivered it as an Escrow plea nought 9 Where the Defendant pleads in Abatement and the Plaintiff Demurs if it be adjudged against the Defendant it shall be quod respondeat ulterius But if any thing be alledged in Abatement where upon Issue joyned it goes for the Plaintiff there he shall have Judgment to recover his Debt 22 In Actions laid by way of Reciprocal Promise there needs no Averment of Performance 41 178 Double Plea what 48 272 Trespass quare Arbores succidit Declaration insufficient because not exprest what kind of Trees 53 The like of Fishes 272 329 In Battery absque hoc quod moderate castigavit no direct Traverse to the Defendants Justification 70. Yet good after a Verdict ibid. A Plea in Abatement shall not be admitted after Imparlance 76 136 184. Exception 236 A Traverse designed to bring a Colateral matter in question not allowed 77 Executor pleads plene Administravit the Plaintiff confesseth the Plea and prays Judgment de bonis Testatoris quae in futuro ad manus defendentis devenerint 94 Where the Plaintiff denies what the Defendant affirms whether he ought to traverse or conclude to the Country 101 In Trespass where the Defendant claims a Way what Justification is sufficient what not 13 Incertainty in the Declaration or Plea where naught 106 114 120 278. What shall be said a Departure in Pleading what not 121 Where one Declares against one upon a Deed and it appears that another was bound with him it shall not be intended that the other sealed unless averr'd on the Defendants side 136 137 Deed delivered as an Escrow how to be pleaded 210 An apt Issue is not formed without an Affirmative and a Negative 213 To declare that a Bishop was seized in fee and not say in Jure Episcopatus not binds Successor 223 In Debt for Rent semper paratus is no good plea without saying quod obtulit 322 The effect of an Innuendo 337 The Statute for discharge of poor Prisoners how to be pleaded 356 Several Freeholders cannot joyn or be joyned in a Prescription to claim an Intire Interest in another mans Soyl 384. Nor can Freeholders and Copyholders joyn 390 Powers See Rocovery Of Power to Lease where well persued 294 340 Of Power of Revocation See Revocation Whether the Power of Revocation is extinguished by a Fine 368 371 Prescription See Appurtenant Common Grant The Nature and Rules of Prescription 386 Diversity between Prescription and Custom 389 The Owner of the Soyl can by no Prescription or Custom be excluded out of his own Soyl at all times of the year 390. But he may be excluded for a certain time and as to some kind of Profits 391 Prohibition Where it lies to the Admiralty 1 146 To the Ecclesiastical Court where a Parson sues for calling him Knave 2 Whether it lies where a Bishop sues for a Pension in his own Court 3 Whether it lies upon Suggestion that the Proprietors and Occupiers of such a Mannor or any parcel thereof pay a Groat to the Parson for Herbage-Tythes ibid. Lies for citing a man to answer in the Ecclesiastical Court and not delivering a Coppy of the Articles 5. And if the Party be excommunicate a Prohibition with a Mandamus to absolve him ibid. 252 Not lies to the Ecclesiastical Court for calling Impudent Whore 7. Or Whore and Bawd 61 220. Denied to the Ecclesiastical Court for calling Old Theif and Old Whore 10. Secus in London 343 352 In Prohibition on a Suit for Tythes what Suggestion is to be proved within six months 107 To the Ecclesiastical Court to stay a Suit there for Apparators Fees Suggesting there were no such Fees due by Custom 165 To Woodstreet Compter London for refusing to admit a Plea to their Jurisdiction before Imparlance 180 The Defendant in the Ecclesiastical Court pleads that the Tythes belong to another which Plea is refused Prohibition lies 248 335 Granted to the Ecclesiastical Court where Custom and Prescription comes in question tho the Principal Cause belongs properly to that Court as Church-Wardens Rates Tythes Mortuaries 274 Whether it lies to the Ecclesiastical Court for refusing to admit a Proof by one Witness 291 No Precedent for a Prohibition quia timet 313 To the Council of the Marches 330 Proof See Record Where Proof is to be made upon a Writ of Enquiry and where not 347 Q. Queen A Reservation to the Queen of England does not exclude a Queen Dowager 151 One who hath been a Queen not properly called nuper Regina in her Life time 152 Qui tam. See Error Action Judgment arrested because Issue was joyned only on behalf of the Informer and not also for the King 122 Quo Warranto Against certain Persons of the City of Worcester claiming to be Aldermen 366 R. Record If a Record be lost it may be proved to Jury by Testimony 257 Recorder See Mandamus What Causes may be sufficient to remove a Recorder 144 145 Recovery Where a Fine is Levyed to Lessee for years with an Intent
Mesne Process but an Action upon the Case only Vaughan Loyd IN an Audita Querela the Party appeared upon the Sciri Facias and demurred for that the Sciri Facias bore Date the 23 day of October and the Audita Querela the 3 of November after To which it was said that this fault in the Mesne Process is aided by Appearance but if an Original should bear Date upon a Sunday or the like the Appearance of the Party would not help it But on the other side it was said That the Party had no day in Court by the Audita Querela and this was a default in the first Process against him and compared it to a Sciri Facias upon a Judgment in which such a fault will not be cured by Appearance To which the Court agreed For there the Sciri Facias is the Foundation and quasi an Original and the Judgment is given upon it 2 Cro. 424. but here the Sciri Facias is only to bring in the Party to answer and in the nature of a Mesne Process and the Judgment is given upon the Audita Querela wherefore they disallowed the Demurrer Barnes versus Hughes DEbt tam pro Domino Rege quam pro seipso upon the Stat. of 5 Eliz. cap. 4. for exercising of the Trade of a Grocer in Salisbury not being bound Apprentice thereunto The Defendant pleads Nil debet and being tried by Nisi prius and a Verdict for the Plaintiff it was moved in Arrest of Judgment that this Action could not be brought in this Court for by the Stat. 21 Jac. cap. 4. It is Enacted that all offences against any penal Statute for which an Informer may lawfully ground any popular Action Bill Plaint Suit or Information before Justices of Assize Nisi prius or Gaol-delivery Justices of Oyer and Terminer or of the Peace in their General quarter-Quarter-Sessions shall be Commenced Sued c. before the said Justices they having power to hear and determine the same and not elsewhere which Negative words as it was said take away the Iurisdiction of this Court And whereas 31 Eliz. restrained not the Kings Attorney because it only made mention of Common Informers the Kings Attorney is expressely named in this Statute and the Cases in 2 Cro. 85. between Beane and Druge and Moyl and Taylours Case 2 Cro. 178. were quoted And the Statute would be to little purpose if it did not extend to Actions of Debt as well as Informations and Indictments But it was said on the other side That it could not extend to Actions of Debt for they could not be brought before Iustices of Assize or the other Iustices named in the Act and it shall only extend to such Suits as an Informer might lawfully Commence before them And it hath been resolved that this Act did give no new Iurisdiction as 1 Cro. 112 Farrington and Keymer's Case in an Information upon the Statute of 23 H. 8. cap. 4. for selling of Beer at an unlawful price which gives the forfeiture to be Recovered in Courts where no Protection or Wager of Law shall be allowed in any Suit grounded upon it extends only to the Courts at Westminster as 6 Co. in Gregory's Case it was resolved That no Information for an offence against this Statute could be commenced before the Iustices of Assize or Peace at the Sessions notwithstanding the Act in 21 Jac. which ordains That Suits for offences against Penal Laws shall be before them and the rest there mentioned for the Act only extends to those offences for the which an Informer might lawfully ground any popular Action before them and it was never held that that Act gave any new Iurisdiction Now if this Action cannot be brought in this Court the Statute must Repeal a great part of the Remedies given by 5 Eliz. against this offence and only leave it to be punished by Indictments and Informations which certainly was never the intent of the Statute and would be very mischievous for if the Offender goes out of the Country after the offence committed he cannot be punished for the Iustices named in the Statute cannot award Process out of the County and therefore for that reason there should be remedy in a Court of General Jurisdiction and since 21 Jac. there have béen many Presidents of like Actions all which would be Reversed if that Act should take away Actions of Debt in this Court. And for these Reasons the Case being moved divers times the Court gave Iudgment for the Plaintiff Styl 340. Anonymus IN Debt upon an Obligation the Defendant pleads That he delivered it as an Escrow hoc paratus est verificare This Plea is vicious for he ought to shew to whom he delivered it and also he ought to conclude his Plea issint nient son fait Anonymus A Lease for Years is made to A. and then another Lease is made for Twenty years to commence after the Expiration of the former Lease if B. and C. shall so long live with a reservation of several things and reddend ' 3 l nom ' Hariotte after the death of B. or C. B. dies during the continuance of the first Lease The 3 l must be paid for it is not in the nature of a Rent but a Sum in gross Clipsham and Morris THe Plaintiff in an Assumpsit declared That J. S. being indebted unto him in 50 l gave him a Note directed to the Defendant requiring him to pay the Plaintiff the said Sum of 50 l then he saith That the Defendant upon view of the Note in Consideration that the Plaintiff would accept of his Promise for the Mony and stay a Fortnight for the same he did assume to pay him To which the Defendant demurs for the Insufficiency of the Consideration it being nothing of trouble or prejudice to the Plaintiff or benefit to the Defendant for he might Sue his Debtor in the mean time neither is it alledged that the Defendant was indebted to J. S. But if it had been in Consideration That the Plaintiff would accept of the Defendant for his Debtor that might have béen good for that is an implied Discharge of the other whom if he had sued the Defendant might have had an Action Roll's 1st Part 29. And for this Reason the Opinion of the Court was against the Plaintiff And this Point was said to be Adjudged between Newcomen and Lee in this Court Paschae 1650. Rot. 62. Styl 249. Anonymus A Man was Indicted for saying The Justices of the Peace had nothing to do with the Excise And it was quashed by the Opnion of the Court for such an Information could not make a man Criminal Nurstie versus Hall THe Grantee of a Reversion brings a Writ of Covenant against the Lessee for years for non-payment of Rent The Question was Whether it ought to be laid where the Lease is alledged to be made or where the Land lies It was said That the Statute of 32 H. 8. cap. 34. which
