the space of 14 days after complaint made then the Sub-Commissioners of the Excise are to determine the same from whom no Appeal doth lye to the Justices of the Peace at their next Sessions which Commissioners of Excise Justices of the Peace and Sub-Commissioners amongst other things are inabled by the said Act to Issue out Warrants under their Hands c. to levie the Forfeitures and so justified the Entry under a Warrant from the Sub-Commissioners three Iustices having refused to hear and determine this Offence To this Plea the Plaintiffs demurred and had Iudgment in the Court of Kings-Bench and a Writ of Inquiry of Damages was Executed and 750 l. Damages given and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given because the Writ of Inquiry was executed the last day of the Term and the Court did immediatly rise and that he could not move the next Term because the Iudgment was given the Term before the Writ of Error was brought The Attorny General therefore said that this was a hard Case and desired a Note of the Exceptions to the Plea which he would endeavour to maintain which Mr. Pollexfen gave him and then he desired time to answer them The Exception to the Plea upon which the Iudgment was given was this Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences and so to issue out Warrants for the Forfeitures but where the Iustices or any two of them refuse And though it was said by the Defendant that three refused yet it was not said that two did refuse for there is a great difference between the allegation of a thing in the Affirmative and in the Negative for if I affirm that A. B. C. did such a thing that affirmation goes to all of them but negatively it will not hold for if I say A. B. C. did not such a thing there I must add nec eorum aliquis So if an Action be brought against several Men and a Nolle prosequi is entred as to one and a Writ of Enquiry awarded against the rest which recites That the Plaintiff did by Bill implead naming those only against whom the Inquiry was awarded and leaves out him who got the Nolle prosequi this is a variance for it should have been brought against them all 'T is true where a Iudgment is recited 't is enough to mention those only against whom it is had but the Declaration must be against all so in a Writ of Error if one is dead he must be named and so the Iustices ought all to be named in this Case viz. that the three next Iustices did not hear and determine this Offence nec eorum aliquis Wells versus Wright In Communi Banco DEBT upon Bond conditioned Bond with an insensible Condition good that if the Obligée shall pay 20 l. in manner and form following that is to say 5 l. upon four several days therein named but if default shall be made in any of the Payments then the said Obligation shall be void or otherwise to stand in full force and vertue The Defendant pleads that tali die c. non solvit 5 l. c. and upon this the Plaintiff demurred Barrel Serjeant The first part of the Condition is good which is to pay the Mony and the other is surplusage void and insensible but if it be not void it may be good by transsposing thus viz. If he do pay then the Obligation shall be void if default shall be made in Payment then it shall be good and for Authority in the Point the Case of Vernon and Alsop was cited Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill 14 Car. 2. Rot. 1786. in B. R. Where the Condition was that if the Obligée pay 2 s. per Week until the Sum of 7 l. 10 s. be paid viz. on every Saturday and if he fail in Payment at any one day that the Bond shall be void and upon the like Plea and Demurrer as here it was adjudged that the Obligation was single and the Condition repugnant The Court were all of Opinion that Iudgment should be given for the Plaintiff and the Chief Iustice said that he doubted whether the Case of 39 H. 6. 9 10. was Law Brittam versus Charnock Where the the Heir takes by the Will with a Charge he is a Purchaser and the Lands shall not be Assets DEBT upon Bond against the Defendant as Heir Vpon Riens per discent pleaded the Iury found a Special Verdict in which the Case was viz. The Father was seized of a Messuage and thrée Acres of Land in Fee and devised the same to his eldest Son the Defendant and his Heirs within four years after his decease provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts and then he deviseth his other Lands to be sold for payment of Debts c. The Father dies the Son pays the 20 l. and if this Messuage c. was Assets in the Hands of the Defendant was the Question Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets it was said because the Heir shall not take by descent but by Purchase for the Word Paying is no Condition if it should the Heir is to enter for the breach and that is the Defendant himself and for that reason it shall be a Limitation Southcot and Stowel Antea 'T is true where there is no alteration of the Estate the Heir must take by descent but in this Case there is an alteration of the Estate from what is directed by the Law viz. the manner how he shall come by the Estate for no Fee passeth to him during the four years But this was denyed by Serjeant Pemberton for he said if a Devise be of Land to one and his Heirs within four years it is a present Devise and if such be made to the Heir 't is a descent in the mean time and those Words within four years are void so that the Question will be whether the Word Paying will make the Heir a Purchaser and he held it would not He agreed that it was usual to make that a Word of Limitation and not a Condition when the Devise is to the Heir and therefore in a Devise to the Heir at Law in Fée he shall take by descent Styles Rep. 148. But if this be neither a Condition or Limitation 't is a Charge upon the Land and such a Charge as the Heir cannot avoid in Equity North Chief Iustice and Atkins Where the Heir takes by a Will with a Charge as in this Case he doth not take by Descent but by Purchase and therfore this is no Assets Moor versus Pit SPecial Verdict in Ejectment The Case was this Surrender of a Copyhold to a Disseisor whether good to extinguish the Right viz. A Copyholder for Life the Remainder for Life he in
taken in Execution 1 Cro. 239. Hob. 180. Rol. Rep. 233. 2. The Promise here was not to pay the Mony absolutely but sub modo so that the Evidence did not maintain the Action and the Plaintiff was Nonsuited Nichols versus Ramsel Release of all Demands usque 26 Apr. a Bond dated that day is not released TRespass done 24 Martii 26 Car. 2. usque 26 Augusti 28 Car. 2. diversis diebus vicibus c. The Defendant pleaded that on the 24th day of April in the 26th year of King Charles the Second he paid the Plaintiff 6 d. which he received in full satisfaction of all Trespasses usque ad the said 24th day of April absque hoc that he was guilty ad aliquod aliud tempus praeter praedictum 24 Aprilis anno 26 Car. 2. aut aliquo tempore postea but leaveth out the 24th day of April and for that Reason the Plaintiff demurred because the Defendant had not answered that day for the Word usque excludes it So where Debt was brought upon a Bond dated 9 Julii the Defendant pleaded a Release of all Actions Owen ' 50. 2 Rol. Abr. 521. c. the same day usque diem dati ejusdem scripti the Bond was not discharged because the Release excludes the 9th day on which it was made But Serjeant Weston contra Though generally in pleading the Word usque is exclusive yet in the Case of Contracts because of the intent of the Parties 't is inclusive and therefore in one Nichol's Case 20 Car. 2. in B. R. Rot. 21. the Term was not named a Lease was made Habendum from Lady-day usque Festum Sancti Michaelis 1665. paying the Rent reserved at Michaelmas during the Term the Rent shall be paid on Michaelmas-day 1665. and so the day shall not be excluded So where a Man prescribes to put Cattle from and immediately after Lady-day where they are to stay till Michaelmas-day the putting them in on Lady-day and driving them away on Michaelmas-day is not justifiable in strictness yet it hath been allowed good So in a Devise the Question was whether the Testator was of Age or not and the Evidence was that he was born the first day of January in the Afternoon of that day and died in the Morning on the last day of December And it was held by all the Iudges that he was of full Age for there shall be no fraction of a day North Chief Iustice said that prima facie this is to be intended good for a day is but Punctum temporis and so of no great consideration But the other three Iustices were of Opinion that the Word Usque was exclusive and that the Plaintiff should not be put to shew that there was a Trespass done on the 24th of April and said that in a Release of all Demands till the 26th of April a Bond dated that day is not released wherefore Iudgment was given for the Plaintiff Trevil versus Ingram COvenant to pay an Herriot post mortem J. S. or 40 s. at the election of the Plaintiff Release of all Demands doth not barr a future Duty Mod. Rep. 216. and sets forth the death of J. S. and that afterwards he chose to have the 40 s. for which he brought this Action and assigns the Breach for Non payment The Defendant pleaded that the Plaintiff released to him all Actions and Demands c. But this Release was made in the Life time of J. S. and there was an Exception in it of Herriots The Plaintiff demurred and Serjeant George Strode argued that this Action was not discharged by that Release and cited Hoes Case 5 Co 70. where it was held that a Duty incertain at first which upon a Condition precedent was to be made certain afterwards was but a possibility which could not be released that the Duty in this Case was incertain because the Plaintiff could not make his Election till after the death of J. S. A Covenant to repair 2 Cro. 170. Roll. Abr. 407. But a Release of all Covenants in such an Indenture had been a Barr 5 Co. 71. a. and a Release pleaded to it within thrée days after the date of the Indenture And upon a Demurrer it was held that it being a future Covenant and not in demand at the time of the Release although it was of all Demands yet that Covenant was not thereby released So here neither the Herriot nor the 40 s. were either of them in demand at the time of the Release given and it plainly appears by the Exception in the Release that it was the intention of the Parties not to release the Herriots 2 Cro. 623. and of that Opinion was the whole Court whereupon Iudgment was given for the Plaintiff North Chief Iustice It is the Opinion of * Sect. 508 510. 