Termino Paschae Anno 27 Car. II. in Communi Banco Naylor versus Sharpless and other Coroners of Lancashire AN Action on the Case was brought for a False Return in which the Plaintiff sets forth Case for a false Return Mod. Rep. 198. that upon a Writ issuing out of this Court to the Chancellor of the Dutchy of Lancaster Process was directed to six Coroners being the Defendants which was delivered to one of them being then in the presence of the Party who was to be arrested but he did not execute it and afterwards at the Return of the Writ they all returned Non est inventus This Action was laid in Middlesex and upon Not-Guilty pleaded the Cause came to Tryal and there was a Verdict for the Plaintiff Baldwyn Serjeant moved in arrest of Iugdment 1. Except That the Action ought not to be laid in Middlesex but in Lancashire where the Tort was committed But as to that it was answered by Serjeant Turner when two Matters both of which are material and are laid in two Counties the Action may be brought in either as if two libel in the Admiralty for a Contract made at Land in Dorsetshire and for which the Plaintiff brings an Action in London against one of them it has been adjudged the Action lies in either County 2. Except The Action will not lie against the six Coroners for the Tort was done by one alone As to that it was said all the Coroners are but one Officer so if one Sheriff suffer an Escape both are liable but in this Case it had been ill to have brought the Action only against one because the ground of it is the false Return which was made by six Coroners And as to the first Exception there could be no doubt now since after Verdict 't is * Stat. 16 17 Car. 2. c. 8. helped though the Trial be in a wrong County But the Court said that Statute helps a Mistrial in the proper County but not where the County is mistaken and inclined likewise that this Action was well brought against the six for this Tort committed by one Coroner but if it had béen for not arresting the Party in such a Case it ought to have been brought against the Coroner who was present with the person to be arrested for that had béen a personal Tort which could not have been charged upon the rest Edwards versus Roberts That he did totally forbear and doth not say hucusque good THE Plaintiff declares that the Defendant promised to pay him so much Mony in consideration that he would forbear to sue him and then he avers that he did extunc totaliter abstinere c. Vpon Non Assumpsit pleaded a Verdict was found for the Plaintiff And it was now moved by Turner Serjeant in Arrest of Iudgment 1. Except The consideration intends a total forbearance and the averment is that from the making of the promise he did totally forbear but doth not say hucusque Sed non allocatur for that shall be intended And it was the Opinion of the whole Court that if the Consideration be as in this Case wholly to forbear the Plaintiff by an Averment that from the making the promise hucusque he did forbear is well entituled to an Action A like Case was this Term where the Consideration was as before and the Averment was that he forbore seven Months and being moved in Arrest of Iudgment by Serjeant Baldwyn because 't is not said hucusque which implies that after the seven Months he did not forbear it was notwithstanding held good it being a reasonable time and the rather because if the Action had been brought within the seven Months and the Plaintiff had averred that hucusque he forbore it had been good enough Quaere Reed versus Hatton IN a special Verdict in Ejectment the Question did arise upon the construction of the Words in a Will Devise paying 5 l. per annum 't is a Fee The Case being this John Thatcher was seised in Feé of the Houses in question and did devise them to his Son Robert in which Will there was this Clause viz. Which Houses I give to my Son Robert upon this Condition that he pay unto his two Sisters five pounds a year the first payment to begin at the first of the four most usual Feasts that shall next happen after the death of the Testator so as the said Feast be a Month after his death with a Clause of Entry for Non-payment The Testator dies the Houses are worth 16 l. per annum and whether Robert the Son shall have an Estate for Life only or in Fee was the Question This was argued by Jones Serjeant for the Plaintiff and by Seys Serjeant for the Defendant And for the Plaintiff it was said Ex parte Quer. that Robert had but an Estate for Life 'T is true in most Cases the Word paying makes a Fee where there is no express Fee limited but the difference is viz. where the Mony to be paid is a Sum in gross let it be equivalent or not to the value of the thing devised the Devisee shall have a Fee though the Estate be not devised to him and his Heirs but if it be an annual payment out of the thing devised as in this Case it will not create a Fee without apt words because the Devisée hath no loss and therefore it hath beén held that if a Devise be made to two Sons to the intent that they shall bear equal share towards the payment of 40 l. to his Wife for Life the Sons had only an Estate for Life because 't is quasi an annuel Rent out of the Profits and no Sum in gross * Jones 211. Cro. Car. 157. Broke Abr. tit Estate 78. And * 6 Co. 16. Colliers Case was much relied on where this very difference was taken and allowed that paying 25 l. in gross makes a Fee but paying 50 s. per annum creates only an Estate for Life All Devises are intended for the benefit of the Deviseé and therefore where a Sum in gross is devised to be paid which is done accordingly in such Case if the Deviseé should die soon after the Mony would be lost if he should have only an Estate for Life but in the Case at Bar the Testator by a nice calculation had appointed when the first payment should be made viz. not until a Month after his decease which hath prevented that damage which otherwise might have happened to the Devisee if no such provision had béen made Vide Hob. 65. Green's Case Ex parte Def. But on the other side it was said that Robert had a Fée for though here is a Sum to be paid annually 't is a Sum in gross and Collier's Case was also relied upon on this side It was agreed where payment is to be made by which the Devisee can sustain no loss the Word Paying there will not make a Fée but if there
ought to bring his Action Pemberton Serjeant for the Plaintiff Ex parte Quer. That this Covenant is not conditional for the words paying and performing signifie no more than that he shall enjoy c. under the Rents and Covenants and 't is a Clause usually inserted in the Covenant for quiet Enjoyment Indeed the word paying in some Cases may amount to a Condition but that is where without such construction the party could have no remedy But here are express Covenants in the Lease and a direct reservation of the Rent to which the party concerned may have recourse when he hath occasion A liberty to take Pot-water paying so many Turns c. 't is a Condition The Words paying and yielding make no Condition Cook and Herle Postea Vaugh. 32. nor was it ever known that for such Words the Lessor entred for Non-payment of Rent and there is no difference between these Words and the Words paying and performing Bennet's Case in B. R. ruled no Condition Duncomb's Case Owen Rep. 54. Barrel Serjeant for the Defendant said Ex parte Def. that the Covenant is to be taken as the parties have agreéd and the Lessor is not to be sued if the Lessée first commit the breach Modus Conventio qualifie the general Words concerning quiet Enjoyment The Court took time to consider and afterwards in this Term Iudgment was given for the Plaintiff Sid. 266 280. that the Covenant was not conditional Atkins Iustice doubted Simpson versus Ellis Debt by a Bailiff of a Liberty DEBT upon Bond by the Plaintiff who was chief Bailiff of the Liberty of Pontefract in Yorkshire but he did not declare as Capital Ballivus but yet by the whole Court it was held good for otherwise the Defendant might have craved Oyer and have it entred in haec verba and then have pleaded the Statute of 23 H. 6. that it was taken * Sand. 161. Sid. 383. Latch 143. colore Officii but now it shall be intended good upon the Demurrer to the Declaration And Ellis Iustice said that so it was lately resolved in this Court in the Case of one Conquest And Iudgment was given for the Plaintiff Mason versus Stratton Executor c. Judgment kept on foot per Fraudem 2 Cro. 35 102. Vaugh. 103 104. DEBT upon Bond. The Defendant pleads two Iudgments had against his Testator and sets them forth and that he had but 40 s Assets towards satisfaction The Plaintiff replies that the Defendant paid but so much upon the first Iudgment and so much upon the second and yet kept them both on foot per Fraudem Covinam And the Defendant demurred specially 1 Roll. Abr. 802. 2 Cro. 626 Because the Replication is so complicated that no distinct Issue can be taken upon it for the Plea sets forth the Iudgments severally but the Plaintiff puts them both together when he alledges them to be kept per Fraudem But on the other side it was said that all the Presidents are as in this Case Sid. 333. 8 Co. Turner's Case 132. 9 Co. Meriel Tresham's Case 108 And of that Opinion was all the Court that the Replication was good And Iudgment was given for the Plaintiff Suffeild versus Baskervil No Breach can be assigned upon a Promise DEBT upon Bond for performance of all Covenants Payments c. In an Indenture of Lease wherein the Defendant for and in consideration of 400 l. lent him by the Plaintiff granted the Land to him for 99 years if G. so long lived provided if he pay 60 l. per annum quarterly during the Life of G. or shall within two years after his death pay the said 400 l. to the Plaintiff then the Indenture to be void with a Clause of Reentry for Non-payment The Defendant pleads performance The Plaintiff assigns for breach that 30 l. for half a year was not paid at such a time during the Life of G. The Defendant demurrs For that the breach was not well assigned because there is no Covenant to pay the Mony only by a Clause Liberty is given to re-enter upon Non payment The Court inclined that this Action would not lie upon this Bond in which there was a Proviso and no express Covenant and therefore no Breach can be assigned Benson versus Idle AUdita Querela The Case upon Demurrer was Estoppel not well pleaded with a Traverse That before the Kings Restauration the now Defendant brought an Action of Trespass against the Plaintiff for taking his Cloath who then pleaded that he was a Souldier and compelled by his Fellow Souldiers who threatned to hang him as high as the Bells in the Belfry if he refused To this the Plaintiff then replied de injuriâ suâ propriâ c. And it was found for him and an Elegit was brought and the now Plaintiffs Lands extended Then comes the Act of * 12 Car. 2. cap. 11. Indempnity which pardons all Acts of Hostility done in the Times of Rebellion and from thenceforth discharges personal Actions for or by reason of any Trespas comitted in the Wars and all Iudgments and Executions thereon before the first day of May 1658. but doth not restore the party to any Sums of Mony mean Profits or Goods taken away by virtue of such Execution or direct the party to give any account for the same which Act made by the Convention was confirmed by 13 Car. 2. cap. 7. And upon these two Acts of Parliament the Plaintiff expresly averring in his Writ that the former Recovery against him was for an Act of Hostility now brought this Audita Querela The Defendant pleads the former Verdict by way of Estoppel and concludes with a Traverse absque hoc that the taking of his Goods was an Act of Hostility This was argued by Holloway Serejant for the Plaintiff and by Jones Serjeant for the Defendant who chiefly insisted That the Defendant having pleaded the substance of this Matter before and being found against him that he being now Plaintiff could not averr any thing against that Record But the Court were all of Opinion that Iudgment should be given for the Plaintiff for his remedy was very proper upon the Convention and without the Statute of Confirmation and here is no Estoppel in the Case for whether this was an act of Hostility or not is not material neither was it or could it be an Issue upon the former Tryal because all the Matter then in Question was concerning the Trespass which though found against the now Plaintiff yet it might be an act of Hostility but if it were an Estoppel 't is not well pleaded with a Traverse and the Court hath set it at large DE Term. Sanctae Trin. Anno 27 Caroli II. in Communi Banco Mayor and Cominalty of London versus Gatford IN an Action of Debt brought by the Plaintiffs Construction of an Act of Parliament for a Fine of 13 l. 6 s. 8 d. set upon the
but if he will justifie by vertue of any particular Estate he must shew the Commencement of that Estate and then such pleading as here will not be good But when the Matter is * Yelv. 75. Cro. Car. 138. collateral to the Title of the Land and for any thing which appears in the Declaration the Title may not come in question such a Iustification as this will be good In this Case no Man can tell what the Plaintiff will reply 't is like the Cases of Inducements to Actions which do not require such certainty as is necessary in other Cases So where an Action is brought for a Nusance and he intitles himself generally by saying he is possessionat ' pro termino annorum 't is well enough and he need not to set forth particularly the Commencement because he doth not make the Title his Case for which reason Iudgment was given for the Defendant Crosier versus Tomlinson Executor IN an Action on the Case Statute of Limitations of personal Actions extends to Indebitatus Assumpsit The Plaintiff declared that the Defendants Testator being in his Life time viz. such a day indebted to the Plaintiff in the Sum of 20 l. for so much Mony before that time to his use had and received did assume and promise to pay the same when he should be thereunto required and that the Testator did not in his Life time nor the Defendant since his death pay the Mony though he was thereunto required The Defendant pleads that the Testator did not at any time within six years make such promise The Plaintiff replies that he was an Infant at the time of the promise made and that he came not to full Age till the year 1672. and that within six years after he attained the Age of one and twenty years he brought this Action and so takes advantage of the promise in the Statute of * 21 Jac. c. 16. Limitations that the Plaintiff shall have six years after the disability by Infancy Coverture c. is removed And the Defendant demurred by Serjeant Rigby Ex parte Def. and the reason of his Demurrer was because in the said Proviso Actions on the Case on Assumpsit are omitted This Act was made for quieting of Estates and avoiding of Suits as appears by the Preamble and therefore shall be taken strictly there is an enumeration of several Actions in the Proviso and this is Casus omissus and so no benefit can be taken of the Proviso In a Writ of Error upon a Iudgment brought 4 Car. 1. in the Court of Windsor the Iudges held that an Action on the Case for * Cro. Car. 163 513 535. Debt upon Escape is out of the Statute 1 Sand 37. But an Action for Escape is not Sid. 305. So is Debt for not setting out of Tithes for these are not grounded upon any Contract Cro. Car. 513. Hut 109. slandering of a Mans Title is out of this Act because such an Action was rare and not brought without special damages But Hide Chief Iustice doubted 1 Cro. 141. The Law-makers could not omit this Case unadvisedly because 't is within those sorts of Actions enumerated by this Act. This Promise was made to the Plaintiff when he was but a day old and it would be very hard now after so many years to charge the Executor Ex parte Quer. But Turner Serjeant argued that though an Indebitat̄ assumpsit is not within the express words of the Proviso yet 't is within the intent and meaning thereof and so the Rule is taken in 10 Co. 101. in Bewfages Case quando verba statuti sunt specialia ratio autem generalis statutum intelligendum est generaliter And this is a Statute which gives a general remedy and the mischief to the Infant is as great in such Actions of Indebitatus assumpsit as other Actions and therefore 't is but reasonable to intend that the Parliament which hath saved their Rights in Debts Trovers c. intended likewise that they should not be barred in an Indebitatus Assumpsit In 2 Anders 55. Smith versus Colshil Debt was brought upon a Bond the Defendant there pleaded the Statute of the 5 E. 6. of selling of Offices the words of which are viz. That every Bond to be given for money or profit for any Office or Deputation of any Office mentioned in the Statute shall be void against the Maker In that case the Bond was given to procure a Grant of the Office and also to exercise the same now though this was not within the express words of the Statute yet the Bond was held void and if it should be otherwise the mischiefs which the Statute intended to remedy would still continue and therefore the intent of the Law-makers in such cases is to be regarded for which reason if Actions of Indebitatus Assumpsit are within the same mischief with other Actions therein mentioned 2 Anders 123 150. Cor. Car. 533. 19 H. 8. 11. such also ought to be construed to be within the same remedy But he took the Case of * Cro Car. 245. Swain versus Stephens to rule this Case at Bar in which Case this very Statute was pleaded to an Action of Trover and the Plaintiff replied that he was beyond Sea and upon a Demurrer to the Replication the Court held Trover to be within the Statute it being named in the Paragraph of Limitation of personal Actions which directs it to be brought within the time therein limited that is to say all Actions on the Case within six years and then enumerates several other Actions amongst which Trover is omitted yet the Court were then of Opinion that Trover is implied in those general words Curia And of that Opinion was the Chief Iustice and Wyndham and Atkyns Iustices That upon the whole frame of the Act it was strong against the Defendant for it would be very strange that the Plaintiff in this Case might bring an Action of Debt and not an Indebitatus Assumpsit When the Scope of an Act appears to be in a general sense the Law looks to the meaning and is to be extended to particular Cases within the same reason and therefore they were of Opinion That Actions of Trespass mentioned in the Statute are comprehensive of this Action because 't is a Trespass upon the Case and the words of the Proviso save the Infants Right in Actions of Trespass And therefore though there are not particular words in the enacting Clause which relate to this Action yet this Proviso restrains the severity of that Clause and restores the Common Law and so is to be taken favourably and this Action being within the same reason with other Actions therein mentioned ought also to be within the same remedy But Iustice Ellis doubted whether Actions of Trespass could comprehend Actions on the Case and that when the Parliament had enumerated Actions of Trespass Trover Case for Words c. If they had intended