Pro praedicto anno which refers to the Year mentioned before which was next following the Lease and it might be said finito anno 18 for so it was ended then or at any time after And the Court said It would be clearly good after a Verdict But being upon a Demurrer they would Advise Anonymus AN Indictment for not performing an Order of the Justices of the Peace concerning a Bastard Child It was moved to quash it because it did not conclude contra pacem But it was held that ought not to be it being but for a Non feasans An Indictment of Forcible Entry was quashed because it alledged the party to be seized and possessed and so uncertain which Monnington versus William IN a Replevin the Defendant avowed for a Rent charge and set forth That the Plaintiff granted a Rent to J. S. in Fee who granted bargained and sold it una cum arreragiis to him and shewed the Indenture to be Inrolled within six Months virtute cujus and the Statute of Uses he was seized and for a years Rent since the Assignment avowed The Plaintiff replies and Traverses the Grant of J. S. prout and found for the Avowant and moved in Arrest of Judgment by Jones First That here is an impossible Issue which comprehends as well the Grant of the Arrears which cannot be as the Rent Secondly He Intities himself by Bargain and Sale and the Statute of Uses and doth not shew that it was in Consideration of Money and otherwise the Rent cannot pass without Atturnment 3 Cro. 166. But the Court gave Iudgment for the Avowant As to the first The pleading the Arrears to be granted is altogether void and does no harm in regard the Avowry is expresly for Rent Arrear after the Grant And for the second The Court held the pleading good after a Verdict and it shall be intended that Evidence was given of Money paid As a Grant of a Reversion pleaded without Attornment or a grant of a Rent and not expressed to be by Deed yet a Verdict will help those defects Huttons Rep. 54. Note Twisden said where a man in pleading sets forth his Title by a Conveyance in which are the words Give Grant Release Confirm Bargain Sell c. he must express to which of them he will use it Addams versus Guy ERror to Reverse a Judgment given in the Court at Bristol in Debt against the Defendant as Executor to J.S. who declared upon a Mutuasset of him so much because Debt lies not against an Executor upon a simple Contract Sed non allocatur He agreeing to the Action and suffering Iudgment to pass against him Secondly That he set forth that the Testator Mutuasset which properly signifies to lend and not to borrow and it ought to have been Mutuatus esset But the Court affirmed the Iudgment and held that either might be expounded to borrow Anonymus AN Administrator brought Trover and Conversion and declared That the Intestate at the time of his Death was possessed of divers Goods and that after his Death and before Administration committed they came to the Defendants hands who converted them Vpon Not guilty it was found for the Defendant and prayed that he might have Costs and the Court held that he ought to have them the Conversion being since the Death of the Intestate Sir Thomas Pettus Case IT was moved to quash an Indictment of Manslaughter against him for that it is said to be taken coram Coronatoribus Comitatus Civitatis Norwici at Bucthorp in the County of the City per Juramentum hominum de Civitate Norwici Whereas the Jury ought to have come from the County and City of Norwich for they shall not be intended to be coexistent especially in an Indictment As if the Caption of an Indictment be at Dale and the Jury come de Parochia de Dale it is good cause to quash it yet in an Action they should be intended the same So it is sufficient to put the County in the Margin of the Declaration in an Action but not so in an Indictment 1 Cro. Again By the Statute de Coronatoribus the Jury ought to come from the four next Vills Of the first Exception the Court doubted But to the second Twisden said it need not be returned upon the Indictment that the Jury came from the four next Vills But they would not quash the Indictment upon Motion for they said it was not their course to do so in Case of Manslaughter but ruled the Party to Plead to it tho' it was shewn he had been Tryed at the Assizes upon an Indictment of Murder for the same Killing and found Guilty of Manslaughter The King versus Clapham A Mandamus was prayed to the Lord President and Council of the Marches to admit Clapham to the Exercise of the Office of Deputy Secretary And it was returned quod tempore receptionis brevis non fuit constitutus Deputatus It was said That one which claimed to be Deputy his Authority being revocable could not pray a Mandamus But to that it was answered That the Mandamus was at the Suit of Mr. Win and it set forth how he had the Office of Secretary exercend ' per se vel sufficientem Deputatum suum and that they had refused this Clapham whom he had appointed his Deputy And it was resolved That the Mandamus was well awarded for he had no other remedy to have his Deputy admitted And whereas it was said being an Officer belonging to the Court they are to judge of his sufficiency and so have power to refuse him It was answered to and so resolved That then they ought to have returned that he was insufficient And it was also resolved by all the Court That the Return being that non fuit tempore receptionis brevis Deputatus constitutus was naught for if he were made his Deputy before the Return was true unless he made him his Deputy at the very instant of the Receipt of the Writ and Returns must be certain because there is nothing can be pleaded to them Anonymus AN Indictment for not performing an Order of the Justices for payment of a Poors Rate It was moved to quash it because it did not conclude Contra pacem Sed non allocatur because it was not for a Male Fesans but a Non Fesans Horsam versus Turget MIch 22 Car. 2. Rot. 687. Debt upon a Bond. The Defendant demands Oyer of the Condition which was to perform an Award and sets forth that there were divers Accounts c. betwéen J. S. Testator of the Plaintiff and the Defendant and they submitted all Controversies to the Award of such an one and that he awarded that the Plaintiff should deliver certain Goods of which the Testator died possessed to the Defendant and that the Defendant should pay unto the Plaintiff 320 l And then sets forth the custom of Foreign Attachments in London that if a Suit were commenced against the Executor of any person
76. 1 Inst 203. 1 Rolls 129. 9 Co. 79. where an Award was made that A. should pay B. 10 l and that B. super receptionem decem librarum should Release That he was bound to release it if the Money were offered tho' he should refuse it Wherefore they gave Judgment for the Plaintiff Sir John Goriton and Harvey versus Lithby PAsch 22 Car. 2. Rot. 331. In an Action upon the Case the Plaintiffs declared that there were Four ancient Mills within a Mannor And that J.C. was seised in Fee of Two of the Mills and J. H. of the other Two and laid a Prescription in each That they had kept the Mills in Repair and found Grinders to the intent that the Tenants of the Mannor might Grind at them and that Time out of mind the Tenants had Ground omne frumentum to be spent in their Houses at the Mills of J. C. or at the Mills of J. H. And for that the Defendant spent Corn which was ground at neither of the Mills they brought this Action To this Declaration the Defendant Demurred First For that they joyn in the Action and so the one shall recover Damages for not Grinding at the others Mill which is no loss to him Secondly The Prescription is for Grinding all the Corn to be spent in the Houses of the Tenants which is unreasonable for a great deal of Corn is used which is not proper to Grind. So it was said to be Adjudged between Aylett and Charlesworth 1654. in B.R. that the Prescription ought to be laid for all Corn triturandum consumendum in their Houses And this last Exception was held to be material by all the Court. But they conceived the Action might be brought by both for otherwise there could be no remedy upon the Prescription For singly they could not bring it because Grinding at any of the Mills would excuse the Defendant But Hale said the Declaration was naught because it is That the Defendant ought to Grind at the Mills of J. C. or J. H. which is true if either of them hath an ancient Mill altho' the other hath no pretence or right upon the Prescription And therefore it ought to have been laid thus That such Corn c. as was not Ground at the Mills of J C. ought to be Ground at the Mills of J. H. and then have Averted That the Defendants Corn was Ground at neither of them It was Adjudged for the Defendant Skinner versus Webb Scire facias THe Case was this A Judgment was recovered in this Court in an Action upon the Case upon a Bill of Exchange and a Scire facias was brought Quare execution ' c. and a Judgment upon that upon which a Writ of Error was brought in the Exchequer Chamber and the Judgment was affirmed after which the Defendant died and a Scire facias reciting the Judgment and Affirmance of it in the Exchequer Chamber was brought against the Administrator and Judgment had upon that and the Administrator brought Error upon the Judgment in the last Scire facias The Court were moved not to allow this Writ of Error or at least not to supersede Execution by reason of its being a second Writ of Error And the Court held that this Writ of Error did not lye into the Exchequer Chamber tho' it hath been Resolved that such Writ of Error lies in the Exchequer Chamber by the Statute of the 27th of Eliz. upon a Judgment in a Scire facias recovered upon a Judgment in an Action brought by Bill in this Court because 't is in Execution of the Judgment and is as it were a piece of the first Action Otherwise of a Judgment in a Scire facias upon a Recognizance or the like Now this Scire facias is brought upon a Judgment affirmed in the Exchequer Chamber which therefore is priviledged from any other Writ of Error to be brought upon it there So that this Writ of Error can be brought only upon the Judgment given in the Scire facias and therefore it doth not lye into the Exchequer Chamber Jacob Hall's Case COmplaint was made to the Lord Chief Justice by divers of the Inhabitants about Charing Cross that Jacob Hall was erecting of a great Booth in the Street there intending to shew his Feats of Activity and Dancing upon the Ropes there to their great Annoyance by reason of the Crown of idle and naughty People that would be drawn thither and their