2 Roll. Abr. 408. Sid. 141. Littleton That a Release of all Demands doth Release a Rent And of that Opinion was Iustice Twisden in the Argument of Hen and Hanson 's Case though it was resolved there that a Release of all Demands did not discharge a Rent reserved upon a Lease for years because such Rent is executory and incident to the Reversion 2 Cro. 486. and grows every year out of the Land but when it is severed from the Reversion as by assigning over the whole Term then it becomes a Sum in gross and is due upon the Contract and in that Case a Release of all Demands discharges a Rent afterwards due DE Term. Sancti Hill Annis 29 30 Car. II. in Communi Banco Shambrok versus Fettiplace PRohibition Prescription to have an Isle in a Church because of repairing no good cause for a Prohibition Hob. 69. The Question was whether a Prescription be good to an Isle in a Church which he and all those c. used to repair as belonging to a Mannor where he had no Dwelling House but only Land and Serjeant Geo. Croke argued that it was good and cited the Case of Boothby and Bayly where such a Prescription as this was held to be a good ground for a Prohibition Vide Moor Rep. 878. contra The Court inclined that it was not good but ordered the Prohibition to go and the Defendant to plead that it might come Iudicially before them to be argued Dashwood versus Cooper alios in Cammera Scaccarii ERror of a Iudgment in Trespass In a Negative Plea viz. That three did not such a thing it must be said nec eorum aliquis wherein Cooper and others brought an Action of Trespass against Dashwood for entring into a Brew-house and keeping of possession and taking away of 50 s. The Defendant pleaded That the Plaintiffs had committed an Offence against the Statute of 12 Car. 2. cap. 23. by which it is Enacted That all Offences thereby prohibited except in London shall be heard by two or more of the next Justices of Peace and in case of their neglect or refusal by
Heir enters and claims generally it shall be intended as Heir and the words that he shall not molest by Suit or otherwise are to be intended occasione praemissorum 3dly There is no néed of Entry to avoid an Estate in case of a Limitation because thereby the Estate is determined without Entry or Claim and the Law casts it upon the Party to whom it is limited and in whom it vests till he disagrées to it A. devises Land to B. and his Heirs and dies 't is in the Devisee immediately but indeed till Entry he cannot bring a possessory Action as Trespass c. Pl. Com. 412 413. 10 Co. 40. b. where a Possession vests without Entry a Reversion will vest without Claim Nota. Curtis versus Davenant Prohibition A Bishop cannot appoint Commissioners to tax the Parish for building or repairing a Church IN a Prohibition the Question was whether if a Church be out of repair or being so much out of order that it must be re-edified whether the Bishop of the Diocess may direct a Commission to impower Commissioners to tax and rate every Parishioner for the re-edifying thereof The Court did unanimously agree such Commissions were against Law and therefore granted a Prohibition to the Spiritual Court to stop a Suit there commenced against some of the Parishioners of White-Chappel for not paying the Tax according to their proportions It was agréed that the Spiritual Court hath power to compel the Parish to repair the Church by their Ecclesiastical Censures but they cannot appoint what Sums are to be paid for that purpose because the Churchwardens by the consent of the Parish are to settle that As if a Bridge be out of repair the Iustices of Peace cannot set Rates upon the persons that are to repair it but they must consent to it themselves These Parishioners here who contribute to the charge of repairing the Church may be spared but as for those who are obstinate and refuse to do it the Spiritual Court may proceed to Excommunication against them but there may be a Libel to pay the Rates set by the Church-wardens Nurse versus Yearworth in Cancellaria Bill in Cancellaria for the Assignment of a Term. RIchard Yearworth being seised of Lands in Fee makes a Lease to the Defendant Christopher Yearworth for 99 years to such use as by his last Will he should direct Afterward he makes his Will in writing having then no Issue but his Wife grossement enseint and thereby devises the same Land to the Heirs of his Body on the Body of his Wife begotten and for want of such Issue to the said Christopher the Defendant and his Heirs Richard dies and about a month after a Son is born the Son by vertue of this Devise enjoys the Land but when he attains his full age of one and twenty years he suffers a Common Recovery and afterwards devises the Land to the Complainant Nurse and dies The Complainant exhibits a Bill against the Defendant to have the Lease for 99 years assigned to him and whether he should have it assigned or not was the Question 1. It was pretended that an Estate in Fée being limited by the Will to Christopher who was Lessee for 99 years the Term is thereby drowned 2. It was objected that the Devise by Richard to the Infant in ventre la mere was void and then the Complainant who claimed by a Devise from the Posthumus could have no Title but that the Defendant to whom an Estate was limited by the Will of Richard in Remainder should take presently But notwithstanding what was objected the Lord Keeper Finch decréed that the Lease which was in Trust should be assigned to the Complainant Nurse He said that at the Common Law without all question a Devise to an Infant in ventre sa mere of Lands devisable by Custom was good so that the doubt arises upon the Statute of H. 8. Roll. Abr. tit Devise 609. lit H. pl. 2. Godb. 385. 11 H 6. 13. dubitatur which enacts That it shall be lawful for a Man by his Will in writing to devise his Lands to any person or persons for in this Case the Devisée not being in rerum naturâ in strictness of spéech is no person and therefore it hath beén taken that such a Devise is void Moor's Rep. and 't is left as a Quaere in the Lord Dyer 304. But in two Cases in the Common Pleas one in the time when the Lord Chief Iustice Hale was Iudge there the other in the Lord Chief Iustice Bridgman's time it hath been resolved that if there were sufficient and apt words to describe the Infant though in ventre sa mere the Devise might be good But in the King's Bench the Iudges since have been divided upon this Point that as the Law stands now adjudged this Devise in our Case seems not to be good But should the Case come now in question he said he was not sure that the Law would be so adjudged for 't is hard to disinherit an Heir for want of apt Words to describe him and 't is all the reason in the World that a Mans intent lying in extremis when most commonly he is destitute of Council should be favoured Whitrong versus Blaney Process into Wales THIS Term the Court delivered their Opinions in this Case North Chief Iustice who had heard no Arguments herein being absent The Case was this The Plaintiff upon a Iudgment in this Court sues out a Scire facias against the Heir and the Ter-tenants which was directed to a Sheriff of Wales the Defendant is returned Tertenant but he comes in and pleads Non tenure generally and traverses the Return the Plaintiff demurs Two Points were spoke to in the Case 1. Whether the Defendant can traverse the Sheriffs Return And all the three Iustices agreéd that he cannot 2. Whether a Scir̄ Fac̄ Ca. Sa. Fi. Fa. c. would lie into Wales on a Iudgment here at Westminster And they agréed it would well lie An Indictment may be removed 2 Cro. 484. Ellis Iustice agreéd If Iudgment be given in Wales it could not be removed into the Chancery by Certiorari and sent hither by Mittimus and then Execution taken out upon that Iudgment here because such Iudgments are to be executed in their proper Iurisdictions and such was the Resolution of the Iustices and Barons Cro. Car. 34. But on a Iudgment obtained here Execution may go into Wales No Execution can go into the Isle of Man because 't is no part of England but Wales is united to England by the Statute of 27 H. 8. c. 26. And therefore in Bedo and Piper's Case 2 Bulstr 156. it was held that such a * Het 20. 2 Cro. 484. The Opinion of Dodderidge Roll. 395. 2 Sand. 194. Twisden denied it Writ of Execution goes legally into Wales He said he had a Report of a Case in 11 Car. 2. where a Motion was made to quash an Elegit into Wales
Toll c. which were first created by the King 9 Co. Abbot de Strata Marcella's Case So that this Toll is not become in gross by the dissolution whereupon Iudgment was given for the Defendant Sir William Turner's Case Amendment not after issue joyned DEbt qui tam c. for 100 l. against Sir William Turner being a Iustice of Peace in London for denying his Warrant to suppress a seditious Conventicle of one Mr. Turner in New-street This Cause was to be tried by Nisi prius this Term before the Chief Iustice And now the Plaintiff moved to amend one Word in the Declaration wherein he was mistaken for he had laid the Meeting to be at Turner's Mansion House and upon Enquiry he understood the place of Meeting was not at his Mansion House but at a little distance from it and so prayed the word Mansion might be struck out But the Chief Iustice said that after Issue joyned Curia and the Cause set down to be tried and this being a penal Statute no President could be shewn of an Amendment in such case and therefore would not make this the first and so Leave was given to the Plaintiff to discontinue upon payment of Costs Brown versus Johnson IN Accompt The Plaintiff declares against the Defendant Time where 't is made parcel of the issue not good for that upon the first of March 22 Car. 2. abinde to the first of May 27 Car. 2. he was his Bayliff and Receiver of 80 Piggs of Lead The Defendant pleads that from the said first day of March 22 Car. 2. to the first day of May 27 Car. 2. he was not the Plaintiffs Bayliff or Receiver of the said 80 Piggs of Lead hoc paratus est verificare To this the Plaintiff demurred and assigned specially for cause that the times from the first of March to the first of May are made parcel of the Issue which ought not to be because the Plaintiff in his Declaration must alledge a time for Form sake but the Defendant ought not to tye him up to such time alledged for he might have said he was not Bayliff modo forma And for this the Case of Lane and Alexander was cited where the Defendant by Ejectment makes a Title by Copy of Court Roll granted to him 44 Eliz. and the Plaintiff replies his Title by the like Grant 1 Junii 43 Eliz. The Defendant maintains his Barr and traverseth that the Queen 1 Junii 43 year of her Reign granted the said Land by Copy and upon Demurrer it was adjudged that the traversing of the day is matter of substance which being made part of the Issue is naught But on the other side it was objected that time is material and that in Actions of Accompt 't is proper to make it parcel of the Issue for a Man may be Bayliff for two but not for three years and a Release may be pleaded from such a time to such a time Fitz. Accompt 30. Rast Entry f. 8. 