before a Coroner the person having drowned himself it was suffocat ' emergit fuit if it had stood singly upon the word emergit it had been insensible but the word suffocat ' expressing the sense it was held good 100 4. Where nothing is vested in the King before Office found ibid. 5. It must always be found that there is an Estate in the person offending and a cause of Forfeiture of that Estate to vest it in the King 336 Interest in a thing See Pardon 4. Where a Man may have an interest in a Chattel without a Property 61 2. Devise to a Wife and Children after Debts and Legacies paid an interest vests in the Devisees but 't is otherwise in case of Administration for there no Interest vests till actual distribution 65 3. A Man may have a Property tho' not in himself as in the Case of Joyntenancy 97 Intestate See Administration Innuendo The proper office of it is to make the subject matter certain 53 2. It will not help insensible words 54 Joyntenancy and Tenancy in Common See Abatement 3. Baron and Feme 12. Interest 3. If one Joyntenant bring an Action against the other unless he pleads the Jointenancy in abatement the Plaintiff will recover 97 2. If two Coparceners lease a House and the Rent is arrear and one brings an Action and recovers Judgment shall be arrested because both ought to joyn 109 3. Tenants in Common must join in the personalty but 't is otherwise in real Actions for though their Estates are several yet the Damages to be recovered survive to all 109 251 4. Where one Commoner may bring an Action against his Fellow 251 Joint Action See Action for a wrong 6. Ioyntenancy 2 3. Where an Action may be joint or several at the Election of the Plaintiff 86 2. Where 't is brought against three Defendants who plead jointly the Jury may sever the Damages and the Plaintiff may take Execution de melioribus damnis as well as where their Pleas are several and Tryals at several times 101 102 3. Judgment against two and one brought a Writ of Error and assigned the Infancy of the other for Error the Writ was abated because both did not joyn 134 4. The Defendants in the original Action must joyn in a Writ of Error but it seems otherwise where the Plaintiffs bring Error 135 5. Two covenant to sell Lands and the Purchasor agreed to pay the Mony to one of them he alone ought to bring the Action 263 6 Where there are several Proprietors of a Vessel for carriage of Goods which are damaged by carrying the Action must be brought against all or against the Master alone 321 322 7 Where two Tenants in Common were sued for not setting out of Tythes the Action ought to be brought not against him who set them out but against the other who carried them away 322 8. Two are bound joyntly one is sued he may plead in Abatement that he was bound with another but cannot plead Non est factum 323 9 In all Cases which are grounded upon Contracts the Parties who are Privies must be joyned in the Action ibid. 10 Action must be brought against all where a promise is created by Law 324 Issue Must be joyned upon an affirmative and a negative by concluding to the Country 80 Iudges The making altering and displacing of several Judges Serjeants at Law and King's Council 71 99 100 104 125 143 191 239 Iustices of Peace Offences against the Statute of 23 Eliz c. 1. for not coming to Church may be enquired of by them in their Sessions 79 2. Where a Statute appoints a thing finally to be done by them yet the Court of King's Bench may take Cognizance of it 95 3. Conviction for keeping of a Gun before a Justice of Peace the time when he had not 100 l. per Annum must be precisely alledged 280 Iustification See Pleading 4 5. Where 't is pleaded by way of Excuse to an Action of Trespass for the taking of any thing the Defendant must averr the Fact to be done and set forth the Warrant to him directed and the taking virtute Warranti and not generally that he took it by a Mandate c. 138 2. In Replevin where the Defendant made Conusance in right of the Lord he may Justifie the taking generally ibid. Iudgment 1. At the Common Law no Execution could be of a Judgment after a year and a day but the remedy was to bring an Action of Debt upon Judgment 187 189 2. Now a Scire Fac. is given upon a Judgment after the year by the Statue of W. 2. 189 3. When a Judgment is once execucuted the Goods are in custodia legis and shall not be taken away by an Exchequer Process or by the Commissioners of Bankrupts 236 L. Lapse See Notice Lease A Covenant in a Lease for years that the Lessee should pay the Rent without obliging his Executors or Administrators 't is determined by his Death 231 2. For 99 yeas if three persons or any of them so long live reserving a Rent and an Herriot upon the death of either the Beast of the Assignee shall not be taken for a Herriot for the Lessee is to pay his best Beast and that shall not be carried further than to the person named 231 Libel Where a Fine and Corporal punishment was imposed upon the Offender after Conviction 68 Limitation An Estate was setled upon Trustees to the use of A. and her Heirs provided she marry with the consent of Trustees remainder over to B. This is a Limitation and not a Condition 32 Limitation of Action See 21 Jac. 16. Where a Trespass is laid with a continuando for more than six years and the Statute pleaded and entire Damages it must be intended only for that which falls within the six years and that the Jury rejected the beginning of the Trespass 111 2. This Statute relates to a distinct and not to a continued Account 112 3. It provides a Remedy when the Plaintiff is beyond Sea at the time when his Right accrews and saves it till he returns whether it may be extended in a Case where the Defendant is beyond Sea longer than six years from the time the Plaintiff was entituled to the Action 311 312 Local Actions Whether Covenant will lie by an Assignee of a Reversion against an Assignee of a Lessee in any other place than where the Land lieth 337 2. Debitum contractus sunt nullius loci ibid. 3. Debt for Rent upon a Lease for years brought upon the Contract and Covenant between the same Parties are transitory ibid. 4. If Privity of Contract is gone by making an Assignment and only a privity in Law remains the Action must be brought in the County where the Land lieth ibid. M. Mayor See Corporation Marriage See Condition 3. Evidence 7. Limitation Notice A Maid above 12 and under 16 taken from Parents or Guardian and Married forfeits her Estate to the next in
may forfeit their Charter by it Now I do not deny but it is the Duty of the Mayor and it is the equal Duty of the Aldermen to see a time be appointed for an Election And as the Mayor is the Chief in pre-eminence so it aggravates his neglect if he refuses it But his neglect of his Duty will not excuse the rest of the Electors for the not doing of their Duty and the performing of their Qaths If it be said What if they do not agree upon the time but are divided I Answer Whoever can carry an Election when they are met and chuse shall also govern in the time of meeting if there be any difference about it and that is not the Mayor but the Major pars eorum c. Now this agrees with the Rule of the Law in the like Cases In a Commission of the Peace to try Felonies c. And to hold a Court of quarter-Quarter-Sessions Who shall issue out the Summons and appoint the Time Answ Those that constitute the Court and are to Exercise the Power must issue out the Summons If twenty Iustices of the Peace not having one of the Quorum amongst them should issue out a Summons for a General quarter-Quarter-Sessions it would be void for twenty Iustices of the Peace cannot hold such a Sessions if there be not one of the Quorum among them Nor can the Custos Rotulorum alone do it though he is commonly most Eminent Thus is it in the Commission of Gaol-Delivery and of Dyer and Terminer We may see the Forms of them in Crompt Jurisd of Courts f. 121 125. The express words of their Commission for appointing time and place Ad certum diem quem vos tres vel duo vestrum Quorum vos A. B. C. D. unum esse volumus ad hoc provederitis And therefore there was no need of any more express Provision in the Charter for a Summons for an Election of an Alderman or the appointing of a time In the next place for the necessity of the Mayor's being present as well as their meeting by his Summons I see no reason for it It is true there is a Case in Print that seems to make for it tho' I never yet heard it so much as mention'd either at the Trial for I was not there or throughout the whole Case yet it is fit for me to take notice of it for I make no doubt but before we have done we shall hear of it It is in Serjeant Rolls's Abridgment Part I. Tit. Corporation f. 513 514. Case 5 6 7. Between Hicks and the Borough of Launceston in Cornwal Resolved per Curiam which were only two Iudges viz. the Chief Iustice Richardson and Iustice Croke no other of the Iudges being there That if a Corporation consists of a Mayor and eight Aldermen with a Clause in the Patent That if any of the Aldermen dye that then the Mayor and the rest of the Aldermen within eight days after shall Elect another though it be not limited that they or the greater number of them may elect yet the greater number of them may elect And if the Mayor at the time of the death of an Alderman be absent at London till after the eight days and the rest of the Aldermen within eight days come to the Deputy Mayor and require him to make an Assembly of them to elect another within the eight days and he refuse and upon that the greater number of the Aldermen meet without the Mayor or his Deputy and Elect an Alderman that it is a void Election for the Mayor ought to be present at it by the Words of the Grant This seems to be a stronger Case than ours for there is a certain time limited by which they must make their Election viz. eight days I first Observe That this Case as far as I can find was not a Case depending by any Suit or Action for in that Case it is said That a Writ was granted to make a new Election of an Alderman So that I suppose it was upon a Motion only I have a Copy of the Rules which shews it to be so as I take it Then it does not appear to be upon an Argument for had it beén so two Iudges I presume would not have determin'd it but have put it off till the Court had been full as usually they do therefore it was not so solemn nor has not so great Authority But take it as it is The time of eight days being limited by which the Election was to be made makes the Case never a whit the stronger for there the Iudges declare that there may be an Election after the eight days and the limiting that time was to quicken them Then observe the ground those two Iudges went upon they do not say it ought to be so at the Common Law as doubtless they would had they thought that the Common Law would have ruled it for if the Common Law serves for it it was idle to resort to any other ground But the Iudges in the Case of Launceston say that the Mayor must be present at the Election by the Words of the Grant So that they went by that Rule which I have urged which is the words of the Grant 't is the Charter only must give the Rule as I have Argued all this while Now what the words of the Charter were in the Case of Launceston does not appear in the Report of that Case Perhaps there was an express Provision in the Charter requiring the meeting of the Aldermen by the Summons of the Mayor and in his presence which if so then there is no disputing against it And the drawer of the Indictment against us has so drawn it as if the Charter in our Case did so require it too But there is nothing to that purpose nay as I have observ'd there are concomitant Clauses that give another construction and argue to the contrary Therefore the Case of Launceston differs from ours But there is another thing wherein the Case of Launceston and ours differs I am no Enemy to the Government I Live under if any man think otherwise of me I care not because I cannot govern another Man's Thoughts I do agree that this Sovereign Court of the King's Bench as is resolv'd in James Bagg 's Case hath a super-intendency and a special Authority in Cases of this nature which more concern matter of Government and the publick Peace and Order than any Man 's private Right or Property And in such Cases this Court governs it self much by the Circumstances of the Case Now let us mind the Circumstances of the Case Reported by Serjeant Rolls and of our Case and let them be compar'd and there will be a very wide difference between them And therein I dare appeal to any rational unbiass'd Man in the World for the Innocency of our proceedings in the whole matter The Mayor in the Case of Launceston happen'd to be in London at the death
of setting of so many Letters together but filling up the Blanks makes them of another nature Grants of things of less moment have been adjudged Monopolies 2 Rol. Abr. 215. pl. 5. as a Patent for the sole making of all Bills Pleas and Briefs in the Council of York for by the same reason a like Patent might be granted to make all Declarations in the Courts of Westminster Hall Curia The King hath a Prerogative to Grant the sole Printing to a particular person all the Cases cited for the Plaintiff do not reach the reason of this Case for there is a difference between things of a publick Vse and those which are publick in their Nature even Almanacks have been used to ill purposes as to foretel future Events yet they are of publick Vse to shew the Feasts and Fasts of the Church The Court enclined that the Patent was not good Jackson versus Warren A Motion was made in arrest of Iudgment Amendment for that the day when the Assises were to be held and the place where were left out of the Distringas and so a mis-tryal But the Court were of another Opinion 1 Roll. Abr. 201. for if there had been no Distringas the Tryal had been good because they Jurata is the Warrant to try the Cause which was right and therefore the Distringas was ordered to be amended by the Roll. Dominus Rex versus Sparks 'T IS Enacted by the Statute of 1 Eliz. Where a Punishment is directed by a Statute the Judgment must be pursuant 1 Eliz. cap. 2.13 14 Car. 2. cap. 4. That every Minister shall use the Church-Service in such Form as is mentioned in the Book of Common-Prayer and if he shall be convicted to use any other Form he shall forfeit one whole Years profit of all his Spiritual Promotions and suffer six Months Imprisonment And by the Statute of King Charles the II. All Ministers are to use the publick Prayers in such Order and Form as is mentioned in the Common-Prayer-Book with such Alterations as have been made therein by the Convocation then sitting The Defendant was indicted at the Quarter-Sessions in Devonshire for using alias Preces in the Church alio modo than mentioned in the said Book and concludes contra formam Statuti He was found Guilty and fined 100 Marks and upon a Writ of Error brought Mr. Polexfen and Mr. Shower argued for the Plaintiff in Error that this Indictment was not warranted by any Law and the Verdict shall not help in the case of an Indictment for all the Statutes of Jeofails have left them as they were before Now the Fact as 't is said in this Indictment may be no offence because to use Prayers alio modo than enjoyn'd by the Book of Common-Prayer may be upon an extraordinary occasion and so no Crime But if this should not be allowed the Iustices of Peace have not power in their Sessions to enquire into this matter or if they had power they could not give such a Iudgment because the punishment is directed by the Statute and of this Opinion was the whole Court The Chief Iustice said that the Statute of the 23 Eliz. 23 Eliz. cap. 1. could have no influence upon this Case because another Form is now enjoyned by later Statutes but admitted that Offences against that Statute were enquitable by the Iustices The Indictment ought to have alledged that the Defendant used other Forms and Prayers instead of those enjoyned which were neglected by him for otherwise every Parson may be indicted that useth prayers before his Sermon other than such which are required by the Book of Common-Prayer Clerk versus Hoskins DEbt upon a Bond for the performance of Covenants in certain Articles of Agreement in which it was recited That whereas the now Defendant had found out a Mystery in colouring Stuffs and had entred into a Partnership with the Plaintiff for the term of seven Years he did thereupon Covenant with him that he would not procure any person to obtain Letters Patents within that Term to exercise that Mystery alone The Defendant pleaded that he did not procure any person to obtain Letters Patents c. The Plaintiff replied and assigned for breach that the Defendant did within that term procure Letters Patents for another person to use this Mystery alone for a certain time Et hoc petit quod inquiratur per patriam And upon a Demurrer to the Replication these Exceptions were taken 1. That the Plaintiff hath not set forth what Term is contained in the Letters Patents 2. That he had pleaded both Record and Fact together for the procuring is the Fact and the Letters Patents are the Record and then he ought not to have concluded to the Country Prout patet per Recordum To which it was answered That the Plaintiff was a Stranger to the Term contained in the Letters Patents and therefore could not possibly shew it but if he hath assigned a full breach 't is well enough Then as to the other Exception viz. the pleading of the Letters Patents here is not matter of Record here is a plain negative and affirmative upon which the Issue is joyned and therefore ought to conclude hoc petit c. Curia There is a Covenant that the Defendant shall not procure Letters Patents to hinder the Plaintiff within the seven Years of the Partnership Now this must be the matter upon which the breach ariseth and not the Letters Patents so that it had been very improper to conclude prout patet per Recordum Iudgment for the Plaintiff Rex versus Hethersal THE Defendant was Felo de se Melius inquireddum not granted but for misdemeanor of the Jury and the Coroners Inquest found him a Lunatick and now Mr. Jones moved for a Melius inquirendum but it was denied because there was no defect in the Inquisition but the Court told him that if he could produce an Affidavit that the Iury did not go according to their Evidence or of any indirect Proceedings of the Coroner then they would grant it But it was afterwards quashed because they had omitted the year of the King Friend versus Bouchier Trin. 34 Car. 2. Rot. 920. EJectment upon the Demise of Henry Jones What words in a Will make a general Tail of certain Lands in Hampshire The Iury found this Special Verdict following Viz. That William Holms was seised in Fee of the Lands in question who by his last Will dated in the year 1633. devised it to Dorothy Hopkins for Life Remainder to her first Son and to the Heirs of the Body of such first Son c. and for default of such Issue to his Cousin W. with several Remainders over And in default of such Issue to Anne Jones and to her Heirs who was the Lessor of the Plaintiff That before the sealing and publishing of this Will he made this Memorandum Viz. Memorandum that my Will and Meaning is That Dorothy Hopkins
the Goods before Administration granted Neither can any Entry or Claim make the Defendant an Executor de son tort of a Term for years because a wrongful Entry can never gain any Estate but a Fee-simple for 't is not to be satisfied with any particular or certain Estate as for life or years It cannot be gained by Act of Law because that abhors all manner of wrong If it should be objected that though this Executor doth not gain any Estate for his own benefit yet he in the Reversion may take him for a Disseisor and it shall be in his election either to make him so or a Tenant for years To this it may be answered that the Defendant doth not claim by colour of any Grant if he did then he might be a Disseisor at the Election of him in the Reversion and this was the very difference taken in the Case of Blunden and Baugh Cro. Car. 302. 1 Roll. Abr. 661. Jones 115. Latch 53. So likewise if it be objected that the Defendant is an Occupant and therefore punishable for Waste but the reason is not the same because the Entry of an Occupant is lawful and he gains an Estate for life which is not this Case An Executor de son tort is not a person taken notice of in the Law in respect to him in the Reversion but in respect of the Creditors of the Intestate and therefore if what he doth may be advantageous to them the Law will make a Construction upon it for their benefit but if such a person should be within the intention or meaning of this Statute then the natural Consequences will be 1. That the place wasted would be recovered 2. That the Plaintiff would also have treble damages Both which would be a manifest means to defeat the Creditors of their Debts for which reasons he prayed Iudgment for the Plaintiff in the Errors It was argued by the Council on the other side E contra That it is plain that the Defendant was Executor de son tort for such must that person be who intermeddles with the Intestates Estate where there is no rightful Executor or Administrator Now a Man may be Executor of his own wrong of a Term for years as appears even in that case cited out of Moor on the other side and if so the Defendant must be liable to this Action The Statute may be expounded as well against a wrongful as a rightful Executor 't is plain here is a Dissesin and the Law is now settled that it shall be in the election of him in the Reversion to make it so This Defendant would justifie one wrong by another for he confesseth that he hath committed a Disseisin and therefore will not be answerable for committing of Waste As to the Objection that an Executor de son tort is liable only in respect of Creditors and that if he should be punished for Waste it would be an injury to them because of the treble damages recovered against him Resp Such damages must be answered out of his own Estate for even in the Case of a rightful Executor if he commit Waste 5 Co. Poulter's Case he will be chargeable in a Devastavit de bonis propriis This is not properly a penal but a remedial Law and as such may be construed according to Equity 'T is true Tenants by Elegit or by Statute are not within this Statute because Waste by them committed is no wrong for if they should fell the Timber it sinks the Debt and the Cognizor may have a Scire Facias ad computandum Curia It would be an infinite trouble for him in the Reversion to seek his remedy for Waste done if the Law did oblige him to stay till there was a rightful Administrator and 't is not to be doubted but that there may be an Executor de son tort of a Term for years This is a remedial and yet a penal Law and therefore shall have a favourable Construction The Iudgment was affirmed Bridgham versus Frontee DEBT upon a Bond for performance of Covenants in a Lease of a House for a certain Term of years rendring Rent c. And the Breach assigned was That there was 66 l. Rent in arrear The Defendant pleaded the Statute of H. 32 H. 8. c. 16. 8. That all Leases of Dwelling-Houses or Shops made to any Stranger or Alien Artificer shall be void and sets forth that the Defendant was a Vintner and an Alien Artificer And upon a Demurrer Mr. Thompson for the Defendant said that a Vintner was an Artificer within the meaning of the Act which was made to prevent a mischief by Foreigners encroaching upon the Trades of the King's Subjects by which they gained their Livelihood and therefore shall be expounded largely and beneficially for them A Mercer a Draper or Grocer are not properly Artificers yet they are within the meaning of this Act. Chief Iustice 1 R. 2. cap. 9. This Statute refers to another of R. 2. Which prohibits Alien Artificers to exercise any Handycraft in England unless as a Servant to a Subject skilful in the same Art upon pain to forfeit his Goods so that 't is plain that such who used any Art or manual Occupation were restrained from using it here to the prejudice of the King's Subjects Now the Mystery of a Vintner chiefly consists in mingling of Wines and that is not properly an Art but a Cheat so the Plaintiff had his Iudgment Rex versus Plowright and others A Distress was taken for Chimny-Mony and the Parties distrained apply themselves to the two next Iustices of the Peace before whom it did appear that Plowright let a Cottage to Hunt which was not of the yearly value of 10 s. The Collectors of this Duty distrained upon the Land-Lord which the said Iustices thought to be illegal and therefore they ordered a Restitution And a Certiorari being brought to remove the Order into this Court Mr. Attorny prayed that it might be â—â—â—d But it was opposed by Mr. Pollexfen for that the Statute of King Charles II. enacts 16 Car. 2. c. 3. That no person inhabiting an House which hath more than two Chimnies shall be exempted from the payment of the Duty c. and then these Words do follow viz. That if any question shall arise about the taking of any distress the same shall be heard and finally determined by one or more Justices of the Peace near adjoining c. Now here was Mony levyed by virtue of this Act and a Controversie did arise by reason of the Distress and an Order was made by the Iustices which according to the letter and meaning of the Act ought to be final the intention whereof was to prevent the charge and trouble of poor Men in Suits at Law about small Matters and therefore it gave the Iustices power to determine particular Offences and Oppressions Mr. Attorney contra If the Iustices of Peace have power to determine c.