Apprentices inveigled from their Shops Vpon this the Chief Justice appointed him to be sent for into the Court and that an Indictment should be presented to the Grand Jury of this matter and withal the Court warned him that he should proceed no further But he being dismissed they were presently after informed that be caused his Workmen to go on Whereupon they Commanded the Marshal to fetch him into Court And being brought in and demanded How he durst go on in contempt of the Court He with great Impudence affirmed That he had the King's Warrant for it and Promise to bear him harmless Then they requited of him a Recognizance of 300 l that he should cease further Building which he obstinately refused and was Committed And the Court caused a Record to be made of this Nusans as upon their own view it being in their way to Westminster and awarded a Writ thereupon to the Sheriff of Middlesex Commanding him to prostrate the Building And the Court said Things of this nature ought not to be placed amongst Peoples Habitations and that it was a Nusans to the King 's Royal Palace besides that it straitned the Way and was insufferable in that respect The King versus Wright AN Indictment was against him for suffering of two persons to escape qui commissi fuerunt by the Justices of the Peace for an Offence against the Statute of 8 H. 6. of Forcible Entry After Verdict for the Plaintiff and Judgment a Writ of Error was brought and assigned for Error That it was not expressed how the Commitment was whether upon View of the Justices or Verdict upon an Indictment so that it doth not appear that they were legally Committed nothing of the Proceedings being set forth and 't is not so much as said debito aut legitimo modo commissi fuerunt If a man be Indicted of Perjury in his Oath sworn before a Master in Chancery it must be shewn that the Master had an Authority to take an Oath And the Court doubted at first and commanded the Clerk of the Crown to search Presidents and he found that they were most debito modo commissi but some without that Clause And the Court held it being but inducement to the Offence whereupon this Indictment is that it was well enough alledged and after the Verdict they must intend the Commitment was legal Vide Crompton's Justice of the Peace 252. a. and 255. there are two Presidents like this Note It was said by Hale that upon non Assumpsit Infancy
against the rest which therefore was not affected by the Error The fourth was overruled for where the Party is present the Iudgment is always quod committitur as appeared by the Presidents Fifthly the Variances from the Statute were not held to be material for in Old writings 't is written Sea of Rome and declaring in Conscience and in my Conscience are the same The sixth Error was also disallowed for the words of the Statute are shall incur the danger and penalty of Praemunire mentioned in 16 R. 2. which doth not necessarily bind up to the Process Vid. 16 R. 2. 5. which makes this very clear but means that such Iudgment and Forfeiture shall be and it appearing that the Parties were present there was no need of any Process But as to the third Exception which was taken to the Venire they said they would be advised until the next Term and they told the Prisoners who were Quakers and had brought a Paper which they said contained their acknowledgment of the Kings Authority and Profession to submit to his Government and that they had no exception to the matter contained in the Oath but to the Circumstance only and that they durst not take an Oath in any Cause which they prayed might be read but it could not be permitted that their best course were to supplicate his Majesty in the mean time for his Gracious Pardon Radly and Delbow versus Eglesfield and Whital IN an Action sur 13 R. 2. cap. 5. 2. H. 4. cap. 11. for suing the Plaintiff in the Admiralty for a Ship called the Malmoise pretending she was taken piratice whereas the Plaintiff bought her infra corpus Com. It seems there was a Sentence of Adjudication of her to be lawful Prize in Scotland in April 1667. as having carried bellicos apparatus i.e. Contraband Goods in the late Dutch War and the Plaintiff bought her here under that Title The Libel was That the Ship belonged to the Defendants and about January 1665 was laden with Masts c. and had Letters of safe conduct from the Duke of York to protect her from Concussion c. and that certain Scottish Privateers did practise to take the said Ship and after the Defendants took her and being requested refused to deliver her and that ratione lucri cessantis damni emergentis they suffred so much loss c. The Defendants pleaded Not guilty to this Action and upon the Tryal would not examin any Witnesses but prayed the Opinion of the Court who said there was good Cause upon the Libel which now they must take to be true in the first instance for the Admiralty to proceed In 43 Eliz. it was resolved 1 Cro. 685. Yelv. 125. Sty 418. If Goods are taken by Pirates on the Sea tho' they are sold afterwards at Land yet the Admiralty had Conusans thereof for that which is incident to the original matter shall not take away the Iurisdiction and that is Law tho' there were another Resolution in Bingleys Case 1 Rolls 531 Hob. 78. 3 Jac. 7 Ed. 4. 14. and 22. Ed. 4. If Goods are taken by an Enemy and retaken by an Englishman the property is changed Otherwise if by Pirates And if in this Case the taking were not Piraticè it ought to have béen alledged on the other side Had the Sentence in Scotland béen pleaded in the Admiralty the Court would have given deference to it as if a Man had a Judgment in Communi Banco and should begin a Suit for the same in Banco Regis This might be made a good Plea to the Suit but not to the Iurisdiction for for ought appeared this might have been the first Prosecution and no Proceedings might have béen in Scotland This came to be tryed at the Nisi prius before Hales who was of the Opinion ut supra then But because it was a cause of weight he ordered it to be tryed at the Bar. And because 't was for his satisfaction and for a full Resolution the Jury was paid between the Parties Note A Proctour sworn a Witness said when this Cause was in the Admiralty there was a provisionate Decree as they call it or primum Decretum which is a Decree of the Possession of the Ship and upon that an Appeal to the Delegates but my Lord Keeper being informed that no Appeal to them lay upon it because it was but an interlocutory Decree upon hearing of Counsel he superseded the Commission When a Ship is so seized upon security given 't is the course of the Admiralty to suffer her to be hired out Watkins versus Edwards PAsch 22 Car. 2. Rot. 408. An Action of Covenant was brought by an Infant per Guardianum suum for that he being bound Apprentice to the Defendant by Indenture c. the Defendant did not keep 5 Eliz. c. 4. maintain educate and teach him to his Trade of a Draper as he ought but turned him away The Defendant pleads That he was a Citizen and Freeman of Bristol and that at the General Sessions of the Peace there there was an Order made that he should be discharged of the Plaintiff for his disorderly living and beating of his Master and Mistress and that this Order was Enrolled by the Clerk of the Peace as it ought to be c. To this the Plaintiff Demurrs The First question was Whether the Statute extends to all Apprentices or only such as are imposed upon their Master by the Justicies and compellable to serve And Hale and Moreton inclined That it did not extend to all Apprentices Twisden and Rainford contrary Secondly Whether they had power to discharge the Master of his Apprentice as they might è Converso Hale conceived they could not But cause the Servant to have due Correction in case the Master complained of him Twisden Rainsford and Moreton Contra. Hankworthy's Case For he may be so incorrigible that the Master cannot keep him without standing in continual fear and in Mich. 21 and Hill 2. 22 Regis nunc upon the removal of an Order of Sessions from York it was resolved That the Master might be eased of his Apprenetice by the Sessions upon just cause And Twisden said Shelton Clerk of the Peace for Middlesex informed him that such Orders are frequently made Thirdly The great question was whether the Defendant ought not to have applied himself to one Justice first as the Statute directs that he he might if he could have settled the business and if not then to go to the Sessions and not to go thither per saltum as upon the Statute of the 18 Eliz. cap. 3. The Sessions cannot make an Order for keeping of a Bastard but upon an Appeal from the two Justices which are first to make an Order Hale This case differs for the 18 Eliz. gives the first Men power to make an Order which shall bind the Parties until it is avoided by Appeal but this Statute of 5 Eliz. gives no Iurisdiction to
Trover inter al' de uno Instrumento ferreo Anglicè an Iron Range After Verdict for the Plaintiff it was moved in Arrest of Judgment that Instrumentum ferreum was too uncertain and that a Range was the same with a Grate for which Crates was a proper Latin word Sed non allocatur For Crates is such a Grate as is before a Prison But a Fire Range was not in use in the Romans time and therefore Instrumentum ferreum is well enough with the Anglicè Twisden said Trover de septem libris has been held good without saying what they were Blackman's Case IT was assigned for Error that the Venire was to Summon probos legales homines instead of liberos and so a material Variance and alledged that many Judgments had been Reversed for it But the Court here being informed that the Presidents were generally probos instead of liberos would not allow the Exception The King versus Armstrong Harrison al' c. THey and others were Indicted for Conspiring to Charge one with the Keeping of a Bastard Child and thereby also to bring him to Disgrace After Verdict for the King it was moved in Arrest of Judgment that the bare Conspiring without Executing of it by some Overt act was not subject to Indictment according to the Poulterers Case in the 9 Co. And it doth not appear that he was actually Charged with the Keeping of a Child nay 't is alledged 't was but a pretended Child neither was he by Warrant brought before a Justice of Peace upon such an account but only that they went and affirmed it to the party himself intending to obtain Money from him that it might be no further disclosed Sed non allocatur For there was as much Overt act as the nature and design of this Conspiracy did admit in regard there was no Child really but only a Contrivance to Defame the Person and Cheat him of his Money which was a Crime of a very heinous nature Then it was alledged That this was tryed at the Old-Baily commonly called Justice-Hall in London and the Jury came de Warda de Faringdon extra London which appeared to be out of the Iurisdiction Sed non allocatur For