19 pl. 1. f. 20. pl. 6. f. 22. pl. 2. 1. Then Exceptions were taken to the Plea first for that the Plaintiff having charged the Defendant as Receiver of 80 Piggs of Lead the Defendant pleads and that he was not Receiver thereof but doth not say of any part thereof for which reason the Court held the Plea ill because he might retain 79 and yet not 80 Piggs but to plead generally ne unques Receptor is well enough though it was urged that if it had been found against him upon such an Issue that he had received any parcel of the Lead he should have accompted 24 H. 4. 21. 2 Roll. 3. 14. 32 H. 6. 33. Fitz. Accompt 16. Cro. Eliz. 850. Fitz. Accompt 14. Rast Entry 18 19 20. 2. The Defendant concludes hoc paratus est verificare whereas it should be de hoc ponit se super patriam but the Court doubted of this because it was not specially assigned Postea 3. The Plaintiff charged the Defendant as his Bayliff upon the first of March and the Defendant pleads that he was not his Bayliff from the first of March so he excludes that day and this the Court held to be incurable and likewise that the time ought not to be made parcel of the Issue 2 Sand. 317 318. and so Iudgment was given quod computer Abraham versus Cunningham Administrator sells a Term afterwards an Executor appears and renounces yet the Sale was adjudged void Jones 72. 1 Vent 303. IN a special Verdict in Ejectment the Case upon the Pleadings was Viz. Sir David Cunningham being possessed of a Term for years made his Will and therein appointed his Son Sir David Cunningham to be his Executor and dyed Sir David the Executor in the year 1663. made his Will also and therein appointed David Cunningham his Son and two others to be his Executors and dyed those two Executors dye and B. a Stranger takes out Administration cum Testamento annexo and continues this Administration from the year 1665. to the year 1671. in which time he made an Assignment of this Term to the Lessor of the Plaintiff for which he had received a thousand Pounds And in the year 1671. the surviving Executor of Sir David the Executor made Oath in the Archbishops Court that he never heard of his Testators Will 'till then nor ever saw it before and that he had not medled with the Estate nor renounced the Executorship 6 Co. Packmans Case Then a Citation goes to shew cause why the Administration should not be repealed and Sentence was given that it should be revoked upon which the Executor enters and the Lessor of the Plaintiff entred upon him This Case was argued by Saunders for the Plaintiff Ex parte Quer. and Levints for the Defendant And first it was said in behalf of the Plaintiff that the Authorities in the Books were strong on his side that the first Administration was well granted 'T is true if a Man make a Will and Administration is granted and that Will is afterwards proved such Administration is void as in Greysbrook and Foxes Case Pl. Com. But in this Case after the death of Sir David Cunningham the Executor his Testator is dead Intestate for to make an Executor there must be first the naming of him then there must be some concurring act of his own to declare his assent that he will take onus executionis upon him for no man can make another Executor against his will so that if after the death of the first Executor those other Executors appointed by him had made such a Declaration as this surviving Executor hath since done their Testator had dyed Intestate 7 E. 4. 12 13. The Executor is made by the Testator and the Ordinary is empowered by the Statute to make the Administrator where the person dies Intestate so that 't is plain there cannot be an Executor and Administrator both together If he who is
of which is that he will be rather scorned than obeyed It hath been objected that the Words are general and charge him not with any act Answ The Scandal is the greater for 't is not so bad to say A Man did such a particular thing against Law and Reason as to say He acts against Law which is as much as to say his constant course and practice is such And to say that the Words might be meant of breaking a Penal Law that is a foreign Construction for the plain sense is he acts against the known Laws of the Kingdom and his practice and designs are so to do for he will be guided neither by Law or Reason Object It has been objected that the Scandal must be false But whether true or not there can be no justification here because they are so general that they cannot be put in Issue Answ He agreed that no Action would lye upon this Statute if the words were true but in some Cases the divulging of a Scandal was an Offence at the Common Law now to argue as on the other side that the Defendant cannot justifie and therefore an Action will not lye is a false Consequence because words may be scandalous and derogatory to the dignity of a Peer and yet the subject matter may not be put in Issue He agreed also that occasional Circumstances may extenuate and excuse the Words though ill in themselves but this cannot be applied to the Case in question because the Words were not mitigated The Defendant pleaded Not Guilty and insisted on his Innocence the Iury have found him Guilty which is an aggravation of his Crime if he would have extenuated them by any occasion upon which they were spoken he should have pleaded it specially or offered it in Evidence neither of which was done This Act is to be taken favourably for him against whom the Words are spoken because 't is to prevent great Mischiefs which may fall out in the Kingdom by rude and uncivil discourses and in such Cases 't is usual for Courts rather to enlarge the remedy than to admit of any extenuation for which reasons he prayed that the Plantiff might have his Iudgment It was argued by Serjeant Calthrop on the same side and to the same effect Afterwards this Term all the Iudges argued this Case Argument at the Bench. seriatim at the Bench. And first Iustice Scroggs said That the greatness of the Damages given should not prevail with him either on the one side or the other at the Common Law no Action would lye for such Words though spoken of a Peer for such Actions were not formerly much countenanced but now since a Remedy is given by the Statute Words should not be construed either in a rigid or mild sense but according to the genuine and natural meaning and agreeable to the common understanding of all Men. At the Barr the strained sense for the Plaintiff is that these Words import He is no Man of Honour and for the Defendant that they import no Scandal and that no more was meant by them but what may be said of every Man 'T is true in respect of God Almighty we are all Vnworthy but the subsequent Clause explains what unworthiness the Defendant intended for he infers him to be Unworthy because he acts against Law and Reason Now whether the Words thus explained fix any Crime on the Plaintiff is next to be considered and he was of Opinion that they did fix a Crime upon him for to say He is an unworthy Man is as much as to say He is a vitious person and is the same as to call him a corrupt Man which in the Case of a Peer is actionable for general words are sufficient to support such an Action though not for a common person To say a Man acts against Law and Reason is no Crime if he do it ignorantly and therefore if he had said My Lord was a weak Man for he acts against Law and Reason such words had not been actionable but these Words as spoken do not relate to his Vnderstanding but to his Morals they relate to him also as a Peer though the contrary has been objected that they relate to him only as a Man which is too nice a distinction for to distinguish between a Man and his Peerage is like the distinction between the person of the King and his Authority which hath been often exploded the words affect him in all qualities and all relations It has been also objected that the Words are too general and like the Case of the Bishops Return that a Man is criminosus which is not good But though they are general in the Case of a Peer they are actionable for to say of a Bishop That he is a wicked Man these are as general words and yet an Action will lye It has been also objected That general Words cannot be justified but he was of another Opinion as if the Plaintiff who was Lord Lieutenant of the County had laid an unequal charge upon a Man who upon complaint made to him ordered such charge to stand and that his will in such case should be a Law If the person should thereupon say That the Lord had done Unworthily and both against Law and Reason those words might have been justified by shewing the special matter either in Pleading or Evidence 'T is too late now to examine whether an Action will lye upon this Statute that must be taken for granted and therefore was not much insisted on by those who argued for the Defendant for the Authorities are very plain that such Actions have been allowed upon this Statute The Words as here laid to be spoken are not so bad as the Defendant might speak but they are so bad that an Action will lye for them and though they are general yet many Cases might be put of general words which import a Crime and were adjudged actionable The Earl of Leicester's Case He is an Oppressor The Lord of Winchester's Case He kept me in Prison 'till I gave him a Release these words were held actionable because the plain inference from them is That they were Oppressors The Lord Abergavenny's Case He sent for me and put me into Little Ease It might be presumed that that Lord was a Iustice of Peace as most Peers are in their Counties and that what he did was by colour of his Authority so are all the Cases cited by those who argued for the Plaintiff in some of which the words were strained to import a Crime and yet adjudged actionable especially in the Case of the Lord Marquess of Dorchester He is to be valued no more than a Dog which are less slanderous Words than those at the Bar because the slander is more direct and positive It appears by all these Cases that the Iudges have always construed in favour of these Actions and this has been done in all probability to prevent those dangers that otherwise might ensue if the Lords