this Action they would have named it he said he was for restoring the Common Law as much as he could but doubted much whether this Proviso did help the Plaintiff But Iudgment was given for the Plaintiff Doctor Samways versus Eldsly COvenant The Plaintiff declares Where Covenants are mutual and where not That by Indenture made between him and the Defendant reciting that there were divers Controversies between them as well concerning the right title and occupation of Tythes arising and renewing upon the Fréehold of the Defendant in T. and upon other Lands held by the Defendant by a Lease for years from the Plaintiff under the annual Rent of c. and concerning the arrearages of Rent due upon that demise as concerning other matters for the determination thereof the said Parties did by the said Indenture bind themselves in consideration of 12 d. given to each other to observe the Arbitration of an Arbitrator indifferently to be chosen between them to arbitrate order and judge between them de super praemissis and the Plaintiff and Defendant mutually covenanted to do several other matters That the Arbitrator did thereupon afterwards Award and the Defendant did Covenant with the Plaintiff that in consideration of the Plaintiffs sealing and delivering at the Defendants request one part of a Lease for years to the Award annexed for the Rent therein reserved that the Defendant should pay so much Mony for the Tythes That it was also Awarded by the said Arbitrator and the Defendant did covenant that he would be accomptable to the Plaintiff for all such arrearages of Rent Tythes and Composition-Mony for Tythes as should be arising and renewing upon the said Land c. according to such a value per Annum whereof the Defendant could not lawfully discharge himself And the Plaintiff avers That he hath observed all the Covenants on his part and that the Defendant hath not observed all the Covenants on his part and assigns for breach that he hath not accounted with him for all arrears of Tythes and Composition-Mony for Tythes arising upon the Lands in c. and that he hath requested him to accompt which he hath refused The Defendant pleads Actio non For he says that 't is true there was such an Indenture as in the Declaration is set forth and such a Covenant to be accountable as the Plaintiff hath declared But saith in eadem Indentura agreatum fuit ulterius provisum that the Plaintiff should allow and discount upon the Account all Sums of Mony for Parsons Dinners at the request of the Plaintiff and for his concerns laid out and disbursed by the Defendant and such other Sums which he had direction to lay out and that such a day paratus fuit obtulit se adhuc paratus est to account for all arrears of Rent c. if the Plaintiff would discount c. That such a day the Plaintiff would not and often after refused and yet doth refuse to allow upon such accompt all such Sums of Mony as the Defendant at the request and for the concerns of the Plaintiff had laid out and this he is ready to aver and then he avers that after c. on such a day he did expend several Sums of Money for the Plaintiff which were just and reasonable to be allowed by the Plaintiff upon accompt made by him To this Plea the Plaintiff demurred and the Defendant joyned in Demurrer which was argued by Turner Serjeant for the Plaintiff and by Serjeant Seys for the Defendant This was a bad Plea for 't is a Rule in all Law Books that every Plea ought to answer the matter which is charged upon the Defendant Ex parte Quer. in the Declaration which is not done here because the Defendant doth neither aver that he did accompt or confess or avoid or traverse it which he ought to do after the Plaintiff had alledged a request to accompt and a refusal 'T is an absolute Covenant which charges him to be accomptable and not if the Plaintiff would allow Parsons Dinners c. for 't is impossible that the Plainntiff can make any such allowance till the Defendant hath accompted for how can there be a discounting without an Accompt If the Plaintiff had told him before the Accompt that he would not allow any thing upon the Accompt this would not have been prejudicial to bart him of his Action so as it had been before the request For if a Man makes a Feoffment in Fee upon condition that if the Feoffor pay 100 l. at Michaelmas the Feoffment shall be void and before Michaelmas the Feoffee tells him that he will not receive the Money at that time this shall not prejudice him because t is no refusal in Law The Defendant in this Case is to do the first act viz. to Accompt and when that is neglected by him it shall never prejudice him who is to do a subsequent act 5 Co. 19 20. Higginbottoms Case 22 23 Hallin and Lambs Case One Covenants to make an Estate in fee at the Costs of the Covenantee the Covenantor is to do the first act viz. to let him know what Conveyance he will make The like Case was in this Court between Twiford and Buckly upon an Indenture of Covenants wherein one of the parties did Covenant to make a Lease for the Life of the Covenantee and for two other Lives as he should name and the Covenantor was to give possession The breach assigned was that the Defendant had not made Livery and Seisin and upon performance pleaded the Plaintiff did demux and upon great debate it was resolved that the Covenant was not broken because the Plaintiff had not performed that which was first to be done on his part viz. to name the Lives It may be objected that these Covenants have a relation one to the other and so non-performance of the one may be pleaded in bar to the other But to that he answered they are distinct and mutual Covenants and there may be several Actions brought against each other The Case of * Stiles 186. 187. Ware and Chappel comes up to this point Ware was to raise 500 Soldiers and bring them to such a Port and Chappel was to find Shipping for which he sued upon the Covenant though the other had not raised the Soldiers for that can be only alledged in mitigation of Damages and is no excuse for the Defendant and it was adjudged that this was not a condition precedent but distinct and mutual Covenants upon which several Actions might be brought This cannot be a Condition precedent for the Defendant pleads ulterius agreat̄ provisum est that the Plaintiff shall discompt and reimburse the Defendant and here the word provisum est doth not make a Condition but a Covenant 27 H. 8. 14 15. Bro. Condition 7. There is another fault in the Plea for the Defendant averrs that the Plaintiff hath not reimbursed him several Sums of Mony which
Case could not be supposed to prevent the Forfeiture because if that had been the Iury would have found it the meaning of the Parties must make a Construction here and that seems very strong that 't is a good Lease but they gave no Iudgment Wilkinson versus Sir Richard Lloyd Where the Parties shall join in an Action where not THE Defendant covenanted that he would not agreé for the taking the Farm of the Excise of Beer and Ale for the County of York without the Consent of the Plaintiff and another and the Plaintiff alone brought this Action of Covenant and assigns for breach the Defendants agréeing for the said Excise without his Consent upon which the Plaintiff had a Verdict and 1000 l. damages given And Serjeant Pemberton moved in Arrest of Iudgment for that an Action of Covenant would not lie in this Case by the Plaintiff alone because he ought to have joined with the other both of them having a joint Interest and so is Slingsby's Case 5 Co. If a Bond is made to two joyntly and severally they must both join in an Action of Debt so here 't is a joint contract and both must be Plaintiffs So also if one covenants with two to pay each of them 20 l. they must both join 'T is true in Slingsbies Case 't was held if an Assurance is made to A. of White Acre and to B. of Black Acre and to C. of Green Acre and a Covenant with them and every of them these last Words make the Covenant several But here is nothing of a several interest no more than that one covenants with two that he will not join in a Lease without their Consent so that their Interest not being divided the Covenant shall be entire and taken according to the first Words to be a joint Covenant and the rather because if the Plaintiff may maintain this Action alone the other may bring a second Action and the Defendant will be subject to entire damages which may be given in both Judgment But the Court was of another Opinion that here was no joint Interest but that each of the Covenantees might maintain an Action for his particular damages or otherwise one of them might be remediless for suppose one of them had given his Consent that the Defendant should farm this Excise and had secretly received some satisfaction or recompence for so doing is it reasonable that the other should lose his remedy who never did consent For which reason the Plaintiff had his Iudgment Page versus Tulse Mil ' alios Vic' Midd ' THE Plaintiff brought an Action on the Case against the Sheriff for a false Return Case lies not against the Sheriff for returning a Cepi Corpus paratum habeo though the Party doth not appear Mod. Rep. 239. Ellis and Yarborough post setting forth that he sued a Capias out of this Court directed to the Sheriff of Middlesex by vertue whereof he arrested the Party and took Bail for his appearance and at the day of the Return of the Writ the Sheriff returned Cepi corpus paratum habeo but he had not the Body there at the Return of the Writ but suffered him to escape The Defendant pleads the Statute of 23 H. 6. cap. 10. and saith that he took Bail viz. two sufficient Sureties and so let him go at large c. The Plaintiff demurrs and whether this Action lies against the Defendant was the Question who refused to proceed against him by way of Amerciament or to take an Assignment of the Bail-Bond This Case depended in Court several Terms It was argued by Serjeant Pemberton and Serjeant Coniers for the Plaintiff and by Serjeant George Strode for the Defendant and Iudgment was given in Easter Term in the 29th year of this King In the Argument for the Defendant that this Action would not lie it was considered Ex parte Def. 1. What the Common Law was before the making of this Statute 2. What alteration thereof the Statute had made At the Common Law Men were to appear personally to ansswer the Writ the Form of which required it and no Attorney could be made in any Action till Edw. 1. de gratia speciali gave leave to his Subjects to appoint them and commanded his Iudges to admit them 2 Inst 377. After the Arrest the Sheriff mighttie the Party to what Conditions he pleased and he might keep him till he had complied with such Conditions which often ended in taking extravagant Bonds and sometimes in other Oppressions for remedy whereof this Statute was made in which the Clause that concerns this Case is viz. If the Sheriff return upon any person Cepi Corpus or Reddidit se that he shall be chargeable to have the Body at the day of the Return of the Writ in such form as before the making the Act so that as to the Return of the Writ this Statute hath made no alteration the Sheriff being bound to have the Party at a day as before All the alteration made of the Common Law by this Statute is that the Sheriff now is bound to let the Party out of Prison upon reasonable Sureties of sufficient persons which before he was not obliged to do and it would be a Case of great hardship upon all the Sheriffs of England if they being compellable to let out the Party to Bail should also be subject to an Action for so doing because they have him not at the day so that the intent of the Law must be when it charges the Sheriff to have the Body at the Return that he should be liable to a Penalty if the Party did not then appear not to be recovered by Action but by Amerciament Cro. Jac. 286. The Security directed by this Act is to be taken in the Sheriffs own Name 't is properly his business and for his own Indempnity and therefore it is left wholly in his power for which reason no Action will lie against him for taking insufficient Bail that being to his own prejudice in which the Plaintiff is no wise concerned for if that had beén intended by the Act some Provision would have beén made as to his being satisfied in the sufficiency of the Persons When the Security is thus taken if the Defendant doth not appear at the Return of the Writ the Plaintiff by Amerciaments shall compel him to bring in the Body or to assign the Bond either of which is a full satisfaction and as much as is required If the Sheriff refuse to take 2 Sand. 59 154 1 Roll. Abr. 807 808. Cro. Eliz. 460 852. Noy 39. Moor 428. Sid. 23. sufficient Sureties when offered he is liable to an Action on the Case at the Suit of the Defendant for his refusal and it would be very unreasonable to enforce him to have the Party in Court at the Return when he is obliged under a Penalty to let him at large This Action is grounded upon a false Return when in
thing and the other side another thing was it ever imagined that upon these words Whereas a Marriage is intended c. that an Action of Covenant might be brought to enforce the Marriage And yet there is as much reason for the one as the other therefore since the Parties have neither made nor intended it for a Covenant 't is not necessary that it should be so construed If this is a Covenant the Parties at Common Law could only bring an Action of Covenant and recover damages for not levying of the Fine and that the Plaintiff may do now upon the express Covenant for non-payment of the Money but then the breach must be assigned according to the words viz. That the Defendant did not levy a Fine as intended who may plead that a Fine was never intended to be levied and by what Iury shall this be tryed It may be objected that every Article stands upon its own bottom and the Title of them being Articles of Agreement extends to every Paragraph But as to that each of these Articles is to be considered by it self and every Paragraph begins viz it is Covenanted c. which shews it was never intended to make it a Covenant by the Title of the Articles and the rather because 't is unreasonable to make such a construction for it is not to be supposed that a Man will covenant that a Fine shall be levied as in this Case by A. and B. and himself when 't is not in his power to compel another 2. Admitting it to be a Covenant yet it would be very hard to decree the execution of a Fine in Specie for the Father of the Defendant was alive when he executed the Deed and the Father being Tenant in Tayl who never sealed the Son could have no present Right who did Seal and if matters had stood now as then how could a Court of Equity Decree a Fine by which a Right might be extinguished but could never be transferred and by which no use could be declared For though such a Fine be good by Estoppel before the Tayl descends to the Issue yet no use can be declared thereupon nor upon any Fine by Estoppel and there is no reason why length of time should put the Plaintiff into a better condition than he was when the Articles were executed 3. And lastly since here is a particular relief prayed in no wise concerning the levying of this Fine but only a Relief in the Execution of the Trust this Court cannot Decree the Defendant to levy one it being against the constant course and rules thereof But on the other side it was said by the Plaintiffs Council that the words do declare the intent of the Parties Ex parte Quer. that a Fine shall be levied and 't is the Intent which makes the Agreement and where there is an Agreement an Action of Covenant will lye If a Man Covenant to do such a thing in consideration of a Marriage and then there is this Clause viz. Whereas it is intended that he shall Marry before Michaelmas that then c. certainly upon the whole Deed here is a good Covenant to marry before Michaelmas In this Case 't is Covenanted that 6000 l. shall be paid and that it shall be secured as herein is after mentioned then 't is declared that a Fine is intended to be levied for that purpose this is a good Covenant to make a Security by a Fine But if the particular manner how the the Security was to be made had been omitted yet upon the words Covenant to secure it the Court hath a good ground to make a Decree to levy a Fine that being the only way to secure it 2. As to the Objection that the Defendant had but a possibility of having the Estate when he entred into this Couenant admitting it to be so yet why should that be a reason to hinder him from making good the Security when he hath it if Father and Son Covenant to make an Assurance the Father who had the Estate in possession dies the Decree must then operate upon that Estate in the hands of the Son 3. Here is a general prayer for a proper relief in which the Plaintiffs Case is included and therefore prayed Iudgment for him The Lord Chancellor Curia presently after the Arguments on each side delivered his Opinion That upon the whole frame of the Articles there was a Covenant to levy a Fine for wherever there is an Agreement under Hand and Seal Covenant lies that in this Case there was a plain Covenant if the first Article of giving farther security be coupled to that Paragraph of intending to levy a Fine for that is the farther security intended so that the meaning of the Parties runs thus I do intend to levy a Fine which is for the Securing of 6000 l. and this appears to be their Agreement Now there are many Cases where words will make a Covenant because of the Agreement when the general words of Covenant Grant c. are wanting as * Hays versus Bickerstaff Antea Postea Cook versus Herl Yielding and Paying will make a Covenant for the reasons aforesaid And therefore the Party having provided himself of real as well as personal Security by these Articles he said he would not deprive him of it especially when it might be more trouble to bring an Action of Covenant for the not levying of the Fine for upon that many Questions might arise as who should do the first act c. for which reasons he decreed the execution of the Fine in Specie DE Term. Sanctae Trin. Anno 28 Car. II. in Communi Banco Ingram versus Tothill REplevin The Case was Justification ill 1 Vent 314. Mod. Rep. 216 Postea A Man made a Lease for 99 years if A. B. and C. should so long live rendring an Herriot after the death of each of them successively as they are all three named in the Deed the last named died first and if an Herriot should be paid was the Question Stroud Serjeant urged that it should not because the reservation is the Lessors Creature and therefore to be taken strongly against him As if Rent be reserved to him and his * Per North a Devisee is not Assignee to take Assigns or to him and his Executors the Heir shall not have it So is the Authority in 33 Eliz. Owen 9. Reddend to the Lessor his Executors and Administrators durante termino 21 Annorum c. the Heir shall not have the Rent because 't is not reserved to him 5 Co. 35. Latch 274. In this Case the Herriot is reserved if the three dye successively and the Lessor is contented to trust to that Contingency Reddend ' annuatim duran ' termino praedict ' to the Lessor and his Assigns the Heir shall have it though not named Latch 99. 2 Sand. 367. As to this Point the Court gave no Opinion but Iudgment was given for the Plaintiff