forth that the Plaintiff was amerced and that it was affered at the Court and so he hath confounded the Office of the Iurors and Affearers together which he ought not to do for he should be amerced to a certain Sum Hob. 129. Rol. Abr. 542. and not in general which Sum may be mitigated or affered by others If it had been a Fine 8 Co. 38. 1 Leon. 142. it need not be affered because that is imposed by the Court but this is an Amerciament which is the act of the Jury and therefore it must be affered 3. The chiefest Exception was to the matter of the Warrant viz. the Defendant sets forth that he seised by virtue of a Precept from the Dean and Chapter whereas he ought to shew it was directed to him from the Steward of the Court and then to set forth the Warrant without which he cannot justifie to distrain for an Amerciament And of this Opinion was the whole Court and therefore Iudgment was given for the Plaintiff in Michaelmas Term Primo Will. Mariae If it had been in Replevin where the Defendant made cognizance in the right of the Lord it might be well enough as here pleaded but where 't is to justifie by way of excuse there you must averr the Fact and alledge it to be done and set forth the Warrant it self 3 Cro. 698.748 1 Leon. 242. and the taking virtute Warranti for a Bayliff of a Liberty cannot distrain for an Amerciament by virtue of his Office but he must have a Warrant from the Steward or Lord of the Leét for so doing The other Exception that the Amerciament ought to be to a Sum Rast Ent. 606. Co. Ent. 665. the Presidents are otherwise for an Amerciament per duodecim probos legales homines adtunc ibidem jurat ad 40 s. afferat ' is well enough but the Warrant is always set forth Dominus Rex versus Darby THE Defendant was indicted for speaking of scandalous words of Sir J.K. a Justice of the Peace Viz. Sir J.K. Indictment for Scandalous words is a buffle-headed Fellow and doth not understand Law he is not fit to talk Law with me I have bafled him and he hath not done my Clyent Justice Mr. Pollexfen for the Defendant said that an Indictment would not lye for these words because not spoken to the Party in the exceution of his Office but behind his back it will not lye for irreverent words but for Libels and Writings because such are publick but words are private offences But the Court being of Opinion that an Indictment would lye where an Action would not because it respects the publick Peace and that an Action would not lye in this Case unless the party had a particular loss Sid. 65. 2 Cio 5 8. and therefore it hath been held not to be actionable to call a Iustice of Peace Fool Ass Coxcomb He then took Exceptions to the Form of the Indictment 1. There is no place of Abode laid where the Defendant did inhabit which is expresly required by the Statute of H. 5. Viz. 1 H. 5. cap. 5 That in Indictments there shall be addition of the Estate Degree c. and of the Towns Hamlets Places and Counties where the Defendants dwell And by the Statute of H. 6. 8 H. 6. cap. 12 which gives the Iudges power to amend Records in affirmations of Iudgments such defects which are named in the Statute of H. 5. are excepted and therefore where a Writ of Error was brought to reverse an Outlawry upon the Statute of 5 Eliz. for Perjury 2 Cro. 167. the Defendant was Indicted by the Name of Nicholas Leech de Parochia de Aldgate and did not shew in what County Aldgate was and for this cause it was reversed 2. The Caption is coram Justiciariis ad pacem dicti Domini Regis conservand ' and the word nunc is left out It was the Opinion of Iustice Twisden that it ought to be nunc conservand ' Sid. 422. for otherwise it may be the Peace of King Stephen The Councel on the other side said that it was a new Doctrine that the King shall not have the same Remedy by an Indictment which the Subject may have by an Action What is the meaning of the words of all Commissions de propalationibus verborum As to the first Exception they said that the Indictment was certain enough for the Defendant is laid to be de Almondbury in the West-Riding of Yorkshire To the second Exception they said that ad pacem conservand ' without nunc is well enough for it cannot be intended upon this Indictment that they were Iustices to preserve the Peace in any other Kings Reign and what was quoted out of Siderfin is but the Opinion of one single Iudge This is a Scandal upon the Government and 't is as much as to say that the King hath appointed an ignorant Man to be a Iustice of Peace for which an Indictment will lye And of that Opinion was the whole Court and gave Iudgment accordingly Ball versus Cock A Writ of Covenant did bear Teste the first day of Trinity Term Error to reverse a Fine where the Cognisor died after the Caption and before it passed the King's Silver retornable tres Trinitatis and it was taken by Dedimus 30 Julii A Writ of Error was brought to reverse this Fine and the Error assigned was that the Cognizor died after the Caption and before the Enrolment at the King's Silver Office It was argued by the Councel for the Plaintiff in the Writ of Error that a Fine Sur Cognizance de droit c. is said to be levied when the Writ of Covenant is returned and the Concord and King's Silver which is an antient Revenue of the Crown pro licencia concordandi duly entred for though the Cognisor dieth afterwards Dyer 220. b. 5 Co. 37. Cro. Eliz. 469. the Fine is good and the Land passeth but if the King's Silver be not entred the Fine may be reversed by Writ of Error for it is an Action and Iudgment and the death of either Party abates it If it should be objected that this cannot be assigned for Error because 't is against the Record which is Placita terrae irrotulat de Termino Sanctae Trinitatis anno primo Jacobi c. 'T is true an Error cannot be assigned against the very essence of a Record but in the matter of time it may and so 't is in this Case 'T is like Syer's Case 32 Eliz. 3 Inst 230. 4 Co. Hind's Case 10 H. 7.24 who was indicted for a Burglary supposed to be done primo Augusti and upon the Evidence it appeared to be done primo Septembris and though he was acquitted of the Indictment for that reason viz. because the Iudgment relates to the day of the Indictment yet it was resolved by all the Iudges of England that the very day needs not be set down in
ground he had for such an Opinion is not known the Year Books quoted in the Margent will not warrant it for they are in no sort parallel That Case in the 27th of H. 27 H. 6.3 6. is no more than Tenant at Will cannot grant over his Estate because he hath no certain or fixed Interest in it and much to the same purpose is the Book of 22 E. 22 E. 4.5 4. there cited But suppose this to be a void Grant and to amount to a determination of the Tenancy at Will yet if the Trustees had no notice of it that shall not determine their Estates A Devise to an Executor that he shall have the oversight of the Testators Estate till his Daughter should come of Age Yelv. 73. the Executor made a Lease at Will rendring Rent before the year expired the Daughter came of age to whom the Tenant at Will attorned the Executor brought an Action of Debt against him for the Rent arrear it was held that this Attornment to the Daughter was no determination of his Will for it would be of ill consequence to the Lessor if such a Tenant should determine his Will a day or two before the end of the year who had enjoyed all the Profits of the Land 2. Whether he may make a Deputy 'T is true a judicial Officer cannot make a Deputy unless he hath a Clause in his Patent to enable him because his Judgment is relied on in matters relating to his Office which might be the reason of the making of the Grant to him neither can a Ministerial Officer depute one in his stead if the Office be to be performed by him in person but when nothing is required but a Superintendency in the Office he may make a Deputy This appears more evident in the common Case of a Sheriff who is an Officer made by the Kings Letters Patents and 't is not said that he shall execute his Office per se vel sufficientem Deputatum suum Roll. Rep. 274. 1 Leon. 146. 3 Leon. 99. Cro. Eliz. 173. yet he may make a Deputy which is the Vnder-Sheriff against whom Actions may be brought by the Parties grieved And such a Deputy may be made without a Deed for he claims no Interest in the Office but as a Servant Cro. Eliz. 67. 10 Co. 192. a. and therefore where an Action on the Case was brought against the Deputy of a Sheriff for an Escape who pleaded that the Sheriff made him his Deputy to take Bail of Prisoners and that he took Bond c. and shewed no Deed of Deputation yet the Plea was held good upon a Demurrer 3. Whether the Assignment of this Trust without giving notice to this Court be a Forfeiture Tenant in Fee simple may do it for he hath a power so to do by reason of the Dignity of his Estate He who grants this Office without acquainting of this Court therewith must remain an Officer still and is subject to all Duties and Attendance till the Court hath notice of the Grant But there is no occasion of acquainting the Court in this Case for upon the Grant made to the Trustees by Mr. Lenthal he is still the Officer though he hath not the same Estate It was objected that Sir Edward Norris c. hath not said any thing to the Escapes but that doth neither concern Mr. Lenthal or the Trustees 2 Cro. 17. for if he be Tenant at Will they are not answerable for his neglect for 't is a personal Tort in him If Tenant for years makes a Feoffment 't is a Forfeiture of his Estate but if he makes a Lease and Release though 't is of the same operation yet it will not amount to a Forfeiture Now if any Escapes should happen there is a plain remedy for the Parties agrieved for if Tenant at Will remaineth in possession of an Office and suffers voluntary Escapes his Office shall be seised into the Hands of this Court then he in the Reversion must make his Claim and when that is done he is an Officer nolens volens and this was the Duke of Norfolk's Case Now though these Escapes are found by the Inquisition to be voluntary yet they are answered in the Plea for that part of the Inquisition is traversed and that they were vi armis and this being not yet tried the Court cannot give Iudgment thereon If there be many negligent Escapes these shall not amount to a Forfeiture as if a Rebel should break Prison or the Prison should be on Fire those are negligent but the Officer should not be so much as fined But if it should be a Forfeiture the Neglect must be particularly alledged for the Word Neglect is too general Adjornatur 5 E. 4.27 Dyer 66. Anonymus A Man was indicted for using of a Trade not being an Apprentice An Indictment quashed for misreciting of a Statute against the Statute of 5 Eliz. cap. 4. And now a Motion was made to quash it because the Act gives power to two Iustices of the Peace Quorum unus to hear and determine Offences committed against any branch thereof either by Indictment or Information before them in their Sessions and 't is not said that one of the Iustices before whom this Indictment was taken was of the Quorum This Objection was answered by the Court that the Sessions cannot be kept without one Iustice of the Quorum The Act saith That it shall not be lawful to any person other than such who did then lawfully use any Art Mystery or Manual Occupation to set up any Trade used within this Realm except he had been an Apprentice for seven years c. and 't is not averred that the Trade mentioned in the Indictment was a Trade used before the making of the Act. This seemed to be a material Objection but the Indictment was quashed for misreciting of the Statute Price versus Davies ERror to reverse a Fine taken by Commission and the Error assigned was that the Cognizor died before the return of the Writ of Covenant But this Point was not argued because Iustice Allybon was of Opinion that the Plaintiff in the Errors had not well entituled himself by the Writ for it was brought by him ut Consanguineus Haeres scilicet Filius c. but doth not shew how he was of Kindred To this Objection Sir William Williams the Solicitor General replyed that if a Descent be from twenty Ancestors 't is not necessary to say that he was Son and Heir of such a one who was Son and Heir of such a one and so to the twentieth Ancestor Agreable to this are all the Presidents in Formedons 't is only said that Jus descendit Adjornatur The Countess of Plymouth versus Throgmorton ERror to reverse a Iudgment in the Common Pleas in an Action of Debt upon a Mutuatus brought by Mr. Contract where 't is entire shall not be separated in an Action of Debt Throgmorton as Executor
quarter for by such means Diseases may be brought into a Family and a Man hath no security either for his Goods or Mony This was the Opinion of Iustice Twisden in Coutrell's Case Sid. 29. and it seems to be very natural and therefore the chief reason why power was given by the Statute to the Overseers to raise mony was that they might place poor Children to such who were willing to take them for Mony for otherwise they might compel a Man to receive his Enemy into his Service He relied on the Case of the King and Price Hillary 29 and 30th of Car. II. which was an Order of the like nature moved to be quashed And Iustice Twisden said in that Case that all the Iudges of England were of Opinion that the Iustices had not such a Power and therefore that Order was quashed 'T is plain that by the Statute of the 43 Eliz. E contra the Iustices may place out poor Children where they see it convenient and so the constant practice hath been so is the Resolution of the Iudges in Dalton which was brought in by the Lord Chief Iustice Hyde but denied so to be by Iustice Twisden for no other reason but because Iustice Jones did not concur with them In Price 's Case this matter was stirred again but there hath been nothing done pursuant to that Opinion Since then the Iustices have a power to place out poor Children 'T is no Objection to say that there may be an inconvenience in the exercise of that power by placing out Children to improper persons for if such things are done the Party hath a proper remedy by way of Appeal to the Sessions Three Iustices were of Opinion that the Iustices of Peace had such a Power and therefore they were for confirming the Order and Iustice Dolbin said it was so resolved in the Case of the King and Gilliflower in the Reign of King James the first Foster being then Chief Iustice tho' the Iudges in Price 's Case were of another Opinion The Chief Iustice was now likewise of a different Opinion for the Statute means something when it says that a Stock shall be raised by the Taxation of every Inhabitant c. for putting out of Children Apprentice There are no compulsory words in the Statute for that purpose nor any which oblige a Master to take an Apprentice and if not the Iustices have not power to compel a Man to take a poor Boy for possibly such may be a Thief or Spy in the Family But this Order was quashed for an apparent fault which was that the Statute has entrusted the Churchwardens and Overseers of the Poor by and with the Approbation of two Iustices to bind Apprentices c. And the Churchwardens are not mentioned in this Order DE Term. Sancti Hill Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Thirsby versus Helbot DEBT upon a Bond for performance of an Award Award void where a person who is a Stranger to the Submission is ordered to be a Surety Vpon Nullum Arbitrium pleaded the Plaintiff replyed and shewed an Award made which amongst other things was that the Defendant should be bound with Sureties such as the Plaintiff should approve in the Sum of 150 l. to be paid to him at such a time and that they should seal mutual Releases and assigned a Breach in not giving of this Bond. There was a Verdict for the Plaintiff and now Serjeant Pemberton moved in arrest of Iudgment that this was a void Award because 't is that the Defendant shall be bound with Sureties c. and then Releases to be given now the Sureties are Strangers to the Submission and therefore the Defendant is not bound to procure them He relied upon the Case of Barns and Fairchild 1 Roll. Abr. 259. which was an Award that all Controversies c. should cease and that one of the Parties should pay to the other 8 l. and that thereupon he should procure his Wife and Son to make such an Assurance c. this was held to be void because it was to bind such persons who were not Parties to the Submission Tremain Serjeant contra E contra That Cause doth not come up to this at the Barr because by this Award the Party was to sign a general Release whether the Defendant paid the Mony or not But the Court was of Opinion that the Award was void because it appointed the Party to enter into a Bond with such Sureties as the Plaintiff shall like and Releases then to be mutually given Now if the Plaintiff doth not like the Security given then he is not to seal a Release and so 't is but an Award of one side Savier versus Lenthal ASsisa ven ' recogn ' si Willielmus Lenthal Armiger Henricus Glover Armiger Johannes Philpot Generosus Thomas Cook Generosus Samuel Ellis Generosus injuste c. Assize disseisiverunt Thomam Savier de libero tenemento suo in Westm infra triginta annos c. Et unde idem Thomas Savier per Jacobum Holton Attornatum suum queritur quod disseisiverunt eum de officio Marr ' Maresc ' Domini Regis Dominae Reginae coram ipso Rege Regina cum pertin ' c. The Cryer made Proclamation and then called the Recognitors between Thomas Savier Demandant and William Lenthal Tenant who were all at the Bar and severally answered as they were called Then Mr. Goodwin of Greys-Inn arraigned the Assize in French but the Count being not in Parchment upon Record the Recognitors were for this time discharged and ordered to appear again the next day But the Council for the Tenant relied on the authority in Calvert's Case that the Title ought to be set forth in the Count Plo. Com. 403. 4 E. 4.6 which was not done now and therefore the Demandant ought to be nonsuited But the Writ being returnable that day was ex gratia Curiae adjourned to the Morrow afterward and if the Demandant did not then make a Title he must be nonsuited The next day the Iury appeared Then the Cryer called Thomas Savier the Demandant and then the Tenants and afterwards the Recognitors and the Assize being arraigned again the Demandant set forth his Title Then Sir Francis Winnington of Council for Mr. Lenthal one of the Tenants appeared after this manner Vouz avez icy le dit Williem Lenthal jeo prye oyer del Brief del Count. Then the other Tenants were called again three times and they not appearing Process was prayed against them Doe versus Dawson BAil was put in to an Action brought by the Plaintiff Bail liable if the Principal had two Terms after an Injunction dissolved and before he declared the Defendant obtained an Injunction to stay Proceedings at Law which was not dissolved for several Terms afterwards Then the Injunction was dissolved and the Plaintiff delivered his Declaration and had Iudgment by default
the Land 211 5. Not granted for Mariners Wages 244 6. Libel for a Tax upon the Parishioners for not repairing of their Church who suggest that they had a Chappel of Ease in the same Parish the Prohibition was denied for of common right they ought to repair the Mother Church 264 7. Proof of Matter of Fact by one Witness denied to be allowed in the Spiritual Court is a good cause for a Prohibition 284 8. Where the Release of a Legacy offered to be proved by one Witness was denied in the Spiritual Court ibid. 9. Proof of Payment or Subtraction of Tythes denied and a Prohibition granted ibid. 10. Whether a Prohibition ought to be allowed after Sentence an Appeal being then the more proper remedy 284 Property See Interest Q. Quorum MUst be one Justice of the Peace of the Quorum otherwise cannot be a Sessions 14 152 Quantum meruit Will lie for Rent reserved upon a real Contract where the Sum is not certain but if a Sum in gross is reserved then Debt must be brought 73 R. Record ERror shall not be assigned against the Essence of a Record 141 Recovery Common Reversed without a Scire Facias to the Tertenants but it seems not to be good 119 2. For there must be a Scire Facias against the Heir and Tertenants when a Writ of Error is brought to reverse it 274 Relation Where an Estate shall pass by Relation where not 299 300 Release Of a Legacy by one Executor and also of all Actions Suits and Demands whatsoever those general words which follow are tied up to the Legacy and release nothing else 277 2. Of a Demand will not discharge a growing Rent 278 3. A Receipt was given for 10 l. in which there was a Release of all Actions Debts Duties and Demands nothing is released but the 10 l. 277 4. Judgment against four Defendants who all joyned in a Writ of Error and the Plaintiff pleaded a Release of Errors by one it shall not discharge the rest of a personal thing but if there had been four Plaintiffs to recover the Release or death of one is a Barr to all 109 135 249 5. A Release of all Actions will discharge an Award of Execution upon a Scieri Facias 185 187 6. Of all Actions and Demands doth not discharge a Legacy it must be by particular words 279 7. One of the Defendants who made Conusance released the Plaintiff after the taking of the Cattle this was held void upon a Demurrer for he had no Demand or Suit against the Plaintiff having distrained in the right of another ibid. Remainder See Entry 3. Fines levied 4. Must take place eo instanti the particular Estate is determined or else it can never arise 309 2. By the Conveyance of the Reversion in Fee to him who had the Estate for Life before the Birth of a Son the particular Estate is merged and all contingent Remainders are thereby destroyed 311 Replevin Where 't is brought by Writ the Sheriff cannot make deliverance without the taking of Pledges de prosequendo retorn ' Habend ' 35 Replication Where the Plaintiff confesseth and avoideth he ought not to traverse for that would make his Replication double 318 Request When a thing is to be done upon Request the time when the person requires it to be done is the time of the performance 295 Reservation Of a Rent upon a Lease for three years payable at Michaelmas and Lady-Day Debt was brought for 2 years without shewing at which of the Feasts it was due 't is good after Verdict but ill upon a Demurrer 70 Resignation See Abeiance To the Ordinary and Patron presented 'ts void if the Ordinary did not accept the Resignation 297 Reversion See Bargain and Sale Surrender 2. Tenant in Tail who had likewise the Reversion in Fee if he acknowledge a Judgment the Reversion may be extended 256 2. But a Reversion in Fee expectant upon an Estate Tail is not Assets until it comes into possession 257 3. By what words a Reversion in Fee passeth in a Will 228 Revocation A Will shall not be revoked by doubtful words 206 2. It might be revoked by Word without Writing before the Statute of Frauds 207 3. Before that Statute a Will might be revoked by a subsequent Will which was void in it self yet good to revoke the former 207 218 4. A subsequent Will which doth not appear shall not be any Revocation of a written Will which doth appear 204 205 206 5. Whether a subsequent Will which is void in it self may revoke another since the Statute of Frauds 218 6. Such a Will must be good in all circumstances to revoke a former 260 261 Riot See Information Robbery The Hundred was sued and it did not appear that the Parish where the Fact was laid to be done was in the Hundred or that it was done upon the High way or in the day time this was helped after Verdict 258 2. A Servant delivered Mony to a Quaker to carry home for his Master they were both robbed viz. the Servant of 26 s. and the Quaker of 106 l. the Servant made Oath of the Robbery and the Quaker refused the Master brought the Action it doth not lie for him 287 288 S. Scire Facias See Bail 3 4. Baron and Feme 1 4 5. Iudgment 2. Pledges 1. Recovery MUst be to the Tertenants before the Common Recovery shall be reversed by Writ of Error 119 2. Scieri Facias quare Executionem non habet recites the first Judgment but prays no new thing only to have Execution upon that Judgment 187 3. 'T is not an original but a judicial Writ and depends upon the first Judgment 187 4. 'T is suspended by Writ of Error and if the original Judgment is reversed that is so also ibid. 5. Debt will lie upon a Judgment had on a Scire Facias 188 189 6. A Judgment upon a Scire Facias is a distinct Action from the original cause 189 7. Judgment in Dower and a Writ of Enquiry of Damages the Woman marries and dies before the Writ of Enquiry executed the Husband administred and brought a Scire Facias upon the Judgment whether it lieth or not 281 Serjeants at Law See Iudges Surplusage See Inquisition Steward See Court Supersedeas See Parliament Surrender See Assent 1 2. Where it may be pleaded without an acceptance 297 2. No man can take it but he who hath the immediate Reversion 299 3. If pleaded without an Acceptance 't is aided after Verdict which shews 'tis no Substance 301 4. By one Non compos mentis 't is void ab initio 303 T. Tail DEvise to D. for Life the Remainder to her first Son and the Heirs of the Body of such first Son endorsed thus viz. Memorandum that D. shall not alien from the Heirs Males of her Body she had a Son who had Issue a Daughter 't is not an Estate Tail Male for the Memorandum shall not alter the Limitation in the Will