should take revenge themselves for which reasons he held the Action will lye Atkyns Iustice contra This is not a common Action upon the Case but an Action founded upon the Statute of the 2 of R. 2. upon the Construction whereof the Resolution of this Case will depend whether the Action will lie or not And as to that he considered 1. The Occasion 2. The Scope 3. The parts of the Statute 1. The occasion of it is mentioned in Cotton's Abridgment of the Records of the Tower f. 173. nu 9 and 10. At the summoning of this Parliament the Bishop of St. Davids declared the Causes of their meeting and told both the Houses of the Mischiefs that had hapned by divers slanderous Persons and sowers of Discord which he said were Dogs that eat raw Flesh the meaning of which was that they devoured and eat one another to prevent which the Bishop desired a Remedy and his Request seemed to be the Occasion of making this Law for ex malis moribus bonae nascuntur Leges 2. The Scope of the Act was to restrain unruly Tongues from raising false Reports and telling Stories and Lyes of the Peers and Great Officers of the Kingdom so that the design of the Act was to prevent those imminent dangers which might arise and be occasioned by such false Slanders 3. Then the parts of the Act are three viz. reciting the Offence and the Mischief then mentioning the ill Effects and appointing of a Penalty From whence he Observed 1. That here was no new Offence made or declared for nothing was prohibited by this Statute but what was so at the Common Law before The Offences to be punished by this Act are mala in se and those are Offences against the Moral Law they must be such in their nature as bearing of false Witness and these are Offences against a common Person which he admitted to be aggravated by the eminency of the person against whom they were spoke but every uncivil Word or rude Expression spoken even of a Great Man will not bear an Action and therefore an Action will not lie upon this Statute for every false Lye but it must be horrible as well as false and such as were punishable in the High Commission Court which were enormous Crimes 12 Co. 43. By this description of the Offences and the consequences and effects thereof he said he could better judge whether the Words were actionable or not and he was of Opinion that the Statute did not extend to Words of a small and trivial nature nor to all Words which were actionable but only to such which were of a greater magnitude such by which Discord might arise between the Lords and Commons to the great peril of the Realm and such which were great Slanders and horrible Lies which are words purposely put into this Statute for the aggravation and distinction of the Crime and therefore such Words which are actionable at the Common Law may not be so within this Statute because not horrible great Scandals He did not deny but that these were undecent and uncivil words and very ill applied to that honourable person of whom they were spoken but no body could think that they were horrible great slanders or that any debate might arise between the Lords and Commons by reason such words were spoken of this Peer or that it should tend to the great peril of the Kingdom and the quick destruction thereof such as these were not likely to be the effects and consequences of these Words and therefore could not be within the meaning of the Act because they do not agree with the discription given in it 2. Here is no new punishment inflicted on the Offender for at the Common Law any person for such Offences as herein are described might have been Fined and Imprisoned either upon Indictment or Information brought against him and no other punishment is given here but Imprisonment Even at the Common Law scandal of a Peer might be punished by Pillory and loss of Ears 5 Co. 125. De Libellis Famosis 12 Co. 37. 9 Co. 59. Lamb's Case So that it appears this was an Offence at the Common Law but aggravated now because against an Act of Parliament which is a positive Law much like a Proclamation which is set forth to enforce the execution of a Law by which the Offence is afterwards greater He did agree that an Action would lie upon this Statute though there were no express Words to give it to a Peer because where there is a Prohibition and a Wrong and Damage arises to the Party by doing the thing prohibited in such Case the Common Law doth intitle the Party to an Action 10 Co. 75. 12 Co. 100 103. And such was the Resolution in the Earl of Northampton's Case upon construction of the Law as incident to the Statute and as the Offence is greater because of the Act and as the Action will lie upon the Statute so the Party injured may sue in a qui tam which he could not have done before the making this Law 3. But that such words as these were not actionable at the Common Law much less by the Statute for the Defendant spoke only his Iudgment and Opinion and doth not directly charge the Plaintiff with any thing and might well be resembled to such Cases as are in Rolls Abridgm 1 part 57. pl 30. which is a little more solemn because adjudged upon a special Verdict the Words were spoken of a Iustice of Peace Thou art a Blood-Sucker and not fit to live in a Commonwealth These were not held actionable because they neither relate to his Office or fix any Crime upon him Fol. 43. in the same Book Thou deservest to be hanged not actionable because it was only his Opinion So where the Words are general without any particular Circumstances they make no impression and gain no credit and therefore in Cro. Car. 111. 1 Roll. Abridgm 107. pl. 43. You are no true Subject to the King the Action would not lie In this Case 't is said the Plaintiff acts against Law which doth not imply a Habit in him so to do and when Words may as well be taken in a mild as in a severe Sense the Rule is quod in mitiori sensu accipienda sunt Now these Words are capable of such a favourable construction for no more was said of the Plaintiff than what in some sense may be said of every person whatsoever for who can boast of his Innocency who keeps close in all his actions to Law and Reason and to say A Man acts against both may imply that he departed from those Rules in some particular Cases where it was the Error of his Iudgment only In the Duke of Buckingham's Case Sheppard's Abridgment 1 part f. 28. Viz. You are used to do things against Law and mentions a particular fact there indeed because of Usage of the ill practice it was held that an Action lies but if he had been
special Verdict He who sues in an Inferior Court is bound at his peril to take notice of the Bounds and Limits of that Iurisdiction and if the Party after a Verdict below prays a Prohibition and alledges that the Court had no Iurisdiction a Prohibition shall be granted and 't is no Estoppel that he did not take advantage of it before 1 Roll. Abr. 545. But Iustice Atkins and Scroggs were of another Opinion they agreed that if an Action be brought in an Inferior Court if it be not said to be infra Jurisdictionem Curiae they would never presume it to be so but rather to be without if not alledged to be within the Iurisdiction and here in the Plea 't is not shewn at all so that as the Case stands upon the Plea the Proceédings are coram non Judice and there is no legal Authority to warrant them and by consequence the Officer is no more to be excused than the Party because also 't is in the Case of a particular Iurisdiction And so it hath béen adjudged upon an Escape brought against an Officer of an Inferior Court wherein the Plaintiff declared that he had brought an Action upon a Bond against S. in the Court of Kingston and that he had Iudgment and Execution and the Defendant suffered him to escape this Declaration did not charge the Defendan because the Bond was not alledged to be made infra Jurisdictionem Curiae for though such an Action is transitory in its nature yet the Proceedings in an inferior Court upon it are coram non Judice if it doth not appear to be infra Jurisdictionem 1 Roll. Abr. 809. though in the Case of a general Iurisdiction it might be otherwise But here the Rejoynder doth help the Plea for the Plaintiff having replied that the Trespass was committed out of the Iurisdiction and the Defendant having rejoyned that he had alledged in his Declaration below that the Trespass was done within the Iurisdiction 't is now all one Plea and the Plaintiff hath confessed it by his Demurrer so that in regard it was alledged below and admitted there 't is a good Plea both for Officer and Party and the Plaintiff cannot now take advantage of it but is concluded by his former admittance and it shall not be enquired now whether true or false And as to the taliter processum fuit they all held it well enough and that there was no necessity of setting out all the Proceedings here as in a Writ of Error And as to the last Exception 't is said that the Burrough of Warwick is antiquus Burgus and that the Court is held there secundum consuetudinem which is well enough Jones's Case Common Pleas cannot grant Habeas Corpus in Criminal Cases IT was moved for a Habeas Corpus for one Jones who was committed to New Prison by Warrant from a Iustice of Peace for refusing to discover who intrusted him with the keeping of the Keys of a Conventicle and for that he had been instrumental to the Escape of the Preacher he was asked by the Iustice to give Security for his Good Behaviour which he also refused and thereupon was committed The Chief Iustice doubted that a Habeas Corpus could not be granted in this Case because it was in a criminal Cause of which the Court of Common Pleas hath no Iurisdiction and that seemed to be the Opinion of my Lord Coke Vaugh. 