made so taketh upon him long after the Will to be Executor it shall make him such by relation from the time of the death of the Testator but here is no Executor nor ever was 'T is true that one was named but as soon as he heard of the Will he renounced and therefore there being no Executor in this Case nothing now can hinder the Administration to be granted cum Testamento annexo If the Testator should dye indebted or have Debts owing to him and the Executor refuses Probate and renounces his Executorship Administration must be granted for Lex fingit ubi subsistit Aequitas and the Executor having a possibility to be such and by his refusal becoming no Executor why should the bare naming of him to be an Executor have relation to make such Administration void since 't is not the Name but the doing of the Office which makes him Executor Dyer 372. If all these Executors had dyed after Administration thus committed it cannot be said that they ever were Executors There can be no inconvenience that this Administration should be good for 't is just that Creditors should have their Debts and Purchasors should be secure in the things purchased If the Testator was indebted an Action will lie against an Executor de son tort for such Debt which Executor is altogether as wrongfull as the Administrator to whom Administraton is committed and the Will afterwards proved by the rightful Executor and if such Executor of his own wrong be possessed of a term for years and a Creditor recovers against him that Crecutor shall have the Term in satisfaction of his Debt and by the same reason shall the Administrator here have a good title to this Term which he sold for the payment of a just Debt and there is no authority for making such Administration void unless it be where the Executor proves the Will but never when he renounceth Ex parte Def. But on the other side it was said that an Executor of an Executor hath all the Interest which the first Executor had so that being an Executor the Administration ganted by the Ordinary is void and the renunciation afterwards shall never make it good and this will appear by the different Interests which the Ordinary and the Executor have by Law 1. The Ordinary originally had nothing to do with the Estate of the Intestate for * Godolph 59. bona intestati capi solent in manus Regis Afterwards two Statutes were made which establish his power the first was Westm 1. cap. 19. and the other was 31 E. 3. c. 11. Yet no power was thereby given him to dispose of the Goods to his own use or to the use of any other he had only a property secundum quid and not an absolute and uncontroulable Right in the Estate 2. But the Executor hath a Right and Interest given to him by Law when a Will is made and may * 5 Co. Middleton's Case release before probate if he therefore hath an absolute Right and the Ordinary hath only a qualified property how can he grant the Administration of the Goods which at the same time are lawfully vested in another Suppose the Executor sells such Goods to one Man and the Administrator to another 2 Anders 150. Case 83. the Sale of one of them must be void and for the said Reasons and by the constant course of the Law it must be the latter It hath been objected that here was no Executor at all only one named or if it be admitted that there was an Executor yet his refusal shall relate to the time of the Administration committed and make that good which might not be so before But as to that he said that here was an Executor appointed by the Will who had an Interest and Administration being granted to another 't is void ab initio and what is once void cannot be made good by any subsequent act Mod. Rep. 214. 10 Co. 62. a. Here was a want of power in him who did this Act for the Ordinary could not grant Administration where there is an Executor and therefore no relation shall be to make that good which was once void but if it had béen only voidable it might have been otherwise A Relation may be to inable the Party to recover the Goods of the Intestate and to punish Trespasses as if a Man die possessed of Goods and a Stranger convert them and afterwards Administration is granted to S. this Administration shall * 2 Roll Abr. 399. relate to the time of the death of the Intestate so that he may maintain Trover before the Ordinary had committed it to him but it will never aid the Acts of the Parties to avoid them by Relation as if a Man makes a Feoffment to a Feme Covert and afterwards devises the same Land the Husband disagrées this shall have relation between the Parties so as the Husband shall not be charged in damages but it shall not make the void Devise good 3 Co. 28. b. Butler and Baker's Case So if a Man makes a Release and afterwards get Letters of Administration that shall not relate to make his Release good to barr him neither shall his refusal of the Executorship do it because at the time of the Release or the refusal there was not any right of Action in him for that commences in the one Case after Administration and in the other after the Probate of the Will Notwithstanding such refusal this Executor may afterwards administer at his pleasure Godolph 141. and intermeddle with the Goods of the Testator and if the Administration should be good also then they would have a power over the same Estate by two Titles at the same time which cannot be The greatest Argument which can be brought against this is ab inconvenienti because it cannot be safe to purchase under an Administrator since a Will may be concealed for a time and afterwards the lawful Executor therein appointed may appear but this is more proper for the Wisdom of a Parliament to redress than that the Law should be altered by a judicial determination of the Court and therefore he prayed Iudgment for the Defendant The Court was of Opinion that the Ordinary cannot grant Administration where there is an Executor named in the Will Judgment and therefore gave Iudgment for the Defendant against the Vendée of this Term. The Lord Townsend versus Dr. Hughes In C. B. THE Plaintiff brought an Action of Scandalum Magnatum for these Words spoken of him by the Defendant No new Trial in an Action of Scandalum Magnatum Mod. Rep. 232. viz. He is an unworthy Man and acts against Law and Reason Vpon Not Guilty pleaded the Case was tried and the Iury gave the Plaintiff 4000 l. damages The Defendant before the Trial made all possible submission to my Lord he denied the speaking the Words and made Oath that he never spoke the same after the Trial he
likewise addressed to my Lord as before making several Protestations of his Innocency But having once in a Passion said that he scorned to submit My Lord for that Reason would not remit the Damages it was therefore moved for a new Tryal upon these Reasons 1. Because the Witnesses who proved the Words were not Persons of Credit and that at the time when they were alledged to be spoken many Clergy-men were in Company with the Defendant and heard no such Words spoken 2. It was sworn that one of the Iury confessed that they gave such great damages to the Plaintiff not that he was damnified so much but that he might have the greater opportunity to shew himself noble in the remitting of them 3. And which was the principal Reason because the Damages were excessive Curia The Court delivered their Opinions seriatim and first The Chief Iustice North said In Cases of Fines for criminal Matters a Man is to be fined by Magna Charta with a salvo contenemento suo and no Fine is to be imposed greater than he is able to pay but in Civil Actions the Plaintiff is to recover by way of compensation for the damages he hath sustained and the Iury are the proper Iudges thereof This is a Civil Action brought by the Plaintiff for Words spoken of him which if they are in their own nature actionable the Iury ought to consider the damage which the Party may sustain but if a particular Averment of special damages makes them actionable then the Iury are only to consider such damages as are already sustained and not such as may happen in futuro because for such the Plaintiff may have a new Action He said that as a Iudge he could not tell what value to set upon the Honour of the Plaintiff the Iury have given 4000 l. and therefore he could neither lessen the Sum or grant a new Trial especially since by the Law the Iury are Iudges of the damages and it would be very inconvenient to examine upon what account they gave their Verdict they having found the Defendant guilty did believe the Witnesses and he could not now make a doubt of their Credibility Wyndham Iustice accorded in omnibus Atkins Iustice contra That a new Trial should be granted for 't is every days practice and he remembred the Case of Gouldston and Wood in the Kings Bench where the Plaintiff in an Action on the Case for Words for calling of him Bankrupt recovered 1500 l. and that Court granted a new Tryal because the damages were excessive The Iury in this Case ought to have respect only to the damage which the Plaintiff sustained and not to do an unaccountable thing that he might have an opportunity to shew himself generous and as the Court ought with one Eye to look upon the Verdict so with the other they ought to take notice what is contained in the Declaration and then to consider whether the Words and Damages bear any proportion if not then the Court ought to lay their hands upon the Verdict 'T is true they cannot lessen the damages but if they are too great the Court may grant a new Tryal Scroggs Iustice accorded with North and Wyndham that no new Tryal can be granted in this Cause He said that he was of Council with the Plaintiff before he was called to the Bench and might therefore be supposed to give Iudgment in favour of his former Client being prepossess'd in the Cause or else to shew himself more signally just might without considering the matter give Iudgment against him but that now he had forgot all former relation thereunto and therefore delivered his Opinion that if he had been of the Iury he should not have given such a Verdict and if he had been Plaintiff he would not take advantage of it but would overcome with Forgiveness such Follies and Indiscretions of which the Defendant had been guilty but that he did not sit there to give Advice but to do Iustice to the People He did agrèe that where an unequal Tryal was as such must be where there is any Practice with the Iury in such Case 't is good reason to grant a new Tryal but no such thing appearing to him in this Case a new Tryal could not be granted Suppose the Iury had given a scandalous Verdict for the Plaintiff as a Penny Damages he could not have obtained a new Trial in hopes to increase them neither shall the Defendant in hopes to lessen them and therefore by the Opinion of these three Iustices a new Tryal was not granted Afterwards in this Term Serjeant Maynard moved in Arrest of Iudgment and said that this Action was grounded upon the Statute of R. 2. Which consists of a Preamble reciting the Mischief and of the Enacting part in giving of a Remedy and that the Defendants Case was neither within the Mischief or the Remedy This Statute doth not create any Action by way of particular design and if the matter was now Res integra much might be said that an Action for Damages will not lye upon this Statute for the Statute of Westm 2. appoints that the Offender shall suffer imprisonment until he produces the Author of a false Report Ca. 33. and the Statute of 2 R. 2. which recites that of Westm 2. gives the same punishment and the Action is brought qui tam c. and yet the Plaintiff only recovers for himself It was usual to punish Offenders in this kind in the Star Chamber as in the * Earl of Northampton's Case where one Goodrick said of him That he wrote a Book against Garnet and a Letter to Bellarmine 12 Co. 132. intimating that what he wrote in the Book was not his Opinion but only ad captandum populum which was a great disgrace to him in those days being as much as to say he was a Papist Cro. Eliz. But the Serjeant would not insist upon that now since it hath been ruled that where a Statute prohibits the doing of a thing which if done might be prejudicial to another in such case he may have an Action upon that very Statute for his Damages But the ground on which he argued was that these words as spoken are not within the meaning of the Act for they are not actionable 1. Because they are no scandal and words which are actionable must import a great Scandal which no circumstance or occasion of speaking can excuse and if they are scandalous and capable of any mitigation by the precedent discourse the pleading of that matter will make them not actionable and for this the Lord * 4 Co. Cromwel's Case is a plain Authority the Words spoken of him were You like those that maintain Sedition against the King's Person the occasion of speaking of which was to give an account of his favouring the Puritan Preachers which was all that was intended by the former discourse for that Lord had approved a Sermon which was preached by a Parson
against the Common Prayer Book and the Defendant having forbid such Preaching the Lord told him that he did not like him upon which he spoke those Words so that the subject matter explained the sense for which reason it was adjudged that the Action would not lie 2. The scandal for which an Action may be brought within this Statute must be false for that word goes quite through the whole Act viz. false News false Lyes c. and the words here are so general that it cannot appear whether they are true or false for there can be no Iustification here as in case where a Man is charged with a particular Crime my Lord Townsend is not charged with any particular Act of Injustice as a Subject nor with any Misdemeanour as a Peer nor with any Offence in an Office If therefore in all Actions brought upon this Statute the Defendant may justifie and put the matter in Issue to try whether it be true or false and in this Case the Defendant can neither justifie nor traverse for this reason the Action will not lie That the Words are general and of a doubtful signification it cannot be denied for to say He is an unworthy Man imports no particular Crime Unworthy is a term of Relation as he is unworthy of my Friendship Acquaintance or Kindred and so may be applicable to any thing and a Lord may in many things be unworthy of a particular Mans Friendship as if he promises to pay a Sum of Mony at a day certain and faileth in the payment as 't is often seén such is an unworthy Man but that will not bear an Action He is an unworthy Man who invites another to Dinner to affront him but it will not bear an Action to say That a Lord invited me to a Dinner to abuse me neither will it be actionable to say He is an unworthy Man because such instances may be given of his Vnworthiness which will not bear an Action If my Lord had beén compared to any base and unworthy thing these Words might have béen actionable and that was the Case of the Lord Marquess of Dorchester it being said of him That there was no more value in him than in a Dog Then to say A Man acts against Law this is no Scandal because every Man who breaks a Penal Law and suffers the Penalty is not guilty of any Crime The Statute commands the burying in Woollen the Party buries one of his Family in Linnen in this he acts against the Law but if the Penalty is satisfied the Law is so likewise A Man who acts against Law acts against Reason because Lex est summa ratio but no instance is here given wherein he did thus act 'T is not said that he did act against Law wilfully or that he used to do any thing against Law and so cannot be like the Case of the Duke of Buckingham who brought an Action for these Words viz. You are used to do things against Law and put Cattle into a Castle where they cannot be replevied for there was not only an Vsage charged upon him but a particular instance of Oppression This Action lies for Words spoken of a Iudge of either Bench and of a Bishop as well as of a Peer Now if a Man should say A Judge acted against Law will an Action lie Because a Iudge may do a thing against Law and yet very justly and honestly unless all the Iudges were infallible and could not be subject to any mistakes which none will deny So if a Bishop return the Cause of his Refusal to admit a Clerk quia criminosus this is a Return against Law because 't is too general but if J. S. should say A Bishop acted against Law and shew that for Cause an Action would not lye If the the Lord Townsend had commanded his Bayliff to make a Distress without Cause that had been acting against Law and Reason He agreed the Words to be uncivil