the Name of the Ward is Faringdon extra to distinguish it from Faringdon infra but both are known to be in London Whereupon Judgment was Entred up against them and Armstrong which appeared to be the principal Offender was Fined 50 l and the other 30 l Burrough's Case HE and others were Indicted for that they being Church-wardens Overseers of the Poor and a Constable did contemptuously and voluntarily neglect to Execute diversa Praecepta Watranta directed to them by the Bayliffs of Ipswich being Justices of the Peace under their Hands and Seals c. It was moved to quash it for that the nature and tenour of the Warrants were not expressed in the Indictment For unless the parties know particularly what they are charged with they cannot tell how to make their Defence And for that Reason it was quashed by the Court. Note The Court never gives Costs for not Executing of a Writ of Enquiry of Damages tho' Notice be given Anonymus AN Indictment of Forcible Entry into certain Lands in the possession of J.S. was quashed for not shewing what Estate J.S. had and tho' the word Disseisivit were in the Court held that tho' that might be taken to imply a Freehold yet it was not sufficient Vid. Mo. 481. And another was quashed because it was said possessed pro termino But the Court held that if it had been pro termino annorum tho' not said for how many years it had been well Note A Bayliff caught one by the Hand whom he had a Warrant to Arrest as he held it out of a Window And the Court said that this was such a Taking of him that the Bayliff might justifie the breaking open of the House to Carry him away Kent versus Harpool AN Ejectment The Case came hither by a Writ of Error out of the Kings-Bench in Ireland and divers Points were in it which concerned the Act for Settlement of Lands in Ireland But the Case was as to the great Point at Common Law to this effect Father Tenant for Life Remainder to the Son for Life Remainder to first Son of that Son who was not born Remainder to the Heirs of the Body of the Father the Father died before the first Son was born and Whether the Descent of the Entail to the Son did prevent the Contingent Remainder was the Question It was Argued that it did not because the Inheritance came to the Son by Act in Law And the Opinion in Cordal's Case in the 1 Cro. 315. was cited the great Reason in Chudley's Case and other Cases wherein Contingent Remainders have been held to be destroyed was for the preventing of Perpetuities which would have been let in if Contingent Remainders had been preserved whatever Act had been done by those which had the Actual Estate But there is no such necessity of making the life Construction upon Acts in Law If Lessee for years makes the Lessor Executor the Term is not drowned But if the Executor that hath a Lease purchases the Inheritance the Term is gone because it is his own act but in the other Case the Law shall not work that which must be construed a Devastavit In Lewis Bowles's Case in the 11 Co. and Co. Litt. where there is an Estate for Life Remainder to the first Son Remainder in Fee to the Tenant for Life the Estates at first close and open again upon the Birth of the first Son which should take the Remainder And so it may be here But the Court seemed to be of Opinion that the Contingent Remainder was destroyed by the Descent of the Estate Tail And Rainsford Chief Justice relyed upon Wood and Ingersol's Case in the 2 Cro. 260. where a Devise was to the first Son for Life Remainder to the Son which should survive and there three Judges against one held that the descent of the Fee upon the first Son prevented the Contingent Remainder to the Survivor Et Adjornatur Note In Lewis Bowle's Case the Estates were united at the first upon making of the Conveyance Smith versus Tracy IN a Prohibition the Case was One died Intestate and whether his Brother of the Half-blood should come in for Distribution upon the new Statute of 22 23 Car. 2. cap. 10. was the Question It was Argued that the Half blood should have no share for the Words are The next of Kindred to the Dead person in equal Degree which the Half-blood is not The Words likewise are Those which legally represent their Stocks and that must be intended in an Act of Parliament such as the Common Law makes to be Representatives and not the Civil Law For then it would be that the Bastard eigne should come in for Distribution For their Rule is that subsequens matrimonium facit
words in Latin and this pursuant to the Statute of E. 3. which requires that their legal Proceedings should be in Latin and if the words were not so Elegant yet they would serve in an Information c. where 't is rather chosen to put in words agreeable to the phrase of the Law than to Tully's Orations And so the Court Wild being absent delivered their Opinions for the King but took time to set the Fine and immediately Committed the Defendant who before was upon Bail as the course is when Judgment is given altho' no Fine was set Anonymus IT was said by the Court upon an Indictment against one for Refusing to take an Apprentice bound by the Churchwardens and a Justice of Peace according to 43 Eliz. that in such case a man cannot be Compelled to accept an Apprentice Pagett versus Dr. Vossius TRin. 26 Car. 2. Rot. 583. In an Ejectment upon a Special Verdict the Case appeared to be thus Dr. Brown by Will Devised certain Lands to Dr. Vossius the Defendant a Dutchman during his Exile from his Country and if it should please God to restore him to his Country or that he should dye that then the Lands should go to the Lady Mary Heveningham in Fee who was the Lessor of the Plaintiff It was found that at the time of making the Will and the Death of Dr. Brown there was War between England and the States General and that the Doctor was fallen into Displeasure with the States and that they had taken a Pension from him of 140 l per annum and that by reason thereof he came over But did not find that he was Exiled by any Act of State and that the War was now ceased and that the Doctor might Return if he pleased but it did not find that they had restored him to his Pension c. After divers Arguments on both Sides this Term Judgment was given for the Defendant by the whole Court For they said there was a Voluntary and Compulsary Exile and in regard he was not Exiled by any Publick Edict the Will must be understood of a voluntary absence from his Country And the Jury found that those Matters which drove him away did still continue viz. The depriving him of his Pension Nota Exilium is a word known in our Law viz. When Villains by hard Usage are constrained to depart from the Mannor And if it be Objected That this durante Exilio is a void Limitation as being of unknown sense in our Law 't is still against the Lessor of the Plaintiff and then she cannot claim until the Doctor 's death and in the mean time the Discent must be to the Heir at Law Exilium quasi ex solo that is as if it had been said During his absence from his Country The King versus Plume HE was Indicted upon the Statute of the 5th of the Queen for that he had set up used and exercised Artem Mysterium sive Manual occupationem Pomarii Anglicè of a Fruiterer being a Trade Mystery or Manual occupation used in this Kingdom the 12th day of January Anno Eliz. 5. in which Trade the said Plume was not brought up by the space of Seven years c. And to this the Defendant Demurred For that it hath been held that the Statute extends not to every Trade but to such an one as requires Art and Skill and therefore not to a Hemp-dresser as in the 1 Cro. so in 2 Bulstrode 188. nor to a Pippinmonger as in 1 Roll's Rep. 10. And so a Gardiner hath been Resolved not to be within the Act in the 14th of this King The Indictment was for the Trade of a Barber but no Judgment given but others said That in that Case Judgment was for the King On the other side it was said That the Question here is not of those which sell Apples in Stalls but the Trade of a Fruiterer is well known and they are Incorporated in London and there requires much Skill in Sorting of Fruit and in judging the durableness thereof But the Court inclined for the Defendant But being informed by the Counsel for the King that there were many Presidents it was adjourned Postea Harrington's Case HArrington was again brought up and the Court fined him a Thousand pounds and awarded that he should recant the words in such words as the Court should direct and to find Sureties for his Good behaviour for seven years after which he produced a Writ of Error returnable before the Lords then Sitting in Parliament and prayed that it might be allowed and that he might be admitted to Bayl. The Court said that they allowed the Writ but would advise whether they should Bayl him or no and so remanded him to Prison Anonymus IN an Assault Battery and Wounding the Plaintiff after Verdict moved the Court for an encrease of Damages the Court said they could not do it if the word Maihemavit was not in the Declaration Clarkes Case UPon an Habeas Corpus to the Mayor c. of London a Custom was returned to Disfranchise and commit a Freeman for speaking opprobrions words of an Alderman The Court said they might Fine in such Case but the other Custom would not hold notwithstanding the Act of Confirmation of their Customs Termino Paschae Anno 30 Car. II. In Banco Regis Anonymus IN Trespass of Battery by Baron and Feme for beating of them both Vpon Not guilty the Verdict was for so much Damage for beating the Husband and so much for beating of the Wife The Court said upon a motion to Arrest the Judgment that the Plaintiff might release the Damages for beating of himself and take Judgment for the other The King versus Mead. AN Information was brought against him upon the Statute of 17 Car. 2. which restrains Non conformist Ministers from Inhabiting within five miles of any City Town Corporate or Burrough that sends Burgesses to Parliament c. After Verdict for the King it was moved in Arrest of Judgment First That the place of his Habitation was alledged to be within five miles of London but it was said that London sent Burgesses to Parliament which not being in the Record the Judges were not to take knowledg of Sed non allocatur For the last words of sending Burgesses to Parliament shall be referred only to Burroughs and therefore the Act restrains them from dwelling in Corporations c. tho' such Corporations as send no Burgesses Secondly It is alledged that the Town where the Defendant dwells is within five miles but not that the place of his Habitation in that Town was so and therefore may he intended to be more remote Thirdly There wants vi Armis Sed non allocatur Sed Judicium pro Rege Termino Sanctae Trinitatis Anno 30 Car. II. In Banco Regis MEmorandum This Term Sir Richard Rainsford was removed and Sir William Scroggs one of the Justices of the Common Pleas was made Lord Chief Justice of the Kings Bench.