mistaken in that Action and being in the wrong was barred but that will be no Bar where a right Action is brought as if I deliver a Bond to another for advice who refusing to redeliver it I bring an Action of Trespass and am barred either by Verdict or Demurrer yet I may bring Detinue Trespass and Detinue are not the same Actions Pro Def. and therefore a Iudgment in one shall be no bar to the other but where two Actions are brought for one thing to be recovered in such case a Recovery in one shall be a bar to the other There is no substantial difference between Trespass and Trover for the disposing of the Goods in the one case is the same with the Conversion in the other the taking vi armis and likewise the Conversion are both tortious and therefore either Action may be well brought But for the Reasons given by the Plaintiffs Council he had Iudgment by the Opinion of the Chief Iustice and the other two Iudges Jones and Raymond of which Iustice Dolben did very much doubt Dominus Rex versus Sir Robert Atkins Knight of the Bath al' AN Indictment was found at the Quarter Sessions held for the County of the City of Bristol 4 Octob. 33 Car. 2. The County of the City of Bristolâ— against Sir Robert Atkins Knight of the Bath and Recorder and Senior Alderman of the said City Sir John Knight Alderman John Lawford Alderman and Joseph Creswick Alderman setting forth 1. That King Henry the VII th by his Charter dated 17 Decemb 15 Regni sui granted to the Mayor and Commonalty of the Town of Bristol the now City of Bristol being then a Town and to their Successors That if any shall procure abett or maintain any Debate and Discord upon the Election of the Mayor or other Minister he shall be punished instantly by the Mayor and two Aldermen to be chosen and named by the Mayor after the quantity and quality of his offence according to the Laws and Custom of the Realm 2. That according to the Priviledges granted by Queen Elizabeth to the Mayor and Commonalty of the said City and their Successors by Charter dated 28 June 23d of her Reign After which time as the Indictment sets forth the said Town was made a City there have been or ought to have been from the time of the making the said Charter twelve Aldermen whereof the Recorder was to be and now is one 3. That according to the Priviledges so as aforesaid granted by all the time aforesaid which is from the time of the Charter after the death of every Alderman the Mayor and the rest of the surviving Aldermen eorum major pars ad summonitionem of the said Mayor being called together have accustomed to choose another person of the circumspect Citizens to be an Alderman in the place of him so deceased and the Mayor and Aldermen by the same Privileges so granted have been and ought to be Iustices of the Peace for the said City 4. That continually after the time of the said Charter of Queen Elizabeth the Recorder and the rest of the Aldermen were and ought to be of the Privy Council de privato Concilio of the Mayor in particular Cases concerning the Government of the City whensoever the Mayor shall call them together And such Privy Council by all the time aforesaid which still is from the said Charter of Queen Elizabeth have not accustomed nor ought not to be called together to transact any Business belonging to that Council unless by the Summons and in the presence of the Mayor That after the death of one Sir John Lloyd being at his death an Alderman of the said City the said Sir Robert Atkins then being Recorder Sir John Knight John Lawford Esquire and Joseph Creswick being all Aldermen then of the City and free Burgesses of the City to make debate and discord upon the Election of an Alderman in the place of the Alderman so dead 8 March 33 Car. 2. in the Parish and Ward of St. Andrew within the said City did conspire to hold a Privy Council of the Aldermen of the said City and therein to choose an Alderman sine summonitione in absentia contra voluntatem Richardi Hart Militis then being Mayor of the City And in pursuance of their said wicked Conspiracy the day and year aforesaid entred by force and arms into the Tolzey and in the Chamber of the Council of the Mayor and Commonalty of the said City commonly called The Council House and there riotously c. did assemble and the same day and year they the said four Aldermen una cum aliis Aldermannis which must be two more Aldermen at the least which makes six and there were but five more in all then in being taking the Mayor in the said rest of the Aldermen not knowing their purposes held a Privy Council of Aldermen and then and there as much as in them lay chose Thomas Day for an Alderman in the place of Sir John Lloyd sine aliqua summonitione per praedictum Richardum Hart then Mayor to meet and in his absence and against his Will And they farther caused to be entred in the Common Council-Book the said Election as an Order of the Privy Council in which Book the Acts of the Mayor and Aldermen in their Privy Council are commonly written from whence great Discord hath risen c. Which Indictment was tryed at the Assises at Bristol by Nisi Prius and the Defendants found guilty and thereupon Sir Robert Atkins one of the Defendants having then lately before this Case been one of the Judges of the Common Pleas but then discharged of his Place after eight years sitting there secure came into the Court of Kings Bench and in Arrest of Iudgment argued his own Case not as Council nor at the Bar but in the Court in his Cloak having a Chair set for him by the Order of the Lord Chief Iustice and said as followeth 1. The Indictment in the first place mentions the Letters Patents of King H. 7. made to the Mayor and Commonalty of Bristol that the Mayor with two Aldermen such as he should choose should by their discretions according to Law punish such as should make debate and discord at the Elections of Officers They have not pursued this course against us but gone the ordinary way of Indictment and therefore I shall not need to speak to it 2. The Indictment in the next place proceeds to mention Letters Patents of Queen Elizabeth granted to the Mayor and Commonalty in the 23d year of her Reign which provides that there shall be twelve Aldermen and how upon the death or removal of an Alderman a new one should be chosen that is by the Mayor and the surviving Aldermen and the greater number of them being call'd together as the Indictment suggests by the Summons of the Mayor The whole Indictment and the Offence we are charged with being
grounded upon these Letters Patents I shall apply my self to speak to it for our Crime is in the undue electing of an Alderman namely not being summoned together for that purpose by the Mayor and doing it in his absence I must desire the Court to observe in what manner the mention of these Letters Patents is introduced The Matter and Question before us is concerning the Election of an Alderman for the City of Bristol which concerns the very being and succession and continuance of the Corporation Nothing can more nearly concern it The defects I observe in the frame of this Indictment are these 1. It does not so much as say or alledge that Bristol is antiqua Villa or antiqua Civitas or that there was or yet is any Corporation at all there nor what it does consist of if there be any nor by what name they are called whether there ought to be a Mayor or not whether their Corporation be by Charter or Prescription And this Court cannot judicially take notice that there is any Corporation there or what it is unless it had been shewn Now if there be no Corporation and no Mayor of right then our meeting to choose an Alderman without his Summons and in his absence is no undue nor irregular Proceeding It cannot appear to the Court whether the Mayors Summons and presence at the Election be necessary or not Now in all legal Proceedings that any way concern a Corporation it is constantly averr'd and alledged that there is a Corporation and what it is and how erected and the least that can be in any Case is to say that it is antiqua Villa or antiqua Civitas where the Corporation extends to a Town or City which make any Prescription or set forth any Custom Thus we find it in the Case of the City of York Dyer 279. plac ' 10. in the Case of a Custom of Foreign bought and Foreign sold They Prescribe in being a Corporation So in Latches Rep. 229. Harris's Case In James Bagg's Case 11 Co. f. 94. A Case of a Writ of Restitution to Restore a Capital Burgess to his Place and Office of a Capital Burgess in Plimouth the Writ was directed to the Mayor and Commonalty of Plimouth the very Words of the Writ suppose a Corporation and shew what their Name is The Return thereupon by the Mayor and Commonalty is That Queen Elizabeth granted to the Mayor and Commonalty that the Mayor and Recorder should be Iustices of the Peace and that James Baggs was a Capital Burgess and did misdemean himself towards the Mayor and thereupon he was disfranchised In the printed Margent of that Case which I suppose is my Lord Cokes own Opinion it is said That in their Return they first ought to prescribe That there hath been a Corporation of a Mayor and Commonalty time out of the Memory of Man and not to begin with the mention of a Grant made to a Coporation as the Indictment does in our Case and not shew the Original and Erection of it either by Prescription or Charter And Mr. Trotman a Learned Man in his abridging of James Bagg's Case bids his Reader observe this Marginal Note Yet in that Case the Return was but in answer to the Writ of Restitution which Writ it self admitted there was a Corporation and directs the Writ to them by Name yet by the Opinion there it was a defect in the Return not to shew that they were by Prescription And if it be necessary upon a Return of a Writ of Restitution to set forth how they came to be incorporated to which Return there can be no Traverse taken nor no pleading to it as has been held by some how much more in such a Case as ours of an Indictment which must be traversed and pleaded to and therefore ought to be more exact That was in a Case of removing of a chief Member a Capital Burgess of a Corporation ours is in a Case of the choosing in of a chief Member an Alderman into a Corporation so that ours is much resembling that Case in that respect 2. Another thing wherein the Indictment is faulty is this viz. In the manner of introducing the mention of these Letters Patents of Queen Elizabeth upon which the Indictment is grounded and upon the Construction of which the Case depends The Indictment does not say positively and directly that Queen Elizabeth made or granted any Letters Patents to the Mayor and Commonalty of Bristol That there should be twelve Aldermen and for the appointing how they should be chosen upon which our Case arises nor does it so much as say continetur which would not have been enough neither but it introduces the mention of those Letters Patents no otherwise than by these Words viz. Secundum Privilegia concessa per Literas Patentes c. There were or ought to be twelve Aldermen Et secundum eadem Privilegia sic ut praefertur concessa per totum tempus praedictum after the death of an Alderman the Mayor and the surviving Aldermen eorum major pars ad summonitionem ejusdem Majoris convocati eligerunt eligere consueverunt c. Now this is no positive and direct shewing that there ought to be any Aldermen nor how they should be chosen but it is no more than the Opinion and Conceit of the Iury that found the Indictment upon their perusal of the Letters Patents which were produced in Evidence to them the Iury take it by way of Collection out of a Record of which they are no proper Iudges And this being in an Indictment which is the Kings Declaration and ought to be very exact and certain and which is in a criminal proceeding to which the Parties must plead and if convict are liable to Fine and Imprisonment the Law is more curious in this than where Parties do agree civiliter That all Criminal Proceedings must be very exact and certain is proved by this viz. None of the Statutes of Jeofails would ever help them but by express Words except and exclude them from the benefit of them It is said in Long 's Case 5 Co. 120 121. That If in Declarations between Party and Party for Lands or Goods there must be great certainty expres'd a fortiore says that Case must it be so in Indictments which are the Kings Counts or Declarations to which the Party shall answer they ought to be full and not taken by Intendment or to be by way of Argument so it is held in Leeches Case Cro. Jac. 167. and in Sir William Fitz-Williams's Case Cro. Jac. 19 20. Object If it be objected That the Indictment is but the finding of a Iury who are the Lay-gentz as we call them and they know not the forms of Law Answ The Fact indeed is found by the Iury but the constant course is to have the Iury consent to mend the Form and the Kings Council are addised-with in the drawing of it and after 't is found and sometimes the Iudges
peruse it The Indictment proceeds on and says That continually after that time which must refer to the date of the Letters Patents of Queen Elizabeth the Recorder and the rest of the Aldermen were and ought to be de privato Concilio I have been Recorder there above these one and twenty years and never knew my self to be a Privy Councellor till now But the Indictment unhappily says de privato Concilio Majoris there the Word Majoris as big as it is is but Terminus diminuens it makes us but Privy Councellors to the Mayor But this is a mistake too for the Recorder and Aldermen are not a Privy Council to the Mayor but the Mayor and they are a Council to the City The like to this too appears in the printed Margent of James Baggs's Case The Clerk who drew this Indictment or the Council who ever it was thought they could not exalt the Mayor of Bristol high enough unless they made him a Prince and furnished him with a Privy Council and to fill the Kingdom again with a great many Reguli or petty Kings as it was amongst the Britons before the coming of the Romans It is part of the Misdemeanour charged upon James Baggs that he did Ironically say to the Mayor of Plimouth You are some Prince are you not Now to say it to a Mayor in good earnest as this Indictment does I take to be much worse 3. The Indictment having made the Recorder and Aldermen to be of Mr. Mayors Privy Council it goes on and lays it down for Law or Vsage That by all the time aforesaid which is still from the date of the Patent of Queen Elizabeth such Privy Council have not accustomed nor ought not to be called together to transact any Business that belongs to the Council we must suppose the choosing an Alderman is such Business unless by the Summons and in the presence of the Mayor But upon what ground does the Indictment lay this down for a Rule Is it because the Letters Patents so direct If so I agree it is a clear Case for the Letters Patents that create a Corporation may mould and frame and form its own Creature as it pleases But then the Indictment ought to have alledg'd it positively that the Letters Patents do so provide which it does not but the Indictment speaks it by a kind of implication and uncertainty but not positively nor directly It says that continually after the time of the Charter they have not accustomed to meet without the Mayor's Summons and in his presence It may be they relye upon the Usage and Custom for it This can be no legal Custom nor Prescription for we know the Head and Original of it which is but from the 23th year of Queen Elizabeth so that 't is not like the River Nile If they say the Usage shall interpret the Charter I answer Vsage may expound very ancient Charters where the words are obsolete and obscure and may bear several senses but this Charter has not so much as ambiguous Words nor any thing that can hear such a Construction But at last we shall be told That the Common Law does operate with the Charter and requires the Mayor's Summons and Presence to the choice of an Alderman and also in all such like Cases This is now the only Point to be spoken to and I shall apply my self to it I think it will be granted That the Mayor has no Negative Voice in the Election of an Alderman as great a Prince and as absolute as the Indictment will make him he has but one single Voice and if the majority of the Votes be against his Vote the majority must carry it against the Mayor The Words of the Charter do no more require the Mayor's Summons and Presence than it does that of the senior Alderman The Mayor is named in the Grant out of necessity it being part of the name of the Corporation to whom the Grant must be made He is named out of Conformity too he many times being none of the Aldermen and therefore could not be included in the naming of Aldermen but must therefore be named by himself And besides I agree it is due to him out of Reverence They usually say He represents the King but that is but a Notion and a Complement to him he has no more power than an Alderman who is a Iustice and a Iudge of the Goal-Delivery as well as the Mayor If the Charter had intended That there can be no chusing of an Alderman but by the Summons of the Mayor and in his presence it would surely have made him of the Quorum in that Clause that provides for the Election of an Alderman but that it does not The only Quorum is not of the sort of Persons but of the majority of the Electors Major pars eorum having mentioned before the Mayor and Aldermen Nay there is something to be observ'd out of the Charter it self which proves that the Queen intended no such thing and that is there are other Clauses in the same Charter to other purposes that do expressly appoint Quorums and the Mayor and Recorder are made to be of the Quorum which proves That where it is not so expressed the Mayor himself is not of the Quorum and this indeed led us to that Opinion and Construction that we proceeded to make our Election upon it A Charter in one Clause of it is best Expounded from other Clauses in the same Charter In the Clause that gives them power of Gaol-Delivery the Mayor and Recorder are both of the Quorum So in the Swearing of a New Alderman it is expresly provided that it shall be done before the Mayor and Recorder both In the Clause that gives them power to Try Felons and to keep a Sessions of the Peace it appears by the express Words That it may be done in the Mayor's absence and without him for there the Quorum for that purpose is The Mayor and Recorder or one of them So that a Sessions may be held without the Mayor yet I would never do it if I could prevail with the Mayor to joyn with us as we earnestly endeavour'd time after time to do in the Case before you for the chusing of an Alderman but he utterly refus'd us at four several times at some good distance of time Object If it be said That the power to elect an Alderman is given to the Mayor and Aldermen or the major part of them and so the Mayor by himself is particularly and expresly named by the Name of his Office and therefore is of the Quorum without any other express making of a Quorum Resp This I have already spoken to viz. upon what account he is so named and it could not be otherwise But that this does not so make him of the Quorum in it is manifest by this that those other Clauses where there are express Quorums of persons tho' the Mayor be there likewise mention'd in the beginning
of the Clauses yet he is repeated over again when they come to make him of the Quorum This shews the naming him before by his Office did not do it if it did the naming of him again in the Quorum will be a Tautology and a vain Repetition But perhaps it will be said It belongs to the Office of a Mayor at the Common Law to summon the Corporation and amongst the rest the Aldermen when he sees there is occasion and he must as Mayor be present among them or nothing can be done Let us examine the truth of this Those that advis'd the Indictment were not of this Opinion and I heard it was said at the Tryal that it was drawn with good advice for the Indictment it self challenges this Right to the Mayor upon another ground It would intimate as if the Words of the Charter gave it him as I have already observ'd which says that secundum privilegia concessa est therefore they thought it was not his due at the Common Law 1. For his Name of Mayor that imports no such thing He is Major that is the Greater the more Eminent this notes his pre-eminence in Respect and Reverence but gives him little more of power than what the rest of the Aldermen have The like Office among the old Romans was the Praetor which as Minsheu says comes from prae-itor a prae-eundo he does praeire or praecedere or praesidere He goes first and sits uppermost but it gives him no more power But the Mayor in our Case would neither lead nor drive But if there can be no Election of an Alderman without his Summons and Presence and if he be wilful as the Mayor in our Case was he is not only Major Maximus but Dominus fac totum as the vulgar Saying is or Dominus faciens totum The twelve Aldermen without him will be but so many Cyphers the Mayor will be the Great Figure and the Aldermen will signifie only in conjunction with him We may then say of every Alderman as the one Grecian Captain said of the other of Ulysses Nihil est Diomede remoto Mr. Mayor will be that which the Logicians call Causa sine qua non quae per se nihil facit sed tantum esse aliquid sine qua Reliquae causae non faciunt So much for his Name and Title Then for the Office it self That does not require his Summons nor Presence in all the meetings of the Aldermen for the Business of the Corporation it is not incident nor essential to his Office of Mayor by the Common Law The Common Law looks upon him as the Head or Chief of a Corporation but he is no Officer of the Common Law to whom the Common-Law limits or prescribes any Duty as it does to a Iudge a Sheriff a Conservator of the Peace a Coroner or a Constable These are all Officers at the Common Law and the Common-Law instructs them in their Power and Duty But the Mayor being the Head of a Corporation and a Corporation having its essence by Charter or Prescription which presupposes a Charter he has no power but what the Charter expresly gives him The Common Law takes no farther notice of him Let us examine the Ground and Nature of a Corporation and there we shall find the true Nature and Office of a Mayor or any other Head for 't is all one The true Ground and Original of Corporations in Cities and great Towns is this Those are generally the Staples of Trade and Merchandize and Trade as is said in the Case of the City of London 8 Co. 125. a. cannot be maintain'd without Order and Government And therefore the King for the Publick Good may exect Gildam Mercatoriam a Fraternity or Society or Incorporation of Merchants to the end that good Order and Rule shall be by them observ'd for the Encrease and Advancement of Trade and Merchandizing Suppose the King should by his Charter Encorporate a Town by the Name of Mayor and twelve Aldermen and should not set out their Duty and Office What power would the Law give them in that Case They would have no power as Conservators of the Peace or as Iustices of the Peace They could neither Fine or Imprison If they should take upon them to meddle in these matters without express power given them by the words of the Charter It would be Sutor ultra Crepidam Therefore Charters usually add these Powers by express Clauses to those purposes and make the Mayor a Iustice of Peace or a Iudge of Goal-Delivery but then he acts in those Powers not Quatenus Major nor eo nomine but because of the express power given him as it might have done to any other Man The uniting the Powers in one person does not confound the several and different Capacities of that person That the Charter gives the only Rule in these Cases and that a Corporation is a meer Creature of the Charters that does constitute it and gives it it's Being and therefore the Bounds and Limits of it's working appears by this Suppose that neither this nor any other Charter had given to this Corporation of Bristol any power to choose a new Mayor or new Aldermen upon the Death of the old they could then have made no new Election but when the Mayor and Aldermen had died the Corporation had been dissolv'd The Charter that gives them their Being must provide for their Continuance and Succession Thus it is held in the Case of the Corporation of Dungannon in Ireland in those Reports that go by the Name of the Lord Coke 's 12 Rep. 120 121. So that the Charter must provide for an Election in order to a Succession or otherwise the Law will not help them And though the Mayor is the more Eminent and Excellent and ought to have greater respect and reverence yet the subject matter that we are upon is to be consider'd in the nature of it viz. The Election of an Alderman It is not a matter of Interest or of Privilege or of Power for then the Mayor ought to be preferr'd in it But it is matter of Duty and Labour and Trust and Trouble It is Officium not Dominium to choose an Alderman It is rather a Burthen than a Power or Authority as is said in the Mayor of Oxford 's Case in Latches Rep. 231. But then it will be ask't that if it depend upon the Charter and not upon the Common Law Who shall appoint the time of Election if the Charter be silent in it as here it seems to be This will be a great defect and so there will be no meeting nor no Election and so the Corporation will expire To this I Answer That the Charter does provide for it for those whose Duty it is to make an Election it is their Duty to agree to meet for that purpose and to appoint the time or else they do not discharge their Duty They break their Oath and are punishable for their Omission and