but not actionable for if such Construction should be made a Man must talk in Print or otherwise not speak any thing of a Peer for fear of an Action There are many Authorities where a Péer shall not have an Action for every trivial and slight Expression spoken of him As to say of a Péer He keeps none but Rogues and Rascals about him like himself by the Opinion of two Iustices Yelverton and Flemming the Action would not lie because they are Words of Scolding and this was the Case of the Earl of Lincoln Cro. Jac. 196. But the Court was divided the Defendant died and so the Writ abated Actions for Words have béen of late too much extended formerly there were not above two or three brought in many years and if this Statute should be much inlarged the Lords themselves will be prejudiced thereby by maintaining Actions one against another Vpon this Statute of 2 R. 2 c. 5 there was no Action brought till 13 H. 7. which was above an hundred years after the making of that Law and the occasion of making the Law was because the Duke of Lancaster who was then the first Prince of the Blood took notice that divers were so hardy as to speak of him several lying Words 1 R. 2. num 56. and therefore this Statute was made to punish those who devised false News and horrible and false Lies of any Peer c. whereby Discords might arise between the Lords and Commons and great Peril and Mischief to the Realm and quick Subversion thereof Now from the natural intent and construction of these Words in the Act can it be supposed that if one should say Such a Peer is an unworthy Man that the Kingdom would be presently in a flame and turned into a state of confusion and Civil War and to say That he acts against Law that the Government would thereby be in danger to be lost and quick Subversion would follow This cannot be the common and ordinary understanding of these Words If therefore the Plaintiff by speaking these Words was in no hazard nor any wise damnified if he was not touched in his Loyalty as a Péer nor in danger of his Life as a Subject if he was not thereby subjected to any Corporal or Pecuniary Punishment nor charged with any Breach of Oath nor with a particular Miscarriage in any Office if the Words are so general that they import no Scandal and are neither capable of any Iustification and lastly if they are not such horrible Lies as are intended to be punished by the Statute for these Reasons he concluded the Action would not lie and therefore prayed that the Iudgment might be arrested Serjeant Baldwin and Serjeant Barrel argued on the same side for the Defendant but nothing was mentioned by them which is not fully insisted on in the Argument of Serjeant Maynard for which Reason I have not reported their Arguments But Pemberton Serjeant who argued for the Plaintiff said Ex parte Quer. that it would conduce much to
the understanding of the Statute of 2 R. 2. cap. 5. upon which this Action of Scandalum Magnatum was grounded to consider the occasion of the making of it In those days the English were quite of another Nature and Genius from what they are at this time the Constitution of this Kingdom was then Martial and given to Arms the very Tenures were Military and so were the Services as Knights Service Castleguard and Escuage There were many Castles of defence in those days in the hands of private Men their Sports and Pastimes were such as Tilts and Turnaments and all their Imployments were tending to bréed them up in Chivalry Those who had any dependency upon Noble Men were enured to Bows and Arrows and to signalize themselves in Valour it was the only way to Riches and Honour Arts and Sciences had not got such ground in the Kingdom as now but the Commons had almost their dependance upon the Lords whose Power then was exceéding great and their Practices were conformable to their Power and this is the true Reason why so few Actions were formerly brought for Scandals because when a Man was injured by Words he carved out his own Remedy by his Sword There are many Statutes made against riding privately armed which Men used in those days to repair themselves of any Injury done unto them for they had immediately recourse to their Arms for that purpose and seldom or never used to bring any Actions for damages This was their Revenge and having thus made themselves Iudges in their own Cases it was reasonable that they should do themselves Iustice with their own Weapons but this Revenge did not usually end in private Quarrels they took Parties ingaged their Friends their Tenants and Servants on their sides and by such means made great Factions in the Commonwealth by reason whereof the whole Kingdom was often in a flame and the Government as often in danger of being subverted so that Laws were then made against wearing Liverys or Badges and against riding armed This was the mischief of those times to prevent which this Statute of R. 2. was made and therefore all provoking and vilifying Words which were used before to exasperate the Peers and to make them betake themselves to Arms by the intent of this Act are clearly forbidden which was made chiefly to prevent such consequences for it was to no purpose to make a Law and thereby to give a Péer an Action for such Words as a common person might have before the making of the Statute and for which the Peer himself had a Remedy also at the Common Law and therefore needed not the help of this Act. If then the design of this Statute was to hinder such practices as aforesaid the next thing to be considered is what was usual in those days to raise the Passions of Peers to that degreé and that will appear to be not only such things as imported a great Scandal in themselves or such for which an Action lay at the Common Law but even such things as savoured of any Contempt of their persons and such as brought them into disgrace with the Commons for hereby they took occasion of Provocation and Revenge 'T is true that very few Actions were brought upon this Statute in some considerable time after it was made for though such practices were thereby prohibited the Lords did not presently apply themselves to the Remedy therein given but continued the Military way of Revenge to which they had béen accustomed As to the first Objection that hath been made he gave no answer to it because it was not much insisted upon on the other side whether an Action would lye upon this Statute for the very words of it are sufficient ground for an Action and 't is very well known that whereever an Act prohibits an evil thing Maxim the person against whom such thing is done may maintain an Action This Statute consists of two parts the first is prohibitory Vide Ante. Viz. That no Man shall do so c. Then comes the additional Clause and saith That if he do he shall incur such Penalty 'T is on the first part that this Action is grounded and so it was in the Earl of Northampton's Case in that Report which goes under the name of the Lord Coke's 12th Report where by the Resolution of all the Iudges in England except Flemming who was absent it was adjudged that it was not necessary that any particular Crime should be fixed on the Plaintiff or any Offence for which he might be indicted So are the Authorities in all the Cases relating to this Action In the Lord * 4 Co. 13. b. 2 Cro. 196. Cromwel's Case for these Words You like those who maintain Sedition In the Lord of Lincoln's Case My Lord is a base Earl and a paultry Lord and keepeth none but Rogues and Rascals like himself In the Duke of Buckingham's Case He has no more Conscience than a Dog In the Lord * Hill 16 Car. 2 Rot. 1269. Affirmed in a Writ of Error in B R. Marquess of Dorchester's Case He is no more to be valued than the Black Dog which lies there All which Words were held actionable and yet they touch not the persons in any thing concerning the Government or charge them with any Crime but in point of Dignity or Honour And they were all villifying Words and might give occasion of Revenge And so are the Words for which this Action is brought they are rude uncivil and ill natured Unworthy is as much as to say base and ignoble a contemptible Person and a Man of neither Honour or Merit And thus to speak of a Nobleman is a Reflection upon the King who is the Fountain of Honour that gives it to such persons who are in his Iudgment deserving by which they are made capable of advising him in Parliament and it would be very dishonourable to call unworthy Men thither 'T is likewise a dishonour to the Nobility to have such a person to fit among them as a Companion and to the Commons to have their proceedings in Parliament transmitted to such Peérs so that it tends to the dishonour of all Dignities both of King Lords and Commons and thereby discords may arise between the two Houses which is the Mischief intended to be remedied by this Act. Then the following Words are as scandalous for to say A Man acts against Law and Reason imports several such acts done a Man is not denominated to be unworthy by doing of one single Act for in these Words more is implied than to say he hath done an unworthy thing for the Words seem to relate to the Office which the Plaintiff had in the Country as Lord Lieutenant which is an Office of great Honour and can any thing tend to cause more discord and disturbance in the Kingdom than to say of a great Officer That he acts according to the dictates of his Will and Pleasure the consequence
Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards
in the Common-Pleas And it was now said for the Plaintiff in the Errors That it doth not appear by the Pleadings whether the Plaintiff in the Prohibition would discharge himself by a Praescription in non decimando or in modo decimandi for the Grant from the Prior being the foundation of his Title he could not thereby be discharged because a Deed before Memory cannot be pleaded unless it hath been allowed in a Court of Eyre or some Court of Record since Memory and this Deed being dated in the Reign of King Henry the I. which was 65 years before the time of Memory by the Common Law that beginning in the Reign of Richard the I. whatever is before that time cannot be tried by Law if it had been allowed in Eyre or in some of the Courts of Record it may be pleaded but no usage in pais can confirm it But supposing the Deed to be good the Plaintiff hath alledged a Grant of a portion of Tythes which he cannot have for at the Common Law a Lay-man was not capable of Tythes in prender for no one had capacity to take or receive them Jones 369. 2 Co. 49. save only spiritual persons for which Reasons a Lay-man could not prescribe in non decimando but in modo decimandi he might because there is still an annual recompence in satisfaction thereof 2. 'T is not alledged that the place where c. was parcel of the Demesus of the Mannor therefore for what appears it might have been always in Tenancy and though a Prescription to a modus by the Lord for himself and all his Tenants is good Cro. Eliz. 599. because it might have a lawful beginning for the Lands at first might be all in his Hands before it was a Mannor and so much paid for the Tythes thereof yet such a Prescription by a Tenant is not good 3. He hath alledged payment to the Prior and afterwards to the King and so would infer a Modus to which he hath not positively prescribed but by an old Deed upon payment of 5 s. to all those whose Estates c. And this will not do for unless the Modus doth go to the person who by Law ought to have Tythes or unless it be for his benefit 't is not good as where it was alledged that he ought to be discharged because time out of memory he employed all the profits of the Land for the Repairs of the Body of the Church and to find necessaries c. this was not a good Modus 1 Roll. Abr. 649 placito 8. because 't is no recompence for the Parson But it was said by Saunders for the Plaintiff in the Prohibition That by the Suggestion there was a good Title alledged to be discharged of Tythes for 't is set forth that the Prior had a portion of Tythes and the Lands simul semel and being a Corporation they might prescribe for Tythes in prender and the Tythes being well in them they may well grant it to Fitzherbert paying 5 s. and constant payment being alledged ever since 't is a good Title As to the Deed t is true 't is dated before the time of Memory but yet 't is pleadable because 't is a private Deed and so need not be allowed in Eyre or in Courts of Record for such as are not to be pleaded unless allowed there are only Grants of Franchises and Liberties from the King but the confession of the Deed to be beyond Memory and the constant payment of 5 s. is a sufficient title to the Plaintiff if the Deed is not pleadable and if it is then 't is a good discharge that way And as to the Objection that the Modus is payable to a wrong person there are many such which are not paid to the Parson of the Parish but to Lay-men But in this Case it doth appear that there was a Modus in the Prior which being received till it came to the Crown 't is good although now paid to others so that for that reason the Spiritual Court ought to be prohibited and of that Opinion was all the Court for if a Modus be payable to him who hath the Right of the Tythes though it be not to the Parson of the Parish 't is well enough especially where the Plaintiff as here alledgeth it to be Portio Decimarum belonging to the Prior so that it cannot be said that the Parson hath not quid pro quo for he had nothing at first This Composition was made with the Prior and the Plaintiff is only to shew payment to him and to those who have his Right And as to the date of the Deed 't is pleadable though time out of memory because 't is a private Deed but Grants of Franchises and Liberties must be allowed in Eyre and so is my Lord Rolls to be understood in his Abridgment Whereupon Iudgment was affirmed FINIS A TABLE of the Principal Matters contained in these REPORTS A. Abatement WHERE it shall be taken in Barr 64 65 Action on the Case Where two matters are laid in two Counties the Action may be brought in either by Pleading 23 Process is directed to six Coroners one of them commits a Tort the Action lies against all of them 23 24 It lies for an Acquittal upon an Indictment for a Trespass 52 306 It lies for these Words viz. I dealt not so unkindly with you when you stole my Corn 58 It doth not lye against the Sheriff for returning a Cepi Corpus paratum habeo though the Party doth not appear 85 86 Action Misconceived by the Plaintiff and a Verdict against him no barr to a new Action 294 Accord Where 't is pleaded it must be averred to be executed in all points 44 Accompt After 't is stated an Insimul computasset and not Indebitatus Assumpsit doth lye 44 Acquittal After an Acquittal for a Trespass an Action on the Case will lie 306 Act. Who is to do the first Act 76 203 Act of God of the Party and of a Stranger where it excuses the Obligee 204 Act of Parliament Affirmative words therein where they shall have the force of a negative 40 Where it restores the Common Law 't is to be taken favourably 73 Private Acts must be taken strictly 57 71 Administration Of a Chose en Action of a Feme Covert whether grantable to the Husband or to be distributed amongst the Kindred 20 Pleaded without saying loci istius Ordinarius and held good 65 Where an Executrix dies before Probate it shall be committed to the next of Kin of the Testator 101 It cannot be granted where there is an Executor 149 Where 't is committed to the Debtee in Execution how she shall be discharged 315 Administrator sells the Term an Executor appears who refuses yet the Vendee of the Term hath no Title 148 149 Amerciament Must be made upon the Sheriff if Defendant doth not appear at the Return of the Writ 84 Amendment Not allowed after
