Will because he hath not put it out of him there arises an Vse and a Trust for himself But in our case he hath put the Vses out of himself for there are several Vses declared But there is a further difference if Simon Mayne had declared the Vse to others absolutely and had reserved liberty to himself to have altered it by his Will that might have altered the case But here the Proviso is That if at the time of his death he shall have a Son c. so that it is reduced to him upon a Condition and Contingency As to the power of Revocation he cited the Duke of Norfolks case in Englefields case which Twisd said came strongly to this Adjourned V. infr An Information was exhibited against one for a Libel Coleman The party has confessed the matter in Court and therefore cannot plead not guilty Twisd You may plead not guilty with a relicta verificatione Horne Ivy. TResp for taking away a Ship The Defendant justifies under the Patent whereby the Canary-Company is incorporated and granted that none but such and such should Trade thither on pain of forfeiting their Ships and Goods c. and says that the Defendant did Trade thither c. the Plaintiff demurs Polynxfen He ought to have shown the Deed whereby he was authoriz'd by the Company to seize the Goods 26 H. 6. 8. 14 Ed. 4. 8. Bro. Corp. 59. though I agree that for ordinary Imployments and Services a Corporation may appoint a Servant without Deed as a Cook a Butler c. Plo. Com. 91. A Corporation cannot Licence a stranger to sell Trees without Deed 12 H. 4. 17. Nor can they make a Diuessor without Deed nor deliver a Letter of Attorney without Deed. 9 Ed. 4. 59. Bro. Corp. 24. 34. 14 H. 7. 1. 7 H. 7. 9. Rolls 514. tit Corporation Dr. Bonhams case Again the plea is double for the Defendant alledgeth two causes of a breach of their Charter viz. their taking in Wines at the Canaries and importing them here which is double Then there is a clause that gives the forfeiture of Goods and Imprisonment which cannot be by Patent 8 Rep. 125. Waggoners case Noy 123. in the case of Monopolies This Patent I take also to be contrary to some Acts of Parliament viz. 9 Ed. 3. c. 1. 2 Ed. 3. cap. 2. 2 Rich. 2. cap. 1. 11 Rich. 2. cap. 2. and these Statutes the King cannot dispence withall by a Non obstante Twisd For the first point I think they cannot seize without Deed no more then they can enter for a Condition broken without Deed. Keel We desire to be satisfied whether this be a Monopoly or not It was ordered to be argued Pryn versus Smith SCire Facias in this Court upon a Recognizance by way of Bail upon a Writ of Error in the Exchequer Chamber The Defendant pleaded that the Plaintiff did after Iudgment sue forth a Capias ad satisfaciend out of this Court to the Sheriff of Middlesex whereupon he was taken in Execution and suffered to escape by the Plaintiffs own consent Jones We have demurred because they do not lay a place where this Court was holden nor where the Plaintiff gave his consent Redman Pyne AN Action upon the Case was brought for speaking these words of the Plaintiff being a Watch-maker viz. He is a bungler and knows not how to make a good piece of work but there was no colloquium laid of his Trade Pemberton The Iury have supply'd that having found that he is a Watch-maker And it is true that words shall be taken in mitiori sensu but that is when they are doubtful Caudry's case 1 Cro. 196. Twisden I remember a Shoe-maker brought an Action against a man for saying that he was a Cobler And though a Cobler be a Trade of it self yet held that the Action lay in Glyn's time Saunders If he had said that he could not make a good Watch it would have béen known what he had meant but the words in our case are indifferent and perhaps had no relation to his Trade Ordered to stay Vere Reyner AN Action upou the Case upon a promise to carry duas carectatas c. Rotheram It s uncertain whether carectata signifies a Horse-load or a Cart-load Judgment nisi c. Twisd I have known if a Iudgment be given and there is an agréement betwéen the parties not to take out Execution till next Term and they do it before that the Court has set all aside One brought up by Habeas Corpus out of the Cinque-Ports upon an Information for breaking Prison where he was in upon an Execution for Debt Barrell moved against it Twisd Suppose a man be arrested in the Cinque-Ports for a matter arising there and then another hath cause to arrest him here is there not a way to bring him up by Habeas Corpus Barrell It was never done but there has béen a Habeas Corpus thither ad faciend recipiend Keel If a man be in Prison in the Fléet we bring him up by Habeas Corpus in case there be a Suit against him here Twisd Where shall such a man be sued upon a matter arising out of the Cinque-Ports Barrell If it be transitory he must be sued there if local elsewhere Twisd Then you grant if local that there must be a Habeas Corpus And so it was allowed in this case Two Iustices of Peace made an Order in Session-time against one Reignolds as reputed Father for the kéeping of a Bastard-child Reignolds appealed to the same Sessions where the Iustices made an Order that one Burrell should kéep it Jones moved to set aside this Order though an Order of Sessions upon an Appeal from two Iustices because he said the first Order being made in Session time that Sessions could not be said to be the next within the Stat. of 18 Eliz. and because the Iustices at the Sessions did not quash the Order made by two Iustices Keel They ought to have done that Twisd They may vacat the first Order and refer it back to two Iustices as res integra The Order being read one clause of it was that Burrell should pay 12 d. a wéek for kéeping the Child till it came to be twelve years of age which Twisden said was ill for it ought to be so long as it continues chargeable to the Parish The parties were bound over to appear at the next Assizes in Essex Darby-shire versus Cannon SYmpson moved that the Defendant having submitted to a Rule of Court for referring the matter and not performing the Award an Attachment might be granted against him Which was granted but when the party comes in upon the Attachment he may alledge that the Award is void and if it appear to be so he shall not be bound to perform it Owen Hannings IN a Trial at Bar upon a Scire facias to avoid a Patent of the Office of Searcher exception was taken to a Witness that he was to
of the great Sessions have power to try all Murthers as the Iudges here have and the Statute of 26 H. 8. for the Trial of Murthers in the next English County was made before that of the 34 H. 8. Twisden I never yet heard that the Statute of 34 H. 8. had repealed that of 26 Henr. 8. It is true the Iudges of the Grand Sessions have power but the Statute that gives it them does not exclude this Court. To be moved when the Chief Iustice should be in Court Franklyn's Case FRanklyn was brought into Court by Habeas Corpus and the Return being read it appeared that he was committed as a Preacher at Seditious Conventicles Coleman prayed he might be discharged he said this Commitment must be upon the Oxford Act for the last Act only orders a Conviction and the Act for Vniformity Commitment only after the Bishops Certificate And the Oxford Act provides that it shall be done by two Iustices of the Peace upon Oath made before them and in this Return but one Iustice of Peace is named for Sir William Palmer is mentioned as Deputy Lieutenant and you will not intend him to be a Iustice of Peace Nor does it appear that there was any Oath made before them Twisden Vpon the Statute of the 18th of the Queen that appoints that two Iustices shall make Orders for the keeping of Bastard-children whereof one to be of the Quorum I have got many of them quash'd because it was not exprest that one of them was of the Quorum Whereupon Franklyn was discharged Vpon a motion for time to plead in a great cause about Brandy Twisden said if it be in Bar you cannot demand Oyer of the Letters Patents the next Term but if it be in a Replication you may because you mention the precedent Term in the Bar but not in the Replication Yard Ford. MOved by Jones in Arrest of Iudgment an Action upon the Case was brought for keeping a Market without Warrant it being in prejudice of the Plaintiffs Market He moved that the Action would not lie because the Defendant did not keep his Market on the same day that the Plaintiff kept his which he said is implied in the case in 2 Rolls 140. Saunders contra Vpon a Writ of Ad quod dampnum they enquire of any Markets generally though not held the same day In this case though the Defendants Market be not held the same day that ours is yet it is a damage to us in forestalling our Market Twisden I have not observed that the day makes any difference If I have a Fair or Market and one will erect another to my prejudice an Action will lye and so of a Ferry It s true for one to set up a School by mine is damnum absque injuria Ordered to be moved again Pawlett moved in Trespass that the Defendant pleaded in Bar that he had paid 3 l. and made a promise to pay so much more in satisfaction and said it was a good plea and did amount to an accord with satisfaction an Action being but a Contract which this was Twisden An Accord executed is pleadable in Bar but Executory not Twisden There are two clauses in the Statute of Vsury if there be a corrupt agreement at the time of the lending of the money then the Bonds and all the Assurances are void but if the agreement be good and afterward he receives more than he ought then he forfeits the treble value Bonnefield HE was brought into Court upon a Cap. Excom and it was urged by Pawlett that he might be delivered for that his name was Bonnefield and the Cap. Excom was against one Bromfield Twisden You cannot plead that here to a Cap. Excom You have no day in Court and we cannot Bail upon this but you may bring your Action of False Imprisonment Caterall Marshall ACtion upon the Case wherein the Plaintiff declares that in consideration that he would give the Defennant a Bond of sufficient penalty to save him harmless he would c. and sets forth that he gave him a Bond with sufficient penalty but does not eppress what the penalty was This was moved in Arrest of Iudgment Jones After a Verdict it is good enough as in the case in Hob. 69. Twisd If it had been upon a Demurrer I should not have doubted but that it had been naught Rainsford Morton But the Iury have judged the penalty to be reasonable and have found the matter of fact Twisden The Iury are