of the Alderman to supply whose place there needed the Election He was not in the Town that was to chuse whereof he was Mayor when the Election was made The Aldermen were under an apprehension that they should be guilty of a great omission and neglect of their Duty and perhaps had some thought of their being under an Oath too and that they might be liable to punishment if they did not chuse within the eight days prescrib'd by their Charter nay 't is likely they thought they could make no choice at all if they did it not within the eight days Tho' all this was but their mistake of the Law yet it was very pardonable in them The Iudges in their Resolution upon that Case rectifie that Mistake and a new Election is thereupon order'd by this Court The Mayor there was not wilfully absent for he was at London when the Alderman died he was at a very great distance from his Town too viz. Launceston about 200 miles as I take it so that he could hardly hear of the death of the Alderman in the eight days time and go down thither before the end of the eight days there was no great necessity of an Election so soon And the Aldermen had done what they did out of a zeal for the Publick though it were a zeal without knowledge But I do not find that the void Election and the Aldermens meeting about it was held a Ryot or an unlawful Assembly No they were not so much as blam'd for what they did nay sure they were rather to be commended for their just intentions But our Case was quite another thing And all our Circumstances and the very plain words of our Charter that appoints the manner of our Election we had to our great charge and upon good advice drawn up in a special Plea for the Question truly arises upon the words of the Charter and the construction of them How it happen'd I cannot tell but a Iudge ruled us to plead not Guilty our chargeable special Plea came in a little too late It was a matter of Record and of Law and fitter to be determin'd by the Iudges than by a Iury. But these in truth were our Circumstances as I shall briefly relate them and I am ready to make out the truth of them An Alderman of Bristol tho' chosen yet cannot officiate till he be sworn he cannot be sworn by the express words of the Charter but before the Mayor and Recorder both I being the Recorder of Bristol happenn'd to be there some time before the day of chusing Members to the Oxford Parliament not long after Sir John Lloid's death I was indeed invited thither Sir Richard Hart the then Mayor and all of us I think not one Alderman absent were then met in the Council Chamber the usual place for that purpose we had nothing else to do It was mov'd that we might then make choice of a new Alderman while not only Mr. Mayor was present but while the Recorder was there too So that the Party chosen might instantly have been sworn and enter'd upon his charge for they have their distinct Wards And the Recorder many times comes not thither in a year or two for I live forty Miles from them and I seldom tarry above two nights at a Gaol-Delivery but then as it fell out I was there upon another occasion None oppos'd it but Mr. Mayor and he did it upon a Ceremony and Complement as he pretended because Sir John Lloid as he said was not yet buried Out of respect to Mr. Mayor we did forbear Some good time after and after Sir John Lloid had been buried I happen'd unexpectedly to be there again and Mr. Mayor was earnestly press'd again then to go to an Election upon the former reason that the new Alderman might presently be sworn Mr. Mayor still refus'd I do not remember but all the rest were very willing to have gone to an Election We did the second time forbear tho' I think we were all there I am sure a great number I tarried then four or five days it was at the Election to Parliament the Poll lasted six days but I left them at the Poll I was not fond of being chosen The Evening as I take it before I went away we were again upon the place and the Mayor with us and he was again press'd to it but wilfully went away and we still forbore But that night some of us sign'd a Writing desiring Mr. Mayor to joyn with us and we declar'd in it if he did not joyn we would proceed without him being the major pars This shews we had no design to chuse in his absence nay it plainly appear'd that the design was on the Mayor's part for he knew I could not stay and he was desirous to chuse in the absence of some of us that he might carry the Election against the person next in course to be chosen and every way qualified viz. Alderman Day I consulted the Charter and found it as I have now observ'd upon it and was clearly of Opinion for the Reasons I have offer'd that in such Circumstances the major part might chuse We gave notice to the Mayor and all the Aldermen then in Town and tho' the Government is most miserably divided yet in this Business there was nothing of Faction and the different Parties were not engag'd only the Mayor had his Design For we were six Aldermen at the Choice Sir Robert Cann an intimate Friend of the Mayor's being lame of the Gout sent us an Excuse but would approve of our Choice Another of our number one of our six is a zealous Man of Mr. Mayor's way yet not taking that to be now concern'd joyned with us and voted the same way We were six and this appears by the Indictment and we were unanimous in the person we chose No other person was so much as nam'd nor I believe thought on by any Body unless by Mr. Mayor there were but four Aldermen more in being for Mr. Mayor was none And the person chosen was not only next in course but every way qualifi'd has a great Estate worth three or four of some of the Aldermen no Tang of a Fanatick a constant Churchman he had but one great Fault he gave his Vote at the Election to Parliament for my self and Sir John Knight against Mr. Mayor and Sir Tho. Earl The person is not sworn to this day nor does desire the Office but rather declines it being fit for it He should have been Mayor this Year in course but is put by it and he is contented There has been another since chosen in his place by the Votes of five only Sir Richard Hart the Mayor being one I am sure they are not major pars And for this choice by six who are Iustices of the Peace as well as Mr. Mayor and the other four we who are four of six are all Indicted for a Ryot upon the account of this
Election And this Indictment is found before Mr. Mayor our Fellow Iustice and four more at the most so that five who are the lesser number exercise their Authority over those that were six in number when they acted which fix were as much Iustices of the Peace as they five It is observable that tho' we were six of us and all unanimous in our Election yet they have politickly Indicted but four of us and left two out because it would have been too gross and palpable if six Iustices of Peace should have been indicted before a lesser number of their Brother Iustices But had they Indicted all six it would then plainly have appear'd too that the choice had been made by the greater part which they wisely thought to conceal but yet it does appear in their very Indictment though darkly couch'd in it for it says that we four being Recorder and Aldermen Cum aliis Aldermannis did chuse the Alderman that word Aldermannis being in the Plural Number must be two more at least If it shall be adjudg'd that we cannot chuse an Alderman but by the Mayor's Summons and in his presence these Mischiefs will follow That he will wholly govern and dispose of Elections at his single will and pleasure for he that can order the time as he pleases and forbear to summon the Electors till he sees his own opportunity and advantage tho' often desired to go on upon it and refuses to do it time after time till such as will not comply with him be out of the way as the Recorder is very seldom there and tarries but a night or two and then is in a hurry of Business and most of the Aldermen are often at their Country Houses the Mayor will cast the choice upon whom he thinks fit as in this case he has done This Mayor and four Aldermen have rejected the choice made by six and of the person that was next in course and every way qualified And yet the Charter thought not fit to trust any fewer than the Mayor and the whole Bench of Aldermen in a matter of this importance to the City If it be said That in case the Mayor unreasonably defer it we may complain to this Court viz. the King's-Bench and have a Mandamus or apply our selves to the King and Councel to compel him to proceed to an Election Who will be at so great a charge and trouble And that course is not so speedy it may chance to be in a Vacation but let it be as speedy as can be the Mayor in the mean time has obtain'd his Ends and gain'd his Opportunity and done his Work as the Mayor in our Case did where the Mayor and four more but five in all being minor pars have controll'd the choice made by the major pars If it shall be said That if the major pars be present and join in Voting to an Election tho' they divide in the person yet the major pars so met shall make a good Election and in Law it shall be the choice of all present That I must deny for the words of the Charter are That the major pars superviventium shall make the choice that is as I understand it agree in their Votes or Voices in the Party chosen and so it was in the choice that we six made This agrees with the Rules of the Common Law in Elections and Leases to be made by Corporations Dyer 247. plac 74. and Sir John Davies Rep. 47. And this agrees with the Statute of 33 H. 8. cap. 27. But if this should not be Law as I take it is yet the subsequent Election of an Alderman made by the Mayor and four Aldermen more cannot be good for though the Mayor and seven Aldermen were present at it yet three of them did not join in going then to an Election for they had join'd with us before in our choice and therefore oppos'd any after Election to be made But they have gotten a conceit among them at Bristol that what is done in a Man's presence where his presence is requir'd by their Charter tho he dissent and oppose what is done is yet legally done As in the Case of the Swearing of an Alderman by the express words of the Charter it cannot be done but before the Mayor and Recorder both This Sir Richard Hart was duly chosen an Alderman long ago but not sworn until the last Gaol-Delivery when we were going to Try the Felons I being present they thought that sufficient to satisfie the Charter and in a Tumultuous manner with an hideous noise they cryed out to swear him and this was not the usual place neither for it I oppos'd the Swearing of him and I will justifie it that he was utterly unfit to be Sworn by something that happenn'd since his being Elected an Alderman they would not hear me but resolv'd to proceed to swear him because I was present with the Mayor Thereupon I withdrew and in my absence they went on to swear him and he now acts as an Alderman and as a Iustice of Peace under this colour If no Election of an Alderman can be made but in the Mayor's presence it will be in the power of one single person if he be obstinate and wilful to forfeit the Charter For if he find the Aldermen like to chuse contrary to his mind he need but with draw and all the rest are insignificant persons and so there shall be no Election in any reasonable time and thereby the Liberties forfeited If this absolute power allow'd to Mayors may serve a politick Turn for once it may do as much Mischief another time for he may be of a contrary and cross humour to what may be desir'd And he is not a person nominated by any superiour power to that place or impos'd upon the Corporation but chosen from amongst themselves and chosen by themselves But tho' they chuse him yet it is not safe to trust all the Liberties of the City in the Breast of one Man for one man may easily change and be wrought upon where many cannot It is better to trust twelve than one The Right of Election is a very tender thing and it is a Maxim at the Common Law and strengthned by several Acts of Parliament That Elections should be free By the Stat. of Westm the 1st in the time of that Wise and Excellent King Edward the I. It is Enacted That Elections be free And it forbids under a grievous Penalty those are the words that nul haut home no great Man such as every Mayor is in his sphere shall disturb to make free Election Sir Edward Coke in his 2 Inst f. 169. in his Exposition of that Statute says it extends to all sorts of Elections and agreés with the Maxim of the Common Law Now if the Mayor shall at three several times refuse the advice and desire of the Aldermen and knowing that they can make no choice without him refuse to join with them till he
general as this Case There are many instances where Breaches have been generally assigned and held ill that in Croke is so but the later Opinions are otherwise Affirmetur Judicium Pye versus Brereton A Lease was made of Tythes for three years rendring Rent at Michaelmas and Lady-day and an Action of Debt was brought for Rent arrear for two years Vpon Nil debet pleaded the Plaintiff had a Verdict and it was now moved in Arrest of Iudgment that the Declaration was too general for the Rent being reserved at two Feasts 2 Cro. 668. the Plaintiff ought to have shewed at which of those Feasts it was due But the Council for the Plaintiff said That it appears by the Declaration that two years of the three were expired so there is but one to come which makes it certain enough Curia This is helped by the Verdict but it had not been good upon a Demurrer DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. MEmorandum That in Trinity-Vacation last died Sir Francis North Baron of Guilford and Lord Keeper of the Great Seal of England at his House in Oxfordshire being a Man of great Learning and Temperance And Sir George Jefferies Baron of Wem and Chief Justice of the Kings-Bench had the Seal delivered to him at Windsor and was thereupon made Lord High Chancellor of England And Sir Edward Herbert one of the Kings Council succeeded him in the Place of Chief Justice There died also this Vacation Sir Thomas Walcott one of the Justices of the Kings-Bench and he was succeeded by Sir Robert Wright one of the Barons of the Exchequer Sir John Newton al' versus Stubbs IN an Action on the Case for Words Words laid to be spoke ad tenorem effectmu sequen ' not good The Plaintiffs declared that they were Iustices of the Peace for the County of Gloucester c. and that the Defendant spake these scandalous Words of them Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie Men out of their Estates postea eodem die c. they spoke these words Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie me and Mr. Creswick out of our Estates And afterwards these words were laid in Latin without an Anglice ad tenorem effectum sequen ' c. There was a Verdict for the Plaintiffs and entire damages and now Mr. Trindar moved in Arrest of Iudgment 1. That the words in the Declaration are laid in Latin Roll. Abr. 74. pl. 2. without an Anglice and without an Averment that the hearers did understand Latin 2. 'T is not expressly alledged that the Defendant spoke those very words for being laid ad tenorem effectum sequen ' something may be omitted which may alter the sense and meaning of them Cro. Eliz. 857. and for this very reason Iudgment was staied though the Court held the words to be actionable Rex versus Ayloff al' THey were Outlawed for High-Treason Treason and on Tuesday the 27th day of October they were brought to the Bar and a Rule of Court was made for their Execution on Fryday following The Chief Iustice said that there was no hardship in this proceeding to a Sentence upon an Outlawry because those Malefactors who wilfully flie from Iustice and a new Crime to their former Offence and therefore ought to have no benefit of the Law for tho' a Man is Guilty yet if he put himself upon his Tryal he may by his submissive Behaviour and shew of Repentance incline the King to mercy In Felonies which are of a lower nature than the Crimes for which these persons are attainted flight even for an Hour is a forfeiture of the Goods of the Criminal so likewise a Challenge to three Iuries is a defiance to Iustice and if that be so then certainly flying from it is both despising the mercy of the King and contemning the Iustice of the Nation They were both Executed on Frday the 30th of October following Dominus Rex versus Colson al' AN Information was exhibited against the Defendants Information for a Riot not good setting forth that they with others did riotously assemble themselves together to divert a Watercourse and that they set up a Bank in a certain place by which the Water was hindred from running to an antient Mill in so plentifull a manner as formerly c. Vpon Not Guilty pleaded it came to a Tryal and the Iury found that Quoad factionem Ripae the Defendants were Guilty and quoad Riotum not Guilty And now Mr. Williams moved in arrest of Iudgment because that by this Verdict the Defendants were acquitted of the charge in the Information which was the Riot and as for the erecting of the Bank an Action on the Case would lie and the Iudgment was accordingly arrested Mason versus Beldham Trin. 1 Jac. Rot. 408. THE Plaintiff brings his Action against the Defendant Quantum meruit will lie for Rent and sets forth That in consideration that he would suffer the Defendant to enjoy a House and three Water-Mills c. he promised to pay so much yearly as they were reasonably worth and avers that they were worth so much And upon a Demurrer the Question was whether this Action would lie for Rent It was argued for the Defendant that it would not lie Cro. Eliz. 242. 786 859. 2 Cro. 668. because it was a real Contract 'T is true there is a Case which seems to be otherwise 't is between Acton and Symonds Cro. Car. 414. which was in consideration that the Plaintiff would demise to the Defendant certain Lands for three years at the Rent of 25 l. by the year he promised to pay it this was held to be a personal Promise grounded upon a real Contract and by the Opinion of three Iudges the Action did lie because there was an express promise alledged which must also be proved But Iustice Croke was of a contrary Opinion Mr. Pollexfen contra If a Lease be made for years reserving a Sum in gross for Rent and which is made certain by the Lease in such case an Action of Debt will lie for the Rent in arrear But if where no Sum certain is reserved as in this Case a Quantum meruit will lie and no reason can be given why a Man may not have such an Action for the Rent of his Land as well as for his Horse or Chamber And Iudgment was given for the Plaintiff Anonymus THere was a Libel in the Spiritual Court for scandalous Words Prohibition for words where some are actionable and others not Viz. She is Bitch a Whore an old Bawd And a Prohibition was now prayed by Mr. Pollexfen because some of the words were actionable at Law and some punishable in the Spiritual Court and therefore prayed that it might go Quoad those words which were actionable at Law The Chief Iustice granted
that is to make them Iudges whether this Duty is payable or not and so the Courts of Westminster who are the proper Iudges of the Revenue of the King who by this means will be without an Appeal will be excluded Curia This Court may take Cognizance of this Matter as well as in Cases of Bastardy 't is frequent to remove those Orders into this Court though the Act says That the two next Justices may take order as well for the punishment of the Mother as also for the relief of the Parish where it was born except he give Security to appear the next Quarter Sessions The Statute doth not mention any Certiorari which shews that the intention of the Law-makers was that a Certiorari might he brought otherwise they would have enacted as they have done by several other Statutes that no Certiorari shall lie Therefore the meaning of the Act must be that the determination of the Iustices of the Peace shall be final in Matters of Fact only as if a Collector should affirm that a person hath four Chimnies when he hath but two or when the Goods distrained are sold under the value and the Overplus not returned but the Right of the Duty arising by virtue of this Act was never intended to be determined by them Then the Order was filed and Mr. Pollexfen moved that it might be quashed for that by the Statute of 14 Car. 2. 14 Car. 2. c. 10. the Occupier was only chargeable and the Land-Lord exempted Now by the Proviso in that Act such a Cottage as is expressed in this Order is likewise exempted because 't is not of greater value than 20 s. by the year and 't is not expressed that the person inhabiting the same hath any Lands of his own of the value of 20 s. per annum nor any Lands or Goods to the value of 10 l. Now there having been several abuses made of this Law to deceive the King of this Duty occasioned the making of this subsequent Act. The abuses were these viz. The taking a great House and dividing it into several Tenements and then letting them to Tenants who by reason of their poverty might pretend to be exempted from this Duty The dividing Lands from Houses so that the King was by these Practices deceived and therefore in such Cases the charge was laid upon the Land-Lord but nothing of this appearing upon the Order it was therefore quashed Brett versus Whitchot IN Replevin Lands not exempted from repairing of the High-ways by grant of the King The Defendant avowed the taking of a Cup as a Fine for a Distress towards the repairing of the High-way The Plaintiff replyed and set forth a Grant from the King by which the Lands which were chargeable to send Men for the repairing c. were exempted from that Duty And upon a Demurrer the Question was Whether the Kings Letters Patents are sufficient to exempt Lands from the Charge of the repairing of the High-ways 2 3 Ph. Mar. c. 8. which by the Statute of Philip and Mary and other subsequent Statutes are chargeable to send Men for that purpose And it was argued that such Letters Patents were not sufficient because they were granted in this Case before the making of the Statute and so by consequence before any cause of Action and to prove this a Case was cited to this purpose In 2 E. 2 Inst 569. 3. an Action was brought against an Hundred for a Robbery upon the Statute of 13 E. 1. The Bishop of Litchfield pleaded a Charter of R. 1. by which that Hundred which was held in Right of his Church was exempted c. But it was held that this Charter could not discharge the Action because no such Action was given when the Letters Patents were made but long afterwards Iudgment was given for the Avowant Upton versus Dawkin TRespass quare vi armis liberam piscariam he did break and enter and one hundred Trouts ipsius Quer. Trespass for taking Fish ipsius querentis in libera piscaria not good in the Fishery aforesaid did take and carry away Vpon Not guilty pleaded there was a Verdict for the Plaintiff and this Exception was taken in arrest of Iudgment viz. For that the Plaintiff declared in Trespass for taking so many Fish ipsius Quer. in libera piscaria which cannot be because he hath not such a property in libera piscaria to call the Fish his own Pollexfen contra If there had not been a Verdict such a Construction might have been made of this Declaration upon a Demurrer but now 't is helped and the rather because a Man may call them pisces ipsius in a free Fishery for they may be in a Trunk so a Man may have a property though not in himself as in the Case of Iointenants where 't is not in one but in both yet if one declare against the other unless he plead the Iointenancy in Abatement the Plaintiff shall recover But notwithstanding the Iudgment was reversed Dominus Rex versus ...... THE Defendant was indicted for Barretry Barretry the Evidence against him was that one G. was arrested at the Suit of C. in an Action of 4000 l. and was brought before a Iudge to give Bail to the Action and that the Defendant who was a Barrister at Law was then present and did sollicite this Suit when in truth at the same time C. was indebted to G. in 200 l. and that he did not owe the said C. one farthing The Chief Iustice was first of Opinion that this might be Maintenance but that it was not Barretry unless it appeared that the Defendant did know that C. had no cause of Action after it was brought If a Man should be arrested for a trifling Cause or for no Cause this is no Barretry though 't is a sign of a very ill Christian it being against the express Word of God But a Man may arrest another thinking he hath a just cause so to do when as in truth he hath none for he may be mistaken especially where there hath been great dealings between the Parties But if the design was not to recover his own Right but only to ruine and oppress his Neighbour that is Barretry A Man may lay out mony in behalf of another in Suits at Law to recover a just Right and this may be done in respect of the Poverty of the Party but if he lend mony to promote and stirr up Suits then he is a Barretor Now it appearing upon the Evidence that the Defendant did entertain C. in his House and brought several Actions in his Name where nothing was due that he was therefore guilty of that Crime But if an Action be first brought and then profecuted by another he is no Barretor though there is no cause of Action The Defendant was found guilty DE Termino Paschae Anno 2 Jac. II. in Banco Regis 1686. Coram Edwardo Herbert Mil ' Capital ' Justic