157. 2 Inst 53. 2 Inst 55. where he saith it lies for any Officer or priviledged Person of the Court. There are three sorts of Habeas Corpus in this Court one is ad respondendum Mod. Rep. 235. which is for the Plaintiff who is a Suitor here against any Man in Prison who is to be brought thereupon to the Barr and remanded if he cannot give Sureties There is another Habeas Corpus for the Defendant ad faciend ' recipiend ' as to this the same Iurisdiction is here as in the Court of Kings Bench if a person be near the Town by the course of the Court he may be brought hither to be charged and then the Habeas Corpus is returnable immediate but if he be remote it must then be returnable in the Court at a certain day these are the Habeas Corpus's which concern the Iurisdiction of this Court and are incident thereunto There is another which concerns Priviledge when the Party comes and subjects himself to the Court to be either bailed or discharged as the Crime is for which he stands charged and if he be priviledged this Court may examine the Case and do him right if a private man be committed for a criminal Cause we can examine the Matter and send him back again Before King James's Reign there was no Habeas Corpus but recited a Priviledge as in the Case of Priviledge for an Attorny so that if this Court cannot remedy what the Party complains 't is in vain for the Subject to be put to the trouble when he must be sent back again neither can there be any failure of Iustice because he may apply himself to a proper Court and of the same Opinion were Wyndham and Scroggs But Iustice Atkins was of another Opinion for he could see no Reason why there should not be a Right to come to this Court as well as to the Kings Bench. And that Vaughan Wild and Archer Iustices were of Opinion that this Court may grant a Habeas Corpus in other Cases besides those of Priviledge Afterwards the Prisoner was brought to the Court upon this Habeas Corpus but was remanded because this Court would not take Sureties for his Good Behavior The Chief Iustice said that when he was not on the Bench he would take Sureties as a Iustice of Peace And Monday late Secondary informed him that Iustice Wild when he sate in this Court did once take such Sureties as a Iustice of Peace Anonymus IT was the Opinion of the Chief Iustice North In Replevin both are Actors that in a Replevin both Parties are Actors for the one sues for Damages and the other to have the Cattle and there the place is material for if the Plaintiff alledges the taking at A. and they were taken at B. the Defendant may plead Non cepit modo forma but then he can have no Return for if he would have a Retorn ' Habend ' he must deny the taking where the Plaintiff hath laid it and alledge another place in his Avowry Sir Osborn Rands versus Tripp THE Plaintiff was a Tobacconist and lived near Guild-Hall London he married the Daughter of the Defendant New Trial granted who was an Alderman in Hull and had 400 l. Portion with her after the Marriage the Defendant spoke merrily before thrée Witnesses That if his Son-in-Law would procure himself to be Knighted so that his Daughter might be a Lady he would then give him 2000 l. more and would pay 1000 l. part thereof presently upon such Knighthood and the
inconvenient that the Capias against the Defendant should be delivered to the new Sheriff and not the Supersedeas which was to admit the Charge and not the Discharge Westby's Case 3 Co. 73. And it was the constant practice not only to deliver the Supersedeas but the very Book in which 't is allowed and this he said appeared by the Certificates of many Vnder-Sheriffs which he had in his hand 2. If the Sheriff hath an Exigent against B. who appears and brings a Supersedeas to the old Sheriff and then a new Sheriff is made if he hath not the Supersedeas he may return him outlawed by vertue of the Exigent so in the Case of a Iudgment set aside for Fraud or Practice and a Supersedeas granted and the like in the case of an Estrepment which is never returned and it would be an endless work upon the coming in of every Sheriff to renew this Writ As to the Objection that the old Sheriff may have occasion to plead it As often as such occasion happens he may have recourse to it in the Office of the new Sheriff and he can have no Title to it by the direction of the Writ for that is Vicecomiti Berks and not to him by express Christian and Sirname and of that Opinion was all the Court and Iudgment was given accordingly nisi causa c. Hamond versus Howel Recorder of London An Action will not lie against a Judge for what he doth judicially tho' erroniously Mod. Rep. 184. FAlse Imprisonment The Defendant pleads specially the Substance of which was that there was a Commission of Oyer and Terminer directed to him amongst others c. and that before him and the other Commissioners Mr. Penn and Mr. Mead two Preachers were indicted for being at a Conventicle to which Indictment they pleaded Not-Guilty and this was to be tried by a Iury whereof the Plaintiff was one and that after the Witnesses were sworn and examined in the Cause he and his Fellows found the Prisoners Penn and Mead Not-Guilty whereby they were acquitted quia the Plaintiff male se gesserit in acquitting them both against the direction of the Court in Matter of Law and against plain Evidence the Defendant and the other Commissioners then on the Bench fined the Iury 40 Marks a-piece and for Non-payment committed them to New-gate c. The Plaintiff replies de injuria sua propria absque hoc that he and his Fellows acquitted Penn and Mead against Evidence and to this the Defendant demurred Serjeant Goodfellow who would have argued for the Defendant said that he would not offer to speak to that Point whether a Iudge can fine a Iury for giving a Verdict contrary to Evidence since the Case was so lately and solemnly resolved by all the Iudges of England in * Vaugh. 146. Bushel's Case that he could not fine a Iury for so doing But admit a Iudge cannot fine a Iury yet if he doth no Action will lie against him for so doing because 't is done as a Iudge 12 H. 4. 3. 27 Ass pl. 12. 1 Roll. Abr. 92. Liter Q. pl. 1. But the Court told him that he neéd not to labour that Point but desired to hear the Argument on the other side what could be said for the Plaintiff Serjeant Newdigate argued that this Action would lie 1. It must be admitted that the Imprisonment of the Iury was unlawful and then the consequence will be that all that was done at that time by the Commissioners or Iudges was both against Magna Charta and other Acts of Parliament the Petition of Right c. and therefore their Proceedings were void or at least very irregular to imprison a Iury-man without Presentment or due Process in Law and consequently the party injured shall have an Action for his false Imprisonment In 10 H. 6. f. 17. In an Action brought for false Imprisonment the Defendant justifies the Commitment to be for Suspicion of Felony but because he did not shew the ground of such Suspicion the Iustification was not good The Trial of Penn and Mead and all incidents thereunto as swearing the Iury examining of the Witnesses taking of the Verdict and acquitting the Prisoner were all within the Commission but the fining of the Iury and the imprisoning of them for Non-payment thereof was not justifiable by their Commission and therefore what was done therein was not as Commissioners or Iudges If this Action will not lie then the Party has a Wrong done for which he can have no remedy for the order for paying of the Fine was made at the Old-Bayly upon which no Writ of Error will lie and though the Objection that no Action will lie against a Iudge of Record for what he doth quatenus a Iudge be great the Reason of which is because the King himself is de jure to do Iustice to his Subjects and because he cannot distribute it himself to all persons he doth therefore delegate his Power to his Iudges and if they misbehave themselves the King himself shall call them to account and no other person 12 Co. 24 25. But that concerns not this Case because what was done here was not warranted by the Commission and therefore the Defendant did not act as a Iudge and this difference hath beén taken and allowed that in the Case of an Officer if the Court hath Iurisdiction of the Cause no Action will lie against him for doing what is contrary to his Duty but if all the Proceédings are coram non Judice and so void an Action doth lie 10 Co. 77. So in the Case of a Iustice of the Peace or Constable where he excéeds his particular Iurisdiction so if a Iudge of Nisi Prius doth any thing not warranted by his Commission 't is void And that the Commissioners here had no power to impose this Fine he argued from the very nature of the pretended Offence which was neither a Crime or in any wise punishable because what the Plaintiff did was upon his Oath and for that reason it hath béen adjudged in the Case * Bridgman 131. Agard and Wild that an Action would not lie against one of the Grand Iury after an acquittal for procuring one to be indicted for Barretry because he is upon his Oath and it cannot be presumed that what he did was in Malice The Habeas Corpus gives the Party Liberty but no Recompence for his Imprisonment that must be by an Action of False Imprisonment if otherwise there would be a failure of Iustice and it might encourage the Iudges to act ad libitum especially in inferior Courts where Mayors and Bayliffs might punish Iuries at their pleasures which would not only be a grievance to the Subject but a prejudice to the King himself because no Iuries would appear where they are subject to such arbitrary Procéedings An Action on the Case lies against a Iustice of the Peace for refusing to take an Oath of a Robbery committed 1 Leon. 323.
