made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
by this way he might defeat the Lord of his services The custom was That a woman should have her widows estate the Copy-tenant made a Lease for one year and died and adjudged that the woman should have her widows estate as excrescent by Title Paramouns the estate made for one year see Hab. Rep. And as these the estate of the wife was derivative so here and although it be not the intire Copyhold estate yet it is part of it and a continuation of it and is liable to every charge of the Lord 6 Rep. Swaines case wherefore he concluded that the custom is good and that the avowant ought to have Judgment Justice Heath the custom is good both for the matter and form of it where it was objected that for a personal injury done by one the cattle of another cannot be disâ—teined I agree that it is unjust that where alius peccat alius plectitur but our case differs from that rule for this was by custom for Transit terra cum onere he who shall have the land ought to undergo the charge Besides wheresoever a custom may have a good beginning and ex certa rationabili causa it is a good custom Bracton lib. 1. cap. 3. But this might have a reasonable ground at the beginning for here the punishment is a qualification of the Law for where by the Law the Copyhold-tenant is to forfeit his copyhold-tenement for waste either voluntary or permissive now this penalty is abridged and made more easie and therefore is very reasonable 43 E. 3. 5. 44 E. 3. 13. custom that if a tenant be indebted to the Lord that he may distrein his other tenants for it is not good but if it were for Rent it should be good because it may be the tenants at the first granted it to the Lord 22 H. 6. 42. 12 H. 7. 15. 35 H. 6. 35. custom to sell a distress is good and yet it cannot be done but by Act of Parliament And where it was objected that the amercement is personal and therefore cannot extend to the Plaintiff to that he answered that it is not meerly personal but by custom as aforesaid is now made a charge upon the Land and therefore not meerly personal Besides if the custom in this case had been that the Plaintiff for waste should forfeit his Copyhold-tenement it had been reasonable à fortiori in this case that he shall be only amerced wherefore he concluded that the custom is good and therefore that the avowant should have judgment Bramston Chief Justice that the custom is good and that he conceived to be clear First he conceived that the custom is reasonable as to the Copy-tenant for clearly by the Common Law if he suffer or do waste he shall forfeit his Copyhold and therefore this custom is in mitigation of the penalty and therefore is reasonable and that is not denied but the only doubt here is whether the custom to distrein the under-tenant for an amercement layed upon the tenant be a good custom or not and he conceived it is for the custom which gives the distress knits it to the Land and therefore not meerly personal as it was objected And if the custom had not extended to the under-tenant he might have distreined him for otherwise the Lord by such devise as there is viz. by the making of a Lease for one year by the Tenant should be defeated of his services 3 Eliz. Dyer 199. resolved custom to seise the cattle of a stranger for a Heriot is not good because that thereby the property is altered But custom that he may distrein the cattle of a stranger for a Heriot is a good custom because the distress is only as a pledge and means to gain the Heriot and in our case the Land is charged with the distress and therefore the cattle of any one which come under the charge may be distreined for it and therefore he held clearly that the custom was good and that the avowant should have Judgment Justice Barckley at this time was impeached by the Parliament of High Treason 232. A man was indicted for murder in the County Palatine of Durham and now brought a Certiorare to remove the Indictment into this Court and it was argued by Keeling at the Bar that Br ' Domini Regis de Certiorare non currit in Com' Palatinum But the Justices there upon the Bench viz. Heath and Bramston seemed strongly to incline that it might go to the County-Palatine and they said that there were many presidents in it and Justice Heath said that although the King grant Iura Regalia yet it shall not exclude the King himself and he said their power is not independent but is corrigible by this Court if they proceed erroneously and he said that in this case the party was removed by Habeas corpus and by the same reason that a Habeas corpus might go thither a Certiorare might for which cause it was awarded that they return the Writ of Certiorare and upon the return they would debate it Hillary 17º Car ' in the Common Pleaâ— â—ayton against Grange in a second deliverance 233. JOhn Layton brought a second deliverance against Anthony Grange and declared of taking of certain Cattle in a place called Nuns-field in Swassam-Bulbeck and detainer or them against gages and pledges c. The defendant made conusance as Baylift to Thomas Marsh and said that long time before the taking alledged one Thomas Marsh the father of the Plaintiff was seised of the Mannor of Michel-Hall in Swassâ—â—-Bulbeck aforesaid of which the Land in which time 〈◊〉 of mind c. was parcel and that one Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine 〈…〉 of the Land in which c as in the right of the saiâ— Dorothy and Thomasine their wives in deâ—esne as of sâ—e and that they held the Land in which c. as of his Mannor of Michel-Hall by soccage viz. fealty and certain Rent payable at certain days and that the said Thomas Marsh was sâ—iâ—ed of the said services by the hands of the said Anthony Cage and Dorothy his wife Thomas Grange and Thomasine his wife as by the hands of his very Tenants and he derived the Tenancie to one Sir Anthony Cage and the Seigniory to Thomas Marsh the son by the death of the said Thomas Marsh the Father and because that fealty was not done by Sir Anthony Cage he as Bayly of the said Thomas Marsh the son did justifie the taking of the said cattle ut insâ—a feoduâ—â— dominium sue c. The Plaintiff by Protestation said that Non 〈◊〉 the Lands aforesaid of the said Thomas Marsh as of his Mannor of Michel-Hall in Swassaâ—â—-Bulbeck aforesaid by soccage viz. fealty and rent as aforesaid and pro placito said that the Defendant took the cattle as aforesaid and detained them against gages and pledges and then traversed Absque hoc that the said Thomas Marsh
Statute of 12 E. 2. cap. 6. it is expresly ordained that no Officer of a City or Burrough should sell Wine or Victuals during his Office I confess this Statute is repealed by the Statute of 3 H. 8. but yet there is a Provision in that Statute that it extend not to London then the Law being that none of those things shall be sold by any Officer by retail during his Office the Oath which makes a man to abjure that which the Law forbids of necessity ought to be taken as lawful besides there is a Writ grounded upon the Statute of 12 E. 2. which you shall find in the Register 184. a. Fitz. N. B. 173. b. that the party grieved might have directed to the Justices of assises commanding them to send for the parties and to do right c. Wherefore I hold the Oath good and lawful notwithstanding this Objection For the point of notice I conceive it is not needful and if it be I ask who it is ought to give notice in this Case and I say that no person is tied to do it wherefore he ought to take notice of it at his peril For the debito modo electus I say that it is good being in a Retorn upon a Habeas corpus it is said that it was secundum consuetudinem which includes all things needful for the objection That it is averred in the retorn that he was idoneus habilis but that it is no part of the custom that it should be so for it is only in general Si aliquis liber homo and doth not say habilis idoneus and therefore the custom should not be good I answer that it is averred in the Retorn that it is so that he is elected and that is sufficient for us to ground our Judgment but further I conceive that the debito modo helps it wherefore upon the whole matter I conclude that the custom is good and the Retorn sufficient and therefore that the prisoner be remanded Pasch. 18º Car ' in the Common Pleas. Barrow against Wood in Debt 238. IN Debt upon an Obligation brought by Barrow against Wood the Defendant demanded Oyer of the condition ei legitur c. and the effect of it was this That the Defendant should not keep a Mercers-shop in the Town of Tewkesbury and if he did that then within three moneths he should pay forty pound to the Plaintiff upon which the Defendant did demur in Law and the point is only whether the condition be good or not Serjeant Evers the condition is good because it is no total restraint for it is a restraint here only to Tewkesbury and not to any other place wherefore I conceive the condition good I agree the Case in 11 Rep. 53. b. where a man binds himself not to use his Trade for two years or if a husbandman be bound he shall not plough his Land these are conditions against Law because where the restraint is total although it be temporal there the condition is not good but the condition is not totally restrictive in our Case and he compared this Case to the Case in 7 H. 6. 