Paper Book by the then Attorny General but by reason of a stroak cross them the Clerk omitted them in engrossing the Iudgment But upon a Motion the Court held this amendable at the Common Law Curia The Error is only a Misentry of the Writ of Enquiry and amendable without paying of Costs Mr. Aston the Secondary said that Costs were never paid in this Court upon such Amendments nor in the Common Pleas until my Lord Chief Iustice Vaughan's time but he altered the Practice and made that Rule that if you amend after a Writ of Error brought you must pay Costs Holcomb versus Petit. A Devastavit was brought against an Administrator of a rightful Executor who pleaded an insufficient Plea Administrator of a rightful ful Executor is liable to a Devastavit 30 Car. 2. c. 7. and upon a Demurrer the Question was upon the Statute of 30 Car. 2. The Title whereof is An Act to enable Creditors to recover Debts of Executors and Administrators of Executors in their own wrong which is introductory of a new Law and charges those who were not chargeable before at the Common Law but it enacts That when Executors of persons who are Executors de son tort or Administrators shall convert the Goods of any person deceased that they shall be liable as their Testator or Intestate would have been Gold held that he shall not be charged for where an Act of Parliament charges an Executor in such case an Administrator shall be likewise charged but if an Administrator be charged that shall never extend to an Executor The Rule is A majori ad minus valet Argumentum sed non e contra therefore the rightful Executor shall not be charged by this Act which only makes Executors of Executors de son tort lyable Pollexfen contra There can be no reason given why the Act should make an Administrator of an Administrator lyable to a Devastavit and not an Administrator of an Executor de son tort for the mischief will be the same and therefore a rightful Executor who wasts the Testator's Goods ought to be charged The Recital of this Act is large enough the Preamble is general and the enacting Clause expresseth Executors and Administrators of Executors de son tort but then it also mentions Administrators but not such who are their Administrators de son tort Now the Word Administrator is in it self a general Word and extends to any one who meddles with the personal Estate so that the Preamble being general and the Act remedial 't is within the same mischief Curia The Word Administrator is very comprehensive for when an Executor pleadeth he saith Plene administravit If a rightful Executor waste the Goods he is a kind of an Administrator de son tort for abusing of the Trust There is no Superiority between an Executor or an Administrator for by this Act they are both equal in power as to the Goods of the deceased Iudgment was given that the Administrator of the rightful Executor shall be liable Jenings versus Hankeys 'T IS enacted by the Statute of 13 Car. Where an Informer shall be a Witness though he hath part of the Penalty 13 Car. 2. c. 10. 2. That they who kill course hunt or take away Red or Fallow Deer in any Ground where Deer are kept c. or are aiding therein if such are convicted by Confession or Oath of one Witness before one Justice of the Peace within six Months after the Offence done shall forfeit 20 l. one Moiety to the Informer the other to the Owner of the Deer to be levied by Distress by Warrant under the Justice's Hand The Defendant was convicted by the Oath of the Informer and Mr. Shower moved that it might be quashed because the Informer is not to be admitted as a Witness he being to have a Moiety of the Forfeiture The Party to an usurious Contract shall not be admitted as an Evidence to prove the Vsury 12 Co. 68. 2 Rol. Abr. 685 because he is Testis in propria causa and by their Oath may avoid their own Bonds Mr. Pollexfen contra The Statute gives power to convict by the Oath of a credible Witness and such is the Informer 'T is not a material Objection to say That the Informer shall not be a Witness because he hath a Moiety of the Forfeiture for in Cases of the like nature the Informer is always a good Witness As upon the Statute for suppressing of Conventicles the Informer is a good Witness and yet he hath part of the Penalty for otherwise that Act would be of little force for if who sees the People met together be not a good Witness no Body else can Curia In the Statute of Robberies a Man swears for himself because there can be no other Witness he is a good Witness Harman versus Harman DEBT upon a Bond against an Administrator Notice of a Debt must be given to an Administrator who pleaded Fully administred and that he had not notice of this Bond before such a day In this Case a special Verdict was found upon which the Question was Whether Notice was necessary to be given of Debts of an inferior nature The Court gave no Opinion but they agreed that a Iudgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond and that 't is no Devastavit in an Executor to pay a Debt upon such a Contract before a Bond Debt Vaughan 94. of which he had no Notice So where an Obligor did afterwards enter into a Recognizance in the nature of a Statute 2 Anders 159. 1 Mod. 157. and Iudgment was against him upon the Bond and then he dyed his Executrix paid the Creditor upon the Statute and the Obligee brought a Scire Facias upon the Judgment on the Bond Debt and she pleaded payment of the Recognizance this was held a good Plea for she is not bound to take Notice of the Iudgments against the Testator without being acquainted therewith by his Creditors for she is in no wise privy to his Acts. DE Term. Sancti Mich. Anno 2 Jac. II. in Banco Regis 1686. Anonymus AN Information was exhibited against the Defendant for Perjury Perjury in a Deposition taken before Commissioners in Chancery setting forth that a Bill in Chancery was exhibited by one A. B. and the Proceedings thereon The Perjury was assigned in a Deposition made by the Defendant 30 Julii 1683. and taken in that Cause before Commissioners in the Country It was tried this day at the Barr and the Question was Whether the Return of the Commissioners that the Defendant made Oath before them shall be a sufficient Evidence to convict him of Perjury without their being present in Court to prove him the very same person Serjeant Pemberton for the Defendant admitted an Information will lie in this Case against him but the Commissioners must be here or some other person to prove that he was
the person who made Oath before them The Commissioners sign the Depositions and they ought to produce them so signed to the Court and prove it for Depositions are often suppressed by Order of the Court. If a true Copy of an Affidavit made before the Chief Iustice of this Court be produced at a Trial 't is not sufficient to convict a Man of Perjury This is not like the Case of Perjury assigned in an Answer in Chancery taken in the Country for that is under the Parties Hand but here is nothing under the Defendant's Hand and therefore the Commissioners ought to be in the Court to prove him to be the Man The Court were equally divided The Chief Iustice and Wythens Iustice were of Opinion that it was not Evidence to convict the Defendant of Perjury it might have been otherwise upon the Return of a Master of Chancery for he is upon his Oath and is therefore presumed to make a good Return but Commissioners are not upon Oath they pen the Depositions according to the best of their skill and a man may call himself by another name before them without any offence The Commissioners cannot be mistaken in the Oath tho' they may not know the person for this Court may be so mistaken in those who make Affidavits here but not in the Oath if the Commissioners or the Clerk to the Commission had been here they would have been good Evidence If an Affidavit be made before a Iustice of the Peace of a Robbery as enjoyned by the Statute if you will convict the person of Perjury you must prove the swearing of the Affidavit The Attorney General perceiving the Opinion of the Court rather than the Plaintiff should be nonsuit because no Evidence could be given offered to enter a Nolle prosequi which the Court said could not be done because the Iury were sworn but he insisted upon it and said he would cause it to be entred Sir John Knight's Case AN Information was exhibited against him by the Attorney General upon the Statute of 2 E. 3. Information upon the Statute for going armed 2 E. 3. c. 3. Which prohibits all persons from coming with Force and Arms before the King's Justices c. and from going or riding armed in affray of Peace on pain to forfeit his Armour and suffer Imprisonment at the King's Pleasure This Statute is confirmed by that of R. 2. 20 R. 2.1 with an Addition of a farther punishment which is to make a Fine to the King The Information sets forth that the Defendant did walk about the Streets armed with Guns and that he went into the Church of St. Michael in Bristol in the time of Divine Service with a Gun to terrifie the King's Subjects contra formam Statuti This Case was tryed at the Bar and the Defendant was acquitted The Chief Iustice said that the meaning of the Statute of Ed. 3. was to punish People who go armed to terrifie the Kings Subjects 'T is likewise a great Offence at the Common Law as if the King was not able or willing to protect his Subjects and therefore this Act is but an affirmance of that Law and it having appointed a Penalty this Court can inflict no other Punishment than what is therein directed DE Term. Sancti Hill Anno 2 3 Jac. II. in Banco Regis 1686 7. Kingston versus Herbert A Common Recovery was suffered Anno 22 Jacobi primi Where a Scire Facias must go to the Tertenants before Judgment be reversed and a Writ of Error was brought about five years since to reverse it and Iudgment was given for the Reversal and it was now moved to set aside that Reversal because there was no Scire Facias against the Tertenants Mr. Williams who argued for the Reversal said that the want of a Scire Facias must be either in Law or in Fact it cannot be Error in Law for that must appear upon the Record it self which it doth not here It cannot be Error in Fact because there is no necessity of such a Writ 't is only discretionary in the Court and not ex necessitate juris But on the other side it was insisted that the Court cannot proceed to examine Errors before a Scire Facias is awarded to the Tertenants Dyer 320 331. for they may have a Matter to plead in Barr to the Writ as a Release c. and the Party cannot be restored to all which he hath lost by the suffering of the Recovery unless the Defendant be brought in upon the Scire Facias Curia The only Question is whether this Iudgment be well given without a Scire Facias The Secondary hath reported that the Practice is so Then as to the Ojection that such a Scire Facias is not ex necessitate juris but only discretionary 't is quite otherwise for 't is not only a cautionary Writ as all other Scire Facias but 't is a legal caution which in a manner makes it necessary 'T is true if there had been a Iudgment corruptly obtained this Court might have set it aside but if Erronice 't is a doubt whether it may be vacated but according to the Forms and Methods of Law Adjornatur Baldwin versus Flower BAron and Feme brought an Action on the Case for Words spoken of the Wife Words where actionable without special damage The Declaration was that the Defendant having some discourse with another person called the Wife Whore and that she was his Whore and concluded ad dampnum ipsorum c. The Plaintiff had a Verdict and it was now moved in arrest of Iudgment for that the Words were not actionable without alledging special damage But it was answered Rol. Abr. 35. placit 7. that the Action was well brought To say A Man is rotted with the Pox is actionable without alledging special damage because the person by such means will lose the Communication and Society of his Neighbours As to the Conclusion ad dampnum ipsorum 't is good for if she survive the Husband the Damages will go to her and so are all the Presidents Curia The Words are actionable And three Iustices were of Opinion that the Conclusion of the Declaration was as it ought to be which Iustice Wythens denied for if an Innkeepers Wife be called a Cheat and the House loses the Trade the Husband hath an injury by the Words spoken of his Wife but the Declaration must not conclude ad dampnum ipsorum Sir Thomas Grantham's Case HE bought a Monster in the Indies which was a Man of that Country who had the perfect Shape of a Child growing out of his Breast as an Excrescency all but the Head This Man he brought hither and exposed to the sight of the People for Profit The Indian turns Christian and was baptized and was detained from his Master who brought a Homine Repleg ' the Sheriff returned that he had replevied the Body but doth not say the Body in which
Sir Thomas claimed a Property whereupon he was ordered to amend his Return and then the Court of Common-Pleas bailed him Banson versus Offley AN Appeal of Murder was tried in Cambridgshire against three persons An Appeal of a Murder was tried not where the Stroak was given but where the Party died and the Count was that Offley did assault the Husband of the Appellant and wounded him in Huntingtonshire of which Wound he did languish and dye in Cambridgeshire and that Lippon and Martin were assisting The Iury found a special Verdict in which the Fact appeared to be that Lippon gave the Wound and that Martin and Offley were assisting The first Exception to this Verdict was that the Count and the Matter therein alledged must be certain and so likewise must the Verdict otherwise no Iudgment can be given but here the Verdict finding that another person gave the Stroak and not that person against whom the Appellant had declared 't is directly against her own shewing 2. This Fact was tried by a Iury of Cambridgshire when it ought to have been tried by a Iury of both Counties The Court answered to the first Exception that it was of no force and that the same Objection may be made to an Indictment where in an Indictment if one gives the Stroak and another is abetting they are both principally and equally guilty and an Indictment ought to be as certain as a Count in an Appeal As to the second Exception 't is a good Trial by a Iury of Cambridgshire alone and this upon the Statute of 2 3 Ed. 6. 2 3 Ed. 6. cap. 24. the Words of which Statute are viz. Where any person c. shall hereafter be feloniously striken in one County and dye of the same Stroak in another County that then an Indictment thereof found by the Jurors of the County where the death shall happen whether it be found before the Coroner upon the sight of the Body or before the Justices of the Peace or other Justices or Commissioners who shall have Authority to enquire of such Offences shall be as good and effectual in the Law as if the Stroak had been in the same County where the Party shall dye or where such Indictment shall be found 'T is true 4 Inst 49 that at the Common Law if a Man had received a mortal Wound in one County and died in another the Wife or next Heir had their Election to bring an Appeal in either County but the Trial must be by a Iury of both Counties But now that mischief is remedied by this Statute which doth not only provide that an Appeal shall be brought in the County where the Party dyed but that it shall be prosecuted which must be to the end of the Suit Adjornatur Dominus Rex versus Hinton and Brown AN Indictment was brought against the Defendants setting forth Subornation of Perjury that a Conventicle was held at a certain place and that they movebant persuadebant subornaverunt a certain person to swear that several Men were then present who really were at that time at another place They were found guilty and a Writ of Error was brought to reverse the Iudgment the Error assigned was that the Indictment doth not set forth that any Oath was made so it could not be Subornation There is a difference between the persuading of a man to swear falsly and Subornation it self for an Indictment for Subornation always concludes contra formam Statuti Curia 'T is not enough to say a Man suborned another to commit a Perjury but he must shew what Perjury it is which cannot be without an Oath for an Indictment cannot be framed for such an Offence unless it appear that the thing was false which he was perswaded to swear The Question therefore is If the person had sworn what the Defendants had persuaded him to do whether that had been Perjury There is a difference when a Man swears a thing which is true in Fact and yet he doth not know it to be so and to swear a thing to be true which is really false the first is Perjury before God and the other is an Offence of which the Law takes notice But the Indictment was quashed because the Words Per Sacramentum duodecim proborum legalium hominum were left out They held that if the Return had been right upon the File the Record should be amended by it Blaxton versus Stone THE Case was this viz. A Man seised in Fee c. What words make an Estate Tail in a Will had Issue two Sons he devised all his Land to his eldest Son and if he die without Heirs Males then to his other Son in like manner The Question was Whether this was an Estate Tail in the eldest Son Curia 'T is plain the Word Body which properly creates an Estate Tail is left out but the intent of the Testator may be collected out of his Will that he designed an Estate Tail for without this Devise it would have gone to his second Son if the first had died without Issue 'T is therefore an Estate Tail DE Termino Paschae Anno 3 Jac. II. in Banco Regis 1687. Herbert Chief Justice Wythens Justices Holloway Justices Powel Justices Dominus Rex versus William Beal MEmorandum A Souldier executed not in the County where he wes condemned That on Saturday April 15. Mr. Attorny moved that this Court would award Execution upon the Defendant who was a Souldier for deserting of his Colours and was condemned for the same at the Affizes at Reading in Berks and reprieved and that he might be executed at Plymouth where the Garrison then was The Chief Iustice in some heat said that the Motion was irregular for the Prisoner was never before the Court. Mr. Attorny then moved for a Habeas Corpus and on Tuesday April the 18th the Souldier was brought to the Barr and Mr. Attorny moved it again But it was affirmed by the Chief Iustice and Iustice Wythens that it could not be done by Law for the Prisoner being condemned in Berks and reprieved by the Iudge to know the Kings Pleasure and now brought hither cannot be sent into another County to be executed it may be done in Middlesex by the Prerogative of this Court which sits in that County but no where else but in the proper County where the Trial and Conviction was so the Prisoner was committed to the Kings Bench and the Record of his Conviction was not filed But it was the King's Will that this Man should be executed at Plymouth where the Garrison was that by this Example other Souldiers might be deterred from running from their Colours SIR Robert Wright who was made Chief Justice of the Common Pleas in the room of Sir Henry Beddingfield who died the last Term as he was receiving of the Sacrament was on Friday following being the 21st of April made Chief Justice of this Court in the place of