not Iudges what is reasonable and what unreasonable but this is after a Verdict And so the Iudgment was affirm'd the cause coming into the Kings Bench upon a Writ of Error Martin Delboe AN Action upon the Case setting forth that the Defendant was a Merchant and transmitted several Goods beyond Sea and promised the Plaintiff that if he would give him so much money he would pay him so much out of the proceed of such a parcel of Goods as he was to receive from beyond Sea The Defendant pleaded the Statute of Limitations and doth not say non assumpsit infra sex annos but that the cause of Action did not arise within six years The Plaintiff demurs because the cause is betwéen Merchants c. Sympson The plea is good Accounts within the Statute must be understood of those that remain in the nature of Accounts now this is a sum certain Jones accorded This is an Action upon the Case and an Action upon the Case betwéen Merchants is not within the exception And the Defendant has pleaded well in saying that the cause of Action did not arise within six years for the cause of Action ariseth from the time of the Ships coming into Port and the six years are to be reckoned from that time Twisden I never knew but that the word Accounts in the Statute was taken only for Actions of account An insimul computasset brought for a sum certain upon an Account stated though betweén Merchants is not within the Exception So Iudgment was given for the Defendant The King versus Leginham AN Information was exhibited against him for taking unreasonable Distresses of several of his Tenants Jones moved in arrest of Iudgment that an Information would not lye for such cause Marlebr cap. 4. saith that if the Lord take an unreasonable Distress he shall be amerced so that an Information will not lye And my Lord Coke upon Magna Carta says the party grieved may have his Action upon the Statute but admit an Information would lye yet it ought to have been more particular and to have named the Tenants it is not sufficient to say in general that he took unreasonable Distresses of several of his Tenants And the second part of the Information viz. that he is communis oppressor is not sufficient Rolls 79. Moor 451. Twisden It hath so been adjudged that to lay in an Information that a man is communis oppressor is not good And a Lord cannot be indicted
cannot deprive us of the benefit of the Common Law and in the Vice-Chancellors Court they proceed by the Civil Law If you allow this demand there will be a failer of Justice for the Defendants being a Corporation cannot be arrested they can make no stipulation the Vice-Chancellors Court cannot issue Distringas's against there Lands nor can they be excommunicated Presidents we find of Corporations suing there as Plaintiffs in which case the afore-mentioned inconvenience does not ensue but none of Actions brought against Corporations Maynard contra Servants to Colledges and Officers of Corporations have been allowed the priviledge of the Vniversity which they could not have in their own right and if in their Masters right a fortiori their Masters shall enjoy it The word persona in the demand will include a Corporation well enough Vaughan Chief Justice Perhaps the words atque confirmat ' c. in the demand of Conisance are not material for the priviledges of the Vniversity are grounded on their Patents which are good in Law whether confirm'd by Parliament or not The word persona does include Corporations 2 Inst 536. per Coke upon the Statute of 31 Eliz. cap. 7. of Cottages and Inmates A demand of Conisance is not in derogation of the Common Law for the King may by Law grant tenere placita though it may fall out to be in derogation of Westminster-Hall Nor will there be a failer of Justice for when a Corporation is Defendant they make them give Bond and put in Stipulators that they will satisfie the Iudgment and if they do not perform the Condition of their Bond they commit their Bail They have enjoyed these priviledges some hundreds of years ago The rest of the Iudges agreed that the Vniversity ought to have Conisance But Atkyns objected against the form of the demand that the word persona privilegiata cannot comprehend a Corporation in a demand of Conisance howsoever the sense may carry it in an Act of Parliament Ellis Wyndham If neither Schollars nor priviledged persons had been mentioned but an express demand made of Conisance in this particular cause it had then been sufficient and then a fault if it be one in Surplusage and a matter that comes in by way of Preface shall not hurt Atkyns It is not a Preface they lay it as the foundation and ground of their claim The demand was allowed as to matter and form Rogers Danvers DEbt against S. Danvers and D. Danvers Executors of G. Danvers upon a Bond of 100 l. entred into by the Testator The Defendants pleaded that G. Danvers the Testator had acknowledged a Recognisance in the nature of a Statute Staple of 1200 l. to J. S. and that they have no assets ultra c. The Plaintiff replied that D. Danvers one of the Defendants was bound together with the Testator in that Statute to which the Defendants demur Baldwin pro Defendente If this plea were not good we might be doubly charged It is true one of us acknowledged the Statute likewise but in this Action we are sued as Executors And this Statute of 1200 l. was joynt and several so that the Conisee may at his Election either sue the surviving Conisor or the Executors of him that is dead so that the Testators Goods that are in our hands are lyable to this Statute It runs concesserunt se utrumque eorum if it were joynt the charge would survive and then it were against us It is common for Executors upon pleinment administer pleaded to give in Evidence payment of Bonds in which themselves were bound with the Testator and sometimes such persons are made Executors for their security The Opinion of the Court was against the Plaintiff whereupon he prayed leave to discontinue and had it Amie Andrews ASsumpsit The Plaintiff declares that whereas the Father of the Defendant was endebted to him in 20 l. for Malt sold and promised to pay it that the Defendant in consideration that the Plaintiff would bring two Witnesses before a Iustice of Peace who upon their Oaths should depose that the Defendants Father was so endebted to the Plaintiff and promised payment assumed and promised to pay the money then avers that he did bring two Witnesses c. who did swear c. The Defendant pleaded non Assumpsit which being found against him he moved by Sergeant Baldwin in Arrest of Iudgment that the consideration was not lawful because a Iustice of Peace not having power to administer an Oath in this case it is an extrajudicial Oath and consequently unlawful And Vaughan was of Opinion that every Oath not legally administred and taken is within the Statute against prophane swearing And he said it would be of dangerous consequence to countenance these extrajudicial Oaths for that it would tend to the overthrowing of Legal proofs Wyndham Atkins thought it was not a prophane Oath nor within the Statute of King James because it tended to the determining of a controversie And accordingly the Plaintiff had Iudgment Horton Wilson A Prohibition was prayed to stay a Suit in the Spiritual Court commenced by a Proctor for his Fees Vaughan Wyndham No Court can better judge of the Fees that have been due and usual there then themselves Most of their Fees are appointed by constitutions Provincial and they prove them by them A Proctor lately libell'd in the Spiritual Court for his Fees and amongst other things demanded a groat for every Instrument that had been read in the cause the Client pretended that he ought to have but 4 d. for all They gave Sentence for the Defendant the Plaintiff appealed and then a Prohibition was prayed in the Court of Kings Bench. The Opinion of the Court was that the Libell for his Fees was most proper for the Spiritual Court but that because the Plaintiff there demanded a customary Fee that it ought to be determin'd by Law whether such a Fee were customary or no and accordingly they granted a Prohibition in that case It is like the case of a modus for Tythes for whatever ariseth out of the custom of the Kingdom is properly determinable at Common Law But in this case they were of Opinion that the Spiritual Court ought not to be prohibited and therefore granted a Prohibition quoad some other particulars in the Libell which were of temporal cognisance but not as to the suit for Fees Wyndham said if there had been an actual Contract upon the Retainer the Plaintiff ought to have sued at Law Atkyns thought a Prohibition ought to go for the whole Fées he said had no relation to the Iurisdiction of the Spiritual Court nor to the cause in which the Proctor was retain'd No Suit ought to be suffered in the Spiritual Court when the Plaintiff has a remedy at Law as here he might in an Action upon the case for the Retainer is an implied Contract A difference about the grant of the Office of Register in a Bishops Court shall be