take Bail but the Sheriff himself must do it and therefore an Action on the Case must lye against the Bayliff for not carrying the Party before the Sheriff in order to put in Bail but an Action of false Imprisonment will not lye 2. The action is laid quare vi armis c. in ipsum the Plaintiff insultum fecit ipsum imprisonavit ut Prisonat à tali loco ad talem locum adducebat detinuit contra consuetudinem Angliae sine cause rationabili per spacium trium dierum The Defendant pleaded quoad venire vi armis necnon totam transgressionem praeter the taking and deteining him three days non Culp and as to that he pleaded the Latitat Warrant and Arrest ut supra but the Verdict being only against the Defendant upon the second Issue and nothing appearing to be done upon this and entire Damages given 't is for that reason ill North Chief Iustice If the Writ and Warrant were good then the refusing Bail is an Offence within the Statute of 23 H. 6. And as 't is an Oppression so 't is an Offence also at the Common Law but an Action on the Case and not of false Imprisonment lyeth against the Officer for it would be very unreasonable by the refusal of Bail to make the Arrest tortious ab initio A special Action on the Case had therefore been the proper remedy against the Sheriff but not against the Officer for an Escape will not lye against him but it must be brought against the Sheriff Kren versus Kirby Surrender by a Disseisor not good IN Ejectment the Lessor of the Plaintiff claimed under a Surrender made to him by William Kirby who had an Estate in the Land after the decrease of his Father but entred during his Life and thereby became a Disseisor and his Estate being now turned into a Right he made the Surrender to the Lessor of the Plaintiff all which was found by special Verdict at the Tryal and it was adjudged that the Surrender was void It was pretended at the Trial that the Father who was Tenant for Life had suffered a Common Recovery in the Lords Court and so his Estate was forfeited for which the Son might enter and then his Surrender is good But the Court answered that without a particular Custom for the purpose the suffering a Recovery would work no Forfeiture of the Estate but if it did 't is the Lord and none else who can enter And so Iudgment was given for the Defendant Duck versus Vincent DEBT upon Bond conditioned to perform Covenants Plea to debt upon bond not good one of which was for payment of so much Mony upon making such Assurances The Defendant pleaded he paid the Mony such a day but doth not mention when the Assurance was made that it might appear to the Court the Mony was immediately paid pursuant to the Condition and for that reason the Court were all of Opinion that the Plea was not good And Iudgement was given for the Plaintiff upon Demurrer Smith versus Shelberry IN Assumpsit the Plaintiff declared that he was possessed of a Term of 80 years Assumpsit upon a mutual promise and it was agreed between him and the Defendant that he should assign all his interest therein to the Defendant who proinde should pay 250 l. and that he promised that in consideration that the Plaintiff at his request had likewise promised to perform all on his part that he would also perform all on his part and then sets forth that the Defendant had paid a Guinea in part of the said 250 l. and that he viz. the Plaintiff obtulit se to assign the Premisses by Indenture to the Defendant which was written and sealed and woud have delivered it to him but he refused and assigns the breach in Non-payment of the Mony to which the Defendant demurred And it was said for him by Baldwin Serjeant Ex parte Def. that this was not a good Declaration because the Assignment ought to precede the Payment and that it was not a mutual promise neither was the obtulit se well set forth but this was a Condition precedent on the Plaintiffs side without the performance whereof no Action would lie against the Defendant Vide 7 Co. Ughtreds Case fol. 10. b. because it was apparent by the Plaintiffs own shewing that the Mony was not to be paid till the Assignment made for the Plaintiff is to assign and the Defendant proinde which is as much as to say pro assignatione is to pay the Mony Like the Case in Dyer 76. a. Assumpsit against the Defendant that he promised pro 20 Marks to deliver 400 Weight of Wax to the Plaintiff the Pronoun Pro makes the Contract conditional Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Declaration good and that it was a mutual promise and that the Plaintiff need not averr the performance Hill Thorn Postea for in such Cases each has remedy against the other and 't is as reasonable that the Plaintiff should have his Mony before he make the Assignment as that the Defendant should have the Term assigned before he paid the Mony And of that Opinion was the Court only Iustice Atkins doubted Ellis Iustice cited a Case adjudged in the King's Bench which was as he thought Stiles Rep. 186 Postea very hard viz. An Assignment was made between A. and B. that A. should raise Souldiers and that B. should transport them beyond Sea and reciprocal promises were made for the performance as in this Case that A. who never raised any Souldiers may yet bring his Action upon this promise against B. for not transporting them which is a far stronger Case than this at Barr. It was agréed here that the Tender and Refusal had it beén well pleaded would have amounted to and have been equivalent with a full performance but the Plaintiff hath not done as much as he might for he should have delivered the Indenture to the Defendants use and then have tendered it But Iudgment was given for the Plaintiff Hays versus Bickerstaffe Covenant not conditional by the words paying and performing IN Covenant brought by the Lessee who declared that the Lessor covenanted with him that he paying the Rent and performing the Covenants on his part to be performed shall quietly enjoy The breach assigned was a disturbance by the Lessor who pleads that till such a time the Plaintiff did quietly enjoy the thing demised without disturbance but then he cut down Wood which was contrary to his Covenant and then and not before he entred and so by the Plaintiffs not performing his Covenant the Defendants Covenant ceases to oblige him whereunto the Plaintiff demurred The Question was Whether the Defendants Covenant was conditional or not For if it amount to a Condition then his Entry is lawful but if it be a Covenant 't is otherwise for then he
truth there is no Return made or if any 't is a very imperfect Return till the Body be in Court and this is the reason why the Court will not allow it but amerce the Sheriff till he make the Party appear 't is not like a compleat Return as a Non est inventus or the Return of Nulla Bona upon a Fi. Fa. The Case of * ◠Roll Abr. 93 pl. 17. Postea Bowls and Lassels is full in the Point where it was adjudged that this Action would not lie because the Sheriff had not done any thing unjustly but what he was commanded to do by the Statute and therefore he is to be amerced if the Defendant doth not appear Ex parte Quer. But for the Plaintiff it was said that unless this Action lye he is remediless and that for two Reasons 1. Because the Assignment of the Bail Bond is at the discretion of the Court and not demandable by the Plaintiff in foro 2. The Plaintiff hath no benefit by the Amerciaments because they go to the King and in some places are granted to Patenteés now 't is agreéd that the Sheriff may be amerced and certainly if an Action be brought against him he is but in the same Case for still he is to pay And if it be objected that the Amerciaments may be compounded cheaper then the Plaintiff hath not so good remedy nor is so likely to recover his Debt as if the Action would lie which would be a greater penalty upon him than the Amerciaments on the Sheriff Neither will it follow that because the Sheriff may be amerced therefore no Action will lie against him for in many Cases he may be amerced and yet an Action on the Case will lie against him at the Suit of the Party 41 Ass pl. 12. fol. 254. Latch 187. That this Action will not lie is against the very end of the Statute and the reasonable construction thereof in the last Clause which Enacts That if the Sheriff return a Cepi Corpus he shall be charged to have the Body at the Return as before the making of the Statute now before this Law he was lyable to an Action if after such a Return made the Party did not appear and therefore this Action being grounded upon the Common Law is still preserved since no alteration hereof hath beén made by this Statute 'T is true an Action of Escape is taken away but not an Action on the Case for a false Return and upon this difference are all the Authorities cited on the other side as Cro. Eliz. 416 621. Cro. Jac. 286. Moor 428. and the Case of Bowls and Lassels And for an Authority in Point is the Case of Franklin and Andrews 24 Car. 1. where Iudgment was given for the Plaintiff in an Action brought for a false Return of Cepi Corpus and the Statute pleaded as in this Case It has béen objected that Iudgment was there given upon the defect of Pleading because the Traverse was naught 't is true there was a Traverse absque hoc quod the Defendant retornavit aliter vel alio modo but that was held good because it answered the falso alledged in the Plaintiffs Declaration In this Case there is no Traverse but 't is confessed by the Demurrer that he did falsly and deceitfully return Cepi Corpus and so the Plaintiff is at apparent damage and hath no remedy without this Action and the Defendant is at no prejudice but hath his remedy over on the Bail Bond. North Chief Iustice Wyndham and Atkins Iustices Judgment held that the Action would not lie for when the Sheriff returns Cepi Corpus paratum habeo though he have him not in Court 't is no false Return for if he hath taken Bail he hath done what by Law he ought to do if he Arrest a Man in Yorkshire the Law will not compel him to bring the Party hither to the Bar because of the charge if he make an insufficient Return neither the Party or the Court are deluded because the common method in such cases must be pursued by which the Party will have remedy This Return is true and Iustice Atkyns held that the Sheriff was not obliged by the Statute to return only a Cepi Corpus paratum habeo but might return that he took Bail for the Statute provides that if he return a Cepi Corpus he shall be chargable as before but doth not enjoyn him to make such return the Case of Bowles and Lassels is full in this point and therefore Iudgment was given for the Defendant But Iustice Scroggs was of another Opinion says he this Action being brought because the Defendant said he had the Body ready when in truth he had not was an apparent injury to the Plaintiff of whom the Statute must have some consideration for it doth not require the Sheriff to say Cepi corpus paratum habeo but he must make his Return good or otherwise those words are very insignificant and if the Statute obliges him to let the party to Bail and nothing more is thereby intended for the benefit of the Plaintiff why doth the Court amerce the Sheriff and punish him for doing what the Statute directs Therefore if the Plaintiff brings a Habeas Corpus upon the Cepi and the Defendant doth not appear the Plaintiff is then well entituled to this Action Hollis versus Carre in Cancellaria Decree of the Execution of a Fine in specie THE Lord Chancellor Finch having called to his assistance Iustice Wild and Iustice Windham to give their Opinions what relief the Plaintiff was to have for the recovering of 6000 l. which was his Ladys Portion After those Iudges had spoken shortly to the matter he put the Case Viz. The Plaintiff by his Bill demands 6000 l. due to him for his Wives Portion with Interest for non-payment according to the purport of certain Articles of Agreement dated in August 1661. and mentioned to be made between old Sir Robert Carr the Defendants Father his Lady and Son the now Defendant and Lucy Carr his Daughter on the one part and my Lord Hollis and Sir Francis his Son the now Plaintiff on the other part The Articles mention an Agreement of a Marriage to be had between the said Sir Francis Hollis and Lucy Carr with Covenants on the Plaintiffs side to settle a Ioynture c. and on the other side to pay 6000 l. and 't is agreed in the Articles that a Fine was intended to be levied of such Lands c. for securing the payment of 6000 l. c. The Marriage takes effect but old Sir Robert Carr did never Seal these Articles the Lady Carr Seals before and the Defendant after Marriage Sir Francis had Issue on his Lady Lucy one Child since dead the Lady is likewise dead the Ioynture was not made nor the Portion paid Afterward viz. Anno 1664. an Act of Parliament was made for setling old Sir Robert Carr's Estate whereby the
any other thing which lies in Grant and the Deed is lost or cancelled the Office or the thing granted falls to the ground for the Deed is the foundation and a Case was cited in the Lord Dyer If there be two Iointenants and one cancels the Deed it hath destroyed the Right of the other Quaere of these things But it was agreed that if two Men who have one Office for their Lives and the survivor of them if one surrenders to the other and then a new Grant is made to this other and a Stranger he hath debarred himself of the Survivorship and he and the Stranger are jointly seised Crossman versus Sir John Churchil IN a Quare Impedit the Plaintiffs Title was set forth in his Declaration which was also found in a Special Verdict Where an Agreement for a Presentation by turns is good that Sir George Rodney was seised of the Advowson in Fée and died seised leaving two Sisters who were his Coheirs that Sir John Rodney being also one of the same Family and pretending a Right to the Estate for preventing Suits that might happen they all enter into an Agréement by Indentures mutually executed by which it was agreed that Sir John Rodney shall hold some Lands in severalty and the Co-heirs shall hold other Lands in the like manner and as for this Advowson a temporary provision was made thereof that each of them should Present by turns and this was to continue till partition could be made then comes an Act of Parliament and confirms the Indenture and Enacts That every Agreement therein contained shall stand and that all the rest of the Lands not particularly named and otherwise disposed by the said Indenture should be held by these three in common one of the three who by Agréement was next to Present grants the next Avoidance the Church being then full to the Plaintiff and the Question was whether these threé persons were not Tenants in Common of the Advowson and if so then the Grant of the next Avoidance cannot be good by one alone because he hath not the whole Advowson but only a Right to the third part It was said that if Tenants in Common had made such an Agreément it would not have beén any division of their interest for there must be a partition to sever the Inheritance The Court were all of Opinion Curia that Iudgment should be given for the Plaintiff for there was an Agréement that there shall be a Presentation by turns and therefore for one turn each hath a Right to the whole Advowson by reason of the Act of Parliament by which that Agreement is confirmed and thereby an Interest is setled in each of them till Partition made but this Agreement would have vested no Interest in either of them without an Act of Parliament to corroborate it therefore there had been no remedy upon it but by an Action of Covenant This Case was argued four times and not one Authority cited The Earl of Shaftsbury versus Lord Digby In Banco Regis For Words upon the Statute of 2 R. 2. c. 5. Jones 49. SCandalum Magnatum The Plaintiff declares upon the Statute of 2 R. 2. cap. 5. for these Words viz. You are not for the King but for Sedition and for a Common-wealth and by God we will have your Head the next Sessions of Parliament After Verdict for the Plaintiff and 1000 l. damages given it was moved in Arrest of Iudgment and several Exceptions taken 1. As to the Recital of the Statute the Words of which are That no Man shall devise any Lies c. and the Plaintiff for the Word devise had used the Latin Word contrafacio in his Declaration which was very improper that being to counterfeit and not to devise for it should have béen machino or fingo those are more expressive Words of Devise 2. 'T is alledged that the Defendant dixit mendacia of the Plaintiff viz. haec Anglicana verba sequen̄ and doth not alledge that he spoke the Words 3. The most material Objection was a mistake in the Recital of the Statute the Words of which are That none shall speak any scandalous Words of any Dukes Earls c. the Justices of either Bench nor of any other great Officer of the Kingdom but the Plaintiff in his Declaration recites it thus viz. None shall speak any scandalous Words of any Dukes Earls c. Justices of either Bench great Officers of the Kingdom and leaves out the Words neque al so that it must be construed thus None to speak of any Dukes Earls c. being great Officers of the Kingdom and then 't is not enough that the Plaintiff is Comes but he also ought to be a great Officer of the Kingdom which is not set out in this Case But upon great Debate and Deliberation these Exceptions were overruled and the whole Court gave Iudgment for the Plaintiff As to the first Exception they said contrafacio is a legal Word and apt enough in this sense and so are all the Presidents and thus it was pleaded in the Lord Cromwel's Case As to the second Exception it was said the Mendacia which were told were the English Words which were spoken and the viz. haec Anglicana verba sequen̄ being in the Accusative Case are governed by the same Verb which governs the Words precedent viz. horribilia mendacia Besides for the supporting of an Action the viz. may be transposed and then it will be well enough viz. the Defendant spoke haec Anglicana verba viz. Lies of the Plaintiff As to the third Exception it was answered that the Plaintiff neéd not recite the Statute it being a * Sid. 348. general Law and admitting there was no necessity yet if he will undertake to recite it and mistake in a material Point 't is incurable but if he recites so much as will serve to maintain his own Action truly and mistakes the rest this will not vitiate his Declaration and so he hath done here by reciting so much of the Statute which Enacts That no Man shall speak any scandalous Words of an Earl which is enough he being an Earl to entitle him to an Action and he concludes prout per eundem Actum plenius liquet and the Court grounded themselves principally upon a Iudgment given in this Court which was thus viz. There was a Robbery committed and the Party brought an Action upon the Statute of Huy and Cry in which he recited incendia domorum 13 E. 1. cap. 1. the said Statute beginning Forasmuch as from day to day Robberies Murders burning of Houses c. and the Presidents are all so But the Parliament Roll is Incendia generally without domorum and it was strongly urged that it was a misrecital which was fatal But the Court were all of Opinion that the Plaintiffs Case being only concerning a Robbery for which the Statute was well recited and not about burning which was mistaken it was for that reason good