and yet it was objected that there he was a Iudge Quaere Brook 204. March 117. for which Reasons he prayed Iudgment for the Plaintiff Curia But the whole Court were of Opinion that the bringing of this Action was a greater Offence that fining of the Plaintiff and committing of him for Non-payment and that it was a bold attempt both against the Government and Iustice in general The Court at the Old-Bayly had Iurisdiction of the Cause and might try it and had power to punish a Misdemeanour in the Iury they thought it to be a Misdemeanour in the Iury to acquit the Prisoners which in truth was not so and therefore it was an Error in their Iudgments for which no Action will lie How often are Iudgments given in this Court reversed in the Kings Bench And because the Iudges have been mistaken in such Iudgments must that needs be against Magna Charta the Petition of Right and the Liberties of the Subject These are mighty words in sound but nothing to the Matter There hath not béen one Case put which carries any resemblance with this those of Iustices of the Peace and Mayors of Corporations are weak instances neither hath any Authority been urged of an Action brought against a Iudge of Record for doing any thing quatenus a Iudge That Offences in Iury-men may be punished without Presentment is no new Doctrin as if they should either eat or drink before they give their Verdict or for any contempt whatsoever but 't is a new Doctrin to say that if a Fine be set on a Iury-man at the Old-Bayly he hath no remedy but to pay it for a Certiorari may be brought to remove the Order by which it was imposed and it may be discharged if the Court think fit As to what hath been Objected concerning the Liberty of the Subject that is abundantly secured by the Law already a Iudge cannot impose upon a Iury for giving their Verdict contrary to Evidence if he doth any thing unjustly or corruptly complaint may be made to the King in whose Name Iudgments are given and the Iudges are by him delegated to do Iustice but if there be Error in their Iudgments as here 't is void and therefore the Barons of the Exchequer might refuse to issue Process upon it and there needs no Writ of Error for the very Estreats will be vacated Though the Defendants here acted erroneously yet the contrary Opinion carried great colour with it because it might be supposed very inconvenient for the Iury to have such liberty as to give what Verdicts they please so that though they were mistaken yet they acted judicially and for that Reason no Action will lie against the Defendant and Iudgment was given accordingly The Case of the Warden of the Fleet. COmplaint was made by Serjeant Turner on the part of the Parishioners of St. Brides London against the Warden of the Fleet and his Prisoners for that he suffered several of them to be without the Walls of his Prison in Taverns and other Houses adjoyning to the Prison and fronting Fleet-Ditch where they committed Disorders and when the Constable came to keep the Peace and to execute a Warrant under the Hand and Seal of a Iustice of Peace they came in a tumultuous manner and hindered the execution of Iustice and rescued the Offenders and often beat the Officers the Warden often letting out 20 or 30 of his Prisoners upon any such occasion to inflame the Disorder It was prayed therefore That this Court to which the Prison of the Fleet doth immediately relate might give such Directions to the Warden that these Mischiefs for the future might be prevented and that the Court would declare those Houses out of the Prison to be subject to the Civil Magistrate The Court were all of Opinion but Iustice Atkins Curia who doubted that nothing can properly be called the Prison of the Fleet which is not within the Walls of the Prison and that the Warden cannot pretend an exemption from the Authority of the Civil Magistrate in such places as are out of the Prison Walls though Houses may be built upon the Land belonging to the Fleet for the preservation of the Kings Peace is more to be valued than such a Private Right But Iustice Atkyns said if such places were within the Liberties of the Fleet he would not give the civil Magistrate a Iurisdiction in prejudice of the Warden but thought it might be fit for the Court to consider upon what reason it was that the Warden of the Fleet applied such Houses to any other uses than for the benefit of the Prisoners whereupon the Court appointed the Prothonotaries to go thither and give them an account of the matter and they would take farther Order in it St. Mary Magdalen Bermondsey Church in Southwark In Scaccario Rate for Building a Church shall be set by the Parishioners Jones 89. Mod. Rep. 236. IN a Prohibition it was the Opinion of the whole Court That if a Church be so much out of Repair that 't is necessary to pull it down and that it cannot be otherwise repaired that in such case upon a general warning or notice given to the Parishioners much more if there be notice given from House to House the major part of the Parishioners then present and meeting according to such notice may make a Rate for pulling down of the Church to the Ground and Building of it upon the old Foundation and for making of Vaults where they are necessary as they were in this Church by reason of the springing Water and though the Rate be higher than the Mony paid for doing all this yet 't is good and the Churchwardens are chargeable for the Overplus they not being able to compute to a Shilling That if any of the Parishioners refuse to pay their Proportion according to the Rate they may be Libelled against in the Spiritual Court and if the Libel alledge the Rate to be pro reparatione Ecclesiae generally though in strictness Ecclesia contains both the Body and Chancel of the Church yet by the Opinion both of the Court of Common Pleas and of the Exchequer It shall be intended that the Rate was only for the Body of the Church but in this Case it was made appear clearly that the Rate was only for the Body and that the Minister was at the charge of the Chancel And both Courts agreed That when a Prohibition is moved and desired on purpose to stop so good a Work as the Building a Church the Court will not compel the Parties to take Issue upon the Suggestion when upon examination they find it to be false and therefore will not grant a Prohibition for if the Rate be unduly imposed the Party grieved hath a Remedy in the Spiritual Court or may Appeal if there be a Sentence against him The Bishop or his Chancellor cannot set a Rate upon a Parish but it must be done by the Parishioners themselves
Seck after demand is a disseisin Pl. Com. 92. b. much more in personal Actions where the substance is found 't is well enough 1 Inst 282. a. But the Court said That notwithstanding this Authority they would not intend a Conversion unless the Iury had found it especially in this Case because they ought to have found it to make the Servant lyable for if the conversion was to the use of his Master there is no colour for this Action to be brought against the Defendant but it ought to be brought against the Master Whereupon a Ve. fa. de novo was prayed to help the Insufficiency of the Verdict the conversion not being found but the Court said it was to no purpose to grant a new Tryal unless the Plaintiff had a new Case and so Iudgment was given for the Defendant Bill versus Nicholl Variance between the Record pleaded and the Record it self IN an Action brought in the Court of Exchequer the Defendant pleaded another Action depending against him for the same matter in the Common Pleas and upon nul tiel Record replied by the Paintiff a Day was given to bring in the Record and when it was brought in it appeared that there was a variance between the Record in the Common Pleas as mentioned in the Defendants Plea and the Record it self for the Defendant in his Plea had alledged one Gerrard to be Attorny instead of Gardiner who was Attorny upon Record and whether this was a failure or not of the Record was the question It was said on the Defendants side that it was such a variance that it made it quite another Action and on the Plaintiffs side it was said that an immaterial variance will not prejudice where the substance is found 7 H. 4. 1. Bro. Failure pl. 2. 15. Curia advisare vult Forest qui tam c. versus Wire Action lyes in the Courts at Westminster upon the Statute of 5 Eliz. but not an Information 3 Cro. 316. DEBT upon the Statute of 5 Eliz. cap. 4. for using the Trade of a Silk Weaver in London not having been an Apprentice seven years the Action was brought in this Court and laid in London and tried by Nisi prius and a Verdict for the Defendant and now the Plaintiff to prevent the payment of Costs moved by Mr. Ward against his own Action and said that it will not lye upon this Statute in any of the Courts of Westminster for 't is not only to be laid as here in the proper County but 't is to be brought before the Iustices in their Sessions and this is by force of the Statute made 31 Eliz. cap. 4. and 21 Jac. cap. 4. Which Enacts That all Informations upon Penal Statutes must be brought before the Justices of the Peace in the County where the Fact was committed But the Court were clear of 2 Cro. 178. Stiles 383. By the Opinion of Rolls Cro. Car. 112. Opinion That the Action may be brought in any of the Courts of Westminster who have a concurring Iurisdiction with the Iustices and so they said it hath been often resolved Attorny General versus Alston AN Inquisition upon an Accompt stated went out to inquire what Lands one Havers had in the twentieth year of this King or at any time since Where the Kings Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be liable by the Statute of the 13th Eliz. he being the Receiver General in the Counties of Norfolk and Huntingdon The Iury found that he was seised of such Lands c. whereupon an Extent goes out to seise them into the Kings Hands for payment of 1100 l. which he owed to the King Alston the Ter-tenant pleads that Havers was indebted to him and that he was seised of those Lands in 20 Car. 1. which was before the Debt contracted with him and that he became a Bankrupt likewise before he was indebted to the King and thereupon these Lands were conveyed to the Defendant by assignment from the Commissioners of Bankrupcy for the Debt due to him from Havers absque hoc that he was seised of these Lands at the time he became indebted to the King The Attorny General replies That he was seised of these Lands before the Commisson of Bankrupcy issued and before he became a Bankrupt and that at the time of his Seisin he was Receiver and accountable for the receipt to the King and being so seised in the 20the year of this present King he was found in Arrear 1100 l. for the payment whereof he was chargeable by the Statute of