Milwood and Ingram 205 Monke versus Morrice and Clayton 93 Moor and Field 229 Lord Mordant versus the Earl of Peterborough 114 Moreclack and Carleton 73 Mors and Sluce 85 Mosedel the Marshall of the Kings Bench. 116 N. NAylor against Sharply and others 198 Norman and Foster 101 Nosworthy and Wildeman 42 O. OGnel versus the Lord Arlington Gardian of c. 217 Osburn and Walleeden 272 P. PAge and Tulse 239 Parker and Welby 57 Parten and Baseden 213 Parsons and Perns 91 Henry Lord Peterborough versus John Lord Mordant 94 Doctor Poordage 22 Porter and Fry 86 Prin and Smith 19 Pybus and Mitford 121 159 R. RAndal and Jenkins 96 Rawlin's Case 46 Redman and Edelfe 4 Redman 10 Redman and Pyne 19 Dominus Rex versus Vaws 24 Dominus Rex versus Turnith 26 Rich and Morrice 36 Richards and Hodges 43 Roberts and Mariot 42 289 Rogers and Danvers 165 Rogers and Davenant 194 Russel and Collins 8 S. SAvil against the Hundred of 221 Scudamore and Crossing 175 Searl and Long. 248 Sedgewicke and Gofton 106 Earl of Shaftsbury's Case 144 Slater and Carew 187 Smith and Wheeler 16 38 Smith and Bowin 25 Smith Lluellin al. Commissioners of Sewers 44 Smith's Case 209 Smith versus Smith 284 The Chapter of the Collegiate-Church of Southwell versus the Bishop of Lincoln 204 Southcote and Stowell 226 237 The Company of Stationers versus Seymor 256 Stead and Perryer 267 Strode versus the Bishop of Bathe and Wells and Sir George Hornet and Masters 230 T. TAylor and Wells 46 Taylor and Rowse Church-Wardens versus their Predecessors 65 Lord Tenham versus Mullins 119 Thredneedle and Lynham 203 Sir John Thoroughgood 107 Tildell and Walter 50 Tomlin and Fuller 27 Lord Townsend versus Hughes 232 Troy 5 Turner and Benny 61 Turner and Davies 62 V. VAughan and Casewell 7 Vaughton versus Atwood alios 202 Vere and Reyner 19 W. WAldron versus 78 Warren and Prideaux 104 Warren and Sayer 191 Watkyns and Edwards 286 Wayman and Smith 63 Wilbraham and Snow 30 Williams and Lee. 42 Williamson and Hancock 192 Wilson and Robinson 100 Wing and Jackson 215 Wood and Davies 289 Wootton and Heal. 66 Wootton and Penelope 290 Worthy and Liddal 21 Y. YArd and Ford. 69 Z. ZOuch and Clare 92 Errata PAge 40. line 2. a Conveyance with power lege a Conveyance reserving a power p. 50. l. 23. to Nicholas Love the Father if he should so long live lege to Nicholas Love the Father for a term of years if the Cestuy qui vies or any of them should so long live p. 54. l. 22. tenant for life dele for life p. 63. l. 26. pro Quer ' lege pro Defendent ' p. 109. l. 20. if tenant in tail grant a Rent lege if tenant be rendring a Rent p. 112. l. 9. of the month next year lege of the same month p. 127. l. 20. ab inconventi lege ab inconvenienti p. 128. l. 2. and lining thereupon lege and linnen Thereupon c. p. 136. l. 7. left lege lost l. 28. left lege lost p. 145. l. 20 21. repeated lege reported p. 170. l. 2. joyntly to lege joyntly and severally to p. 190. l. 31. A's ground lege B's ground p. 193. l. 5. a stranger a tenant in possession lege a stranger tenant in possession p. 206. l. 20. Shrewsbury the Liberties lege Shrewsbury and the Liberties p. 217. l. 8. shillings given lege shillings be given p. 223. l. 13 Mary it would lege Mary for if it were it would c. p. 245. l. 12. if he had lege that he had p. 262. l. 13. a verbal request lege a verbal discharge p. 271. l. 12. Heley lege Offley p. 285. l. 24. upon the Merchants lege upon the custom of Merchants The Cases of Trin. Term 29 Car. 2. in Com. B. end with page 270. and from that page to page 299. through a mistake of the Composer it 's printed C. B. instead of B. R. which the Reader is desired to to amend with his Pen. REPORTS Of divers Select Cases In the Reign of CAROLI II. Term. Mich. 21 Car. II. 1669. in Banco Regis ONe Mynn an Attorney entred a Iudgment by colour of a Warrant of Attorney of another Term then was expressed in the Warrant The Court consulting with the Secondary about it he said That if the Warrant be to appear and enter Iudgment as of this Term or any time after the Attorney may enter Iudgment at any time during his life but in the case in question the Warrant of Attorney had not those words or at any time after Wherefore the Secondary was ordered to consider the charge of the party grieved in order to his reparation Which the Court said concluded him from bringing his Action on the Case The Secondary said That in Trin. Hil. Term they could not compel the party in a Habeas Corpus to plead and go to Trial the same Term but in Michaelmas and Easter Term they could Mr. Solicitor moved for a new Writ of Enquiry into London and to stay the filing of a former because of excessive damages given but it was denied An Affidavit for the changing of a Venue made before the party was Arrested and allowed Moved in Battery for putting an Arm out of joint that the party might be held to special Bail but denied Twisd Follow the course of the Court. Mr. Sanders moved to quash an Order made by the Iustices of Peace for putting away an Apprentice from his Master and ordering the Master to give him so much Money Keeling The Statute of 5 Eliz. leaves this to their discretion An Indictment was preferred in Chester for a Perjury committed in London For which Keeling threatned to have the Liberties of the County Palatine seized if they kept not within their bounds Goodwin Harlow ERror to reverse a Iudgment in Colchester there being no appearance by the party but Iudgment upon thrée defaults recorded Revers'd Twisd If there be a Iudgment against thrée you cannot take out Execution against one or two Vpon a motion for a new Trial Twisden said That in his practice the Heir in an Action of Debt against him upon a Bond of his Ancestor pleaded riens per discent the Plaintiff knew the Defendant had levied a Fine and at the Trial it was produced but because they had not a Déed to lead the uses it was urged that the use was to the Conusor and his heirs and so the heir in by descent whereupon there was a Verdict against him and it being a just and due Debt they could never after get a new Trial. Gostwicke Mason DEbt for Rent upon a Lease for a year and so from year to year quamdiu ambabus partibus placuerit there was a Verdict for the Plaintiff for two years rent Sanders moved in Arrest of Iudgment that the Plaintiff alledges indeed that the Defendant entred and was possest the first year but mentions no entry as
man that shall refuse to accept the Office of Alderman because they are a Court of Record and they may want Aldermen else So he was released It was moved for the Plaintiff that a person named in the simul cum being a material Witness might be struck out and it was granted Keel said That if nothing was proved against him he might be a Witness for the Defendant Clerke Heath EJectione firmae The Plaintiff claims by a Lease from Th. Prin Clerke Objected That Prin had not taken the Oath according to the Act for Vniformity whereupon he produced a Certificate of the Bishop that had only a small bit of Wax upon it Twisd If it were sealed though the Seal be broken off yet it may be read as we read Recoveries after the Seal broken off and I have seen Administration given in Evidence after the Seal broken off and so Wills and Déeds Accordingly it was read Obj. The Church is ipso facto void by the Act of Vniformity if the Incumbent had no Episcopal Ordination So they shewed that Prin was ordained by a Bishop It was likewise proved that he had declared his assent and consent to the Common Prayer in due time before St. Bartholomew's day Then it was urged that the Act does not confirm the Plaintiffs Lessor in this living for that it is not a living with Cure of Souls for it has a Vicarage endowed Twisd If it be a living without Cure the Act does not extend to it Mr. Solicitor The Presentation does not mention Cure of Souls So they read a Presentation of a Rector and another of a Vicar in neither of which any mention was made of Cure of Souls but the Vicars was residendo If both be presentative the Cure shall be intended to be in the Vicar Keeling Why may not both have the Cure Sol. If the Vicar be endow'd the Rector is discharged of Residence by Act of Parliament Twisd Synodals and Procurations are duties due to the Ordinary which Vicars when the Parsonages are impropriated always pay but I question whether they that come into a Church by Presentation to and Institution by the Bishop have not always the Cure of Souls It is true in Donatives where the Ministers do not come in by the Bishops Institution there is no Cure but they that come in by Institution of the Bishop have their power delegated to them from him and generally have Cure of Souls Solic There are several Rectories without Cure Twisd When came Rectories in Morton After the Counsel of Lateran and Vicars came in in the Seventeenth year of King John Moreton Before the Councel of Lateran the Bishop did provide Teachers and received the Tythes himself but since he hath appointed others to the charge and saith accipe curam tuam meam Keeling Twisden It is said so by my Lord Coke but not done Twisden Wherever there is a Cure of Souls the Church is visitable either by the Bishop if it belong to him if to a Lay-man he must make Delegates if to the King my Lord Kéeper does it And where a man comes in by Presentation he is prima facie visitable by the Bishop Keeling I take it that whoever comes in under the Bishops Institution hath the Cure Twisden Grendon's Case is expresly That the Bishop hath the Cure of Souls of all the Diocess and doth by Institution transfer it to the Parson so that prima facie he that is instituted hath the Cure The Vicarage is derived out of the Parsonage and if the Vicar come to poverty the Parson is bound to maintain him Twisd There is an Appropriation to a Corporation the Corporation cannot have Cure of Souls being a body Politick but when they appoint a Vicar he coming under the Bishop by Institution hath Cure of Souls and a Donative when it comes to be Presentative hath Cure of Souls Keeling agreed Twisd We hold that when the Rector comes in by Institution the Bishop hath power to visit him for his Doctrine and his life for he hath the particular Cure but the Bishop the general and that the Bishop hath power to deprive him Abbot Moore THe Plaintiff declares That whereas one William Moore was indebted to him 210 l. and whereas the said William Moore had an Annuity out of the Defendants Lands That the Defendant in consideration that the Plaintiff had agréed that the Defendant should pay so much money to the Plaintiff the Defendant did promise to pay it After a Verdict it was objected in arrest of Iudgment that here was not any consideration and the Court was of that opinion Then the Plaintiff would have discontinued but the Court would not suffer that after a Verdict Sir Edward Thurland moved to quash an Order made by the Iustices of the Peace for one to serve as Constable in Homeby Moreton If a Leet neglect to chuse a Constable upon complaint to the Iustices of Peace they shall by the Statute appoint a Constable Twisd In this case there are Affidavits that there never was any Constable there And I cannot tell whether or no the Iustices of Peace can erect a Constablewick where never any was before if he will not be sworn let them indict him for not executing the Office and let him traverse that there never was any such Office there Keeling Go and be sworn or if the Iustices of the Peace commit you bring your Action of False Imprisonment Twisd If there be a Court Leet that hath the choice of a petty Constable the Iustices of Peace cannot chuse there And if it be in the Hundred I doubt whether the Iustices of Peace can make more Constables then were before High-Constables were not ab origine but came in with Iustices of the Peace 10 H. 4. Keel Morton cont Moreton The book of Villarum in the Exchequer sets out all the Vills and there cannot be a Constablewick created at this day In this case the Court ordered him to be sworn Thurl If they chuse a Parliament-mans Servant Constable they cannot swear him Twisd I do not think the priviledge extends to the Tenant of a Parliament man but to his Servant Blissett Wincott TWo persons committed for being at a Conventicle were brought up by Habeas Corpus Twisd To meet in Conventicles in such numbers as may be affrighting to the people and in such numbers as the Constable cannot suppress is a breach of the Peace and of a persons Recognizance for the good behaviour Note this was after the late Act against Conventicles expired Lee Edwards AN Action upon the Case was brought upon two promises 1. In consideration the Plaintiff would bestow his labour and pains about the Defendants Daughter and would cure her he did promise to pay so much for his labour and pains and would also pay for the Medicaments 2. That in consideration he had cured her he did promise to pay c. Raymond moved in arrest of Iudgment that he did not aver