annum to the Plaintiffs in Trust for Mary and this was to be in discharge of the said Iointure Habendum to them their Heirs Executors Administrators and Assigns in Trust for the said Mary for Life with a Clause of Distress and a Covenant to pay the 200 l. per annum to the said Trustees for the use of the said Mary the Breach assigned was that the Defendant had not paid the Rent to them for the Use of Mary The Defendant demurred specially for that it appears by the Plaintiffs own shewing that here is a Grant of a Rent-Charge for life which is executed by the Statute of Vses and therefore there ought to have been a Distress for Non-payment which is the proper remedy given by the Statute and this Action will not lie in the personalty 2. 'T is said the Defendant did not pay it to the Plaintiffs for the use of Mary which is a Negative pregnant and implies that it was paid to them 3. 'T is not averred that the Mony was not paid to Mary and if 't is paid to her then the Breach is not well assigned Ex parte Quer. But Serjeant Baldwin for the Plaintiff replyed that it was not a Question in this Case whether this Rent Charge was executed by the Statute or not for quacunque via data an Action of Covenant will lie and that the Breach was assigned according to the Words of the Covenant and so prima facie 't is well enough for if the Defendant did pay the Mony to the Plaintiffs he may plead it and so he may likewise if he paid it to Mary Curia The Court were all of Opinion that this Rent-Charge was executed by the Statute of Vses by the express Words thereof which executes such Rents granted for Life upon Trust as this Case is and transfers all Rights and Remedies incident thereunto together with the possession to Cestuy que use so that though the power of distraining be limited to the Trustées by this Deéd yet by the Statute which transfers that power to Mary she may distrain also but this Covenant being collateral cannot be transferred The Clause of Distress by the express Words of the Act is given to the Cestuy que use but here is a double Remedy by Distress or Action for if the Lessée assign his Interest and the Rent is accepted of the Assignee yet a Covenant lies against the Lessée for Non-payment upon the express Covenant to * Hayes and Bickerstaff Hollis and Carr Antea pay so if a Rent be granted to S. and a Covenant to pay it to N. for his use 't is a good Covenant And it was agreed that the assignment of a Breach according to the Words of the Covenant is good enough and that if any thing be done which amounts to a performance the other side must plead it as in this Case the Defendant might have pleaded that the Mony was paid to Mary which is a performance in substance but it shall not be intended without pleading of it Whereupon Iudgment was given for the Plaintiff Read versus Dawson DEBT upon Bond against the Defendant as Executor Repleader after an immaterial Issue Issue was joyned whether the Defendant had Assets or not on the thirtieth day of November which was the day on which he had the first notice of the Plaintiffs original Writ and it was found for the Defendant that then he had not Assets It was moved for a Repleader because it was said this was an immaterial Issue for though he had not Assets then yet if he had any afterwards he is liable to the Plaintiffs Action But Barrel Serjeant moved for Iudgment upon this Verdict by reason of the Statute of 32 H. 8. which helps in Cases of Mispleading or insufficient Pleading 'T is true there are many Cases which after Verdict are not aided by this Statute as if there are two Affirmatives which cannot make an Issue or when after a Traverse Issue is joyned with an hoc petit quod inquiratur per patriam this is no Issue 2 Anders 6 7. Yelv. 210. Hob. 126. So if there be no Plea at all as if an Action is brought against Baron and Feme and she pleads only 2 Cro. 288. So if the Party puts himself super patriam where it should be tried by Record or if the Plea be nothing to the purpose or lie not in the Mouth of the Parties such immaterial Issues as these cannot be good The difference in Moor 867. is if the Plea on which the Issue is joyned hath no colourable pretence in it to barr the Plaintiff or if it be against an express Rule in the Law there the Issue is immaterial and so as if there was no Issue and therefore 't is not aided by the Statute but if it hath the countenance of a legal Plea though it want necessary matter to make it sufficient there shall be no Repleader because 't is helped after Verdict Here the Parties only doubt whether there were Assets at the time of the notice and 't is found there were none and so Iudgment was to be given accordingly and of that Opinion was the whole Court But Iustice Atkins was clear of Opinion that if the Parties join in an immaterial Issue there shall be no Repleader because 't is helped after Verdict by these Words in the Statute viz. any Issue 'T is not said an Issue joined upon a material Point and the intent of the Statute was to prevent Repleaders and that if any other Construction should be made of that Act he was of Opinion that the Iudges sate there not to expound but to make a Law for by such an Interpretation much of the benefit intended by the Act to the Party who had a Verdict would be restrained Curia The other Iustices were all of Opinion that since the making of this Statute it had been always allowed and taken as a difference that when the Issue was perfectly material there should be no Repleader but that it was otherwise where the Issue was not material And Iustice Scroggs asked merrily If Debt be brought upon a Bond and the Defendant pleads Robin Hood dwelt in a Wood and the Plaintiff joyns Issue that he did not this is an immaterial Issue and shall there not be a Repleader in such Case after Verdict Ad quod non fuit responsum Beaumont versus ........ Wager of Law THE Plaintiff brings an Action of Debt upon a Iudgment obtained against the Defendant in a Court Baron having declared there in an Action on the Case upon an Assumpsit and recovered The Defendant came to wage his Law and was ready to swear that he owed the Plaintiff nothing Sid. 366. but the Court held that he was not well advised for by the Recovery in the inferior Court it became now a Debt and was owing and being asked whether he had paid the Mony he answered that he owed nothing Whereupon the Court
of which is that he will be rather scorned than obeyed It hath been objected that the Words are general and charge him not with any act Answ The Scandal is the greater for 't is not so bad to say A Man did such a particular thing against Law and Reason as to say He acts against Law which is as much as to say his constant course and practice is such And to say that the Words might be meant of breaking a Penal Law that is a foreign Construction for the plain sense is he acts against the known Laws of the Kingdom and his practice and designs are so to do for he will be guided neither by Law or Reason Object It has been objected that the Scandal must be false But whether true or not there can be no justification here because they are so general that they cannot be put in Issue Answ He agreed that no Action would lye upon this Statute if the words were true but in some Cases the divulging of a Scandal was an Offence at the Common Law now to argue as on the other side that the Defendant cannot justifie and therefore an Action will not lye is a false Consequence because words may be scandalous and derogatory to the dignity of a Peer and yet the subject matter may not be put in Issue He agreed also that occasional Circumstances may extenuate and excuse the Words though ill in themselves but this cannot be applied to the Case in question because the Words were not mitigated The Defendant pleaded Not Guilty and insisted on his Innocence the Iury have found him Guilty which is an aggravation of his Crime if he would have extenuated them by any occasion upon which they were spoken he should have pleaded it specially or offered it in Evidence neither of which was done This Act is to be taken favourably for him against whom the Words are spoken because 't is to prevent great Mischiefs which may fall out in the Kingdom by rude and uncivil discourses and in such Cases 't is usual for Courts rather to enlarge the remedy than to admit of any extenuation for which reasons he prayed that the Plantiff might have his Iudgment It was argued by Serjeant Calthrop on the same side and to the same effect Afterwards this Term all the Iudges argued this Case Argument at the Bench. seriatim at the Bench. And first Iustice Scroggs said That the greatness of the Damages given should not prevail with him either on the one side or the other at the Common Law no Action would lye for such Words though spoken of a Peer for such Actions were not formerly much countenanced but now since a Remedy is given by the Statute Words should not be construed either in a rigid or mild sense but according to the genuine and natural meaning and agreeable to the common understanding of all Men. At the Barr the strained sense for the Plaintiff is that these Words import He is no Man of Honour and for the Defendant that they import no Scandal and that no more was meant by them but what may be said of every Man 'T is true in respect of God Almighty we are all Vnworthy but the subsequent Clause explains what unworthiness the Defendant intended for he infers him to be Unworthy because he acts against Law and Reason Now whether the Words thus explained fix any Crime on the Plaintiff is next to be considered and he was of Opinion that they did fix a Crime upon him for to say He is an unworthy Man is as much as to say He is a vitious person and is the same as to call him a corrupt Man which in the Case of a Peer is actionable for general words are sufficient to support such an Action though not for a common person To say a Man acts against Law and Reason is no Crime if he do it ignorantly and therefore if he had said My Lord was a weak Man for he acts against Law and Reason such words had not been actionable but these Words as spoken do not relate to his Vnderstanding but to his Morals they relate to him also as a Peer though the contrary has been objected that they relate to him only as a Man which is too nice a distinction for to distinguish between a Man and his Peerage is like the distinction between the person of the King and his Authority which hath been often exploded the words affect him in all qualities and all relations It has been also objected that the Words are too general and like the Case of the Bishops Return that a Man is criminosus which is not good But though they are general in the Case of a Peer they are actionable for to say of a Bishop That he is a wicked Man these are as general words and yet an Action will lye It has been also objected That general Words cannot be justified but he was of another Opinion as if the Plaintiff who was Lord Lieutenant of the County had laid an unequal charge upon a Man who upon complaint made to him ordered such charge to stand and that his will in such case should be a Law If the person should thereupon say That the Lord had done Unworthily and both against Law and Reason those words might have been justified by shewing the special matter either in Pleading or Evidence 'T is too late now to examine whether an Action will lye upon this Statute that must be taken for granted and therefore was not much insisted on by those who argued for the Defendant for the Authorities are very plain that such Actions have been allowed upon this Statute The Words as here laid to be spoken are not so bad as the Defendant might speak but they are so bad that an Action will lye for them and though they are general yet many Cases might be put of general words which import a Crime and were adjudged actionable The Earl of Leicester's Case He is an Oppressor The Lord of Winchester's Case He kept me in Prison 'till I gave him a Release these words were held actionable because the plain inference from them is That they were Oppressors The Lord Abergavenny's Case He sent for me and put me into Little Ease It might be presumed that that Lord was a Iustice of Peace as most Peers are in their Counties and that what he did was by colour of his Authority so are all the Cases cited by those who argued for the Plaintiff in some of which the words were strained to import a Crime and yet adjudged actionable especially in the Case of the Lord Marquess of Dorchester He is to be valued no more than a Dog which are less slanderous Words than those at the Bar because the slander is more direct and positive It appears by all these Cases that the Iudges have always construed in favour of these Actions and this has been done in all probability to prevent those dangers that otherwise might ensue if the Lords
should take revenge themselves for which reasons he held the Action will lye Atkyns Iustice contra This is not a common Action upon the Case but an Action founded upon the Statute of the 2 of R. 2. upon the Construction whereof the Resolution of this Case will depend whether the Action will lie or not And as to that he considered 1. The Occasion 2. The Scope 3. The parts of the Statute 1. The occasion of it is mentioned in Cotton's Abridgment of the Records of the Tower f. 173. nu 9 and 10. At the summoning of this Parliament the Bishop of St. Davids declared the Causes of their meeting and told both the Houses of the Mischiefs that had hapned by divers slanderous Persons and sowers of Discord which he said were Dogs that eat raw Flesh the meaning of which was that they devoured and eat one another to prevent which the Bishop desired a Remedy and his Request seemed to be the Occasion of making this Law for ex malis moribus bonae nascuntur Leges 2. The Scope of the Act was to restrain unruly Tongues from raising false Reports and telling Stories and Lyes of the Peers and Great Officers of the Kingdom so that the design of the Act was to prevent those imminent dangers which might arise and be occasioned by such false Slanders 3. Then the parts of the Act are three viz. reciting the Offence and the Mischief then mentioning the ill Effects and appointing of a Penalty From whence he Observed 1. That here was no new Offence made or declared for nothing was prohibited by this Statute but what was so at the Common Law before The Offences to be punished by this Act are mala in se and those are Offences against the Moral Law they must be such in their nature as bearing of false Witness and these are Offences against a common Person which he admitted to be aggravated by the eminency of the person against whom they were spoke but every uncivil Word or rude Expression spoken even of a Great Man will not bear an Action and therefore an Action will not lie upon this Statute for every false Lye but it must be horrible as well as false and such as were punishable in the High Commission Court which were enormous Crimes 12 Co. 43. By this description of the Offences and the consequences and effects thereof he said he could better judge whether the Words were actionable or not and he was of Opinion that the Statute did not extend to Words of a small and trivial nature nor to all Words which were actionable but only to such which were of a greater magnitude such by which Discord might arise between the Lords and Commons to the great peril of the Realm and such which were great Slanders and horrible Lies which are words purposely put into this Statute for the aggravation and distinction of the Crime and therefore such Words which are actionable at the Common Law may not be so within this Statute because not horrible great Scandals He did not deny but that these were undecent and uncivil words and very ill applied to that honourable person of whom they were spoken but no body could think that they were horrible great slanders or that any debate might arise between the Lords and Commons by reason such words were spoken of this Peer or that it should tend to the great peril of the Kingdom and the quick destruction thereof such as these were not likely to be the effects and consequences of these Words and therefore could not be within the meaning of the Act because they do not agree with the discription given in it 2. Here is no new punishment inflicted on the Offender for at the Common Law any person for such Offences as herein are described might have been Fined and Imprisoned either upon Indictment or Information brought against him and no other punishment is given here but Imprisonment Even at the Common Law scandal of a Peer might be punished by Pillory and loss of Ears 5 Co. 125. De Libellis Famosis 12 Co. 37. 9 Co. 59. Lamb's Case So that it appears this was an Offence at the Common Law but aggravated now because against an Act of Parliament which is a positive Law much like a Proclamation which is set forth to enforce the execution of a Law by which the Offence is afterwards greater He did agree that an Action would lie upon this Statute though there were no express Words to give it to a Peer because where there is a Prohibition and a Wrong and Damage arises to the Party by doing the thing prohibited in such Case the Common Law doth intitle the Party to an Action 10 Co. 75. 12 Co. 100 103. And such was the Resolution in the Earl of Northampton's Case upon construction of the Law as incident to the Statute and as the Offence is greater because of the Act and as the Action will lie upon the Statute so the Party injured may sue in a qui tam which he could not have done before the making this Law 3. But that such words as these were not actionable at the Common Law much less by the Statute for the Defendant spoke only his Iudgment and Opinion and doth not directly charge the Plaintiff with any thing and might well be resembled to such Cases as are in Rolls Abridgm 1 part 57. pl 30. which is a little more solemn because adjudged upon a special Verdict the Words were spoken of a Iustice of Peace Thou art a Blood-Sucker and not fit to live in a Commonwealth These were not held actionable because they neither relate to his Office or fix any Crime upon him Fol. 43. in the same Book Thou deservest to be hanged not actionable because it was only his Opinion So where the Words are general without any particular Circumstances they make no impression and gain no credit and therefore in Cro. Car. 111. 1 Roll. Abridgm 107. pl. 43. You are no true Subject to the King the Action would not lie In this Case 't is said the Plaintiff acts against Law which doth not imply a Habit in him so to do and when Words may as well be taken in a mild as in a severe Sense the Rule is quod in mitiori sensu accipienda sunt Now these Words are capable of such a favourable construction for no more was said of the Plaintiff than what in some sense may be said of every person whatsoever for who can boast of his Innocency who keeps close in all his actions to Law and Reason and to say A Man acts against both may imply that he departed from those Rules in some particular Cases where it was the Error of his Iudgment only In the Duke of Buckingham's Case Sheppard's Abridgment 1 part f. 28. Viz. You are used to do things against Law and mentions a particular fact there indeed because of Usage of the ill practice it was held that an Action lies but if he had been