being no where alledged that the Goods were weighed elsewhere or that they were such which are usually sold by Weight then there is no need of bringing of them to the Beam If one prescribes to a Common and doth not say for Cattle Levant and Couchant the Prescription is not good This being the consideration of the Duty it ought to be precisely alledged as in an Assumpsit where the Plaintiff declared that in consideration that the Defendant owed him 40 l. he promised to pay it ante inceptionem proximi itineris to London Yelv. 175. 2 Cro. 245. and alledged that such a day incepit iter suum ad London ' but for omitting the Word proxime Iudgment was arrested after Verdict because the Duty did arise upon the commencement of his next Iourney The true reason why any thing is helped by Verdict is for that the thing shall be presumed to be given in Evidence at the Trial. Mr. E contra Pollexfen contra Here is enough set forth in the Plea to shew that the Goods were not weighed and it must be given in Evidence at the Trial that they were sold contrary to the Custom which is the only Offence to be proved The want of Averment that the Goods sold by the Defendant were not weighed shall not vitiate this Declaration after a Verdict To prove this some Authorities were cited Cro. Eliz. 458. 2 Cro. 44. Siderfin 218. Palmer 360. Cro. Car. 497. as where in Trespass the Defendant justified for Common by Prescription for Beasts Levant and Couchant and that he put in his Beasts utendo Communia Issue was taken upon the Prescription and found for the Defendant now though he did not averr that the Cattle were Levant and Couchant yet it was held that it was cured by a Verdict And of this Opinion were three Iudges now but Iustice Allybon differed for says he if this Declaration should be good after a Verdict then a Verdict will cure any fault in Pleading Iudgment for the Plaintiff Prowse versus Wilcox AN Action on the Case for scandalous Words Words spoken of a Justice of the Peace where actionable The Plaintiff declared that he was a Justice of the Peace for the County of Somerset that there was a Rebellion in the West by the Duke of Monmouth and others that search was made for the Defendant being suspected to be concerned in that Rebellion and that the Defendant thereupon spoke these words of the Plaintiff viz. John Prowse is a Knave and a busie Knave for searching after me and other honest Men of my sort and I will make him give me satisfaction for plundering me There was a Verdict for the Plaintiff and the Iudgment being stayed till the Return of the Postea Mr. Pollexfen moved that the Plaintiff might have his Iudgment because the Words are actionable 1 Roll. Abr. 59. pl. 3. for they touched him in his Office of a Iustice of a Peace It was objected to stay the Iudgment that the Words were improper and therefore could not be actionable But admitting them so to be yet if they in any wise reflect upon a Man in a publick Office they will bear an Action Shore contra The Plaintiff doth not lay any Colloquium of him as a Justice of the Peace or that the words were spoken of him relating to his Office or the Execution thereof and therefore an Action will not lie though an * Vid. antea Rex versus Darby 2 Cro. 315. Information might have been proper against him If a Man should call another Lewd Fellow and that he set upon him in the High-way and took his Purse from him an Action will not lie because he doth not directly charge him with Felony or Robbery The Court were divided in Opinion two against two so the Plaintiff had his Iudgment Boyle versus Boyle A Libel was in the Spiritual Court against a Woman causa jactitationis Maritagii Prohibition granted The Woman suggests that this person was indicted at the Sessions in the Old-Bayly for marrying of her he then having a Wife living contra formam Statuti Godb. Rep. Can. 507. Hales 121. 1 Jac. cap. 11. Sid. 171. that he was thereupon convicted and had Iudgment to be burned in the Hand so that being tried by a Iury and a Court which had a Iurisdiction of the cause and the Marriage found a Prohibition was prayed Serjeant Levinz moved for a Consultation because no Court but the Ecclesiastical Court can examine a Marriage for in the Dower Writ is always directed to the Bishop to certifie the lawfulness of the Marriage and if this Woman should bury this Husband and bring a Writ of Dower and the Heir plead Ne unques accouple c. this Verdict and Conviction shall not be given in Evidence to prove the illegality of the Marriage but the Writ must go to the Bishop This is proved by the Case of Emerton and Hide in this Court The Man was married in fact and his Wife being detained from him she being in the Custody of Sir Robert Viner brought an Habeas Corpus she came into the Court but my Lord Hales would not deliver the Body but directed an Ejectment upon the Demise of John Emerton and Bridget his Wife that the Marriage might come in question It was found a Marriage and afterwards at an Hearing before the Delegates this Verdict was not allowed to be given in Evidence because in this Court one Iury may find a Marriage and another otherwise so that it cannot be tried whether they are legally married by a Temporal Court 'T is true this Court may controle the Ecclesiastical Courts but it must be eodem genere E contra E contra It was said that if a Prohibition should not go then the Authority of those two Courts would interfere which might be a thing of ill consequence If the lawfulness of this Marriage had been first tried in the Court Christian the other Court at the Old-Bayly would have given Credit to their Sentence But that Court hath been prohibited in a Case of the like nature 2 Cro. 535. for a Suit was there commenced for saying That he had a Bastard The Defendant alledged that the Plaintiff was adjudged the reputed Father of a Bastard by two Iustices of the Peace according to the Statute and so justified the speaking of the words and this being refused there a Prohibition was granted and so it was in this Case by the Opinion of three Iudges Dr. Hedges a Civilian being present in the Court said that Marriage or no Marriage never came in question in their Court upon a Libel for Jactitation unless the Party replies a lawful Marriage and that the Spiritual Court ought not to be silenced by a Proof of a Marriage de facto in a Temporal Court for all Marriages ought to be de jure of which their Courts had the proper Iurisdiction Sir John Newton versus Francis Creswick IN an Action on the
Case Plea where it amounts to the general Issue wherein the Plaintiff declared that the Defendant exhibited a Peittion against him and Sir R. H. before the King in Council by reason whereof he was compelled to appear at his great Expence and that he was afterwards discharged of the matter alledged against him which was the erecting of Cottages in Kingswood Chase in the County of Gloucester This Action was first laid in Gloucestershire and the Defendant moved that it might be laid in Middlesex where the Petition was exhibited But it was insisted for the Plaintiff that where a cause of Action ariseth in two places he hath his Election to lay it in either The Court held that the exhibiting of the Petition was the ground of the Action and though it conteined matter done in another place yet it shall be tried in the County where the Petition was delivered for suppose the Petition had contained Matter done beyond Sea c. Now in this Case the Action being brought in Middlesex the Defendant pleaded that the Chase was injured by the erecting the said Cottages by the digging of Pits and by the making of a Warren by Sir John Newton and that the other person Sir R. H. being then a Iustice of the Peace for the County of Gloucester upon Complaint to him made did not impose Penalties upon the Offenders but did abet the said Plaintiff by reason whereof the Deer were decreased from 1000 head to 400. To this Plea the Plaintiff demurred Mr. Pollexfen argued against the Plea first that it charged Sir R. H. with no particular Crime but enlargeth the Matter upon the Plaintiff and amounts to no more than the general Issue for the Question is whether the Defendant hath fasly prosecuted the Plaintiff before the King in Council which is only matter of fact and which is charged upon the Defendant and therefore he ought to have pleaded Not-Guilty 'T is true where the Defence consists in matters of Law there the Defendant may plead specially but where 't is purely fact the general Issue must be pleaded E contra E contra It was insisted upon that what is alledged in this Plea might be given in Evidence upon the general Issue but the Defendant may likewise plead it specially and not trust the Matter to the Lay-gents As in Conspiracy for procuring of the Plaintiff to be falsly and maliciously indicted of a Robbery Cro. Eliz. 871 900. 21 E. 3.17 27 Ass 12. Kelway 81. Moor 600. Rast Ent. 123. Sed nota This Defence was matter of Law the Defendants plead that they were robbed and suspecting the Plaintiff to be guilty procured a Warrant in order to have the Plaintiff examined before a Iustice of the Peace of which he had notice and absented himself but was afterwards committed to the Gaol by a Iudge of this Court who advised them to preferr a Bill of Indictment c. quae est eadem conspiratio this was adjudged a good Plea though it amounted to no more than the general Issue and all this matter might have been given in Evidence at the Trial. The Court except Iustice Allybon advised the Plaintiff to waive his Demurrer and the Defendant to plead the general Issue But Iustice Allybon took an Exception to the Declaration for that the Plaintiff had not alledged any damnification but only that he was compelled to appear and doth not shew how either by the Petition of the Defendant or by Summons c. He ought to set forth that he was summoned to appear before the King in Order to his discharge but to say coactus fuit comparere is incertain for that might be in the vindication of his Honour or Reputation He complains of a Petition exhibited against him which the Defendant hath answered by shewing to the Court sufficient matter which might reasonably induce him so to to and for that reason he held the Plea to be good Sed adjornatur Rex versus Hockenhul AN Information was exhibited against him for a Riot Misprision of a Clerk amended of which he was found guilty and this Exception was taken in arrest of Iudgment Memorandum quod ad general ' quarterial ' Session ' Pacis tent ' c. die Sabbati prox ' post quindenam Sancti Martini praesentat ' existit quod the Defendant 27 die Januarii in such a year vi armis c. So the Fact is laid after the Indictment which was exhibited against the Defendant at the Michaelmas Sessions and the Fact is laid to be in January following in the same year But the Attorny General said this was only a Misprision of the Clerk in titling the Record viz. in the Memorandum 8 Co. 156. 4 H. 6.16 10 Ass 26. Cro. Car. 144. and there was no fault in the Body of the Information and that it was amendable at the Common Law He cited some Cases to prove where amendments have been in the Cases of Subjects of greater Mistakes than here a fortiori it ought to be amended in the King's Case 'T is not only amendable at the Common Law 4 H. 6. c. 3. 8 H. 6. c. 12. Jones 421. but by several Statutes which extend to all Misprisions of Clerks except Treason Felony and Outlawry wherefore this mistake of Quinden ' Martini was amended and made Quinden ' Hillarii Rex versus Sellars THE Defendant was indicted at the Sessions in London for not attending at the Wardmote Inquest being chosen of the Iury for such a year Indictment quashed To this Indictment he pleaded the King's Grant to the Company of Cooks of which he was a Member by which Grant that Company is exempted from being put or summoned upon a Iury or Inquest before the Mayor or Sheriffs or Coroner of London c. And upon a Demurrer the Question was whether the Cooks are discharged by this Grant from their Attendance at the said Wardmote Inquest And for the King it was argued that they are not discharged Before the Iudgment upon the Quo Warranto brought against the City of London these Courts there were like the Hundred Courts in the County for as these were derived out of the County 4 Inst 249. so those were derived from the Lord Mayor's Court which is a Court of Record and erected for the better Government of the City and the Aldermen of every Ward had right to hold Leets there 1. But now the words of this Grant do not extend to this Case for the Cooks are thereby discharged only from being of a Iury before the Mayor Sheriffs or Coroner c. but the Court of Wardmote is held before neither for 't is held before the Alderman of the Ward 2. Dyer 269. The words in this Grant ought to be taken strictly viz. that Cooks shall be exempted if there be other sufficient Men in the Ward to serve besides and if this doth not appear the Grant is void but this is not alledged E contra E
Contract for that Service with the Master was at Land But the principal reason why Mariners Wages are sued for in the Admiralty is because the Ship is liable as well as the Master who may be poor and not able to answer the Seamen Curia Take a Trial upon the necessity in this Case Anonymus THE Plaintiff recovered a Verdict against the Defendant in an Action upon the Case The Defendant now moved by his Council The Court will not order a Plaintiff to file the Venire Facias that the Plaintiff should file the Venire Facias and Distringas because all Writs which are returnable in this Court ought to be filed otherwise a Damage may ensue to the Officers and a Wrong to the King upon the Forfeitures of Issues by the Iurors which are always estreated upon the coming in of the Distringas The Council insisted upon it that it was the Common Law of this Realm and that it was the Right of the Subject that all Writs which issue out of the King's Courts should be filed that the Panel of the Venire Facias is part of the Record and that an Attaint could not be brought against the Iury if these Writs were not filed because non constat de personis This matter was referred to some of the ancient Clerks of the Court and to the Secondary Aston who reported that the Court never ordered a Plaintiff to file a Venire Facias against his Will Davies 's Case TRespass against Davies and Powel for breaking of the Plaintiffs Close and chasing and killing of Fowl in his Free Warren Prescription for all the Tenants of a Mannor to fowl in a Warren good though it was objected that it was too large The Defendant as to all the Trespass but chasing and killing of the Fowl pleaded Not-Guilty and as to that he sets forth that the Dean and Chapter of Exeter were seized in Fee of the Mannor of Brampton of which the said Warren was parcel and that they and all those whose Estates they had c. had liberty for themselves their Tenants and Farmers to fowl in the said Warren that the Dean and Chapter did make a Lease of parcel of the said Mannor to the Defendants for one and twenty years reserving a Rent c. and so they justifie as Tenants c. they did fowl in the said Warren The Plaintiff replied de injuria sua propria Vpon which they were at Issue and there was a Verdict for the Defendants Mr. Pollexfen moved in arrest of Iudgment because 't is an unreasonable Prescription for an interest in every Tenant of the Mannor to fowl in that Warren It hath been so ruled for a Common Roll. Abr. 399. without saying for his Cattle Levant and Couchant for it must be for a certain number In this Case the Prescription is not only in the person of the Lord but for all his Farmers and Tenants who cannot prescribe to have a free Warren in alieno solo E contra E contra It was argued that such a Prescription might not be good upon a Demurrer but 't is well enough after a Verdict 'T is not an Objection to say that this Prescription is too large for all Tenants as well Freeholders as Copyholders to prescribe in the Soil of another and so there may not be enough for the Lord himself Yelv. 187. 2 Cro. 256. because this is a Profit apprender in alieno solo and for such the Tenants of a Mannor may prescribe by a Que estate exclusive of the Lord and of that Opinion was the Court so the Defendant had his Iudgment Anonymus NOTA. An Information was brought in this Court for throwing down of Hedges and Ditches in which there were several Defendants who pleaded specially and the Clerk of the Crown Office demanded 13 s. and 4 d. for every Name which came to 17 l. for his Fees in this Plea and by reason of the great charge the Defendants did not plead but let Iudgment go by default Mr. Pollexfen moved that the Plea might be received and that it might be enquired what Fees were due which the Court would not try upon a Motion but advised an Indictment of Extortion if their Clerk was guilty Rex versus Inhabitantes de Malden SErjeant Shaw moved to affirm an Order made upon an Appeal to the Quarter Sessions of the Peace for the County of Essex The Case was viz. Order of Sessions quashed for settling a poor Man because he had not given formal notice in writing John Pain served an Apprentiship at Malden where he married and had several Children His Wife died he marryed another Woman who had a Term for years of an House in the Parish of Heybridge where he lived for a year and left Malden Afterwards he returned to Malden was rated to the Poor and lived there two years then he dyed In a short time after his death his Widow and Children were removed by an Order of two Iustices to Heybridge from which Order they appeal and by the Order of Sessions they were declared to be Inhabitants of Malden It was now moved by Mr. Pollexfen to quash it because it doth not appear that he gave any formal Notice in Writing to the Overseers of Malden when he returned from Heybridge and therefore ought to be settled there and not at Malden for being taxed to the Poor will not amount to Notice and he cited a stronger Case which was viz. The Churchwardens of Covent Garden certified under their Hands that such a person was an Inhabitant within their Parish but because no Note was left with them pursuant to the Statute notwithstanding such Certificate he was held to be no Inhabitant within their Parish and of that Opinion was all the Court. Anonymus IN Replevin three persons made Cognizance as Bayliffs to A. Whether an Infant should make Cognizance per Attorn or per Guardianum and so justifie the taking of the Cattle Damage Feasant in his Ground The Plaintiff replied that the Cattle were taken in his Ground and traverseth the taking in the place mentioned in the Cognizance There was Iudgment for the Defendant upon which a Writ of Error was brought and the Error assigned was that one of the Bayliffs was an Infant and made Cognizance per Attornatum when he ought to do it per Guardianum Mr. 2 Cro. 441. 2 Sand 212. 1 Rol. Abr. 228. 3 Cro. 441. Pollexfen This might be pleaded in Abatement but 't is not Error for an Infant Administrator may bring an Action of Debt per Attornatum because he sues in the Right of another and so his Infancy shall be no impediment to him The Bayliff in this Case is as much a Plaintiff as the Administrator in the other for he makes Cognizance in the Right of another and in such case if two are of Age and one is not they who are of Age may make an Attorney for him who is not So if there are two
place as the Parish of St. James Westminster only And upon a Demurrer it was argued that this Plea was not good for it being in Abatement the Appellee ought to have pleaded over to the Murder Cro. Eliz. 694. so it was adjudged in the Case of Watts and Brain the Pleadings of which Case are at large in my Lord Coke's Entries 2. He ought to have pleaded in person and not by Attorney the Statute of Gloucester is plain in this Point Curia If the Plea is in Abatement and the Party doth not answer over to the Murder yet that doth not oust him of his Plea but the Appellant ought to have prayed Iudgment 'T is a Question whether he ought to plead over to the Felony or not for the Presidents are both ways there is no Iudgment entred Proud versus Piper THere was a Libel brought in the Spiritual Court for a Mortuary Mortuary due only by Custom 21 H. 8. c. 6. The Defendant suggests that by the Statute of H. 8. no Mortuary ought to be paid but in such places where it had been usually paid before the making of that Statute and that there was no Custom in this place to pay a Mortuary and it was thereupon moved for a Prohibition Cro. Eliz. 151. for Mortuaries are not due by Law but by particular Custom of places 'T is true 2 Inst 491. 1 Cro. 237. Seld. of Tithes 287. a Prohibition was denied in the Case of * Sid. 263. Mark and Gilbert but it was because 't was admitted that there a Mortuary was due by Custom but they differed in the person to whom it ought to be paid Curia Prohibitions have been granted and denied upon such Suggestions therefore the Defendant was ordered to take a Declaration in a Prohibition as to the Mortuary and to try the Custom at Law Lutwich versus Piggot IN Ejectment for Lands in Northumberland Lease whether made pursuant to the power in the Reservation tried at the Bar the Case was thus viz. Peter Venables was seised in Fee of the Manor of Long Witton in the said County and being so seised made a Settlement thereof by Lease and Release to the use of himself for Life without impeachment of Waste then to the Trustees for seven years to raise Portions for Daughters then to William Venables and the Heirs Male of his Body and if he dye without Issue then to Ann his Daughter for Life with Remainders over In which Settlement there was this Proviso viz. Provided that it shall be lawful for William Venables by Will or Deed to dispose of any part of the said Manor to his Wife for Life And another Proviso to this purpose viz. Provided that it shall and may be lawful to and for the said William Venables by any Deed in Writing under his Hand and Seal to Demise for 3 Lives or 21 years or under or for any time or term of years upon one two or three Lives or as Tenant in Tail in Possession may do all or any part of the said Manor Lands c. which were in Lease for the space of forty years last past The Defendants Title was a Lease for 99 years made by the said William Venables to one Mary Venables if three Lives should so long live And the Question was whether that Lease was pursuant to the power in the last Proviso It was objected that it was not for it ought to be a Lease for 21 and not 99 years determinable for three Lives But the Plaintiff was Non-Suit Rex versus Fairfax al. AN Order made at the Quarter-Sessions of Gloucester Who shall be bound to take an Apprentice in Husbandry was removed hither confirming another made by the Iustices there for placing of a poor Boy to be an Apprentice in Husbandry and it was moved that it might be quashed Mr. Pollexfen argued that the Iustices had no power given them by the Law to compel a Man to take such an Apprentice and this will depend upon the construction of such Statutes which relate to this matter The first is that of Queen Elizabeth which enacts 5 Eliz. cap. 4. Paragraph 25. that for the better advancing of Husbandry and Tillage and to the intent such who are fit to be made Apprentices to Husbandry may be bound thereunto that every person being an Housholder and having or using half a Plough Land at the least in Till age may take any to be an Apprentice above ten and under eighteen years to serve in Husbandry until the Party be of the Age of twenty one or twenty four years the said Reteiner and taking of an Apprentice to be by Indenture Now before the making of this Statute the practice of putting out poor Children was only in Cities and great Towns to particular Trades and Employments The next Statute is 43 Eliz. by which power is given to the Church-Wardens or Overseers of the Poor 48 Eliz. cap. 2. to raise weekly or otherwise by Taxation of every Inhabitant such competent Sum or Sums of Mony as they shall think fit for relief of the Poor and putting out of Children to Apprentice And then in the fifth Paragraph power is given to them by the Assent of two Iustices of Peace to bind poor Children where they shall see convenient c. which words were the foundation for the making of this Order But the construction thereof can be no otherwise than viz. Whereas before the making of this Act poor Children were bound Apprentices to Tillage now the Church-wardens may raise Mony to bind them out to Trades for if they could compel Men to take them what need was there of raising Mony to place them out This must be the natural construction of that Law 1 Jac. cap. 25. Paragraph 23. which appears yet more plain by the words of a subsequent Statute which continues that of the 43th of Eliz. with this addition that all persons to whom the Overseers of the Poor shall according to that Act bind any Children to Apprentice may take receive and keep them as Apprentices 'T is true the general practice of putting out poor Children seems to warrant this Order but this hath been occasioned upon a Mistake in Mr. Dalton 's Book Dalt 114. who Reported the Resolution of the Iudges in 1633. to be That every Man who by his calling profession or manner of living and who entertaineth and must use Servants of the like quality such must also take Apprentices By this Resolution the Iustices of Peace have been governed ever since But Iustice Twisden would often say that those were not the Resolutions of the Iudges as Reported by Mr. Dalton and therefore the Book was mistaken 2. The Order it self doth not mention that the party to whom this poor Boy was bound Apprentice did occupy any Land in Tillage for so it ought to be otherwise the Overseers of the Poor may bind him to a Merchant or to an Attorny which he called a Free