be Deputy to the party that would avoid the Patent Twisd If a man promise another that if he recover his Land the other shall have a Lease of it he is no good Witness so neither is this man But by the Opinions of the thrée other Iudges he was allowed because the Suit here is between the King and the Patentée Worthy Liddall SAunders moved for a Prohibition to the Spiritual Court in a Suit there for calling the Plaintiff Whore Twisd Opinions have been pro and con upon this point The Spiritual Court has a Iurisdiction in cases of Whoredom and Adultery but if Suits there were allowed for such railing words they would have work enough from Billingsgate Saunders relyed upon this that they were only words of heat Keel They are Iudges of that Saunders In Mich. 11 Jac. Rot. 664. Cryer versus Glover in Com. B. The suggestion was that she struck him and he said thou art a Whore and I was never struck by a Whores hand before there a Prohibition was granted and I conceive the reason was because there was a provocation so in our case it appears that they were Scolding According 15 Jac. Rot. 325. Short versus Cole 15 Car. 2. between Loveland Goose The Court refused to grant a Prohibition Maddox WAllop moved for a Prohibition to the Spiritual Court for one Maddox Incumbent of a Donative within the Diocess of Peterborough who was cited into the Spiritual Court for marrying there without a Licence and cited Fairechilds case Yel 60. But per Keeling Moreton Rainesford the Prohibition was denied Twisden doubted but said if they might punish him in the Ecclesiastical Court pro reformatione morum at least they could not deprive him Doctor Poordage BArtue moved for a Writ of Priviledge for him he being a practising Physitian in Town and chosen Constable in a Parish The Court said if the Office go by Houses he must make a Deputy But upon consideration the motion was refused and a difference made between an Attorney or Barrister at Law and a Physitian the former enjoy their Priviledge because of their attendance in publick Courts and not upon the account of any private business in their Chambers and a Physitians Calling is a private Calling Wherefore they would not introduce new Presidents Sir John Kirle versus Osgood AN Action for words viz. Sir John Kirle is a forsworn Justice and not fit to be a Justice of Peace to sit upon the Bench and so I will tell him to his face Moved in arrest of Iudgment because to say a man is forsworn is not Actionable for it may be understood of swearing in common discourse Jones They are Actionable because applied to his Suite Stukely's case 4 Rep. Fleetwood's case in Hob. Though a mans Office is not named yet if the words do refer in themselves or are applyed to it they are Actionable so in our case Winnington They are not Actionable for they admit of a construction in mitiori sensu in Stukely's case that has béen cited corruption in his Office is necessarily implyed but not in this case Rolls 56. Keeling He calls him in effect a corrupt Iustice and that supplies the communication concerning his Office words must be construed according to common acceptation Morton I sée little difference betwéen this and Sir John Isam's case 1 Cro. 14. Sir William Massam's case Rainsford accorded He cited 1 Rolls 53. 4 Rep. Stukelies case Twisden was of the same Opinion for the words read to disgrace him in his Office Iudgment for the Plaintiff Hastings Attorny of the K. B. WInnington complained to the Court an his behalf that he being an Attorney of this Court was not suffered to appear for his Clyent in the Court at Stepney That Court he said was erected by Letters Patents within these two years and the Attornies of this Court being an ancient Court ought not to be excluded On the other side it was urged that they had a certain number of Attornies appointed by their Charter as there is at the Marshals Court Keeling This is a new Court and for my part I think our Attornies cannot be excluded Hastings may bring his Action If a Patent erecting a new Court may limit a certain number of Attornies that shall practise there it may as well limit a certain number of Counsel Coleman They have so in the Marshalsey and in London Keeling Their Courts in London are ancient and their Customs confirmed by Acts of Parliament The now Court of the Marshalsey is indéed a new erected Court for the old Court of the Verge was another thing and as for their having a certain number of Counsel or Attornies the question is the same with this before us whether they can legally exclude others I do not see how the King by a new Patent can ouâ—â—e any man of his priviledge Twisden said it was a new point and that he had never heard it stir'd before Afterwards being moved again Keeling said they should have their Iudgments quickly if they stood upon it Twisd I have known this ruled if you say you will refer the cause to such a man that ex consequente the cause must stay because that man is made Iudge and that the staying of the cause is implyed in the reference Dominus Rex versus Vaws MOved to quash a Presentment for refusing to be sworn Constable of an Hundred because the Presentment does not mention before whom the Sessions were held which was quash'd accordingly and Twisden said the Clerk of the Peace ought to be fined for returning such a Presentment Birrell Shawe SCire facias against the Bail The Defendant pleads that before the return of the Writ of Scire facias there was a Capias ad satisfaciend against the principal by vertue whereof he was taken and paid the money but alledges no place where the payment was Twisd You cannot make good this fault Dodwell Ux. versus Burford THe Plaintiffs in an Action of Battery declared that the Defendant struck the Horse whereon the Wife rode so that the Horse ran away with her whereby she was thrown down and another Horse ran over her whereby she lost the use of two of her Fingers The Iury had given them 48 l. damages and they moved the Court upon view of the maihem to increase them whereupon the Declaration was read but the Court thought the damages given by the Iury sufficient Smith versus Bowin ACtion upon a promise The Plaintiff declares that the Defendant in consideration that the Plaintiff would suffer him to take away so much of the Plaintiffs Grass which the Defendant had cut down promised to pay him so much for it and also to pay him six pounds which he owed him for a Debt After a Verdict for the Plaintiff Williams moved in Arrest of Iudgment that the Plaintiff was an Infant and he not being bound by the agreement that the Defendant ought not to be bound by it
_____ shall bring in Alice and John Coats when they shall come to their Ages of Twenty one years to give such a Release to the Executors of Francis Gibbs as they shall require then c. one of the Legatees comes of age and during the minority of the other the Bond is put in Suit and this whole matter is disclosed in the Pleading And the question was whether the Defendant was obliged to bring him in to give a Release that was of Age before the Action brought or might stay till both were of Age before he procured a Release from either The Court was of Opinion that it must be taken respectively and because it appears that the Legacies were several that several Releases ought to be given upon the reason of Iustice Wyndham's case 5th Report And Twisden said if there were no more in it then this sc when they shall come to their Ages of c. it were enough to have the Condition understood respectively for they cannot come to their Ages at one and the same time And Iudgment was given accordingly Twisden If an Executor plead several Iudgments you may reply to every one of them obtent per fraudem or you may plead separalia Judicia c. obtent per fraudem but in pleading separalia Judicia obtent per fraudem if one be found to be a true debt you are gone Keeling Twisden Notwithstanding the Stat. of 23 H. 6. which obliges the Sheriff to take Bail yet he can make no other Return of a Capias then either cepi corpus or non est inventus for at the Common Law he could return nothing else and the Statute though it compels him to take Bail does not alter the Return and so in a case betwéen Franklin Andrews it has been adjudged here Crofton OFfley moved for a Certiorari to the Iustices of Peace for Middlesex to remove an Indictment against one Crofton upon the late Statute made against Non-conformist Ministers coming within five miles of a Corporation the Indictment was traversed He urged that by the Statute no Indictment will lie for such Offence For where an Act of Parliament enacts that the Penalty shall be recovered by Bill Plaint or Information as the Statute upon which this Indictment is grounded does there an Indictment will not lie 2 Cro. 643. Twisd If the Statute appoint that the penalty shall be recovered by Bill Plaint c. and not otherwise there I confess an Indictment will not lie but without negative words I conceive it will though the Statute be Introductive of a new Law and create an Offence which was none at the Common Law For whenever a thing is prohibited by a Statute if it be a publick concern an Indictment lies upon it and the giving other remedies as by Bill Plaint c. in affirmative words shall not take away the general way of proceeding which the Law appoints for all Offences Keeling differed in Opinion and thought that where a Statute created a new Offence and appointed other remedies there could be no proceeding by way of Indictment Afterward Offley moved it again and cited 2 Cro. 643. 3 Cro. 544. Mag. Chart. 201. 