charged for doing a thing against Law but once an Action would not lie He then observed how the Cases which have been adjudged upon this Statute agree with the Rules he had insisted on in his Argument which Cases have not been many and those too of late times in respect of the Antiquity of the Act which was made almost 300 hundred years since Anno 1379. and for 120 years after no Action was brought the first that is Reported was 13 H. 7. Keilway 26. So that we have no contemporanea expositio of the Statute to guide an Opinion which would be a great help in this Case because they who make an Act best understand the meaning but now the meaning must be collected from the Statute it self which is the best Exposition as the Rule is given in Bonham's Case 8 Co. Vide the Case in 13 H. 7. The next Case in time is the Duke of Buckingham's Case 4 H 8. Cromp Jur. of Courts f. 13. You have no more Conscience than a Dog Lord Abergavenny against Cartwright in the same Book You care not how you come by Goods in both which Cases the Words charge the Plaintiff with particular matter and give a Narrative of something of a false Story and do not barely rest upon an Opinion In the Bishop of Norwich his Case Cro. Eliz. 1. Viz. You have writ to me that which is against the Word of God and to the maintainance of Superstition These were held actionable because they refer to his Function and greatly defame him and yet he had but 500 Marks Damages 29 30 Eliz. 1 Cro. 67. The Lord Mordant against Bridges My Lord Mordant did know that Prude robbed Shotbolt and bid me compound with Shotbolt for the same and said he would see me satisfied for the same though it cost him an hundred pounds which I did for him being my Master otherwise the Evidence I could have given would have hanged Prude These Words were held actionable and 1000 l. Damages given and in all the other Cases which have been mentioned upon this Statute and where Iudgment was given for the Plaintiff the Words always charge him with some particular Fact and are positive and certain but where they are doubtful and general and signifie only the Opinion of the Defendant they are not actionable The Words in the Case at Bar neither relate to the Plaintiff as a Peer or a Lord Lieutenant and charge him with no particular Crime so that from the authority of all these Cases he grounded his Opinion that the Action would not lie and he said If Laws should be expounded to wrack People for Words instead of remedying one Mischief many would be introduced for in such Case they would be made Snares for Men. The Law doth bear with the Infirmities of Men as Reliligion Honour and Vertue doth in other Cases and amongst all the excellent Qualities which Adorn the Nobility of this Nation none doth so much as forgiving of Injuries Solomon saith That 't is the Honour of a Man to pass by an Infirmity Which if the Plaintiff should refuse yet the Defendant if he thinks the Damages excessive is not without his remedy by Attaint for he said he could shew where an Attaint was brought against a Iury for giving 60 l. Damages He farther said that he could not find that any Iudgment had been either reversed or arrested upon this Statute and therefore it was fit that the Law should be setled by some Rule because 't is a wretched condition for People to live under such Circumstances as not to know how to demean themselves towards a Péer and since no Limits have been hitherto prescribed 't is fit there should be some now and that the Court should go by the same Rules in the Case of a Peer as in that of common person that is not to construe the Words actionable without some particular Crime charged upon the Plaintiff or unless he alledge special damages for which Reasons he held that this Action would not lye Wyndham Iustice accorded with Scroggs and the Chief Iustice North agreed with them in the same Opinion his Argument was viz. First he said that he did not wonder that the Defendant made his Case so solemn being loaded with so great damages but that his Opinion should not be guided with that or with any Rules but those of Law because this did not concern the Plaintiff alone but was the Case of all the Nobility of England but let it be never so general and the Conveniences or Incoveniences never so great he would not upon any such considerations alter the Law He said that no Action would lie upon this Statute which would not lie at the Common Law for where a Statute prohibits a thing generally and no particular Man is concerned an Offence against such a Law is punishable by Indictment but where there is a particular damage to any person by doing the thing prohibited there an Action will lie upon the Statute and so it will at the Common Law The Words therefore which are actionable upon this Statute are so at the Common Law This Statute extends only to Peers or other great Officers now every Peer as such is a great Officer he has an Office of great Dignity he is to support the King by his advice of which he is made capable by the great Eminency of his Reputation and therefore all Words which reflect upon him as he is the Kings Councellor or as he is a Man of Honour and Dignity are actionable at the Common Law In the ordinary Cases of Officers 't is not necessary to say that the Words were spoken relating to his Office as to say of a Lawyer that He is a Sot or an Ignoramus or of a Tradesman He is a Bankrupt the Action lies though the Words were not spoken of either as a Lawyer or Tradesman He did not think that Iudges were to teach Men by what Rules to walk other than what did relate to the particular matter before them all other things are gratis dicta neither would he allow that distinction that an Action would not lie where a Man spoke only his Opinion for if that should be admitted it would be very easie to scandalize any Man as I think such a Judge is corrupt or I am of Opinion that such a Privy Councellor is a Traytor and can any Man doubt whether these or such like Words are actionable or not because spoken only in the sense of the person 'T is true in some Cases where a Man speaks his own particular disesteem an Action will not lie as if I say I care not for such a Lord but that differs much where a Man speaks his Opinion with reference to a Crime for Opinions will be spread and will have an implicit Faith and because one Man believes it another will and 't is upon this ground that all the Cases which have been since the Statute are justified and so was the late
reason the Iury might find for him 'T is true he might have pleaded Plene computavit which is the general Plea But it may as well be presumed that the Verdict was against the Plaintiff because the Action would not lye and the Matter being in dubio the Court will intend it against the Pleader he not having averred to the contrary and so they held the Plea to be ill DE Termino Paschae Anno 30 Car. II. in Communi Banco Osborn versus Wright ACtion on the Case for words Viz. The Plaintiff declares that she was unmarried but about to marry one J. S. and that the Defendant to hinder her Marriage spoke these Words of her Viz. She is a Whore a Common Whore and N's Whore per quod maritagium amisit The Iury found the Defendant guilty of speaking the Words but that she did not lose her Marriage thereby and it was moved in arrest of Iudgment that these Words are not actionable being only Scolding and of that Opinion was all the Court and Iudgment was arrested Hambleton versus Justice Scroggs alios In Camera Scaccarii Serjeant at Law whether Priviledge to be Sued only in the Common-Pleas AN Assault and Battery was brought against the Defendants in the Kings-Bench to which one of them pleaded that he was a Serjeant at Law and so ought to have his Priviledge to be sued by Bill in the Common Pleas and in no other Court To this Plea the Plaintiff demurred and Iudgment was given in my Lord Chief Iustice Hales's time by the Opinion of him and the whole Court of Kings-Bench That a Serjeant at Law might be sued there and was not suable in the Court of Common-Pleas only 2. That in this Action the Defendant should not have his Priviledge because it was brought against him and another And afterwards a Writ of Error was brought upon this Iudgment returnable before the Lord Chancellor and Chief Iustices of the Kings-Bench and Common-Pleas and the Errors were argued before the two Chief Iustices at Serjeants-Inn in Chancery Lane Mr. Holt for the Plaintiff in the Writ of Error Ex parte Quer. That a Serjeant at Law is to be sued only in the Court of Common-Pleas and not elsewhere because there is an absolute necessity of his Attendance there He is sworn and no other person can plead at that Bar and therefore if he should be sued in any other Court Vaugh. 155. it would be an Impediment to the Business of that Court where not only the Officers but their Servants have Priviledge In the 11th of E. 4. 2. There was some discourse about the Priviledge of Serjeants at Law where it was held that he is not to be sued in that Court by Bill but by Original but either way he is to have his Priviledge So the Servant of an Officer is not to be sued by Bill Cro. Car. 84. but he is still to have the Priviledge of the Court and so had Serjeant Hedley's Clerk in the Reign of King Charles the first The Serjeants receive a kind of Induction to the Bar and have a place assigned them and that they ought to have Priviledge the very Words of the Writ are observable Viz. mentioning a Serjeant at Law ex officio incumbit in Curia illa And though it hath been said and given as an answer to that Case in Cro. Car. That where the Serjeants Clerk was Arrested in an Inferior Court as in that Case he was there he shall have Priviledge but not against the other great Courts in Westminster-Hall this is a difference never yet taken notice of in any Book nor doth the Writ warrant this distinction 2. He shall have his Priviledge though he be joyned with another because the Action is joynt and several and the one may be found guilty and the other acquitted and it would be an easie way to oust a Man of his Priviledge if it might be done by joyning him with another who hath none 14 H. 4. 21. But the Person with whom the Serjeant is joyned may be sued in the Common-Pleas likewise so that he shall not hinder him from having Priviledge who of right ought to have it 10 E. 4. 15. Offley contra As to the first point Ex parte Def. the Court of Kings-Bench agreed that a Serjeant at Law shall always have the Priviledge of the Court of Common-Pleas against all Inferiour Courts but not against the other Courts in Westminster Hall for he may be sued in any of them A Serjeant is not like the Common Officers of the Court for they are to be attendant there and no where else but a Serjeant at Law is not confined to that Court alone he may be assigned of Council in any other Court and doth usually put his hand to Pleas both in the Kings-Bench and the Exchequer but a Philazer or Attorny of that Court cannot practise in his own Name in any other All Cases of Priviledge ought to be taken strictly And that which was cited concerning the Priviledge of a Serjeants Clerk is not like this because the Arrest was in an Inferiour Court In the 11 E. 4. 2. b. The Chief Iustice of the Kings-Bench came to the Common-Pleas Bar and told a Serjeant who he had assigned for a Pauper That if he would not come into that Court and plead for his Clyent he would forejudge him so that if he could be fetch'd out of the Common Pleas and carried to the Kings-Bench he is not confined to that Court alone In the 5 H. 5. nu 10. Complaint was made that the Subjects of the King were not well served in his Courts the Parliament thereupon Ordered that one Martin and others should take upon them the Dignity of Serjeants at Law so that it appears that their Business lies in other Courts as well as in that of the Common-Pleas 2. As to the second Point Here is a joynt Action for any thing that appears to the contrary 2 Rol. Abr. 275. pl. 4. and the Plaintiff may proceed against one in the Kings-Bench and therefore the other shall be ousted of his Priviledge if he have any in the Common-Pleas Moor 556. 20 H. 6. 32. North Chief Iustice said That he always took it to be an uncontroverted point That a Serjeant at Law should be sued only in the Court of Common-Pleas by Bill he is bound by Oath to be there and when he brings a Writ of Priviledge 't is always out of that Court and no other Curia advisare vult The Attorny General versus Sir John Read In Scaccario INformation A special Verdict was found Disability by a Statute ought to be removed by the Party to enable himself to execute an Office The Case was thus Viz. Sir John Read 1 Apr. 24 Car. 2. was by Sentence in the Spiritual Court divorced a Mensa Thoro and for Non payment of Alimony was excommunicated Afterwards it was Enacted by the Statute of 25 Car. 2.
word extends to no other than Webbs Bargains Body to his Son Francis and that Margaret should have it for Life Cann dies the Meadow was not one of Webb's Bargains Thomas had Issue Thomas the Lessor of the Plaintiff Henry made a Feoffment in Fée to A. and B. to the use of himself and his Wife and to the Heirs of their two Bodies Remainder to his own right Heirs with Warranty against all persons and died without Issue the Lessor of the Plaintiff enters being his Cousin and Heir and of full age when Henry died In this Case it was held that if it had béen found that Margaret had an Estate for Life and that Henry entred in her Life time that it had beén then a Warranty commenced by Disseisin and would not have bound Thomas the Reversioner But as it was those two Iudges held it no Barr because the Warranty began with the Feoffment to uses and Henry being himself the Feoffeé it returned instantly to him and was extinct as to the Reversion because that was revested in him in Fée and therefore they held he could have no benefit either by Voucher or Rebutter it being destroyed at the same time it was created But Berkly and Richardson Iustices held that quoad the Estate of Henry's Wife the Warranty had a Continuance and the ground of the contrary opinion might be because Iustice Jones said there was no such Resolution as is mentioned to be the fourth in Lincoln Colledge Case yet he affirmeth that very Resolution in his own Reports fol. 199. There is a Clause in the * 27 H. 8. c 10. Statute of Vses difficult to be understood by which 't is Enacted That every Cestuy que use may take such Advantage of vouching c. as the Feoffees themselves might so that Cestuy que use have the Estate executed in him before the first day of May 1536. which was a year after the making that Statute so that the Clause seems to be exclusive of all others who shall come in afterwards Answ But he supposed the Intention of the Law Makers to be That there should be no more Conveyances to Vses But because they presumed that at first Men might not know of it therefore lest the Parties should be any ways prejudiced they gave liberty till such a time to Vouch or Rebutt within which time they might have some knowledge of the Statute and then it was supposed they would make no more Limitations to Vses But though they imagined them to be left expiring yet they revived Since then the Parliament gave leave to Vouch or Rebutt whilst they could in reason think there would be any Conveyance to Vses 't is but reasonable whilst they do continue that the Parties should Rebutt especially since most Conveyances at this day are made to Vses Windham Iustice accord in omnibus and so Iudgment was given as aforesaid Anonymus DOwer The Tenant pleads That a Lease was made by the Husband for 99 years before any title of Dower did accrue which Lease was yet in being and shews that the Lessor afterwards granted the Reversion to J. S. and died and that J. S. devised to the Tenant for Life The Demandant replies That the Lessor made a Feoffment in Fee absque hoc that the Reversion was granted prout c. The Tenant Demurrs Newdigate Serjeant for the Demandant argued That the Plea was not good to which he tooke several Execeptions 1. Except The Tenant by his Plea confesseth That the Demandant ought to have Iudgment of the Reversion expectant upon the Lease for 99 years de tertia but doth not say parte 2. Except Here is the Grant of a Reversion pleaded and 't is not hic in Curia prolat ' Then for the Matter as 't is pleaded 't is not good He agreed if Dower be brought against Lessee for years he may discharge himself by pleading the continuance of his Lease during which time the Demandant can have no Execution but here the Tenant is no ways concerned in the Lease 't is Littleton's Case None shall take advantage of a Release but he who is party or privy and therefore the Lessee in this Case being party might have pleaded this but the Tenant is altogether a Stranger Before the Statute of Gloucester cap 11. If the Demandant had recovered in a real Action against the Tenant the Termor had been bound because at the Common Law no body could falsifie the Recovery of a Free-hold but he who had a Free-hold himself this Statute prevents that Mischief and Enacts That the Termor shall be received before Judgment to defend the Right of his Term upon the default of the Tenant and though the Iudgment cannot be hindred thereby yet Execution shall be suspended during the Term and therefore in Dyer 263. b. The Lady Arundel brought Dower against the Earl of Pembroke who made default and before Iudgment the Termor prays to be received upon this Statute and pleads a Lease made by the Husband after Coverture which was assigned to him and that Dower de tertia parte of the Rent of this Lease was assigned to the Demandant by the Court of Augmentations which was afterwards confirmed by Letters Patents that she accepted it and concludes That the Plea of the Tenant was by Collusion between him and her to make him lose his Term And this was held ill for the Reason given by my Lord * Hob 316. Not for that reason but because that Court could not assign Dower and so the Letters Patents of Confirmation could not make that good which was void before Hobart That it is absurd to admit two Persons to dispute the Interest of a third Man But whether the Traverse is good or not if the Plea is naught Iudgment ought to be given for the Demandant Jones Serjeant contra The Pleading is well enough 1. The Tenant confesseth That the Demandant ought to have Iudgment of the Reversion de tertia which is well enough omitting the word parte because he claims a third part of such Tenements and the Tenant confesses she ought to have Iudgment which is full enough if the words de tertia parte were wholly omitted 2. He agreed That whoever Claims under a Deed must shew it but the Tenant in this Case did not defend himself by any Title from the Deed for the substance of the Plea which secured him was That a Lease of 99 years was in being and by his alledging the Devise of an Estate to him for Life made by the Grantee of the Reversion he did but allow the Demandant's Writ to be true which mentions him as Tenant of the Free-hold Then for the Matter of the Plea he says it was good and that the Tenant might well plead the Lease for years By the * 3 Inst 32. b. Statute of Merton Damages are given in Dower where the Husband died seised which he did in this Case but yet no Damages ought to be paid here but for the third part