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
So of Perjury and Nusance 370 Indictment before Justices of Peace for a Non feasance ought not to conclude contra pacem 108 111 For suffering an Escape 169 Quasht for Incertainty 305 306 No Copy of the Indictment allowed in capital Crimes yet the Mirror calls it abusion 354 For Perjury extrajudicial 370 Infant See Executor A Condition and Deed obliges Infants as much as others 200 205 Intent and Intendment See Uses Verdict Ioyntenant Two Joyntenants one Grants bargains and sells all his Estate and Interest the to other this amounts to a Release and must be so pleaded 78 A Devise to two equally to be divided between them and to the Survivors of them makes a Joyntenancy upon the import of the last Words 216 227 Issue A Lease is made to commence after the Death of J. S. without Issue J. S. hath Issue and dyes and then the Issue dyes without Issue the Lease commences For Issue being nomen collectivum when ever the Issue fails the Term commences 229 Iudgment Obtained by Forgery vacated 78 So if procured by Fraud and deceipt 49 Arrested where there appears no Cause of Action 310 Warrant to confess a Judgment the Party dyes before it be confest this is a Countermand 310 Irisdictition See Sewers Judgment in an Inferiour Court reverst for want of Jurisdiction 28 Every Subject has the Liberty of removing his Suit into a Superiour Court 46 If there be several Contracts at several times for several Sums each under 40 s and altogether amount to a Sum sufficient to entitle the Superiour Court they shall be there put in Suit and not in a Court that is not of Record 65 73 In Assumpsit brought in an Inferior Court the performance of the Promise must be as well within the Jurisdiction as the Promise it self 72 Inferiour Courts ought not to award a Capias but upon Summons first returned and tho' a fault in the Process is aided by appearance yet an Action of false Imprisonment lies 220 249 Where infra Jurisdictionem is necessary to be set forth and alledged 240 243 The Liberty of the Subject is infringed by bringing him within a private Jurisdiction when the matter arises out of it 333 Action on the Case for the same 369 Iury. Where a Juror may be withdrawn 28 In case of Life and Member if the Jury cannot agree before the Judges of Assizes depart they are to be carried after them in Carts 97 Twelve necessary on a Writ of Enquiry as well as in a Venire 113 Where the Iury's eating or drinking at the charge of either Party shall avoid their Verdict and what other Actions shall be sufficient Cause to avoid it 125 Whether the Statutes requiring Jurymen to have so much Freehold extend to Corporate Towns 366 K. King THE King in bringing an Action may choose his County or wave that which he had chosen before as he may wave his Demurrer and joyn Issue 17 King and Council may disfranchise any Member of a Corporation The Walls of N. were ordered to be pulled down by King and Council à fortiori an Alderman there may be displaced upon just Cause 20 The King may stay the Proceedings and the Attorney General Enter a noli prosequi after the Jury are returned 33 Lords Spiritual and Temporal and Commons the three Estates and the King Head of all 325 Knight See Abatement L. Lancaster OF the Dutchy Court of Lancaster and its Jurisdiction 155 infra Latitat A Man may take out a Latitat before the Money is due yet the Party must not be Arrested upon it before 28 Lease See Recovery No reason to favour Long Leases By the antient Law a Lease for about 40 years was void and they are never without suspicion of Fraud 58 A Lease made to begin from the End of a Lease misrecited shall commence presently 83 A Lease without any Date specified or an impossible Date as from the 40th of September shall commence presently 137 What Act determins a Lease at Will 247 Leet The Kings Court granted to Lords of Mannours as derived out of the Town 26 Presentments may be there for the King and the Lord of the Mannor ibid. Fines in Leets where they may bedistrained for and where not 105 Presentment at a Leet quasht where the Court appears to be held above a Month after Michaelmas 107 Difference between the Stewardship of a Leet and a Court Baron 153 Libel The having a Libel in ones Lodging and not delivering it to a Magistrate was only punishable in the Star-Chamber unless the Party Maliciously published it 31 Liberties Of Returna Brevium 405. Their Vexation and Inconveniency 412 Liberties belonging to Monasteries came to the King on their Dissolution and that without the Aid of the Statute 32 H. 8. chap. 20 407 Limitations Whether the Statute of Limitations extends to bar a Promise between Merchants relating to Trade 90 Livery Livery within view where good and where not 186 London By the Custom of London a Debtor may be Arrested before the Mony is due to make him find Sureties 29 What Debts shall be Attachable by Foreign Attachments according to the Custom of London 112 113 Custom to commit Offenders for obstinately and contemptuously refusing to obey the Order of the Court of Aldermen Good 115 Whether they may Imprison a Stranger for Marrying their Orphan without License 178 Their By-Law to restrain the number of Carts Good 21 196 Of their Duty of Scavage 298 Custom to Disfranchise and commit a Freeman for speaking opprobrious Words of an Alderman Not good 327 Of their Duty of Water Baylage 351 M. Mandamus TO restore an Alderman 19 Lies not to restore a Town Clark where the Corporation have power to Grant the Office Durante beneplacito 77 82. So of a Recorder 342 Lies to admit a Deputy into an Office where the Office may be executed by Deputy 111 To swear a Churchwarden 115 267 To restore a Sexton 143 153 Lies for an Office but not for a Service ibid. Lies to an Inferiour Court to cause them to give Judgment according to a Statute 188 To restore a Common Council Man in a Corporation 302 To restore an Attorney in an Inferiour Court 331 To the Ecclesiastical Court to prove a Will 335 Misnomer When and how amendable 13 Name mistaken in the Issue if right before in the Record amendable 25 Monasteries See Liberties Pensions out of Monastery Lands where to be sued for 120 N. Naturalization OF Naturalization and Denization their General Effects and Operation 418 419 Notice Whether necessary upon a Counter bond to save harmless 36 37 Upon an Award 93 In what Cases necessary and where not 200 201 Nusance See Action Whether the erecting of a Glass-house be a Nusance 26 A Rope-Dancers Booth in the Street a Nusance and a Writ to the Sheriff awarded to prostrate the Bulding 169 O. Oath OF the Marshal of the King's Bench 65 No exception to the Oath of Allegiance that the words of
gives the Action of Covenant to the Assignee of the Reversion saith That they shall have such Actions in like manner as the Lessors should have had Now if it had been brought by the Lessor it had béen transitory and so in the Case of an Assignment by Commissioners of Bankrupt the Assignee of the Commissioners of Bankrupt shall bring Debt as the first Creditor should have done But it was said on the other Side That the Statute intended not to assign it as a bare Chose en Action but to knit it to the Reversion and where it saith The Assignee shall have Remedy in like manner that is the same Remedy in substance And in the case of the Bankrupt's Debt the Contract is only assigned And in the 42 Ed. 3. cap. 3. it is said That an Action of Covenant lay for the Assignee at the Common Law But because the Court was not full it was thought fit this Case should be Adjourned till the next Term. Note It was said in this Case the Word Reddendum makes a Covenant Day and Pitts A Prohibition was moved for to stay a Suit in the Spiritual Court upon a Suggestion that it was for calling one Old Thief and Old Whore and if there were any such Words spoken they were spoken at the same time Which Suggestion was not good for the Words ought to have been fully confest And it was said by the Court That this Matter ought to have been pleaded there and if they had not admitted the Plea then to move for a Prohibition and not before Gilman and Wright BUrgh moved against Wright Steward of Havering Court in Essex for refusing to admit Gilman an Attorney in this Court to Appear for a man in an Action sued against him there alledging That the Attorneys of the Courts of Westminster might Practise in any Inferiour Court neither had they a Prescription or Charter to have a certain Number of Attorneys of their own and to exclude others But because it was the general Vsage of those Inferiour Courts to admit none but their own Attorneys tho' the Court seemed to incline That they ought not by Law to refuse Others and it was said to be so Adjudged in the 15th of Car. 1. in one Darcie's Case yet they would be Advised until the next Term. Note One who is Subpoena'd for a Witness may have a Writ of Priviledge to protect him from Arrests in going and returning Anonymus A Prohibition was granted to the Court of the Marches of Wales for that Lands being discended to an Infant which were subject to a Trust they had not only enjoyned the possession of those Lands but of other Lands discended to him And it was said by the Court That they could not Sequester Lands at all for the performance of a Decree of their Court to pay Money For they can only agere in personam non in rem Termino Sanctae Paschae Anno 21 Car. II. In Banco Regis Anonymus THe Sheriff Returned Non est inventus to a Writ brought against his own Bayliff and delivered to him But the Court Amerced him Forty shillings and he was ordered to amend his Return Anonymus TRover and Conversion was brought against Baron and Feme for that they ad usum proprium converterunt disposuerunt and held not to be good because the Wife