43. feoffee with warranty Proviso that the feoffee shall not vouch it is a good condition because not totally restrictive for although that the feoffee cannot vouch yet he may rebut so in this Case although the Obligor cannot use his Trade in Tewkesbury yet he may use it in any other place And the Condition is not against Law for if it were such a condition then I agree it would be naught but yet the Bond would stand good for this is not a condition to do an act which is Malum in se for there the condition is naught the Bond also as 2 E. 4. 2. b. by Cooke Instit. 206. b. But although a man cannot make a feoffmâ—â—t upon condition that the feoffee shall not alien yet the feoffee may bind himself that he will not alien and the Bond is good and so I say in our Case and if the condition in this Case should not be good it would be very inconvenient for it is a usual thing in a Town in the Country for a man to buy the shop of another man all his Wares in it and if the same being a small town where one of that profession would serve for the whole Town he who bought the shop and wares should not have the power to restrain him the same being the ground reason of the contract from using of that trade in that plaâ—e it would be very inconvenient wherefore he conceived that the condition was good and prayed Judgment for the Plaintiff Serjeant Clarke for the Defendant that the condition is not good for it is against the Law and void because it takes away the livelihood of a man that is one of the reasons against Monopolies 11 Rep. 86 87. And that I conceive is grounded upon the Law of God for in Deut. chap. 24. ver 6. it is said that you shall not take in pledge the nether and upper milstone for that is his life So that by the Law of God the restraining of any man from his Trade which is his livelihood is not lawful And surely our Law ought not to be against the Law of God and that is the reason as I conceive wherefore by our Law the Utensils of a mans Profession cannot be distreined because by that means the means of his livelihood should be taken away And 2 H. 5. fol. 5. b. by Hull the condition is against Law and yet the case there is the very Case with our case for there a man was bound that he should not use his Art in D. for two years whereupon Hull swore by God that if the Obligee were present he should go to prison till he had paid a fine to the King because the Bond is against Law and therewith agrees the 11 Rep. 53. b. 7 E. 3. 65. A Farmer covenants not to sow his land the covenant is void so as I conceive that although the condition be restrictive only to one place or for a time yet because it takes away the livelihood of a man for the time the condition is against Law and void and he cited a Case in the point against Clegat and Batcheller Mich. 44 Eliz. in this Court Rot. 3715. where the condition of a Bond was That he should not use his Trade in such a place and it was adjudged that the condition was against Law and therefore the Bond void and for these reasons he prayed that Judgment might be entred that the Plaintiff nihil capiat per billam Justice Reeve did produce some Presidents in the point and he said that the Law as it had been adjudged stood upon this difference betwixt a contract or Assumpfit and an Obligation A man may contract or promise that he will not use his Trade but he cannot bind himself in a Bond not to do it for if he
so the constitution of other Realms then the question is Whether this Prerogative of the King to pardon murder be taken away by any Statute or not and first for the Statute of 2 E. 3 cap. 2. upon which all the other Statutes depend that Statute made was only to prevent the frequencie of Pardons but not totally to take away the Kings Prerogative for the words of the Statute are That offenders were incouraged because that Charters of Pardon were so easily granted in times past c. And the Statute of 13 R. 2. cap. 2. admits the Power and Prerogative of the King of pardoning Murder notwithstanding the former Statute for that Statute prescribes the form only and 13 R. 2. in the Parliament-Roll Number 36. the King saith Saving his Prerogative The next thing considerable here is admitting Murder pardonable by the King Whether in this Pardon there be sufficient words to pardon murder or not and he argued that there was and first for the word felony and he said that by the Common Law pardon of felony is pardon of murder the Statute of 18 E. 3. cap. 2. inables Justices of Peace to hear and determine felonies and in 5 E. 6. Dyer 69. a. it is holden clearly that the Justices of Peace by virtue of that act have authority to inquire of murder because it is felony and in Instit. 