the first words the Legacy is released then the subsequent words viz. all Actions Suits and demands whatsoever which he had against the Defendant as Executor of Lawford must mean something 'T is true where general words are at the beginning of a Release and particular words follow if the general words agree with those which are particular the Deed shall be construed according to the special words But where there are such words at first and the conclusion is with general words as 't is in this Case both shall stand for the Rule is Generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa 8 Co. 154. b. These words do also Release not only such Actions which he had in his own Right but also as Executor to Mr. Lawford If a Man hath a Lease in right of his Wife as Executrix to her former Husband and he grants all his Right and Title therein by this Grant the Right which he had by his Wife doth pass for the word His doth imply a propriety in possession But per totam Curiam Curia Iudgment was given for the Plaintiff If an Executor hath Goods of the Testators and also other Goods in his own Right and then grants omnia bona sua in strictness the Goods which he hath as Executor do not pass because they are not bona sua but so called because of the Possession which he hath and therefore it must be a great strein to make general words which are properly applicable to things which a Man hath in his own Right to extend to things which he hath as Executor It was never the intent of the Party to release more than what he had in his own Right and that appears by the Recital of the Legacy of 5 l. and therefore the words which follow must have a construction according to the intent of Donning at the time of the making the Release and shall be tied up to the foregoing words and then nothing will be discharged but the Legacy As if a Lease for years be made Dyer 255. and the Lessor enters into a Bond that he will suffer the Lessee quietly to enjoy during the Term without trouble of the Lessor or any other person if an Entry should be made upon the Lessee without the procurement or knowledge of the Lessor the Condition is not broken for the last words are tied up to the word suffer If the Legacy had not been released by particular words it would not have been discharged by a Release of all Actions and Demands whatsoever and therefore there would be a great inconvenience if these general words should be construed to Release any thing besides this Legacy for suppose there are two Executors and one refuseth to Administer but meeting with a Debtor of the Testator gives him a Release of all Actions will this amount to an acceptance of the Administration Certainly it will not The words in this Case are not of that extent as to Release Actions as an Execuror for 't is a Release which goeth to the right 'T is like the Case where one of the Avowants released the Plaintiff after the taking of the Cattel 1 Roll. Rep. 246. which was adjudged void upon a Demurrer because he had not then any Suit or Demand against the Plaintiff but had distreined the Beasts as Bayliff and in right of another Iustice Dolben cited a Case adjudged in B. R. in the year 1669. it was between Stokes and Stokes The Plaintiff released all which he had in his own Right there was a Bond in which his Name was used in Trust for another and afterwards he brought an Action of Debt upon that Bond to which the Release was pleaded The Plaintiff replied that the Release was only of all such Actions which he had in his own right and not such which he had in the right of another upon this they were at Issue and the Plaintiff had a Verdict and Mr. Sympson moved in Arrest of Iudgment that this Bond must be in his own Right But the Court affirmed the Iudgment Anonymus AN Action on the Case was brought for these words Words where actionable without a Colloquium viz. He stole the Colonel's Cupboard-Cloth It was made a Question whether these words were actionable there being no precedent discourse laid in the Declaration either of the Colonel or his Cupboard-Cloath But the Court held the words actionable for 't is a charge of Felony and if such words as now laid in this Declaration are not actionable any person may be scandalized for 't is and must be actionable to say of a Man that he stole my Lord's Horses or the Parson's Sheep tho' it doth not appear to what Lord or Parson they did belong Rex versus Silcot THE Defendant was convicted before a Iustice of the Peace Conviction for keeping a Gun not having a 100 l. per Annum and doth not say when 33 H. 8. c. 6. upon the Statute of H. 8. for keeping of a Gun and upon proof it did appear that he had not 100 l. per Annum The Record of the Conviction was removed into B. R. and this Exception was taken to it viz. non habuisset 100 l. per Annum but doth not say when for it may be that he had one hundred pound per Annum at the time when he kept a Gun but not when he was Convicted It was answered that the words non habuisset shall relate to all times past and is as much as to say nunquam habuit and the conclusion being contra formam Statuti must explain such words which seem to be doubtful This was compared to the Case where Debt was brought upon the Statute of R. 1 R. 3. c. 3. 3. for taking away of Goods before the Plaintiff was convicted of the Felony laid to his charge contra formam Statuti he being only committed upon suspicion now though he did not alledge that the Goods were taken Cro. Eliz. 749. for this cause it shall be intended they were so taken when no other cause is shewed Curia This is a conviction before a Iustice of the Peace and therefore the time when the Offence was committed should be certainly alledged viz. that the Defendant praedict Anno die had not 100 l. per Annum for which reason it was quashed Bisse versus Harcourt Hill 1 Gulielmi Rot. 217. THE Plaintiff brought an Action for 400l Replication not well concluded for so much Mony had and received of him by the Defendant The Defendant pleaded an Attainder of High Treason in Abatement and therefore ought not to answer the Declaration The Plaintiff replied that after he was Attainted and before this Action brought he was pardoned and concludes thus Unde petit Judicium dampna sua The Defendant demurs and for cause shewed Rast Ent. 663. b. 681. Co. Ent. 160. that the Replication is not well concluded for dampna sua
This was the Opinion of Iustice Popham and Williams in those times when most of the Cases cited on the other side were under debate In the Case of Brown and Wentworth a Revocation of a Will was offered to be proved by a single Witness in the Spiritual Court which being denied a Prohibition was prayed in B. R. Yelv. 92. but denied because the Will being the principal matter of which that Court had an original Iurisdiction therefore the Revocation thereof which was a collateral matter but depending upon the Principal shall be tried there for when the Original belongs properly to their determination all dependences thereon shall follow it and be tryed by them according to their Law In Easter-Term 4 Car. 1. this came to be a Question again 2 Cro. 264. 12 Co. 67. it was upon a Libel for a Legacy and Plene administravit pleaded which they endeavoured to prove by the Testimony of a single Witness and denied In that Case Croke and Yelverton Iustices were against the Prohibition because a Suit for a Legacy was a thing meerly Spiritual and Payment thereof is of the same nature so that the Ecclesiastical Court hath a proper Iurisdiction both of the Matter and the Proof By these Instances it may be seen that 't is not yet a settled Point that a Proof by one Witness in that Court is good Her 87. Sid. 161. for Prohibitions have been both granted and denied It cannot be a reason to grant a Prohibition to the Spiritual Court for refusing such Proof which is allowed at the Common Law because though the Proof by a single Witness is allowed at the Law yet 't is not a conclusive Evidence because the Iury who are of the Vicinage are supposed to know the Fact and may give a Verdict upon that knowledge without Proof or Witness as well as where there is but one In Michaelmas-Term following the Court were all of Opinion that no Consultation ought to go for as where the Ecclesiastical Court proceeds upon things meerly Spiritual no Prohibition is to be granted as in Suits about Probates of Wills c. so where they meddle with Temporal Matters or refuse to admit such Proof which is allowed at the Common Law no Consultation shall go If the Law should be otherwise it would be inconvenient for all Executors and Administrators for if they should be compelled to prove payment of Debts by two Witnesses they might often fail of that Proof and so pay the Mony twice Such Proof which is good at the Common Law ought to be allowed in their Court and at the Common Law 't is not necessary to prove a Payment of a Debt by two Witnesses They may follow their own Rules concerning things which are originally in their Cognizance but if any collateral Matter doth arise as concerning a Revocation of a Will or Payment of a Legacy if the Proof be by one Witness they ought to allow it Tythes are of Ecclesiastical Cognizance now if a Libel should be brought for Subtraction of Tythes and the Defendant proves by one Witness that he set them out from the nine parts tho' the Parson had not any notice of it which he is not to have at the Common Law though 't is otherwise by their Law that Court must allow this Proof otherwise a Prohibition must go 2. As to the other Point a Prohibition may be granted as well after as before Sentence but the Sentence in this Case is the very ground of the Prohibition Iustice Dolben cited a Case between Richardson and Desborow in B. R. Hill 1675. which was a Devise of a Legacy of 100 l. The Executor was sued who pleaded that the Testator owed another person the like Sum of 100 l. upon Bond which being paid he had not Assets ultra And upon Proof in the Spiritual Court it appeared there was but one Witness to the Bond which not being a good Proof of it in their Law there was a Sentence for the Payment of the Legacy and afterwards a Prohibition was granted upon the suggesting of this Matter Ashcomb versus Inhabitantes Hundredi de Elthorn Hill 1. Rot. 901. AN Action was brought upon the Statute of Winton for a Robbery done in the Parish of Hamonsdworth in Longford Lane in the said Hundred The Case was thus viz. A person was robbed who refused to make Oath whether the Hundred may be sued The Plaintiff employed one Coxhead his Servant to sell fat Cattle in Smithfield who sold them for 106 l. which Mony he delivered up in two Bags to one Strange a Quaker who was robbed in the Company of Coxhead he being also robbed of 12 s. They both gave notice of this Robbery to the Inhabitants of the next Village and Coxhead was examined by the Iustice of the Peace dwelling in the County and Hundred where the Robbery was committed pursuant to the Statute c. before whom he made Oath that he did not know any of the Robbers 27 El. c. 13. but Strange being a Quaker refused to be examined upon Oath Mr. Ashcomb the Master brought an Action against the Hundred and all this Matter was found specially Now the Question was whether the Action was well brought in the name of the Master and so whether the Hundred should be liable to pay the Mony of which the Quaker was robbed he refusing to be examined upon Oath In this Case the Statute of Queen Elizabeth was considered which was made in favour of the Hundred for it enacts That the Party robbed shall not maintain any Action against the Hundred except he give notice of the Robbery with convenient speed to the Inhabitants of some Town Vill or Hamlet near the place where he was robbed and except within twenty days next before the Action brought he be examined upon Oath before a Justice of the County inhabiting in the Hundred where the Robbery was committed or near the same whether he knew the Parties who robbed him or either of them It was agreed that the Master may have an Action for a Robbery committed upon the Servant but that is by vertue of the Statute of Winton Mich. 1658. The Case of Jones against the Hundred of Bromley is to that purpose which was a Robbery upon himself Wife and Servant the Mony being taken from the Servant and the Master made Oath that he did not know any of the Robbers but it happened the Servant did know one of them whose Name was Leonard of which he did then inform his Master and this Matter appearing to the Iury it was found specially and upon the Argument of that special Verdict these Points were resolved 1. That the Oath of the Master without the swearing of his Servant is good because the Servant had only the bare Custody of the Mony 2. That the Information then given by the Servant to the Master of his Knowledge of one of the Robbers did not oblige the Master because the Mony shall be said to
Latch 262. is said not to be adjudged for the Court was divided in Opinion The Case of Marwood and Turpin is the same Moor 600. Cro. Eliz. 715. but there the Defendant pleaded the acceptance of the Rent after the assignment which was not done here Now if both those Cases should be admitted to be Law Sid. 240 266. Allen 34 42. Palm 118. Latch 260. Noy 97. 2 Cro. 334. Mooo 392. and parallel with this yet the later Resolutions have been quite contrary for 't is now held and with great reason that the privity of Contract of the Testator is not determined by his death but that his Executor shall be charged with all his Contracts so long as he hath Assets and therefore such Executor shall not discharge himself by making of an Assignment but shall still be liable for what Rent shall incur after he hath assigned his Interest nay if the Testator himself had assigned the term in his life-time yet his Executor shall be charged in the Detinet so long as he hath Assets Newton versus Trigg Mich. 1. Jac. Rot. 226. TRespass for breaking and entring of his Close Statute of Bankrupts do not extend to an Inn-kepeer treading down of his Grass c. and taking away of his Goods Vpon not Guilty pleaded a special Verdict was found That the Plaintiff was an Inn-Keeper and a Freeman of the City of London that he bought Oates Hay c. which he sold in his Inu by which he got his Living that he with others built a Ship and he had a Share therein and a Stock of 50 l. to Trade withal that he was indebted to several persons and departed from his House and absconded from his Creditors that thereupon a Commission of Bankrupcy was taken out against him at the Petition of the Creditors that the Plaintiff was indebted to Trigg and that the Commissioners found him to be a Bankrupt and by Indenture bearing date the 25th day of June made a Bargain and Sale of the Goods of Trigg who did take and carry them away c. The Question was whether upon the whole matter the Plaintiff was a Bankrupt or not Serjeant Thomson argued that he was not within any of the Statutes of Bankrupcy for an Inn-Keeper is under many obligations and circumstances different from all other Trades-men for he is to take care of the Goods of Travellers and if he set any unreasonable Price upon his Goods 't is an Offence which the Iustices of Peace and Stewards in their Leets have power to hear and determine 2. He doth not buy and sell by way of Contract for most of his Gains arise by the entertaining and lodging of his Guests by the attendance of his Servants and by the Furniture of his Rooms and by uttering of Commodities as in other Trades Cro. Car. 548. And therefore by the Opinion of three Iudges in the Case of Crisp and Prat it was held that an Inn-holder doth not get his Living by Buying and Selling for though he buyeth Provision he doth not sell it by way of Contract but utters it at what gain he thinks reasonable which his Guests may refuse to give Iustice Berkley in the arguing of that Case agreed that he who getteth his Living by Buying and Selling and not by both is not within the Statutes but the Iury having found that he got a livelyhood by both and using the Trade of an Inholder therefore he was a Bankrupt But the other three Iudges were of a contrary Opinion because an Inn-Keeper cannot properly be said to sell his Goods As to his having a Share in a Ship 't is no more than a Stock to Trade which may go to an Infant or to an Executor after his decease and if either of these persons should Trade with it they cannot be made Bankrupts because 't is in auter droit E Contra. E contra It was argued that he who keepeth an Inn is a Trades-man and may be properly said to get his Living by Buying and Selling. The Goods of a Traveller are not distrainable for the Rent of an Inn-Keeper the reason is because he is more immediately concern'd as a Trades-man for the benefit of Comerce It was the Opinion of my Lord Rolls 2 Roll. Abr. 84. that an Inn-Keeper was a Trades-man therefore any Man might build a New Inn for it was no Franchise but a particular Trade to keep an Inn. And as a Trades-man he selleth his Goods to his Guests by way of Contract 39 H. 6.18 19. for he is not bound to provide Hay and Dates for the Horses of his Guests without being paid in hand as soon as the Horses come into the Stable for the Law doth not oblige him to trust for the payment The Case of Crisp and Prat as Reported by Iustice Croke seems to be against this Opinion Jones 437. March 34. but 't is mis-reported for Jones who mentions the same Case says that it being found that the Inn-Keeper got his Living by Buying and Selling it was the Opinion of two Iudges that he was within the Statute but the other two Iudges as to this Point were of a contrary Opinion for they held that an Inn-Keeper could be no more a Bankrupt than a Farmer who often Buys and Sells Cattel and other Goods Tho' a Man is of a particular Trade yet if it doth not appear that he got his Livelyhood by Buying and Selling 't is not actionable to call such a person Bankrupt Now certainly if the Plaintiff had declared that he was an Inn-Keeper Stiles 420. Sid. 299. and got his living after that manner and that the Defendant to scandalize him said He was a Bankrupt the Action would lie as well as for a Dyer Farmer Carpenter or such like Trades of manual Occupation Most of the Inn-Keepers are Farmers and if it had been so found in this Case it would not have been denied but that he had been within the Statute of Bankrupts Afterwards in Trinity Term 3 Willielmi Judgment Iudgment was given for the Plaintiff for taking the whole matter as found by this Verdict 't is not sufficient to make him a Bankrupt 1. That he had a Ship which he let to Freight this was not much insisted on at the Bar to make him a Bankrupt for 't is no more than for a Man to have a Share in a Barge Hackney-Coach or Wagon all which are let for Hire Besides in this Case 't is found that the Plaintiff was but a Partner with another And as to the 50 l. which he had in this Trade that is not sufficient to make him a Bankrupt Cro. Car. 282. Sid. 411. for he must be actually a Trader at the time that the Debt was contracted which is not found so it must be to make the word Bankrupt actionable for it must be found that he was a Trader at the time of the words spoken All the Question of difficulty is that the Plaintiff was
an Inn-Keeper and that he bought Necessaries and uttered them in his House but this will not make him a Baukrupt Because Inns are of necessity and under the inspection of the publick and he cannot refuse to lodge travelling persons 2 Roll. Rep. 345. Hutt 100. 2 Roll. Abr. 64. Dalton 28. and 't is chiefly upon this account that he hath several Priviledges which other Traders have not as to detein a Horse till he is paid for keeping of it c. They are under the power of the Iustices of the Peace in the places where they are scituated for if an Inn be erected in an inconvenient place 't is a Nusance and may be suppressed by Indictment 't is the same with an Ale-house 1 Jac. c. 9. 21 Sac. c. 7. 1 Car. c. 14. and therefore several Statutes which are made to prevent Tipling and which appoint at what price Ale shall be sold have been adjudged to extend to Inn-Keepers Where a Man Buys and Sells under a Restraint and particular Limitation tho 't is for his Livelyhood yet he is not within the Statutes Inn-Keepers do not deal upon Contracts as other Traders do for a Iudge of Assize may set a price upon his Goods and if they should set a price themselves if 't is unreasonable they may be indicted for extortion what they buy is to a particular intent for 't is to spend in their Houses and tho' they get their Living by it 't is not ad plurimum for the greatest part of their Gains ariseth by Lodgings Attendance dressing of Meats and other Necessaries for their Guests Ever since the Statute of the 13th of Eliz. all the subsequent Acts relating to Bankrupts have been penn'd alike except the 21st of Jac. I. which is a little larger and takes in a Scrivener and it may still be worth the care of a Parliament to enlarge it to an Inn-Keeper but no Law now in being extends to him He is not taken notice of as a Trader within any of the Statutes of Bankrupcy he is only communis hospitator a person or Trador who buys and sells for hospitality 8 Co. Caly's Case by receiving Travellers he becomes chargable to the Publick to protect them and their Goods A Shoe-maker 1 Cro. 31. Hutt 46 47. Tanner and Baker are Trades within the Statutes but the difference between those Trades and an Inn-Keeper is plain because they use the Manufacture and thereby encrease the value as Leather is made more useful and of more value by making of it into Shoes A Farmer is not within the Statute and yet they all buy and sell for 't is necessary to their Occupation This Point was setled in Crisp and Prat 's Case but the occasion of the doubt afterwards was by the publishing of Iustice Jones 's Reports who doubted upon the particular finding of the Iury and so the Court came to be divided There is no material difference between an Inn-Keeper and the Master of a Boarding-School who buys and dresses Provisions for young Scholars and obtains Credit by his way of Living but it was never yet thought that he was within any of those Statutes Rowsby versus Manning Mich. 4 Jac. Rot. 15. DEBt upon a Bond for performance of an Award Conditional submission to an Award so as it be made by such a day and ready to be delivered to the Parties or to such of them as desire it The Defendant pleaded nullum fecerunt arbitrium c. The Plaintiff replied that after the submission and before the day appointed in the Condition the Arbitrators did make their Award by which they ordered the Defendant to pay so much Mony to the Plaintiff and so assigned the breach for non-payment c. And upon a Demurrer to this Replication Serjeant Tremaine said it was a conditional submission viz. to perform an Award so as it be made by such a day and ready to be delivered to the Parties and the Plaintiff hath not shewed that it was ready to be delivered to the Defendant which he ought to have averred If the Condition be to perform an Award between the Parties 5 Co. 103. More 642. Ita quod arbitrium praed fiat deliberetur utrique partium praed before such a day it must be delivered to all the Parties and not to one for each of them are in the danger and penalty of the Bond. E contra E contra Serjeant Thompson agreed it to be a conditional Submmission but not such as goeth to the substance of the Award it self for the conditional Words are not to the Award but to the Form of the delivering of it and therefore it should come on the Defendants side to shew that it was not ready to be delivered Curia If an Award is actually made 'tis then ready to be delivered but in this Case it must be ready to be delivered to the Parties or to such of them who desire it so it must be desired and if then denied the Party may plead the matter specially The Summission was viz. 2 Cro. 577. 2 Roll. Rep. 193. so that the Award be made ad vel antea 5 Decemb. ready to be delivered at a certain Shop in London The Plaintiff shewed an Award made at York ready to be delivered at the Shop in London this was adjudged to be a void publication and delivery because a place was appointed where it should be delivered and published viz. at the Shop in London where the Parties were to expect it and not elsewhere So it would have been if a day had been appointed on which it ought to be delivered and the day had been mistaken 2 Sand. 73. But here is neither day or place appointed for the delivery so that the Defendant ought to have desired the Award and if it had not been ready to be delivered he ought to have pleaded the Matter specially DE Term. Sancti Hill Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Mr. Leigh's Case HE brought a Mandamus to be restored to the Office of a Proctor of Doctors Commons Mandamus will not lie for the Office of a Proctor of Doctors Commons The Return was that the Court was the supreme Court of the Archbishop of Canterbury who had the Government thereof that he appointed a Iudge of the said Court who had power to alter and displace Officers that the Defendant was admitted and sworn a Proctor of the Court and took an Oath to obey the Orders thereof that part of the said Oath was That no Proctor should do any thing in that Court without the Advice of an Advocate that he had done Business without such advice in a certain Cause there depending and that he refused to pay a Tax of 10 s. imposed upon him by Order of the Court towards the Charges of the House The Questions upon this Return were viz. 1. Whether a Mandamus will lie to restore a person to the Office of a