the 13 Eliz. cap. 4. Which subjects all the Lands of a Receiver which he hath or shall have in him during the time he remains accomptable and so prays that the Kings Hands may not be amoved To this the Defendant demurred And Sawyer for him held that the Replication was ill both in form and Substance 1. It doth not appear that the Defendant continued Receiver from the time he was first made as it ought to be or else that he was Receiver during his Life for if a Man is Receiver to the King and is not indebted but is clear and sells his Land and ceases to be Receiver and afterwards is appointed to be Receiver again and then a Debt is contracted with the King the former Sale is good 2. The Replication is a departure from the Inquisition which is the Kings Title for the Lands of which Inquiry was to be made were such which Havers had 20 Car. 2. And the Defendant shews that Havers was not then seised thereof but makes a good Title to himself by Indenture of Bargain and Sale made to him by the Commissioners of Bankrupcy and so the Attorny General cannot come again to set up a Title precedent to the Defendant for that is a departure 't is enough for the Defendant that he hath avoided the Kings Title as alledged and though Mr. Attorny is not bound to take Issue upon the Traverse yet he cannot avoid waveing both the Title of the Defendant and the King by insisting upon a new matter It was agreed That the King had two Titles and might either have brought his Inquisition grounded upon the Debt stated or upon the Statute of the 13th of Eliz. upon Havers his becoming Receiver but when he hath determined his Election by grounding it upon the Debt stated he cannot afterwards have recourse to the other matter and bring him to be liable from the time of his being Receiver as if an Inquisition goes to inquire what Lands the Debtor of the King had such a day when he entred into a Bond if there be an answer given to that Mr. Attorny cannot afterwards set up a precedent Bond because 't is a departure and the Statute it self vests no Estate in the King but makes the Receivers Lands lyable as if he had entred intred into a Statute Staple The Inquisition therefore should have been grounded
there hath put down these feigned Attachers for Examples sake from whence the Sheriff in this Case might inferr that they need not be real persons as in truth they ought both upon the Summons Pone and Distress and he cited a Case lately adjudged where the like Return was made upon the Grand Cape and the Iudgment set aside and of this Opinion was the whole Court and said Where the Process is so fatal the Party ought to be duly served and that the Sheriff ought to have gone to the Church and to have seised the Profits and if there be nothing to return a Nihil and though the Iudgment was given before the Term or long since yet when 't is Irregular 't is to be set aside and so it was now and being moved again the Court continued of their former Opinion The like Case was moved in Michaelmas-Term following between Fleming and Lee where the Patron Defendant was thus summoned and never appeared and the Incumbent did cast an Essoign and a Case was cited betwéen Vivian and the Bishop of London Mich. 23 Car. 2. in C. B. where the like Iudgment was set aside But on the other side it was objected that leaving due notice upon the Summons was as much as was required for the other Writs are only to give the Defendant time to plead and therefore 't is not necessary that notice should be given upon every one of the Writs for if once served 't is enough 11 H. 6. 3 4. 36 H. 6. 23. 8 H. 6. 8. Long 5 to E. 4. 26. 29 E. 3. 42 43. Doctor and Stud. 125 126. 21 H. 6. 56. But the Court were of Opinion that the Defendant having not appeared nor cast an Essoign and Iudgment final being given Curia it was reason that all the Process should be served really of which there had been no occasion if he had either appeared or essoined and therefore the Process not being duly served Iudgment was set aside Rast Ent. 217. And they held that the Essoign of the other Defendant was no wise binding to the Patron Defendant because they may sever in Pleading and so that Iudgment was likewise set aside DE Term. Sancti Mich. Anno 29 Car. II. in Communi Banco Sir John Otway versus Holdips Executor c. Bond to pay 40 l. when an Accompt shall be stated 't is a Covenant and not a Solvendum DEBT upon Bond brought by the Plaintiff against the Defendant as Executor wherein the Testator did acknowledge himself to be indebted to the Plaintiff in 40 l. which he thereby did covenant to pay when such a Bill of Costs should be stated by two Attornies indifferently to be chosen between them and sets forth in his Declaration that he named one Attorny and desired the now Defendant to name another which he refused and so intitles himself to this Action The Defendant pleads Non detinet to which the Plaintiff demurred But the Plea was not offered to be maintained because the Executor cannot plead Non detinet but where the Testator himself might plead Nil debet which in this Case he could not do But it was insisted that the Declaration is not good because the Mony was to be paid upon an accompt stated which not being done by the Plaintiffs own shewing 't is not yet due and this ought to be taken as penned viz. Solvendum and not an express Covenant But on the contrary it was held not to be a Solvendum but a Covenant to pay the Mony the Debt and the Duty being in the first place ascertained but if it be a Solvendum and repugnant to the Obligatory Clause 't is void 21 Ed. 4.36 As the Defendant would have it expounded it would be in his power totally to defeat the Bond either way for if he would never chuse an Attorny there could be never any thing due The whole Court were of Opinion that it was not a Solvendum but a Covenant which did not take away the Duty ascertained by the Obligation and if it should not be a Covenant but an entire Bond then it would be in the Power of the Obligor whether ever it shall be payable but be it either the one or the other the Plaintiff having named an Attorny ought to recover and Iudgment was accordingly given for him Dunning versus Lascomb DEBT on a Bond the Condition was to pay Mony when a Ship should go from A. to C. and from thence to Bristol and should arrive there or at any other Port of discharge in England the Ship going from A. to C. took in Provisions at Bristol but not to be discharged there but proceeded in her Voiage to Cales and was cast away And by the Opinion of the Court the Mony was not payable but if he had never intended to perform the Voyage it might have been otherwise 1 Roll. Abr. 142. 39 H. 6.10 Iudgment for the Defendant nisi Atkins versus Bayles AN Information was exhibited against the Defendant Outlary pleaded to an Information good being a Iustice of the Peace for refusing to grant his Warrant to suppress a Conventicle The Defendant pleads an Outlary in disability and the Plantiff demurred 1. 3 Inst 194. This Plea is not good because the King is interested qui tam c. and therefore where the Informer dies the Attorny General may proceed 2. The Statute gives power to any person to inform c. by which general Words the Disability of this person is removed But the Court held that there was no colour in either of these Objections 3. 'T is not pleaded sub pede sigilli sed non allocatur for it need not be so pleaded being in the same Court 4. 'T is not averred that the Plaintiff was the same person who was outlawed but it was answered that the praedictus makes that certain and that though the King be interessed yet the Informer only is Plaintiff and intituled to the benefit and that though he was disabled yet he might sue for the King Moor 541. Dyer 227. b. Cro. Eliz. 583. but not for himself and therefore Iudgment was given that the Plea was good Harwood Bincks versus Hilliard c. Notice where 't is agreed to be in writing must be so pleaded BY an Agreement between the Plaintiffs and the Testator of the Defendant a parcel of Lands was to be sold for 400 l. but if it did not arise to so much then they covenanted with each other to repay proportionable to the Abatement and the Defendant's Testator covenanted for himself and his Executors to pay his proportion to the Plaintiffs so as the Plaintiffs gave him notice in writing of the said Sale by the space of ten days but doth not say that such notice was to be given to his Executors or Administrators And now the Plaintiffs averred that they gave notice accordingly to the Defendant who was Executor and the breach assigned was that he hath not paid c. The
cap. 2. That all and every person or persons who shall have any Office Civil or Military shall take the Oaths of Supremacy and Allegiance and receive the Sacrament within the time limited by the said Act or otherwise shall be adjudged ipso facto incapable and disabled by Law or if he execute any Office after his neglect or refusal to qualifie himself within the time therein appointed viz. three Months then he shall be disabled to sue in any Court and shall forfeit the Sum of 500 l. Sir John Read was made High Sheriff of Hartfordshire 12 Novemb 25 Car. 2. and being still under the Sentence of Excommunication he took upon him the Office and executed it for 3 Months viz. to the 12th day of February afterwards and then refused to serve any longer the Iudges came soon after to keep the Assises for that County but there was no Sheriff there to attend them and the reason was because if he had executed the Office without taking the Oaths the time being now expired wherein he ought to have taken the same then he had subjected himself to the forfeiture of 500 l. and he could not receive the Sacrament because he was Excommunicated and therefore supposed that after the 3 Months he was ipso facto discharged by the aforesaid Statute and whether upon all this matter the Defendant be guilty was the Question Ward and Sir William Jones the Attorny General argued that the Defendant was Guilty 1. The Oath and Sacrament are necessary qualifications for all Sheriffs because the Act appoints these things to be done and the Penalty therein extends to those who execute any Office after the three Months without doing the same but not to such who neglect to qualifie themselves And though it may be objected that the Act gives no Penalty for not taking of the Oath it only enjoyns it to be done and subjects the person to the forfeiture of 500 l. for executing an Office after three Months that being not done so that this is not to be punished by Information it being no Offence at the Common Law yet if an Act appoints a thing to be done the transgressing of the Law is an Offence at the Common Law and ought thus to be punished and so it was adjudged in Castle 's Case 2 Cro. 643. 