391. a. By the Law at this day under the word felony in Commissions c. is included Petit Treason Murder c. Wherefore murder being felony the pardon of felony is the pardon of murder Further he said that the pardon of manslaughter is a good pardon of murder for he said that murder and manslaughter are all one in substance and differ only in circumstance as the Book in Plowd Comment fol. 101. is and if they were divers offences then the Jury could not find a man indicted of murder guilty of manslaughter as it was in the Case before cited The last words are quocunque alio modo ad mortem devenerit which extends to all deaths whatsoever and if it should not be so the Statute of 13 R. 2. should be in vain I agree the Books of 1 E. 3. 14 22 Ass. 49. 21 E. 3. 24. objected on the other side that the pardon of felony doth not extend to treason with which the Institutes 391 agrees they make not against me see the Statute of 25 E. 3. cap. 2. and the Books of 9 E. 4. 26. by Billin 8 H. 6. 20. by Strange they are but bare opinions It was objected that an Indictment at the Common Law shall not extend to murder unless the word Murdravit be in the Indictment I answer that a pardon of felony may pardon robbery and yet here ought to be also Robberia in the Indictment A pardon need not nor can follow the form of Indictments the offence apparent it sufficeth Further he argued that the King might dispense with the Statute of 2 E. 3. 13 R. 2. by a Non obstante It was objected that the Kings grant with a Non obstante the Statute of 13 R. 2. cap. 5. of the Admiralty is not good and that so of a pardon oâ— murder with a Non obstante to that he answered and took this difference Where the subject hath an immediate interest in an Act of Parliament there the King cannot dispense with it and such is the case of the Admiralty but where the King is intrusted with the managing of it and the subject only by way of consequence there he may see 2 R. 3. 12. 2 H 7. 6. It was objected that the King cannot dispense with the inquiry of the Court upon the Statute of 13 R. 2. cap. 1. To that he answered that the inquiry is the Kings suit and therefore he may dispense with it See 5 E. 3. 29. It was objected further that the Pardon saith Vnde indictatus est To that he answered That if it be left out it is good without it for the same is only for information See 36 H. 6. 25. And the words of pardon are usual to say Vnde indictatus vel non indictatus utlegat ' vel non utlegat ' and that would avoid all Pardon 's before if it should be suffered and for these causes he concluded and prayed that the Pardon might be allowed Shaftoe of Grays-Inn at another day argued for the King that the pardon was insufficient and first he said That the words of the pardon were not sufficient to pardon murder For the words Homicidium and Feloniâ—am interfectionem are indifferent words and therefore shall not be taken in a strict and strained sense It is true that killing is the Genus but there are several Species of it and several offences Now for the word Felony I conceive that the pardon of Felony will not pardon murder vide 33 H. 8. 50. fol. 4. Dyer But yet I conceive that felony in the general sense will extend to murder but not in a Pardon for there ought to be precise and express words and so are the Books of 8 H. 6. 20. by Strange and 22 H. 7. Keilway 31 b. express in the point Hill 2. Iac. Institut 391. a. and Stamford Pleas of the Crown 114. a. If a man be indicted for an offence done upon the Sea it is not sufficient for the Indictment to say Felonicè but it ought also to say Pyraticè And pardon of all felonies is not a Pardon of all Pyracie by the same reason here pardon of Felony is no pardon of Murder For the â—ast words Quocunque alto modo ad mortem pervenerit these words do not pardon Murder because they are too general vide 8 H. 4. 2. 29 Ass. Pl. 24. And clearly if there were but these general words they would not pardon Murder I was objected that these words are as much as if murder had been expressed in the pardon To that he answered that the Statute of 13 R. 2. cap. 1. saith that the offence it self ought to be expressed and doth not say by words equipollent and the Title of the Statute is that the offence committed ought to be specified In all Pardon 's the King ought to be truly informed of the form as also of the Indictment and proceeding upon it See 6 Rep. fol. 13. and here is no recital in the Pardon 9 E. 4. 28. 8 H. 4. 2. Pardon of Attainder doth not pardon the felony and pardon of the felony doth not pardon the Attainder I agree that the King may pardon his suit but the same ought to be by apt words The words of Licet indictatus or non indictatus will not help it it goeth to the proceedings only and not to the matter Besides the Law presumes that the Patent or Pardon is at the suggestion of the party and therefore if the King be not rightly informed of his Grant he is deceived and the Grant void and perhaps if the King had been informed that the fact