Demise and the Word Assignes is in the Deed yet they are not bound if they have no Estate so that 't is not the naming of them but by reason of the Estate in the Land they are made chargeable No Iudgment is entred upon the Roll. FINIS ERRATA FOlio 88. Line 13. for Defendant read Plaintiff f. 106. l. 26. for no r. an f. 119. l. 7. after must be r. Error f. 147. l. 13 18 38. for coram r. quorum f. 189. l. 23. for reasonable r. unreasonable f. 196. l. 28. for devises r. demises f. 199. l. 1. for 23. r. 13. f. 201. l. 14. before merged r. not f. 218. l. 17. for 1672. r. 1679. f. 203. l. 31. after Berkley r. and Mr. Killigrew f. 222. l. 31. leave out and marrieth f. 226. l. 21. leave out she marrieth f. 237. l. 29. for devise r. demise f. 255. l. 31. for Father r. Nephew f. 256. l. 12. for joyned r. tryed f. 287. l. 6. after delivered r. tied f. 303. l. 16. for Grantee r. Guarantee f. 307. l. 36. for voidable r. void A TABLE to the Third Part of Modern Reports A. Abatement See Ioint Action 8. 1. DEBT was brought by four Plaintiffs one of them died before Judgment the Action is abated as to the rest 249 2. Waste is brought against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for the Damages ibid. 3. Two Jointenants are Defendants the death of one shall not abate the Writ for the Action is joint and several ibid. 4. Where two or more are to recover in a personal thing the death of one shall abate the Action as to the rest ibid. 5. But in Audita Querela the death of one shall not abate the Writ because it is in discharge ibid. Abeiance See Acceptance 1. Resignation of a Benefice passes nothing to the Ordinary but putteth the Freehold in Abeiance till his acceptance 297 See Acceptance Resignation Surrender Acts of Parliament See Iustice of Peace 2 Pardon 2 Ought to be construed according to the intention of the Law-makers and ought to be expounded according to the Rules of the Common Law 63 2. Where a particular punishment is directed by a Statute Law it must be pursued and no other can be inflicted upon the Offender 78 118 3. When an Act is penal it ought to be construed according to Equity 90 157 312 4. Preamble is the best Expositor of the Law 129 169 Action upon the Ease Assumpsit A Feoffment was made upon Trust that the Feoffee should convey the Estate to another the Cestuy que Trust may have an Action if the Feoffee refuseth to convey 149 2. In consideration that the Plaintiff would let the Defendant have Meat Drink c. he promised to pay as much as it was reasonably worth the word valerent was in the Declaration it should have been quantum valebant at the time of the Promise but held good after Verdict 190 3. Where a personal promise is grounded upon a real Contract the Action will lie 73 4. It will not lie for Rent reserved upon a Demise but where a Promise is made to pay Rent in consideration of occupying a House it will lie 240 Action on the Case See Bankrupts 2 Indictment 2 Slander where it lieth 1. He is a Papist spoken of a Deputy Lieutenant 26 2. Where the words injure a person in his Profession or bring him in danger of punishment 27 3. He stole the Colonel's Cupboard Cloth there being no precedent Discourse either of the Colonel or his Cloth 280 4. He is broken and run away and never will return again spoken of a Carpenter 155 5. He is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his door but he spoken of a Merchant who made a Bonefire at the Coronation of King James 103 6. He owes more Mony than he is worth he is run away and is broak spoken of an Husbandman 112 7. The Wife was called Whore and that she was the Defendant's Whore the Husband and she brought the Action and concluded ad dampnum ipsorum it lies without allegding special Damages 120 8. Sir J. K. is a buffle headed Fellow and doth not understand Law he is not fit to talk Law with me I have baffled him and he hath not done my Client Justice spoken of a Justice of Peace 139 9. J. P. is a Knave and a busie Knave for searching after me and other honest men of my sort and I will make him give satisfaction for plundering me spoken of a Justice of Peace no Colloquium was laid the Court was divided 163 Where it doth not lie Words were laid to be spoken ad tenorem effectum sequen ' which is not an express allegation that they were spoken 71 72 Action on the Case against a Common Carrier Where it was brought against him upon an Assumpsit in Law and likewise upon a Tort the Declaration is not good 322 Action on the Case for a wrong See Pleading For diverting of a Water-course the Antiquity of the Mill must be set forth 49 2. It lies against a wrong doer upon the bare possession only and the Plaintiff need not set forth whether he hath a Title by Grant or Prescription for that goes to the right 51 52 132 3. If the Declaratien is for the diverting of the Water ab antiquo solito cursu this amounts to a Prescription which must be proved at the Trial or the Plaintiff will be non-suited 52 4. Whether it lieth for the making of a scandalous Affidavit in Chancery 108 5. For selling of Oxen affirming them to be his own ubi revera they were not but doth not say sciens the same to be the Goods of another or that he sold them fraudulenter or deceptive 't is naught upon a Demurrer but good after Verdict 261 6. Where several are guilty of a wrong the Action may be brought against either 321 7. Debt upon the Statute of Ed. 6. for not setting out Tithes brought against two Tenants in Common one of them did set out the Tithes and the other carried them away it ought to be brought only against the wrong doer 322 8. For disturbing of a Man in a Common Passage or Common High-way no Action on the Case lieth without a particular damage done to himself for the proper remedy is a Presentment in the Leet 294 Administrator Vide Infant 18 Ordinary Interest 2 Pleading 2 Administrator durante minore aetate hath no power over the Estate 24 2. Administration could not be granted by the Spiritual Court before the Statute of Ed. 3. 24 3. Where 't is once granted whether it ought to be repealed 25 4. Administrator had the whole Estate in him before the Statute of Distributions 60 5. He then gave Bond to distribute as the Ordinary should direct ibid. 6. The Father died
intestate leaving one Son an Infant Administration was granted durante minore aetate he died before 17. whether Administration de bonis non of the Father shall be granted to the next of Kin of him or his Son 61 62 7. Whether an Interest is vested in an Infant where Administration is granted durante minore aetate so that if he die before 17. it goes to his Executor 61 8. Before the Statute of Distribution if there was but one Child he had a right of Administration but it was only personal and if he died before it was granted to him by the Court it would not go to his Executor 62 9. Husband hath a right of Administration to the Goods of the Wife because the Marriage is quasi a Gift in Law 64 10. If Administration had been granted to a Stranger before the Statute of Distributions and no Appeal within fourteen days he who had right though beyond Sea was barred 64 11. Husband and Wife Administratrix to her first Husband recover in Debt the Wife died and the Husband brought a Scire Facias to have Execution it will not lie by him alone because it was a Demand by the Wife as Administratrix in auter droit ibid. 12. Judgment was had in Somersetshire the Plaintiff died intestate Administration is committed by an inferior Diocess 't is void because the Entry of the Judgment in Middlesex where the Records are kept made him have bona notabilia in several Diocesses and so Administration ought to be granted in the Prerogative 324 13. If the Intestate hath two Sons and no Wife each have a Moiety of the personal Estate if but one an interest is vested in him 59 14. At Common Law none had a Right to an Intestate's Estate but the Ordinary was to distribute it to Pious Uses ibid. Admiral and Admiralty There was a Sentence in the Admiralty for taking of a Ship and afterwards Trover was brought for taking of the same Ship whether it lies or not 194 2. Pawning of a Ship for Necessaries at Land and a Libel was exhibited in the Admiralty whether good or not 244 3. Where things arising upon Lands may be sued for in the Admiralty 245 Addition See Indictment Where it makes a thing certain as an Ejectment de Tenemento is incertain but with the addition vocat ' the Black Swan 't is made certain 238 Admittance See Baron and Feme 9. A Custom cannot warrant an incertain Fine upon an Admittance to a Copyhold 133 2. The Lord may refuse to admit without a tender of the Fine where 't is certain ibid. 3. Where 't is incertain the Lord is to admit first and then to set the Fine ibid. 4. Custom that upon every Admission the Tenant should pay a years value of the Land as it was worth tempore admissionis t is good 132 5. For a Fine upon an Admission an Action of Debt will lye for though it favours of the realty yet 't is a certain duty 230 6. Before Admittance the Estate is in the Surrenderor and he shall have an Action of Trespass against any person who enters before another is admitted 226 7. Before an Admittance the Surrendree cannot enter but by special Custom to warrant it 225 Affidavit See Action on the Case for a Wrong 4. See Baron and Feme 11. Infant 21. Agreement and Disagreement Whether assent is necessary to a Surrender it being a Conveyance at the Common Law 't is not necessary in Devises or in any Conveyances directed by particular Statutes or by Custom 298 2. Whether the Estate shall be in the Surrendree immediately upon the execution of the Deed if he doth not shew some disassent to it 300 3. Agreement is not so much necessary to perfect a Conveyance as a Disagreement is to make it void ibid. 4. A Feoffment to three and Livery is made to one the Estate is in all till disagreement 301 Alien Leases made to Alien Artificers are void by the Statute of 32 H. 8. This Statute was pleaded by an Alien who was a Vintner and held to be no Artificer 94 Amendment See Mistrial Costs 2. 1. Of the Distringas by the Roll after a Verdict the Day and Place of Assizes being left out 78 2. In matters of Form the Court have sent for a Coroner to amend his Inquisition 101 3. Of a Mis-entry of a Writ of Enquiry without paying of Costs 113 4. Return to an Homine Replegiando amended by Rule of Court 120 5. A Riot was laid to be committed after the Indictment it was amended being only a Misprision of the Clerk 167 6. Where matter of Form is cured by a Verdict but 't is not amendable upon a Demurrer 235 7. Scire Facias upon a Recognizance to have Execution for 1000 l. juxta formam Recuperationis it should have been recognitionis amended after a Demurrer 251 Amerciament See Court 3. 1. Differs from a Fine for that is the act of the Court but an Amerciament is the act of the Jury 138 2. It need not be to a Sum certain for that may be affered 138 3. A Bailiff of a Liberty cannot distrein for an Amerciament Virtute officii but he ought to set forth the taking Virtute Warranti ibid. Appeal Against three for a Murder the Count was that O. gave the wound of which the person died the Jury found that L. gave the wound and that O. and M. were assisting this varies from the Count and yet held good 121 2. The Wound was given in one County and the Death ensued in another and the Party was Tryed where the Wound was given and held good ibid. 3. At Common Law it was at the Election of the Appellant to bring the Appeal in either County and the Tryal to be by a Jury of both but now it may be brought in the County where the Party died 122 4. Whether Auter foitz Convict of Man-Slaughter is a good Plea to an Appeal of Murder 156 157 5. If a Woman be slain her next of Kin shall maintain an Appeal 157 6. How many things are required by the Statute of Gloucester to be alledged in an Appeal of Murder 158 7. The Appellee pleaded in Abatement but did not plead over to the Felony whether good or not 267 8. Where the Appellee must plead in propria persona and where per Attornatum 268 Apportionment Where a Contract under Hand and Seal for a Sum certain shall not be apportioned in an Action pro Rata as if it be for a Years Service the Plaintiff must serve a Year and aver it tho' the Contract is executory 153 2. But if a Promise is for a Years Board an Action may be brought for three Quarters of a Year for if there is a Variance between the Agreement and the Declaration 't is for the benefit of the Defendant 154 Apprentice Whether Justices of Peace have any power to compel men to take poor Children Apprentices since the Statute gives power to Church-wardens to raise
they are not properly sua 278 Exposition of Words and Sentences See Number Subsequent words may explain a former Sentence in a Deed but in Wills the first words guide all which follow 82 2. Action was brought by Original for that the Defendant prosecut ' fuit adhuc prosequitur in the Admiralty those words adhuc prosequitur shall not be construed to make it subsequent to the Original but must refer to the time of suing it forth 103 157 3. Doubtful Words must be Expounded always against the Lessor 230 4. To make an Assurance to the Obligee and his Heirs the Conjuction and shall be taken in the disjunctive 235 F. Fair See Trade IF the place where it should be kept is not limited by the Grant it may be kept where the Grantee will 108 False Imprisonment It will not lye against a Sheriff for taking the Body by vertue of a Casa upon an Erronious Judgment for the Execution is good till avoided by Writ of Error 325 Fees Of the Clerks of the Crown-Office the Court will not regulate upon a Motion but if oppressive they must be indicted for Extortion 297 Fines levied See Tenant at Will 6. One of the Cognisors died before the return of the Writ of Covenant 't is Error but not in the case of a Purchaser for a valuable consideratino for the Court will interpose 99 2. If the Cognisor doth dye after the Entry of the Kings-Silver the Fine is good 140 3. Writ of Covenant Teste 15th of January returnable in Crastino Purificationis taken by Dedimus 18th of Januarii The Cognizor died in Easter-Week following but four days before her Death the Kings-Silver was entred as of Hillary-Term precedent this was held a good Fine 141 4. Where a person is in possession by vertue of a particular Estate for Life and accepteth a greater Estate it shall not divest the Estate of those in Remainder for Life so as the same may be barred by Fine and Non-claim 195 5. Lease for one hundred years in Trust to attend the Inheritance cestuy que Trust being in possession Demises to another for fifty years and levied a Fine and the five years passed the Term for a hundred years is divested by this Fine and turned to a right and so barred 196 6. In what Cases a Fine is a Bar and what not 198 Fines upon Admittance See Admittance Copihold Debt 2. Infant 9. The Judges are to determine whether it be reasonable or not 134 2. Lord cannot enter for non-payment of an unreasonable Fine 134 Forfeiture If Tenant for years make a Feoffment 't is a Forfeiture but if he make a Lease and Release ' tho 't is of the same Operation yet 't is no forfeiture 151 Fraud See Evidence G. Grants Grantor and Grantee WHere an Interest is coupled with a Trust in a Grant it shall go to the Executor of the Grantee 43 2. Grants must be certain otherwise they are void 134 Grants of the King Not good for the sole Printing of Blank Bonds exclusive of all other Printers 75 2. A Grant to restrain trading to particular places is good 77 3. But of sole making Cards not good because it restrains a whole Trade ibid. 4. A Grant cannot divest the Subject of a Right enjoyed long before it was made ibid. 5. Cannot discharge a person of a Duty to which he is made lyable by a subsequent Act of Parliament 96 6. Difference between his Grants and Prohibitions 7. Where his Grants ought to be taken very strictly 168 8. In a Quo Warranto the Defendant pleaded that the King was seised in Fee of a Franchise who granted it to another Habendum the Hundred whether good or not 199 Gun See Iustice of Peace 3. Conviction before a Justice of Peace upon the Statute of H. 8. for keeping a Gun not having 100 l. per Annum quashed because it was said non habuisset instead of nunquam Habuit 100 l. per Annum 280 H. Habendum WHere it shall be said to explain the general Words preceding 81 2. Nothing passes in the Habendum but what was mentioned in the Premisses 199 Heir Error by the Plaintiff ut Consanguineus Haeres viz. Filius c. 't is sufficient without shewing the descent from more Ancestors 152 2. Where he shall take by Descent and where by Purchase 205 3. In a Bond where the word Heir is a word of Limitation and not a designation of the person 233 4. Reversion in Fee descended to an Heir after the Estate Tail spent and an Action was brought against him upon a Bond of his Ancestor 't is not necessary that the Plaintiff name all the intermediate Remainders but him who was last actually seized of the Fee 255 Heriot Lease for 99 years if A. B. C. so long live paying an Heriot upon the death of either A. assigns the term no Heriot shall be taken of the Assignee 231 2 May seize or distrain for Heriot Service if distrain it may be the Beast of any man upon the Land but if he seise it must be the very Beast of the Tenant ibid. 3. Where an Heriot is reserved upon a Demise it differs from those which are due by Tenure 231 4. Lease for 99 years if M. and D. so long live reserving an Heriot after death of either provided if D. survive no Heriot to be paid but M. survived the Court was divided whether a Heriot should be paid 230 Highways A Man cannot be exempted from repairing by the Grant of the King if made before the Statute of Ph. Mar. which charges him to repair 96 Homine Replegiando Brought for a Monster and upon the Return of the Sheriff that he had replevyed the Body he was bailed 121 2. Brought for a young Woman taken out of her Parents Custody and married against her Consent 169 Hue and Cry See Robbery Hundred Court This Court was first derived from the County Court 200 2 Hundreds were usually granted to Abbots and their Possessions coming to the Crown by dissolution of their Abbies are merged and cannot be regranted 200 I. Ideot HOW it differs from a Lunatick 43 2. The King hath power to grant his Estate to any person without Accompt to be given ibid. 3. Grant of an Ideot by the King the Grantee dieth his Executor hath an Interest in him ibid. Ieoffails See Indictment 8. Travers 4. Variance 2. None of the Statutes help an insufficient Indictment 79 2. Variance between original and declaration not aided by the Statute of Ieofails 136 3. Want of concluding without a Travers is but matter of form and aided 319 Indictment For using of Alias Preces than enjoined by the Book of Common Prayer it may be upon an extraordinary occasion and so no Offence 79 2. For scandalous words whether it lieth as it doth for Libels the one being a private the other a publick Offence 139 3. For Baretry in soliciting of a Suit against another who was not indebted to the person 97
Comissarius especially in the Case of a Fellow of a College which is a thing of private design and doth not concern the Publick 265 Vse If a Letter of Attorny is in a Deed or a Covenant to make Livery nothing passes by way of Use 237 W. Waies See Action for wrong 9. Prescription 1. IN Actions for not repairing them it must be alledged that the Defendant reparare debet 291 2. Action on the Case doth not lie by any particular person for not repairing unless he hath a particular damage but an Indictment is te proper remedy ibid. 3. Custom for all occupyers of a Close in such a Parish to have a Foot-way not good for the Plaintiff ought to prescribe in him who hath the Inheritance 294 Waste See Baron and Feme 7. It lay at Common-Law only against Tenant by the Curtesie or in Dower 90 2. It was given by the Statute of Gloucester against Tenant for life or years and treble Damages ibid. 3. It lies against an Executor de son tort of a Term for years 93 4. It lies against an Administrator of a rightful Executor though the Statute doth charge only Executors de son tort and Administrators that they shall be liable as the Executor or intestate 113 Wills See Exposition Devise A subsequent Will may be made so as to consist and stand with a former 204 2. It may also revoke part and confirm part of aformer Will ibid. 3. If two Wills are made without Dates they are both void otherwise of Codicils 208 4. Two Witnesses to a Will and two to a Codicil annexed to the same Will one of the Witnesses to the Codicil was a Witness to the Will the third person is not a good Witness to the Will for he never did see it 262 Witnesses A Witness at a Trial had made a Bargain with the Plaintiff who promised her 1000 l. if she recovered she was not allowed to be sworn 85 2. Informer shall be a good Witness to convict a Man for Deer-stealing tho' he has a Moiety of the Forfeiture 114 115 3. The Patry to an Usurious Contract shall not be a Witness to prove the Usury for he is testis in propria causa 114 BOOKS Printed for and Sold by Charles Harper at the Flower-de-Luce over against St. Dunstan 's Church in Fleet-Street Law-Books THE Reports of Sir Peyton Ventris Knight late one of the Justices of the Common-Pleas in two Parts The first containing select Cases adjudged in the Kings-Bench in the Reign of King Charles II. The Second Part containing choice Cases adjudged in the Common Pleas in the Reign of King Charles II. and King James II. and in the three first years of his now Majesty King William and the late Queen Mary while he was a Judge in the said Court with the Pleadings to the same with the allowance and Approbation of the Lord Keeper and all the Judges Tho Volumes Folio Price 1 l. 10 s. The Second Part of Modern Reports being a Collection of several special Cases most of them adjudged in the Court of Common-Pleas in the 26 27 28 29 and 30 Years of the Reign of King Charles II. when Sir Francis North was Chief Justice of the said Court To which are added several select Cases in the Courts of Chancery Kings-Bench and Exchequer Carefully collected by a Learned Hand Printed 1698. Price 12 s. The Lord Coke's Reports in English Folio Judge Crook's Reports in three Volumes the third Edition with Reference to all the Late Reports The Lord Coke's Commentary on Littleton Folio His Commentary on Magna Charta Folio His Pleas of the Crown or the third part of the Institutes Folio His Jurisdiction of Courts or fourth part of the Institutes His Eleven Reports in French Folio Bulstrode's Reports with new References Folio Leonard's Reports in Four Parts with New References Folio The Year-Books in ten Volumes the last Edition with new Notes and Tables to them all Folio The Reports of the Lord Keeper Littleton in the time of King Charles the First Folio The Reports of the Learned Judge Sir Henry Hobert the Fourth Edition corrected and amended Folio Reports in the Court of King's-Bench at Westminster from the 12th to the 30th Year of King Charles the Second By Joseph Keble of Grays-Inn Esq In three Volumes Folio Kelway's Reports with new References to all the late Reports By Joseph Washington Esq Reports of several especial Case in the Court of Common Pleas in the Reign of King Charles the II. By S. Carter of the Inner-Temple Esq Folio An Assistance to Justices of the Peace for the easier performance of their Duty the first part containing the particular Clauses of all such Statutes from Magna Charta until the first of King James II. that do any ways concern a Justice of Peace in the other Part the whole Office of a Justice of Peace is methodically digested with the most approved Presidents under proper Heads to which is now added a Table for the ready finding out the Presidents with a large Table of the Matters never before Printed By Jos Keble of Grays-Inn Esquire An exact Abridgment of the Records in the Tower of London being of great Use for all that are concerned in Parliamentary Affairs and Professors of the Laws of this Realm Collected by Sir Robert Cotton Knight and Baronet Folio The Commentary of Edward Plowden Esq with References whereunto is added his Quaeries Fol. The Laws of Jamaica in II. Parts in Fol. with a large Map of the Island An exact Abridgment of the Statutes of King William and Queen Mary and of King William III. in Force and use Begun by Joseph Washington of the Middle-Temple Esp and since his Death revised and continued to the End of the last Sessions of Parliament April 27. 1696. And thence continued to the 5th of July 1698. 8vo Price 6 s. 6 d. The Scrivener's Guide being choice and approved Forms of Precedents of all sorts of Business now in Use and Practice in a much better Method than any yet Printed being useful for all Gentlemen but chiefly those who Practice the Law 8vo Price 5 s. Styles's Practical Register begun in the Reign of King Charles the First Consisting of Rules Orders and principal Observations concerning the Practice of the Common-Law in the Courts of Westminster particularly the King's-Bench as well in Matters Criminal as Civil Carefully continued down to this time The third Edition 8vo Price 6 s. An exact Abridgment of all the Statutes in Form and Use from the begining of Magna Charta begun by Edmund Wingate and since continued by J. Washington to the Year 1689. In this Impression many hundred of false References are corrected Price 7 s. Two Dialogues in English between a Doctor of Divinity and a Student of the Laws of England of the Grounds of the said Laws c. Price 2 s. 6 d. The New Natura Brevium of the most Reverend Judge Mr. Anthony Fitzherbert Corrected and revised The Laws against