1 Roll. Abr. â—51 455. Suppose the Defendant had given Bond to perform a thing a discharge by the Act of God or by the Obligee had been good but the Obligor should never disable himself and if it be so in private Contracts much more in the Case of the King because our Duty to him is of the highest nature 2. Therefore the Excommunication can be no excuse to the Defendant for though he might have been excused if he had been under a legal disability which he could in no wise prevent yet here he was able and had time enough and it was in his power to have discharged himself from this Excommunication and being bound by his Duty and Allegiance to the King to perform the Office he ought to qualifie himself for the performance and either to remove the disability or shew he had not power to do it 'T is his obstinacy that disables him and 't is absurd to think that this Excommunication which was designed as a punishment should now be an ease to him to excuse him from executing this Office Moor 121. Lacie's Case 3. That the Defendant is punishable for this neglect otherwise the King would lose the effect of his Subjects Service if it should be in their power to discharge themselves at pleasure an Act of Parliament cannot and much less the Defendant himself by his own act take away his Duty and Service which he oweth to the King And therefore though 't is Enacted That a Sheriff shall be only for one year yet it has been adjudged that the King by a Non obstante may dispense with that Statute Antea because otherwise he would be deprived of the Service of his Subjects If a Sheriff when he is first admitted into his Office refuses to take the Oath of his Office he is finable and so he ought here if any alteration be made by the King of that Oath his disobedience afterwards is punishable Cro. Car. 26. though a form of the Oath is prescribed by the Act of Parliament and there is no other way to punish the Defendant in this Case but by Information for after the three Months in case he execute the Office not being qualified the Act gives the Penalty to the Informer and if he should not execute it the inconvenience would be great because 't is and Office which concerneth the Administration of Iustice and necessary for the management and collection of the Kings Revenue The Statute extends to Offices of Trust as well as of Profit and enjoyns the thing to be done the transgression whereof is an Offence as well at the Common Law as against the Statute and so punishable by Information and therefore they prayed Iudgment against the Defendant Sawyer and Levins contra Viz. They agreed if the Subject be qualified he ought to accept the Office Ex parte Def. but the Defendant was not so qualified and therefore to be excused But before they entred upon the debate whether this was an Offence or not they took an Exception to the form of the Information Viz. That it was not good because it did not conclude contra formam Statuti for if the Offence be at the Common Law and a new Penalty is given by the Statute the Proceedings ought to be either at the Common Law by way of Fine or upon the Statute for the Penalty but if the Offence be by the Statute then it must be laid to be contra formam Statuti Now if this was any Offence in the Defendant it was because he did not receive the Sacrament and take the Oath which is an Offence against the Statute and therefore ought to conclude contra formam Statuti which is essential Then as to the Substance 1. The Information is insufficient for there is no Offence at all of which the Common Law doth take notice and though the Consequences of the thing done may be bad yet no Man shall be punished for that because those only aggravate the Offence if any neither is this Information true for it saith he refused absque rationabili causa but here was a reasonable cause And though it may be objected that it was only impotentia voluntatis and that every Subject being disabled is to remove that disability to serve the King this was denied for a Man who is a Prisoner for Debt is not bound or compellable to be Sheriff neither is a Man bound to purchase Lands to qualifie himself to be either a Coroner or Iustice of the Peace By the Statute of 3 Jac. every Recusant is disabled he may conform but he is not bound to it for if he submits to the Pemalty 't is
as much as is required by Law 'T is true a Subject is bound to serve the King in such capacity as he is in at the time of the Service commanded but he is not obliged to qualifie himself to serve in every capacity Neither doth it appear in this Case that the Defendant was able to remove this Incapacity and that should have been shewn on the other side and all Iudges are to judge upon the Record The intent of the Statute is That if persons will not qualifie themselves they shall not execute any Office and it was made to keep Roman Catholicks out of Places but not to force them to accept of Offices of Trust in the Government and it designs no punishment for quitting but for executing of a place contrary to the Law but if this be an Offence this Information will not lie and for that 2. It was argued That if a thing be either commanded or forbidden by a Statute the transgression in either Case is an Offence punishable by Information 25 H 6. pl. 9. b. 7 H. 4. 5. but when an Act doth not generally command a thing but only sub modo the party offending is punishable no otherwise than designed by that Law as where the Statute of 18 H. 6. cap. 11. prohibits any Man from being a Iustice of the Peace unless he have 40 l. ê‘ AnÌ„ and the Statute of 5 6 E. 6. cap. 16. which makes such Bargains as are therein mentioned about buying of Offices void if such Office be forfeitable then an Information will lie but when 't is ipso facto void as in both the former Cases then 't is otherwise because the punishment is executed by the Statute it self and therefore where the avoidance is made by the Act there is no need of an Information And the Objection of impotentia voluntatis is not material to this purpose because Symony buying of Offices not subscribing the 39 Articles according to the Statute of the Queen these are all voluntary Acts yet no Information lies against such Offenders because the Statutes execute the punishment The intent of the Parliament is here declared the disability of the person makes the Office void void to all intents for the Right of Infants or Men in Prison is not saved so that admitting it to be an Offence if the Duty be not performed yet if such a qualification be requisit to make a Man to act in such an Office or perform such a Duty if that qualification be wanting the Party is only punishable by the loss of the Office The Act doth not distinguish between Offices of Trust and Profit And as to the other Objection viz. That 't is in the power of the Defendant to qualifie himself the same might as well be objected against all the Popish Recusants upon the Statute of 3 Jac. and if a Statute doth disable persons or abridge the King of their Services there is no injury done because the King himself is party to the Act but if mischiefs were never so great since they are introduced by a Law they cannot be avoided till that Law is changed 3. But admitting the Information to be good and that this is an Offence for which it will lie yet the Excommunication is a sufficient excuse it appears by the Verdict that the Defendant was absolutely disabled to be Sheriff for if he is to take the Oath and receive the Sacrament in order to it if he cannot be admitted to the Sacrament as being under the Sentence of Excommunication that is an excuse The Defendant is only argued into a Guilt for the Iury have not found any they do not say that it was in his power to yield Obedience or that he might have enabled himself they only find his incapacity and though it was a voluntary Act which was the cause of his disability yet in such Cases the Law doth not look to Causes so remote If a Man be in Prison for Debt it is his own Act for contracting it and not paying but yet an Outlary against him whilst in Prison shall be reversed because the immediate Cause viz. the Imprisonment and the Iudgment was in invitum and the Law looks no farther and so Iudgment was prayed for the Defendant But the Court were all of Opinion that this Information would lye and that the Defendant was punishable for not removing the disability it being in his power to get himself absolved from the Excommunication And so Iudgment was given against him and a Writ of Error brought c. Godfrey versus Godfrey In Communi Banco Intrat ' Hill ult Rot. 321. DEBT upon a Bond for performance of an Award Award of a lesser Sum in satisfaction of a greater and good in which the Arbitrators had taken notice of 72 l. in controversie and had awarded 50 l. in satisfaction The Defendant pleads Nullum fecerunt Arbitrium the Plaintiff replies an Award and sets it forth and assigns a Breach to which the Defendant demurred because it appeared by the Award that 72 l. was in controversie for Rent due and that 50 l. was awarded in full satisfaction of 72 l. and general Releases to be given but it did not appear that any other Matter was in Controversie between the Parties though the Submission was general and Arbitrators may reduce incertain things to a certainty but they cannot make a Debt certain to be less except there were other differences for which likewise this Release was to be given 10 H. 7. 4. But the whole Court were of Opinion that the Award was good Curia for that the Arbitrators might consider other Matters between the Parties neither did it appear by the Award that the 72 l. was due but in demand only and 't is unreasonable for him to find fault with his own case for he alledges that he ought to pay 72 l. and complains because the other Party is contented with 50 l. and demands no more Iudgment for the Plaintiff Wright versus Bull. Condition where 't is disjunctive 't is in the Election of the Party to have either DEBT upon a Bond for payment of 40 l. The Condition whereof was That if the Defendant should work out the said 40 l. at the usual Prices in packing when the Plaintiff should have occasion for himself or his Friends to imploy him therein or otherwise shall pay the 40 l. then the Bond to be void The Defendant pleads that he was always ready to have wrought out the 40 l. but that the Plaintiff did never imploy him and upon Demurrer the Plea was held ill because the Defendant did not averr that the Plaintiff had any occasion to make use of him and for that it was at his Election either to have Work or Mony Basket and Basket Antea and not having imployed him but brought his Action that is a request in Law and so he hath determined his Election to have the Mony and Iudgment was accordingly given for the
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