228. Vpon the second motion Keeling came over to Twisden's Opinion But it was objected That upon an Indictment the Poor of the Parish would lose their part of the penalty to which Twisden said that he knew it to have been adjudged otherwise at Serjeants-Inn and that where a Statute appoints the Penalty to be divided into thrée parts one to the Informer another to the King and the third to the Poor that in such case where there is no Informer as upon an Indictment there the King shall have two parts and the Poor a third The King versus Baker AN Indictment in Hull for saying these words viz. That whenever a Burgess of Hull comes to put on his Gown Sathan enters into him Levings moved that these words would not bear an Indictment Keeling The words are a Scandal to Government Levings The Indictment concludes in malum exemplum inhabitantium whereas it should be quamplurimorum subditorum Domini Regis in tali casu delinquentium And for this adjudged naught Twisden If the Defendant in an Action of Debt for Rent plead nil debet he may give in Evidence a suspension of the Rent A Parson Libels in the Spiritual Court against several of his Parishioners for Tythe-Turfe They pray a Prohibition Keeling Turfe Gravel and Chalke are part of the Fréehold and not Tythable They granted one Prohibition to all the Libels but ordered the Plaintiffs to declare severally Maleverer versus Redshaw DEbt upon a Bond of 40 l. the Condition was for appearing at a certain day and concluded if the party appeared then the Condition to be void The Defendant pleaded the Statute of 23 H. 6. Coleman The Bond is void by the express words of the Statute being taken in other form then the Statute prescribes Keeling If the Condition of a Bond be That if the Obligor pay so much money then the Condition to be void in that case the Bond is absolute Twisden I have heard my Lord Hobart say upon this occasion that because the Statute would make sure work and not leave it to Exposition what Bonds should be taken therefore it was added that Bonds taken in any other form should be void For said he the Statute is like a Tyrant where he comes he makes all void but the Common Law is like a Nursing Father makes void only that part where the fault is and preserves the rest Keeling If the Condition had béen that the party should appear and had gone no further it would then have been well enough Twisd Then why may not that which follows be rejected as idle and surplusage Cur. Advisare vult Jones versus Tresilian AN Action of Trespass of Assault and Battery Defendant pleads de son assault demesne The Plaintiff replies That the Defendant would have forced his Horse from him whereby he did molliter insultum facere upon the Defendant in defence of his possession To this the Defendant demurred Morton Molliter insultum facere is a contradiction Suppose you had said that molliter you struck him down Twisden You cannot justifie the beating of a man in defence of your possession but you may say that you did molliter manus imponere c. Keeling You ought to have replyed that you did molliter manus imponere quae est eadem transgressio Cur. Quer ' nil capiat per billam unless better cause be shown this Term. Rich Morris IN an Action of Debt for not performing an Award The Plaintiff declares that inter alia Arbitratum fuit c. Twisd That is naught Crisp versus the Mayor of Berwick AN Action of Covenant is brought against the Mayor Burgesses and Corporation of Berwick upon an Indenture of Demise wherein the Plaintiffs declare that the Defendants did demise to them a House in Berwick with a Covenant
of Jerman it was held that all my Estate comprehends all my Title and Interest in the Land If a man deviseth all his Inheritance this carries the Fee-simple of his Land and the word all his Estate is as comprehensive as that Hales Wyld By a Grant or Release of totum statum suum the Fee-simple will pass if the words had been all my Tenant-right Lands it had been otherwise but the word Estate is more then so if a man deviseth all his Copy-hold Estate will not all his whole Interest pass Adjornatur Norman Foster AN Action of Debt upon a Bond to perform Covenants in an Indenture of Lease one Covenant is for quiet enjoyment and the Plaintiff assigns for breach that a Stranger entred but does not say that he had Title Hales Habens Titulum at that time would have done your business My Lord Dyer's case is that another entred claiming an Interest but that is not enough for he may claim under the Lessee himself He mentioned the cases in Moor 861. Hob. 34. Tisdale Essex If the Covenant had been to save him harmless against all lawful and unlawful Titles yet it must appear that he that entred did not claim under the Lessee himself Hales If I Covenant that I have a lawful right to grant and that you shall enjoy notwithstanding any claiming under me these are two several Covenants and the first is general and not qualified by the second And so said Wyld and that one Covenant went to the Title and the other to the possession Dyer 328. An Assumpsit to enjoy sine interruptione alicujus that is whether by Title or by Tort a quiet possession being to be intended to be the chief cause of the Contract 3 Leon. 43. 2 Cro. 425 315. 444. Adjornatur Angell convicted of Barretry produced a Pardon which was of all Treasons Murders Felonies and all Penalties Forfeitures and Offences The Court said the words all Offences will pardon all that is not capital Blackburn Graves A Copy-holder surrenders to the use of several persons for years successive the Remainder in Fee to J. S. Wyld An admittance of a particular Tenant is an admittance of all the Remainders to all purposes but only the Lords Fine and if the Custom be that the Fine paid by the first Tenant shall go to all the Remainders then the admittance of the first man is to all intents and purposes an admittance of all that come after In this case the possession of the Lessée for years is the possession of the Remainder-man In one Baker Dereham's case there was a surrender to the use of a man and his Heirs of Copy-hold Land that discended according to the Custom of Borough-English the surrenderee dyed before admittance and the Opinion of the Court was that the right would discend to the youngest according to the Custom Vpon a case moved Hales said That if a Tenant in Common bring a personal Action without his fellow joyning in the Suit the Defendant ought to take advantage of it in abatement but if he plead Not-guilty it shall be good but then he shall recover damages only for a moiety If a Tenant in Common seal a Lease of Ejectment he shall recover but a moiety A Iustice of Peace committed a Brewer for not paying the duty of Excise the Brewer was brought into Court by Habeas Corpus Sympson It ought to appear that he was a common Brewer Hales The Statute doth prohibit the bringing of a Certiorari but not a Habeas Corpus And want of averment of a matter of fact may be amended in a Return in Court and if it be not true at their peril be it So it was mended Money owing upon a Iudgment given in the Kings Court cannot be attached Term. Hill 25 26 Car. II. 1673. in B. R. Baker Bulstrode DEbt upon a Bond. The Condition was to Seal and execute a Release to the Plaintiff The Defendant demurs because the Plaintiff did not alledge in his Declaration a tender of a Release It was urged that the Condition was not to make but only to Seal and Execute c. But per Curiam he is bound to do it without a tender And the word Execute or the word Seal comprehends the making And Lamb's case was cited Warren Prideaux Trin. 24 Car. 2. Rot. 1472. A Distress and Avowry for Toll The prescription was for Toll in consideration of maintaining the Key and keeping a Bushel to measure Salt viz. That in consideration thereof he and those c. have had time out of mind c. a Bushell of Salt of every Ship that comes laden with Salt into Slipper-point For the Avowant it was alledged that the maintaining of the Key is for publick good Co. Magn. Cart. 222. Rolls 265. It s true it is not alledged that they did actually use the Weights and Measures 1 Leon. 231. but it being alledged that the Ship came within Slipper-point it is enough to charge the Plaintiff with the payment As for the Distress taken which is part of the Ships lading viz. Salt it is objected that it cannot be distrained because it is part of the thing from which the duty ariseth but I answer that this is not like to a Distress upon Land nor to be judged of according to the rules allowed in cases of such Distresses There were cited on this side 21 H. 7. 1. 3 Cro. 710. Smith Shepheard Dyer 352. Courtney contra I conceive this prescription ought to have some consideration and to be grounded on a meritorious cause to bind a Subject The keeping of the Bushell is no meritorious cause because it is presumed that the party hath the use of it himself Hales The prescription is not for a Port but a Wharfe If any man will prescribe for a Toll upon the Sea he must alledge a good consideration because by Magna Charta and other Statutes every one hath liberty to go and come upon the Sea without impediment Wyld This Custom or Prescription is laid to have a Bushell of Salt of every Ship that comes within the Slipper-point if a Ship be driven in by stress of weather and goes out again the first opportunity that presents shall that Ship pay Hales If he had said that he had a Port and was bound to maintain that Port and that he and all those whose Estate he had c. that might have been a good Prescription but in this case there must be a special inducement and compensation to the Subject by reason of those Statutes by which all Merchants and others have liberty to come in and go out They inclin'd that the Prescription was not good Anonymus A Trial at Bar concerning the River of Wall-fleet the question was whether had not the right of Fishing there exclusive of all others Hales In case of a private River the Lords having the Soil is a good evidence to prove that he hath the right of Fishing and it puts the