cannot Convert with her Husband Skinner and Gunter c. A Bill in the nature of Conspiracy was brought against Three for that they 2 Cro. 667. Hob. 205 266. Conspiratione inter eos habita caused the Plaintiff to be Arrested in London on purpose to vex him and have him Imprisoned knowing that he was not able to find Bail whereas they had no cause of Action The Defendants pleaded Not guilty and the Issue was found only against one of them It was moved in Arrest of Judgment That the Declaration was Insufficient because it was not declared that the first Action was determined as no Conspiracy lies upon an Indictment before Acquittal But the Court inclined to disallow this for here the ground of the Action is the caussess troubling of him to put in Bail But when a man is Indicted he lies under the scandal of the Crime until he is acquitted Another Exception was That this Bill being in the nature of a Writ of Conspiracy there being One only found Guilty the Action fails But it was said True it is so in case of Conspiracy to Indict One of Felony but here 't is rather in nature of an Action upon the Case and the Conspiracy alledged by way of aggravation Fitz. N.B. 116. Et Adjornatur Anonymus AN Indictment was removed hither the last Term out of Middlesex against Edward S. of Perjury and he was named Edward all along in the Indictment unto the Conclusion and then it was sic praedictus Johannes commisit perjurium The Court was moved that this might be amended and it was said Indidictments removed out of London have béen amended by the Original for they do not certifie that but only a Transcript and a Jury have been resummoned to amend an Indictment found in this Court and in this case if by Examination of the Clerk of the Peace it appeared the Indictment certified varied from the Original it might be amended sed Curia advisare vult Nota If a Venire Facias be returned and not filed a new one may be taken out Thomas Burgen's Case AN Indictment was brought against Thomas Burgen for selling Ale in Black Pots not marked and doth not conclude contra formam Statuti and held to be good enough for the Common-Law appoints just Measures and tho' the Statute adds this circumstance yet the Crime being at the Common-Law the conclusion is as it ought to be Where a Statute makes an offence more Penal as that which deprives one that Steals the value of Five shillings out of a dwelling house in the day time of his Clergy yet the conclusion of an Indictment in that case is not contra formam Statuti Nota Where one is sued by a name with an Alias the Addition must ever be expressed after the first name Clerke and Cheney IN Trespass for breaking of his Close the Defendant justifies by reason of a way from his House thorough the place where usque aâ—tam viam regiam in parochia de D. vocat London Road and Issue was joyned upon the way and found for the Plaintiff Vid. Hob. 189. it was moved in Arrest of Judgment that there was no Issue joyned for the incertainty of the terminus ad quem whether this way should lead and one that justifies for a way if he alledges the place from whence and to which and that it leads over the place where 't is sufficient tho' he mistake the other mean passages of it and tho' this be the Defendants own Plea yet he may take exceptions to it not being certain enough to make an Issue Sed non allocatur for in regard it is found
B. for causing to be framed printed and published a Scandalous Libel Entituled c. thereby scandilizing of one C. D. Vpon Not guilty pleaded It appeared upon the Evidence that after the discovery of the Libel there were Warrants from the Lord Arlington Principal Secretary of State to search the Lodgings of the Defendant who was suspected to be the contriver of it where were found two of these Libels printed The Opinion of the Court was That this was no Crime within the Information though he gave no account how they came there 5 Co. 125. B. and the having of a Libel and not delivering of it to a Magistrate was only punishable in the Sarchamber unless the Party maliciously published it Anonymus Hob. 192 300 301. IF the Jury upon an Issue joyned in a Prohibition upon a Modus Decimandi find a different Modus yet the Defendant shall not have a Consultation for it appears he ought not to Sue for Tythes in Specie there being a Modus found Termino Sanctae Trinitatis Anno 21 Car. II. In Banco Regis Jurado versus Gregory THe Case was this There was a Contract of Malaga concerning the Lading of a Ship and for breach of this which was laid to upon be the Sea viz. That he would not receive 40 Butts of Wine into the Ship according to the Agreement there was a Libel in a Foreign Admiralty and Sentence that the Wine should be received into the Ship which being refused another Libel was commenced in the Admiralty here in England Reciting the former Sentence and charging the Defendant with the breach of it and a Prohibition was prayed because it appears the Contract was made upon the Land Vid. Latch 234. Against which it was objected by Finch Solicitor that where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here because all the Courts of Admiralty in Europe are governed by the Civil Law and are to be assistant one to another though the matter were not Originally determinable in our Court of Admiralty and for this he cited a Judgment 5 Jac. Rolls Tit. Courts Sect admiralty And this the Court agreed But here was no compleat Sentence in the Foreign Admiralty but only an Award that the Wine should be received and now for breach thereof he Sues here which is in the nature of an Original Suit and to have Execution of the Sentence and this ought not to be though the breach were at Sea it being of a Contract made upon the Land wherefore they granted a Prohibition The King Grants bona catalla felonum the Grantée shall not have Felons Debts nor bona catalla Felonum de se Anonymus A Conviction was certified of one for carrying of a Gun not being qualified according to the Statute where the words in the Statute are Upon due Examination and proof before a Justice of the Peace The Court resolved That that was not intended by Jury but by Witnesses and no Writ of Error lies upon such Conviction And an Exception was taken because it was before such an one Iustice of the Peace without adding Nec non ad diversas Felonias Transgressiones c. audiend assign ' And the Court agreed so it ought to be in Returns upon Certiorari's to remove Indictments taken at Sessions But otherwise of Convictions of this nature for 't is known to the Court that the Statute gives them Authority in this Case The King versus Benson IN an Information against him for Extortion an Issue was joyned the day the Jury were returned and the King sent a Writing under his Sign manual to Sir Thomas Fanshaw Clerk of the Crown to enter a Cesser of Prosecution And Palmer Attorney General affirmed that the King might stay proceedings yet notwithstanding the Court proceeded to swear the Jury and said they were not to delay for the great or little Seal whereupon the Attorney entred a Noli prosequi Anonymus TRover against Baron and Feme and laid quod ad usum proprium converterunt and it was alledged proprium might be applied only to the Husband so also if it had been ad usum suum But the Court held neither had been good so it was prayed that Judgment might be entred quod Querens nihil capiat per billam For if it had been quod Defendens eat inde sine die the Plaintiff could not have brought an Action de novo Note A man is Outlawed in Middlesex A Capias utlagatum may be sued out against him into any other County without a Testatum Anonymus IN Trespass the Defendant justifies by reason of Common in the place where for Cattel Levant and Couchant upon his Land and doth not aver the Beasts were Levant and Couchant This is aided after a Verdict A Judgment in Debt is had in the Kings Bench and a Writ of Error is brought it still remains a Record of the Kings Bench and an Action of Debt may be brought upon the Judgment In a Writ of Error if the Defendant dyed the Writ is not abated Otherwise if the Plaintiff die And the Secondary informed the Court of a Case betwéen Sir H. Thyn and Corie where a Scire facias ad audiend Errores went against the Executors when the Defendant in the Writ of Error dyed Note The Exchequer Chamber doth not award a Scire facias ad audiend Errores but notice is given to the Parties concerned Skirr and Sikes IN Trespass upon the Stat. of 8 H. 6. the Plaintiff had Iudgment It was moved whether a Writ of Error would lie of this into the Exchequer Chamber For though Trespass be one of the seven Cases where the Statute gives it yet it might intend Common Trespasses only and not where the Action is founded upon a Statute as Actio de Scandalis Magnatum is not within the Statute And the Court would advise Cabell and Vaughan 5 Co. Whelphdales Case He cannot plead non est factum IN an Action of Debt upon a Bond against one and it appears another was joyntly bound with him wherefore the Defendant Demurrs But it was adjuged for the Plaintiff for the Defendant cannot Demurr in such case unless the other Obligor be averred to be living and also that he sealed and delivered the Bond 3 Cro. 494 544. Ascue and Hollingworth's Case 28 H. 6. 3. And if one be bound to two one Obligee cannot Sue unless he Averrs the other is dead In B.R. 1651 1068. Levit Staneforth Perries Case IN an Information of Forgery against him there was a Mis-trial And it was moved That this was aided by the Statute of 21 Jac. the general Purview whereof is extended to any Action Suit Bill or Plaint Then there is a Proviso which excepts Indictments and Informations upon Penal Statutes and this being an Information at Common Law was not within the Proviso and it may be taken within the word Suit for it is Secta Domini Regis But the Court held it not