tried at Common Law though the Subjectum circa quod be Spiritual 2 Rolls 285. placito 45. 2 Rolls 283. Wadworth Andrewes Shall a six-Clark prefer a Bill in Equity for his Fees But a Prohibition was granted quoad c. Glever versus Hynde alios GLever brought an Action of Trespass of Assault and Battery against Elizabeth Hynde and six others for that they at York-Castle in the County of York him the said Plaintiff with force and arms did Assault beat and evil entreat to his damage of 100 l. The Defendants plead to the Vi armis not-guilty to the Assault beating and evil entreating they say that at such a place in the County of Lancaster one _____ Jackson a Curate was performing the Rites and Funeral obsequies according to the usage of the Church of England over the body of _____ there lying dead and ready to be buried and that then and there the Plaintiff did maliciously disturb him that they the Defendants required him to desist and because he would not that they to remove him and for the preventing of further disturbance molliter ei manus imposuerunt c. quae est eadem transgressio absque hoc that they were guilty of any Assault c. within the County of York or any where else extra Comitatum Lancastriae The Plaintiff demurs Turner pro Querente The Defendants do not show that they had any Authority to lay hands on the Plaintiff as that they were Constables Church-wardens or any Officers nor do they justifie by the Authority of any that were If they had pleaded that they laid hands on him to carry him before a Iustice of Peace perhaps it might have alter'd the case The Plaintiff here if he be faulty is lyable to Ecclesiastical Censure and the Statute of Ph. Ma. ann 1. cap. 3. provides a remedy in such cases Jones contra If the Statute of Ph. Ma. did extend to this case yet it does not restrain other ways that the Law allows to punish the Plaintiff or keep him quiet Our Saviour himself has given us a President he whipt buyers and sellers out of the Temple which act of buying and selling was not so great an impiety as to disturb the worship of God in the very act and exercise of it Court The St. of 1 Ph. Ma. concerns Preachers only but there is another Act made 1 Eliz. that extends to all men in Orders that perform any part of publick Service But neither of these Statutes take away the Common Law And at the Common Law any person there present might have removed the Plaintiff for they were all concern'd in the Service of God that was then performing so that the Plaintiff in disturbing it was a Nusance to them all and might be removed by the same rule of Law that allows a man to abate a Nusance Whereupon Iudgment was given for the Defendant Nisi causa c. Anonymus ACtion sur le Case The Plaintiff declares that whereas the Testator of the Defendant was endebted to the Plaintiff at the time of his death in the sum of 12 l. 10 s. that the Defendant in consideration of forbearance promised to pay him 5 l. at such a time and 5 l. more at such a time after and the other 50 shillings when he should have received money then avers that he did forbear c. and saith that the Defendant paid the two five pounds but for the 50 shilllings residue that he hath received money but hath not paid it The Defendant pleaded non Assumpsit which was found against him Wilmot moved in arrest of Iudgment that the Plaintiff doth not set forth how much money the Defendant had received who perhaps had not received so much as 50 shillings he said though the promise was general yet the breach ought to be laid so as to be adequate to the consideration And secondly that the Plaintiff ought to have set forth of whom the Defendant received the money and when and where because the receit was traversable The Court agreed that there was good cause to demur to the Declaration but after a Verdict they would intend that the Defendant had received 50 shillings because else the Iury would not have given so much in damages and for the other exception they held that the Defendant having taken the general issue had waived the benefit thereof Alford Tatnell GRegory Melchisedec Alford were bound joyntly to Tatnell in a Bond of 700 l. the Obligee brought several Actions and obtained two several Iudgments in this Court against the Obligors and sued both to an Outlawry And in Mich. Term. 18 Car. 2. both were returned outlawed In Hill Term following Gregory Alford was taken upon a Cap. utlagatum by Browne Sheriff of Dorset-shire who voluntarily suffered him to escape Tatnell brought an Action of Debt upon this escape against Browne and recover'd and receiv'd satisfaction notwithstanding which he proceeded to take Melchisedec Alford who brought an Audita querela and set forth all this matter in his Declaration but upon a demurrer the Opinion of the Court was against the Plaintiff for a fault in the Declaration viz. because the satisfaction made to the Plaintiff by the Sheriff was not specially pleaded viz. time and place alledged where it was made for it is issuable and for ought appears by the Declaration it was made after the Writ of Audita querela purchased and before the Declaration The Court said if Tatnell had only brought an Action on the case against the Sheriff and recovered damages for the escape though he had had the damages paid that would not have béen sufficient ground for the Plaintiff here to bring an Audita querela but in this case he recovered his Original debt in an Action of debt grounded upon the escape which is a sufficient ground of Action if he had declared well They gave day to show cause why the Declaration should not be amended paying Costs Anonymus AN Action of False Imprisonment The Defendants justifie by vertue of a Warrant out of a Court within the County Palatine of Durham to which the Plaintiff demur'd The material part of the Plea was That there was antiqua Curia tent coram Vicecomite Comitatus c. vocat The County Court which was accustomed to be held de 15 diebus in 15 dies and that there was a Custom that upon a Writ of questus est nobis issuing out of the County Palatine of Durham and delivered to the Sheriff c. that upon the Plaintiffs affirming quandam querelam against such person or persons against whom the questus est nobis issued the Sheriff used to make out a Writ in the nature of a cap. ad satisfac against him or them c. that such a Writ of questus est nobis issued ex Cur ' Cancellarii Dunelm which was delivered to the Sheriff who thereupon made a precept to his Bayliffs to take the Plaintiff who thereupon was arrested which
the Wife does but nominate what person shall take by the Will This is a plain case and free from uncertainty and ambiguity which else the word dispose will be liable to But Iudgment was given ut supra Howell versus King TRespass for driving Cattel over the Plaintiffs ground The case was A. has a way over B's ground to Black-Acre and drives his Beasts over A's ground to Black-acre and then to another place lying beyond Black-acre And whether this was lawful or no was the question upon a demurrer It was urged that when his Beasts were at Black-acre he might drive them whither he would Rolls 391. nu 40. 11 H. 4. 82. Brook tit chimin On the other side it was said that by this means the Defendant might purchase a hundred or a thousand Acres adjoyning to Black-acre to which he prescribes to have a way by which means the Plaintiff would lose the benefit of his Land and that a Prescription presupposed a grant and ought to be continued according to the intent of its original Creation The whole Court agreed to this And Iudgment was given for the Plaintiff Warren qui tam c. versus Sayre THe Court agreed in this case that an Information for not coming to Church may be brought upon the Stat. of 23 Eliz. only reciting the clause in it that has reference to Stat. 1. of the Queen and that this is the best and surest way of declaring Term. Hill 26 27 Car. II. in Com. Banco Williamson Hancock Hill 24 25 Car. 2. Rot. 679. TEnant for life the Remainder in Tail Tenant for life levies a Fine to J. S. and his heirs to the use of himself for years and after to the use of Hannah and Susan Prinne and their heirs if such a sum of money were unpaid by the Conusor and if the money were paid then to the use of the Conisor and his heirs And this Fine was with general warranty The Tenant for life died the money unpaid and the warranty descended upon the Remainder-man in Tail And the question was whether the Remainder-man were bound by this warranty or not Serjeant Maynard argued that because the Estate of the Land is transferred in the Post before the warranty attaches in the Remainder-man that therefore it should be no Bar. He agréed that a man that comes in by the limitation of an use shall be an Assignee within the Statute of 32 H. 8. cap. 34. by an equitable construction of the Statute because he comes in by the limitation of the party and not purely by Act in Law but this case of ours is upon a collateral garranty which is a positive Law and a thing so remote from solid reason and equity that it is not to be stretch'd beyond the maxime That the Cestuy que use in this case shall not vouch is confessed on all hands and there is the same reason why he should not rebutt He said the resolution mentioned in Lincoln Colledge case was not in the case nor could be the warranty there was a particular warranty contra tunc Abbatem Westmonasteriensem successores suos which Abby was dissolved long before that case came in question He said Justice Jones upon the arguing of Spirt Bence's case reported in Cr. Car. said that he had been present at the Iudgment in Lincoln Colledge case and that there was no such resolution as is there reported Serjeant Baldwin argued on the other side that at the Common Law many persons might rebutt that could not take advantage of a warranty by way of Voucher as the Lord by Escheat the Lord of a Villain a Stranger a Tenant in possession 35 Ass placito 9. 11 Ass placito 3. 45 Ed. 3. 18. placito 11. 42 Ed. 3. 19. b. a fortiori he said he that is in by the limitation of an use being in by the act of the party though the Law co-operate with it to perfect the assurance shall rebutt The Court was of Opinion that the Cestuy que use might rebutt that though Voucher lies in privity an abater or intruder might rebutt F. N. B. 135. 