Action for saying Go tell the black Knave Roberts That I will teach him or any Attorney in England to sue out a Writ against me and he had Judgment for it was as much as to call him Knave Attorney Hill 22 23 Car. 2. Rot. 1426. Methin and the Hundred of Thistleworth AN Action was brought upon the Statute of Winton The Defendants pleaded that they made Hue and Cry and that within 40 Days they took one Dudley which was one of them that did the Robbery and had him in custody The Plaintiff Replied That Dudley was not taken upon their fresh pursuit modo forma And upon this Issue the Jury find a Special Verdict to this effect That the Hundred made Hue and Cry and that Sir Joseph Ash finding Dudley in the presence of Sir Philip Howard a Justice of the Peace of Westminster at his House in Westminster the said Sir Joseph being an Inhabitant in the Hundred of Thistleworth charged Dudley with this Robbery before Sir Philip who promised he should appear at the Sessions at the Old Baily And whether this be such a Taking as is put in Issue they referred to the Iudgment of the Court. Jones for the Plaintiff Argued That in this Case there doth not appear to be any Taking at all but only a Discourse between Sir Joseph Ash and Sir Philip Howard As admitting the Issue were Whether a man were Arrested or no and it should appear upon Evidence that one should come to the Sheriff and declare That he had a Writ against such a man then present and upon this the Sheriff should say I will take his word for his Appearance this clearly could not be taken for an Arrest Again The Issue is Whether he were taken upon the fresh pursuit of the Hundred and it doth not appear by the Verdict that there was any Hue and Cry made this way and it might be ceased before this time But it seems rather that Sir Joseph Ash found him by accident But the Opinion of Hales Chief Justice Twisden Rainsford and Moreton was that Judgment ought to be given for the Defendant For the charging of Dudley with the Robbery in the presence of a Justice of the Peace was clearly a Taking within the Statute For being in the presence which the Law construes to be under the Power or Custody of the Magistrate it would have been vain and impertinent to have laid hold of him and it shall be intented that this was upon Fresh pursuit For when the Verdict refers one Special Point to the Iudgment of the Court all other matters shall be intended And the Chief Justice said That if the Hue and Cry was made towards one part of the County and an Inhabitant of the Hundred apprehended one of the Robbers within another yet this was a Taking within the Statute Hornsey Administrator of Jane Lane versus Dimocke THe Plaintiff as Administrator of Jane Lane brought an Assumpsit and declared that he had formerly deposited such a Sum in the Defendants hands for the use of the Intestate Jane Lane in Consideration whereof the Defendant promised to the Plaintiff that he would pay it her or if she died before 18 years of Age that he would pay it to her Executors And shews that she died before 18 and that he had not paid it to the Plaintiff her Administrator licet saepius requisitus Vpon non Assumpsit a Verdict was for the Plaintiff It was moved in Arrest of Judgment that the Plaintiff brought this Action as Administrator which ought to have been in his own right for the Promise was made to him Sed non allocatur For if a man names himself Executor or Administrator and it apears the Cause of Action is in his own right it shall be well enough and he calling himself Executor c. is but Surplusage But here it seemeth Jane Lane might have brought an Assumpsit because she was the party to whom the Money was to be paid So it is good either way It was further Objected That it was not averred that the Defendant did not pay the Money to Jane Lane during her Life Sed non allocatur For 't is aided by the Verdict As the Chief Justice said a Case was Adjudged where an Assumpsit was brought upon a Promise to pay Money to two or either of them and declared that the Money was not paid to the two and not said or either of them yet Resolved to be good after Verdict Matthewes versus Crosse IN Debt for Rent the Plaintiff Declared That by an Indenture made in the Parish of St. Mary Undershaft London he Let an House to the Defendant situate in parvo Turris monte reserving so much Rent c. The Defendant pleads That before the Rent incurred the Plaintiff entred into a certain Room of the said House apud parvum Turris montem praedict ' and so suspended his Rent upon which it was Demurred And it was shewn for Cause That no place was alledged where the Entry was but said to be at Little Tower-Hill which cannot be intended a Vill. And a Case was cited of an Indictment in this Court of a Fact laid to be done at White-Hall and quashed for want of Place And to this the Court inclined but the Matter was ended by Comprimise ' Anonymus A Prohibition was prayed to a Suit for a Pension in the Ecclesiastical Court surmising that the Lands out of which it was demanded were Monastery Lands which came to the King and that he granted the Lands c. under which Grant the Plaintiff claims and that he Covenanted to discharge the said Lands of all Pensions c. and this upon the Statute of 34 H. 8. cap. 19. which appoints the Suit to be for Pensions in such cases in the Court of Augmentations and not elsewhere But the Court would not grant it until the Letters Patents of Discharge were produced being a matter of Record But where the Surmise is of matter of Fact it is sufficient to suggest it And it was said by the Court That Pensions whether by Prescription or otherwise might be sued for in the Ecclesiastical Court but if by Prescription then there was also Remedy at the Common Law F.N.B. 50. 1 Cro. 675. Davis versus Wright al' HIll 22 23 Car. 2. Rot. 701. In an Assumpsit the Plaintiff declared That his Father gave him by his Will 3 l per annum during his Life and that he was about to Sue for it and that the Defendants being Executors to the Father in Consideration that the Plaintiff would forbear to commence a Suit against him for it promised to pay him The Defendants plead That the Testator was indebted in divers Sums and ultra to pay them he had no Assets To this the Plaintiff demurred for that by this Promise the Defendants have made it their proper Debt But it was said on the other side That if there were no Assets there was no cause for the Plaintiff to have commenced
might be given in Evidence tho' upon Non est factum it could not The King versus Alway and Dixon ERror to Reverse a Judgment upon an Indictment because the Award of the Venire was Entred Praeceptum fuit Vicecomiti c. which is more like an Hystory of the Record than the Record it self for it ought to be Praeceptum est and so are the Presidents And for this Cause it was Reversed Waldron versus Ruscarit Hill ult Rot. 225. In an Ejectment a Special Verdict was found That one levied a Fine of all his Lands in Saint Inderion in Cornwal and that he had Lands in Portgwyn and that the Constables of Saint Inderion exercised their Authority in Portgwyn and that Porgwyn had a Tythingman And whether this Fine conveyed the Lands in Portgwyn was left to the Iudgment of the Court and Resolved that it did A Parish may contain ten Vills and if a Fine be levied of the Lands in the Parish this carries whatsoever is in any of those Vills So where there are divers Vills if the Constablewick of the one goes over all the rest that is the Superiour or Mother Vill and the Land which is in the other shall pass per nomen of all the Lands in that And tho' it be found that Portgwyn had a Tythingman Decenarius which prima facie is the same with a Constable and differed little in the Execution of that Office concerning Keeping the Peace Yet Hale said He was not the same Officer and 't is found that the Constables of St. Inderion have a superintendency over Portgwyn and therefore 't is but as an Hamlet of St. Inderion But if found that they had distinct Constables and could not interfere in their Authority it would be otherwise Owen 60. Note It was said by the Court That if there be a Conviction of a Forcible Entry upon the View of the Justices of the Peace no Writ of Error lyes upon it but it may be Examined upon a Certiorari The King versus Green al' THey were Indicted for refusing to take the Oath of Allegigiance contained in the Statute of 3 Jac. tendred to them at the Sessions of the Peace One appeared and the Entry was Nihil decit c. ideo remansit Dom ' Rex versus eundem indenfensus And the other were Convicted and Judgment given quod forisfaciant omnia bona catalla terr' tenementa Domino Regi extra protectionem Dom ' Regis ponantur committuntur quilibet eorum committitur Gaolae They brought Error And First It was moved that the Indictment was for refusing the Oath contained in the Statute of 3 Jac. in his Anglicanis Verbis Viz. I do truly and sincerely acknowledge c. that our Sovereign Lord King Charles the Second is Rightful King of this Realm c. Whereas the Statute is King James and the words of the Statute are That the Justices of the Peace shall demand of such persons there mentioned to take the Oath hereafter following So that 't is tyed up to that Oath in terminis and then it cannot be Administred after the Death of King James And the diversity of the Penning of this Act of 3 Jac. and the Act of 7 Jac. was observed in the last the words are Shall take and receive an Oath according to the Tenour and Effect of the Oath contained in 3 Jac which is as much as to say the same Oath in substance So the Act of 1 Eliz. cap. 1. is That the Oath shall be taken according to the Tenour and Effect hereafter