1 Inst 385. As to Serjeant Maynard's Objection that he is in the Post they said they had adjudged lately in Fowle Doble's case that a Cestuy que use might rebutt So it was held in Spirt Bence's case Cr. Car. and in Jones 199. Kendal Foxe's case That Report in Lincoln Colledge case whether there were any resolution in the case or no is founded upon so good reason that Conveyances since have gone according to it Atkyns said there was a difficult clause in the Statute of Uses viz. That all and singular person and persons c. which at any time on this side the first day of May c. 1536. c. shall have c. By this clause they that came in by the limitation of an use before that day were to have the like advantages by Voucher or Rebutter as if they had béen within the degrees If the Parliament thought it reasonable why was it limited to that time Certainly the makers of that Law intended to destroy Vses utterly and that there should not be for the future any Conveyances to Vses But they supposed that it would be some small time before all people would take notice of the Statute and make their Conveyances accordingly and that might be the reason of this clause But since contrary to their expectations Vses are continued he could easily be satisfied he said that Cestuy que use should rebutt Wyndham was of Opinion that Cestuy que use might vouch he said there was no Authority against it but only Opinions obiter They all agreed for the Defendant and Iudgment was given accordingly Rogers versus Davenant Parson of White-Chappel NOrth Chief Justice The Spiritual Court may compell Parishioners to repair their Parish-Church if it be out of Repair and may Excommunicate every one of them till it be repaired and those that are willing to contribute must be absolved till the greater part of them agrée to assess a Tax but the Court cannot assess them towards it it is like to a Bridge or a High-way a Distringas shall issue against the Inhabitants to make them Repair it but neither the Kings Court nor the Iustices of Peace can impose a Tax for it Wyndham Atkyns Ellis accorded The Church-Wardens cannot none but a Parliament can impose a Tax but the greater part of the Parish can make a By-Law and to this purpose they are a Corporation But if a Tax be illegally imposed as by a Commission from the Bishop to the Parson and some of the Parishioners to assess a Tax yet if it be assented to and confirmed by the major part of the Parishioners they in the Spiritual Court may proceed to Excommunicate those that refuse to pay it Compton Vx. versus Ireland Mich. 26 Car. 2. Rot. 691. SCire facias by the Plaintiffs as Executors to have Execution of a Iudgment
not bind an Infant neither by Common Law nor 5 Eliz. 1. Cr. 170. yet by this custom it shall in Pasch 21 Jac. B. R. Cole versus Holme there was such an Action against an Apprentice the Defendant pleaded Nonage the Plaintiff replyed the custom of London and that the Indenture of Apprentiship was inrolled as it ought to be c. and this was certified by the Recorder Serjeant Finch to be the custom and thereupon Iudgment was against the Defendant it is a Manuscript Jones The custom ought to have been alledged that he should have an Action of Covenant against him which is not done here and customs shall be taken strictly not by implication Moreover the Plaintiff declares for a loss not yet sustained the term not being ended Cur. The custom is sufficiently alledged to give and make good an Action of Covenant Tale remedium implies it Those words are applicable to all things relating to this matter viz. That the Master may correct him may go to a Iustice of Peace And also may have an Action of Covenant against him V. Hutt 63. 4. as against a man of full age Winch. 63. 4. And though by Common Law or the Statute his Covenant shall not bind him yet by the custom it shall But Twisden desired to sée Offley's Report As to the declaring for the loss of the term part whereof is unexpired though it has beén adjudged to be naught after a Verdict yet in this Case which is upon demurrer it may be helped For the Plaintiff may take damages for the departure only not the loss of service during the term and then it will be well enough Judgment nisi c. Jones versus Powel WOrds spoken of an Attorney Thou canst not read a Declaration per quod c. Cur. The words are actionable though there had been no special damages For they speak him to be ignorant in his Profession and we shall not intend that he had a distemper in his eyes c. Judic pro querente Anonymus THe Defendant in an Action of false Imprisonment justified the taking and imprisoning the Plaintiff by vertue of an Order of Chancery that he should be committed to the Fleet and the Plea judged naught because an Order is not sufficient It ought to have beén an Attachment he should have pleaded Quoddam breve de attachamento c. Osborne versus Walleeden REplevin The Defendant avows in right of his Wife for a Rent-charge devised to her for life by her former Husband But in the Will there was this Clause viz. If she shall marry c. he the Executor shall pay her 100 l. and the rent shall cease and return to the Executor She doth marry and the Executor does not pay the 100 l. The question was Whether the rent should cease before the 100 l. be paid Jones for the Plaintiff the rent ceaseth immediately upon her Marriage and she shall have remedy for the 100 l. in the Spiritual Court If the words had been He shall pay her 100 l. and from that time the rent shall cease It had been otherwise if she had died presently after the marriage her Executor should have had the 100 l. Brewer and Sanders for the Defendant she hath not a present interest in the 100 l. In this very Case the Common Pleas delivered their Opinion That this 100 l. ought to be paid before the rent should cease But for imperfection in the pleading we could not have Iudgment there Roll. She has no present interest in the 100 l. nor can her Executors have any and the rent shall not cease till the payment of it For first It is devised to her for life not during her Widowhood Secondly The rent issues out of the Inheritance and by the construction of the Will it shall go to the Executor for by cease in the Will is meant cease as to the Wife and the Executor is in nature of Purchasor and ought to pay the money before he has the rent and he ought to pay it out of his own Estate if he will have the rent For otherwise if it be lookt upon as a Legacy if he have no Assets she shall be immediately stript of her rent and have nothing Twisden I think the Divisors meaning was to give her a present interest in the 100 l. and if so the rent must cease presently upon the marriage But since it is to be issuing out of the Inheritance it is doubtful And since my Brothers are both of Opinion for the Avowant let him have Iudgment Then it was Objected That the Avowry was ill For it ought to have been in the Wifes name as well as the Husbands and alledged that Roll. 1 part 318. N. num 2. makes a Quaere and séems to be of opinion that Wise versus Bellent which is to the contrary is not Law V. 2 Cr. 442. 3. Twisd That was his Opinion it may be when he was a Student You have in that Work of his a common place which you stand too much upon I value him where he reports Iudgments and Resolutions But otherwise it is nothing but a Collection of Year-Books and little things noted when he made his Common Place Books His private opinion must not warrant or controul us here It has béen adjudged That the Husband alone may avow in right of his Wife Delaval versus Maschall DEbt upon a Bond the Condition whereof was That if J. S. and J. D. Arbitrators did make an Award on or before the 19. of February and if the Defendant should perform it then the Obligation should be void and then follow these words And if they do not make an Award before the 19. of February then I impower them to choose an Umpire and by these Presents bind my self to perform his Award The Defendant pleads That they did not make an Award The Plaintiff replies and sets forth an Award made upon the said 19. of February by an Vmpire chosen by the Arbitrators and alledges a breach thereof The Defendant demurs Sanders for the Defendant Here is no breach of the Condition of the Bond. For that which relates to the performing the Vmpires Award it following those words Then the Obligation shall be void is no part of the Condition and if any Action is to be brought upon that part it ought to be Covenant 2. The Award made by the Vmpire is void because made the 19. of February which was within the time limited to the Arbitrators for their power and the Vmpire could not make an award within that time because their power was not then determined as was lately adjudged in Copping versus Hornar Jones for the Plaintiff The Condition is good as to this part It is all but one Condition A man may make several Defeasances or Conditions to defeat the same Obligation Brook Condition 66. There is a continuance of this Condition It is said I bind my self by these presents which refers to the Lien before in the
Legacies and that the Devisee has paid almost all and fails in one or so there may be good cause of relief because he has paid much and is somewhat in the nature of a purchasor This is not like a Legacy This is upon the Statute Where it is said a man may Devise at his Will and pleasure i.e. absolutely upon Condition upon Limitation or any way that the Law warrants Suppose there had been a special Act of Parliament disposing as the Earl has done in this case could there be any colour in Equity to alter or vary this Law And here 't is equally as concluding as that since the Statute gives a man power to dispose as expresly and otherwise Equity would alter and dispose of all property and all things that came in question But let Notice or Consent c. be requisite or not 't is Triable at Law But I stand upon this that there ought to be no relief in Equity It was insisted that her Grandmother gave a kind of consent but I take that for nothing For though the Grandmother would not have offered or proposed a Marriage yet she ought not to marry without her consent Nor is the Lords Post-Consent any thing for consent cannot be had for things which cannot be otherwise as a man cannot be said to consent to his Stature or the colour of his hair c. A man may know of what Opinion he is or was but 't is impossible for a man to know of what Opinion he would have been in the circumstances of Action which he never tryed I conclude the Plaintiff ought not to have relief in Equity But if any matter in Law will help them they are not excluded from it Keling Cheif Justice I think there ought to be no relief in this Case I have considered it as well as I can and I think nothing is more fit to be observed then thief Customary Rules for Children they are very good restraints for Children and ought to be made good here to encourage obedience and discourage those who would make a Prey of them and if there were not hope for men to hasten their fortunes by this means there would be few adventures of this nature I have lookt upon the Presidents c. and I find they come not to this Case except only one and that is but seven years old and the other are for money for which there is reason because the party may be substantially relieved and satisfied otherways If there had been no limitation over there may be some reason why it may be intented that it was only in terrorem I do not think all Cases upon Wills are irremediable here because of the Statute If the breach of the Condition be in a circumstance only as in the Case where the consent was given but not in writing as it ought it may be relieved for that was a caution to the Consentor that he should not give consent before strangers and trust to the swearing of a parol-consent I never yet saw any devise obliging to have any such consent after the parties age of 21 years so that there is no great hardship in it And if there should be any ill design in those who have the trust and power to consent in with-holding their consent it might be relieved here I think none would make a decree that if she died without issue the Defendant should have it and this is the same But equity can never go against the substantial part of a Conveyance or Will but that must be governed by the parties agreement or appointment Equity ought to arise upon some collateral or accidental emergent 'T is not in Terrorem indeed without a penalty There can be no collateral Averment Being an Infant is nothing for this is only a provision while she is an Infant Besides the case of the Forfeiture of the double value is a very good instance for the Notice If she had notice of this Will yet they that came to steal her knew it not for they did not come to take a shorn sheep and therefore no relief is deserved by the Plaintiff In Honesty and Conscience those Bonds ought to be kept strict I confess I would not have the Plaintiff tempted to a further Suit but indeed in saying that I go further then I need Bridgeman Lord Keeper If I were of another Opinion yet I would be bound by my Lords for I did not send for them not to be bound by them But I was of their Opinion from the beginning And I am glad now that we are delivered from a common Error and that men may make such provisions as may bind their Children But to justifie the Decree a little 1 Here is 5000 l. appointed to George Porter so that the ample provision was made for him and it may the rather be intended that this Estate was wholly designed for the Plaintiff 2 Here was a Post-consent and those persons were in loco parentum Now if the Earl had as possibly he might have thus pardoned and been reconciled to the Marriage he would probably have given the Plaintiff the Estate and that is a reason to induce us to the same For I think it clear that an Estate by Act of Parliament is liable to the same Relief Regulation c. as any other Estate An Estate Tail though that be by Statute yet is liable to be cut off c. If there had beén a time limited then there had been more reason to bind her up to have consent But there ought to be a restraint put in these Cases That of the double forfeiture was truly and well observed Where no body is bound to give Notice it is to be taken but besides she is not heir for that might have made a great difference This I thought not to say Vpon the whole I am of my Opinion with my Lords and I am glad I have their assistance Let the Bill be dismissed FINIS A TABLE of the Principal Matters contained in the foregoing REPORTS A. Abatement A Plea may be good in abatement though it contain also matter that goes in barr 214 Accord Accord with satisfaction 69 Account Pray'd that the Court would give further day for giving in the Account 42 Plea in barr and Plea before Auditors 65 Action for words Words spoken of a Watchmaker 19 Of a Justice of Peace 22 23 You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen 31 32 Action for words spoken of an Attorney 172 Action upon the Case For suing the Plaintiff in placito debiti for 600 li. and affirming that he owed him 600 li. whereby he was held to extraordinary Bail 4 Action upon a Promise in consideration that the Plaintiff mitteret prosequi such a Suit c. held good 43 For a false Return V. Tit. Return For a Libel V. Libel V. Market Against a Master of a Ship for keeping Goods so negligently that they were stollen away whilst the Ship
Martij prox sequentem the money is payable the same month 112 V. Tit. Survivor The Condition of a Bond runs thus viz. That if the Obligee shall within six months after his Mothers death settle upon the Obligor an Annuity of 20 l. per annum during life if he require the same or if he shall not grant the same if then he shall pay to the Obligor 300 l. within the time aforementioned then the Obligation to be void is this a disjunctive Condition or not 264 265 c. Words allowed to be part of the Condition of a Bond though following these words then the Obligation to be void 274 275 Consideration V. Action upon the Case V. Etiam 284 Constable Moved to quash an Order made by the Justices of Peace for one to serve as Constable 13 Contingent remainder Supported by a Right of Entry 92 Conventicles To meet in a Conventicle whether a breach of the Peace or no 13 Conusance V. Tit. Vniversity Copy Copy of a Deed given in Evidence because the Original was burnt 4 Copies allow'd in evidence 266 Copyhold Tenant for life of a Copyhold He in the remainder entreth upon the Tenant for life and makes a Surrender nothing passeth 199 Tenant for life of a Copyhold suffers a Recovery as Tenant in Fee-simple this is no forfeiture 199 200 Of all Forfeitures committed by Copyholders the Lord only is to take advantage 200 Coroner V. Enquest Corporation What things can a Corporation do without Deed and what not 18 Costs An Executor is not within the Statute to pay Costs occasione dilationis executionis c. 77 Cottage An Enditement for erecting a Cottage contra formam Statuti quasht because it is not said That it was inhabited 295 Covenant Action of Covenant upon the Warranty in a Fine the Plaintiff assigns his Breach that a stranger habens legale jus titulum did enter c. but does not not say that it was by vertue of an Eigne Title 66 67 101 292 293 Covenant to make such an Assurance as Council shall advise 67 Covenant for quiet Enjoyment 101 A man does assignare transponere all the money that shall be allowed by any Order of a Foreign State does an Action of Covenant lie upon these words or not 113 An Action of Covenant lies against a Woman upon a Covenant in a Fine levied by her when she was a Feme Covert 230 231 V. Ibidem exceptions to the pleading in such Action Covenant to stand seized A man Covenants to stand seiz'd to the use of the Heirs of his own body 98 121 159 V. Limitation d' Estates V. Vses County-Courts V. 171 172 215 249. County-Palatine V. 2. Counterplea of Voucher V. 8. Court of Kings Bench. It s Jurisdiction is not ousted without particular words in an Act of Parliament 45 V. Habeas Corpus Cure of Souls What Ecclesiastical Persons have Cure of Souls and what not 11 12 Cur ' advisare vult During a Cur ' adv vult one of the parties dies how must Judgment be entred 37 Custom Custom of a Mannor for the Homage to chuse every year two Surveyors to destroy corrupt Victuals exposed to sale a good Custom 202 A Custom to be discharged of Tythes of Sheep all the year after in consideration of the payment of full Tythes of all the Sheep they have on Candlemas-day 229 D. Damages EXcessive Damages no good Cause for a new Writ of Enquiry 2 Demand Requisite or not requisite 89 Departure in Pleading V. 43 44 227 289. Depositions V. Tit. Evidence Debt For Rent upon a Lease for years 3 Debt upon a Bond against two Executors they pleaded a Statute acknowledged by the Testator of 1200 li. and no assets ultra c. the Plaintiff replies That one of the Executors was bound together with the Plaintiff in that Statute 165 Devise Of a term for years V. Limitation of Estates By a Devise of all a man's Estate what passeth 100 I give Rees-Farm to my Wife during her natural life and by her to be disposed of to such of my Children as she shall think fit What Estate passeth hereby 189 A man has a Son called Robert Robert has likewise a Son call'd Robert The Grand-Father deviseth Land to his Son call'd Robert and his heirs Robert the Devisee dies living the Father The Devisor makes a new publication of the same Will and declares it to be his intention that Robert the Grand-Child should take the Land per eandem voluntat Does the Grand-Child take or no 267 268 A man deviseth a Rent-Charge to his Wife for her life but that if she marry that then his Executor shall pay her 100 l. and the rent shall cease and return to the Executor she does marry and the Executor does not pay the 100 l. The question is Whether the Rent shall cease before the 100 l. be paid or not 272 273 Distribution Administrators must make Distribution to those of the half-blood as well as to those of the whole 209 Donative V. 11 12 22 90. Double Plea V. 18 227. E. Ecclesiastical persons A Chapter of which there is no Dean is restrain'd by the Statute of 13 Eliz. 204 A Grant of next avoidance restrain'd ibid. Such Grant void ab initio ibid. Ejectione firmae De quatuor molendinis good Of so many Acres jampnor ' bruere without saying how many of each good 90 The Plaintiff in Ejectment dies before Judgment 252 Entry to deliver a Declaration in Ejectione firmae shall not work to avoid a Fine 10 Error A Writ of Error will lie in the Exchequer-Chamber upon a Judgment in a Scire facias grounded upon a Judgment in one of the Actions mentioned in 27 Eliz. 79 It shall not be assign'd for Error of Judgment in an inferior Court that the matter arose out the Jurisdiction but it must be pleaded 81 Escape V. 116. A Trial at Bar upon an Escape In an Action for an Escape the Defendant pleads That he let the Prisoner to bail according to the Stat. of 23 H. 6. cap. 10. and that he had taken reasonable Sureties of persons having sufficicient c. The Plaintiff replies and traverseth the sufficiency of the Sureties 227 Estoppel By the condition of a Bond. 113 Exchange of Lands Two women seized one of one Acre and another of another and they make an exchange then one of them marries before entry shall that defeat the exchange 91 Excise The Statute for Excise prohibits the bringing of a Certiorari but not Habeas Corpus 103 Executors V. Costs V. Appearance In what order Executors are to pay Debts c. 174 175 Executor dur ' minor ' aetate 174 175 An Executor must entitle himself to the Executorship to enable him to retain for his own debt 208 An Executors refusal before the Ordinary after Administration is a void act 213 Action of Debt against an Executor the Defendant pleads That the Testator made a Will but did not make him Executor therein that he