following Therefore it was Objected that the Indictment might have been upon the Act of 7 Jac. but not upon 3 Jac. which it was conceived was tyed up to the Person of King James and therefore determined by his Death As if a Lease be made durante bene placito Regis nunc it doth end by the Dimise of that King that made it Otherwise if it be durante bene placito Regis Moor pl. 311. And though these Statutes for the Oath of Allegiance be General Laws and need not have been recited yet when an Indictment is grounded upon an Act therein mentioned which will not maintain it it shall not be made good upon any other General Act. Secondly Another Matter insisted upon for Error was in the Entry of the Nihil dicit which was Ideo remansit Dom ' Rex versus eundem indefensus whereas it ought to have been remanet and so the Record it self must express But as it is 't is but an History of the Record and therefore upon Indictments where the Award of the Venire is Praeceptum fuit 't is not good but should he Praeceptum est Thirdly An Exception was taken to the Venire which Commands the Sheriff to Return 12 probos legales homines qui nec Dom ' Regem nec aliquam partem aliqua affinitate attingunt whereas in the King's Cases his Kindred may be Returned and therein no Challenge to the Favour neither ought the Sheriff to be restrained from Returning them Fourthly The Judgment is Committuntur quilibet eorum committitur which is an Execution of the Judgment that should have been given and not the Judgment it self which ought to have been Committantur c. as 't is extra protectionem Domini Regis ponantur and not ponuntur Fifthly It was alledged that the Statute was mis-recited in two places 1. For See of Rome it is written Sea of Rome so instead of sedes Romana it is mare Romanum which makes it to be no Sense 2. The Words of the Statute are I do declare in my Conscience before God whereas the Indictment is I do declare c. in Conscience and leaves out my It was also Objected That the words of the Act being That such as refuse the Oath shall incur the danger and penalty of Praemunire mentioned in the Statute of 16 R. 2. which Enacts That Process shall be made against the Offenders therein mentioned by Praemunire facias in manner as 't is Ordained in other Statutes And it appears that no such Process was made upon this Indictment wherefore the Statute is not observed Curia The first Error was disallowed by all the Court and held clearly that the Judgment was well grounded upon the Statute of 3 Jac. For the naming of the King is but an instance of the thing as it stands at present and it might as well be objected that the Oath in the Statute is I A.B. do swear c. And tho' some Statutes say according to the Tenour and Effect and this is the Oath hereafter following it was held to be all one for according to the Tenour and Effect and according to the words are all one as where a Certiorari is to certifie Tenorem Recordi The second was held to be Error and that the Iudgment given upon the nihil dicit must be reversed for there were several Iudgments given viz. One upon that and another given
legitimum Granting of Administrations was originally Temporal an came to the Churchmen by the Indulgence of Princes and therefore must in some sort be governed by the Temporal Laws In Administrations the Whole Blood ought to be preferred before the Half Blood for Next of Kin shall be taken to be meant by the Statute such as our Laws judge to be so Rolls tit Prohibition 303. and so it was held in one Brown's Case before the Delegates in 8 Car. This being a New Case the Court gave no Opinion but Adjourned it to the next Term. Postea Termino Paschae Anno 29 Car. II. In Banco Regis NOte Where Justices of the Peace find a Force and make a Record of it upon their View they are to Commit the Offenders but cannot restore the Possession Anonymus A Prohibition was prayed to a Suit in the Spiritual Court for Money taxed for the Reparation of the Church upon a Surmize that the Tax was imposed upon one part of the Parish omitting the rest And for this was cited Rolls tit Prohibition 291. in the Point But the Court doubted in regard it was not alledged That they had offered that Plea in the Ecclesiastical Court because Reparation of Churches is proper for their Cognizance But the Prohibition was granted and the other might Demur if they thought fit But afterwards in this Term it was Countermanded Anonymus A Prohibition was prayed to the Admiralty where there was a Libel for a Ship taken by Pirates and carried to Tunis and there Sold for that it did not appertain to the Court to try the Property of the Ship being sold upon Land Curia In regard it was taken by Pirates it is originally within the Admiral Jurisdiction and so continues notwithstanding the Sale afterwards upon the Land Otherwise where a Ship is taken by Enemies for that alters the Property And this was the Opinion of the Court in Eglesfield's Case in my Lord Hales's time contrary to my Lord Hobart in the Spanish Ambassador's Case 78. in the 1. Cro. 685. they have Cognizance of the Case of the Pirate because incident to the Principal Matter But afterwards it was observed upon the Libel that there was no mention made That the Ship was taken super altum Mare And tho' there was contained therein very much to imply it yet the Court held that to be absolutely necessary to support their Jurisdiction Note One taken upon an Excom ' Cap ' was Discharged because the Writ de Excom ' Cap ' was not delivered into this Court and Enrolled as is required by the Statute Robinson versus Woolly IN an Ejectment upon a Special Verdict the Case appeared to be thus A Clerk was Admitted and Instituted to a Benefice within the Diocess of Gloucester whilst the Bishoprick was Vacant and a Mandate from the Archbishop for Induction but before it was Executed by the Archdeacon a new Bishop of Gloucester was Consecrated and whether the Induction coming after was sufficient was the Question That it was It was Argued that after the Mandate made it was Executed so far as the Bishop had to intermeddle in the matter For if no Induction does follow the Remedy lies not against the Bishop F.N.B. 47. h. But an Action upon the Case against the Archdeacon for the Induction is said to be a Temporal Act 1 Rolls 125 195. Neither can such Mandate be Revoked by the Bishop or be Inhibited by the King 1 Rolls 294. Again the Archbishop hath a concurrent Jurisdiction with the Bishops throughout his Province and may Admit and Institute until the Inferiour Bishoprick is full And the Statute of 23 H. 8. cap. 9. takes away the Jurisdiction of the Metropolitan only as to Proceedings in that Court In case the Inferiour Ordinary refuses to Admit the Archbishop may do it as appears Hob. 15. Hutton's Case and Mo. 879. It was said on the other side That this was but an Authority derived from the Bishop and therefore ceasing before it was Executed is determined The Bishop may direct his Mandate to another as well as the Archdeacon It was compared to a Letter of Attorney to make Livery which cannot be done after the Death of him that gave it Et Adjornatur Postea Anonymus IN an Information of Forgery the Defendant Challenged one of the Jury for that the Prosecutor had been late Entertained at his House This was admitted to the Favour tho' against the King Vid. for that in the 1 Cro. 663. And then the Counsel for the King challenged another and being pressed to alledge the Cause for 33 Ed. 1. does take away the General Challenge quia non sunt boni pro Rege But all the Court save Wild who seemed to be of another Opinion ordered the Panel to be first gone through and if there were enough the King is not to shew any Cause Vertue versus Bird. IN an Action upon the Case the Plaintiff declared that it was agreed between him and the Defendant That he should carry the Defendants Timber from a certain place to the Defendants House then and there to deliver at such place as the Defendant should appoint and that such a Day and Year he did carry with certain of his Carts to the place aforesaid the said Timber there ready to be delivered but that the Defendant delayed by the space of six Hours the Appointment of the place insomuch that his Horses being so Hot with Carrying of the Timber aforesaid and standing in aperto Acre they died soon after After Not Guilty pleaded and a Verdict for the Plaintiff Ventris moved in Arrest of Judgment that here did not appear any Cause of Action for it was the Plaintiffs Folly to let the Horses stand Neither was the Defendant under the Penalty of an Action bound to receive the Timber or appoint a place but in case of Refusal the other might recover what he Contracted for the Carriage having done all on his part but not to bring an Action for not appointing a Place And by the Opinion of all the Court the Judgment was stayed Vid. 2 Cro. 386. Roll. Rep. 275. Baily and Merritt Anonymus IT was moved for the setting aside of an Order of Sessions for the Setling a Poor person in a Town which had been sent thither by a Warrant of two Justices and it was Confirmed upon an Appeal to the Sessions But the Court would hear nothing of the Merits of the Cause the Order of the Sessions being in such case Final unless there were an Error in the Form Note A man gives a Warrant of Attorney to Confess a Judgment and dies before the Judgment is Confessed This is a Countermand Anonymus JUstices of the Peace at the Sessions Ordered the Father of him which had the Bastard Child to provide for it under the pretence of the reputed Grandfather for the Statute doth enable them to Tax the Grandfather of a Legitimate Child But in this Case the Court held there was no Colour and therefore quashed the
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been