Defendant by the Steward of the Burrough of Southwark for that he refused to take the Oath and serve as a Scavenger in the said Burrough though duly Elected according to Custom there and upon nil debt pleaded the Iury found a special Verdict the substance of which was Viz. They find the Act of 14 Car. 2. cap. 2. And the Proviso therein which governed this Case viz. That all Streets and Lanes in London Westminster and the Liberties thereof shall be Paved as they have alwayes used to be Then follows another Clause by which it is Enacted That Scavengers shall be Chosen in the City of London and the Liberties thereof according to the Ancient Usage and Custom so likewise in the City of Westminster but nothing is therein mentioned of Southwark And in all other places a new form of choosing is prescribed Viz. In the other Parishes the Constables Church-Wardens c. shall meet in the Easter-Week and choose two Scavengers in every respective Parish so that the intent of the Act must be though Southwark is not named that still Scavengers shall be chosen there as formerly because London and the Liberties thereof are to follow their Ancient Custom in the choice of this Officer and Southwark is within the City Liberties But whether the Custom of choosing of him was not taken away by this Statute and so the Fine not well Assessed was the Question Ex partte Quer. Baldwyn for the Plaintiffs argued That admitting in Southwark a Scavenger may be chosen according to the new form prescribed in the Act yet this Statute was only in the * Hob. 173. Dyer 341. b. Affirmative and did not thereby take away the custom of choosing him at the Leet Like the Case in Dyer 50. An Act that the Youngest Son shall have an Appeal of the death of his Father Hob. 17. yet that doth not exclude the Eldest because 't is the Common Law and there are no words to restrain him In the 11 Co. 63. Doctor Foster's Case By the Statute of 35 Eliz. against Recusants which gives the Penalty of 20 l. ê“ Month against the Offender the 12 d. for the neglect of every Sunday given by a former * 1 Eliz. Statute is not taken away But where there is a Negative Clause in an Act of Parliament the Law is otherwise as an Act that the Sessions of the Peace shall be kept at Beaumarris tantum non alibi infra ComÌ„ c. and the Iustices kept it at another place and several were Indicted before them at that time but the Iustices were fined and all their proceedings held Coram non Judice by reason of the Negative Prohibition Dyer 135. 1 Inst Sect. 500. 2 Inst 68. By the Statute of Magna Charta cap. 34. a Woman shall bring no Appeal but for the death of her Husband which she might at Common Law before the making of this Statute if therefore she is Heir to her Father the Appeal which she might have brought for his death by these Negative words is taken away Ex parte Def. Barrell for the Defendant though this Law be in the Affirmative yet since it doth not prejudice any person neither can it be injurious if Scavengers are chosen as directed by the Act it shall be taken as a Negative Clause and for this many Instances may be given as the Statute for devising part of the Testators Land doth not take away the custom to devise the whole for that would be an apparent prejudice to the Parties but not so in this Case where 't is not found that the Lord of the Mannor sustains any loss for he is to have nothing when a Scavenger is chosen in the Leet nor are the Inhabitants prejudiced for by this New choosing their Streets shall be kept as clean as before The Form here established doth not consist with the Custom and so hath the Effect of a Negative Clause Hob. 298. It appears by the Scope of the Act That the intent of the Parliament was to take away those old Customs of choosing because the Customs are expressly saved in London and Westminster but in all other places a new way is appointed The pavement of the Streets in Southwark shall be as before but that Clause goes no farther and therefore concerns not the Case of a Scavenger whose duty is not to pave but cleanse the Streets And the words viz. Liberties of the City of London will not help because Southwark is not comprehended under them in that Clause no more than are the Lands which they have in Yorkshire for the word Liberties * Postea 48. there is taken for Limits and can admit of no other Construction Lastly that the Plaintiff cannot have Iudgment because he hath no alledged the Custom to be That the Steward may Fine in case of the refusal to take the Oath c. and Customs are to be taken stictly The Chief Iustice and Iustice Atkins said That 't is true Scavengers are under the power of the Court Leet by Custom and in case of refusal may be fined as well as an Ale-Taster But this Act of Parliament having taken notice that there were Scavengers before that time and Southwark being therein named as distinct from the Liberties of London for 't is provided That Westminster London and the Liberties thereof and Southwark are to have the Streets paved as before which doth not belong to the Office of a Scavenger and so that Clause in the Act concerns not this Case But where it Enacts That in London and Westminster Scavengers shall be chosen as before but in all other places appoints a new way this is as much as if it had said That Scavengers shall be chosen in every place as by the Act prescribed and no other way except in London and Westminster and so great is the inconsistency between the Custom and the Act that they cannot stand both together therefore though the Act is but temporary the Custom is suspended and though it may be some damage to the Lord to make such Construction yet that will not alter the Case for Law-Makers are presumed to have respect to the publick Good more than to any private Mans profit and the Lord may be said in this case to have dispensed with his Interest being a Party to the Act and consenting thereunto But Wyndham and Ellis Iustices inclined That the Custom did continue because the Act was in the Affirmative and therefore they would not construe it to take away a Mans Right and Interest or a Custom where he hath a benefit as the Lord of the Mannor had in this Case who is prejudiced by the loss of his Fees and the intent of the Statute seemed to them to be That Scavengers should be chosen where none were before but not to take away Customs for chusing of them But another Argument was desired by Serjeant Howel the Recorder of London Rozal versus Lampen Variance in the Actions no
of the next Avoidance was not good because it was made by those who were not Head of the Corporation and it must be void immediately or not at all and Iudgment was given accordingly Threadneedle versus Lynam THere being two Mannors usually let for 67 l. 1 s. 5 d. by the year Lease by a Bishop and more than the old Rent reserved good Mod. Rep. 203. a Bishop lets one of them for 21 years reserving the whole Rent and whether this was a good Lease within the Statute of 1 Eliz. cap. 19. was the Question which depended upon the construction of the Words therein viz. All Leases to be void upon which the old accustomed Rent is not reserved and here is more than the old Rent reserved and this being a private Act is to be taken literally North Chief Iustice agreed that private Acts which go to one particular thing are to be interpreted literally but this Statute extends to all Bishops and so may be taken according to Equity and therefore he and Wyndham and Atkins Iustices held the Lease to be good But this Case was argued when Vaughan was Chief Iustice and he and Iustice Ellis were of another Opinion DE Term. Sancti Mich. Anno 27 Car. II. in Communi Banco Thorp versus Fowle No more Costs than Damages NOTA. In this Case the Court said that since the Statute which gives no more Costs than Damage 't is usual to turn Trespass into Case Cooper versus Hawkeswel Words IN an Action upon the Case for these Words I dealt not so unkindly with you when you stole a Stack of my Corn Per Curiam the Action lies Escourt versus Cole Words IN an Action on the Case for Words laid two ways the last Count was Cumque etiam which is but a recital and dubitatur whether good Sharp versus Hubbard Six Months for proving of a Suggestion THE six Months in which the Suggestion is to be proved must be reckoned according to the Calendar Months and 't is so computed in the Ecclesiastical Court Crowder versus Goodwin Justification by Process out of inferiour Court IN Assault and Battery and false Imprisonment as to the Assault c. the Defendant pleads Not-Guilty and as to the Imprisonment he justifies by a Process out an inferiour Court and upon Demurrer these Exceptions were taken to his Plea 1. The Defendant hath set forth a Precept directed Servienti ad Claven and 't is not said Ministro Curiae 2. 1 Rol. 484. Cro. Car. 254. Dyer 262. b. It was to take the Plaintiff and have him ad proximam Curiam which is not good for it should have beén on a day certain like Adams and Flythe's Case * Cro. Jac. 571. Mod. Rep. 81. where a Writ of Error was brought upon a Iudgment in Debt by Nil dicit in an inferiour Court and the Error assigned was That after Imparlance a day was given to the Parties till the next Court and this was held to be a Discontinuance not being a day certain 3. 'T is not said ad respondend ' alicui 4. Nor that the Action arose infra Burgum 5. The Precept is not alledged to be returned by the Officer To all which it was answered That a Pleint is but a Remembrance and must be short Rast 321. and when 't is entred the Officer is excused for he cannot tell whether 't is infra * Squibb versus Hole antea 29. Jurisdictionem or not And as to the first Exception a Precept may be directed to a private person and therefore Servienti ad Clavem is well enough Then as to the next Exception 't is likewise well set forth to have the Plaintiff ad proximam Curiam for how can it be on a day certain when the Iudge may adjourn the Court de die in diem Then ad respondendum though 't is not said alicui 'tis good though not so formal and 't is no Tort in the Officer but t is to be intended that he is to answer the Plaintiff in the Plaint As to the fourth Exception the Defendant sets forth that he did enter his Plaint secundum consuetudinem Curiae Burgi and when the Plaintiff declared there he shewed that the Cause did arise infra Jurisdictionem And as to the last The Officer is not punishable though he do not return the Writ The end of the Law is that the Defendant should be present at the day and if the Cause should be agreed or the Plaintiff give a Release when the Defendant is in custody no Action lies against the Officer if he be detained afterwards But the Chief Iustice doubted that for the second Exception the Plea was ill for it ought to be on a day certain and likewise it ought to be alledged infra Jurisdictionem But the other threé Iustices held the Plea to be good in omnibus and said that the inferior Court had a Iurisdiction to issue out a Writ and the Officer is excusable though the cause of Action did not arise within the Iurisdiction which ought to be shewn on the other side And so Iudgment was given for the Defendant Snow and others versus Wiseman Traverse necessary where omitted is substance TRespass for taking of his Horse The Defendant pleads that he was seised of such Lands and intitles himself to an Herriot The Plaintiff replies that another person was jointly seised with the Defendant Et hoc paratus est verificare The Defendant demurs generally because the Plaintiff should have traversed the sole Seisin But it was said for him that the sole Seisin néed not be traversed Sid. 300. because the matter alledged by him avoids the Barr without a Traverse In a Suggestion upon a Prohibition for Tythes the Plaintiff entituled himself by Prescription under an Abbot and shews the Vnity of Possession by the Statute of 31 H. 8. by which the Lands were discharged of Tythes Yelv. 231. Pl. Com. 230. 231. The Defendant pleads that the Abbey was founded within time of Memory and confesseth the Vnity afterwards and the Plea was held good for he néed not traverse the Prescription because he had set forth the Foundation of the Abbey to be within time of Memory which was a sufficient avoiding the Plaintiffs Title Yelv. 31. The Plaintiff therefore having said enough in this Case to avoid the Barr if he had traversed it also it would have made his Replication naught Cro. Jac. 221. like the Case of * Bedel and Lull where in an Ejectment upon a Lease made by Elizabeth the Defendant pleads that before Elizabeth had any thing in the Lands James was seised thereof in Fee and that it descended to his Son and so derives a Title under him and that Elizabeth was seised by Abatement The Plaintiff confesses the Seisin of James but that he devised it to Elizabeth in Fee and makes a Title under her absque hoc that she was seised by Abatement and upon a Demurrer the
Case of * Sid. 233. the Marquess of Dorchester He is no more to be valued than the Black Dog which lies there which were Words of disesteem and only the Opinion of the Defendant in which Case Iudgment was affirmed in a Writ of Error Object If it be objected to what purpose this Statute was made if no Action lies upon it but what lay at the Common Law Answ The Plaintiff now upon the Statute must prosecute tam pro Domino Rege quam pro seipso which he could not do at the Common Law And it has beén held in the Starr-Chamber that if a Scandalum Magnatum be brought upon this Statute the Defendant cannot justifie because 't is brought qui tam c. and the King is concerned but the Defendant may explain the Words and tell the occasion of speaking of them if they are true they must not be published because the Statute was to prevent Discords Object These Words carry in them no disesteem Answ According to a Common Vnderstanding they are Words of disrespect and of great disesteem for 't is as much as to say that the Plaintiff is a Man of no Honour he is one who lives after his own Will and so is not fit to be employed under the King if any precedent discourse had qualified the speaking these Words it ought to have been shewn by the Defendant which is not done and therefore he concluded that the Words notwithstanding what was objected were actionable and so by the Opinion of him Wyndham and Scroggs Iustices Iudgment was given for the Plaintiff Atkins Iustice of a contrary Opinion Anonymus AN Action of Assault Battery Amendment after a Demurrer joyned and before Judgment given good Wounding and false Imprisonment for an hour was brought against the Defendant who pleads quoad venire vi armis Not-Guilty and as to the Imprisonment he justified as Servant to the Sheriff attending upon him at the time of the Assize from whom he received a Command to bring the Plaintiff being another of the Sheriffs Servants from the Conventicle where finding of him he to wit the Defendant did molliter manus imponere upon the Plaintiff and brought him before his Master quae est eadem transgressio To this the Plaintiff demurred and shewed for Cause 1. That the Substance of the Iustification is not good 2 Cro. 360. because the Servant could not thus justifie though his Master might for the Lord may beat his Villain without a Cause but if he command another to do it an Action of Battery lies against him 2 H. 4. 4. But though this might have been good if well pleaded yet 't is not good as pleaded here for 2. The Defendant saith quoad venire vi armis Not-Guilty Harding and Ferne Postea but saith nothing of the wounding which cannot be justified and therefore this Plea is not good for which reason it was clearly resolved that the Plea was ill but the Court inclined that the Substance of the Plea was well enough The Chief Iustice and Iustice Scroggs were of Opinion that a Man may as well send for his Servant from a Conventicle as from an Alehouse and may keep him from going to either of those places And the Chief Iustice said that he once knew it to be part of a Marriage Agreement that the Wife should have leave to go to a Conventicle But in this Case Leave was given to amend the Plea Sid. 107. and put in quoad vulnerationem Not-Guilty and it was held that though the Parties had joined in Demurrer yet the Defendant might have Liberty to amend before Iudgment given Singleton versus Bawtree Executor Traverse must be where the Charge in the Declaration is not fully answered ASsumpsit against the Defendant as Executor who pleads the Testator made one J. S. Executor who proved the Will and took upon him the Execution thereof and administred the Goods and Chattels of the Testator and so concludes in Abatement Et petit Judicium de Brevi with an Averment that J. S. Superstes in plena vita existit To this Plea the Plaintiff demurred because the Defendant ought to have traversed absque hoc that he was Executor or administred as Executor and so are all the Pleadings 9 H. 6. 7. 4 H. 7. 13. 7 H. 6. 13. But Serjeant Pemberton for the Defendant said that there is a difference when Letters of Administration are granted in case the Party die intestate and when a Man makes a Will and therein appoints an Executor for in that Case the Executor comes in immediately from the death of the Testator but when a Man dies intestate the Ordinary hath an Interest in the Goods and therefore he who takes them is Executor de son tort and may be charged as such but 't is otherwise generally where there is a Will and a rightful Executor who proveth the same for he may bring a Trover against the Party for taking of the Testators Goods though he never had the actual possession of them and therefore the taking in such case will not make a Man Executor de son tort because there is another lawful Executor but 't is true that if there be a special Administration 't is otherwise as if a Stranger doth take upon him to pay Debts or Legacies or to use the Intestates Goods such an express Administration will make him Executor de son tort and liable as in Read's Case 5 Co. So in this Case the Defendant pleads that J. S. was Executor which prima facie discharges him for to make him chargeable the Plaintiff ought in his Replication to set forth the special Administration that though there was an Executor yet before he assumed the Execution or proved the Will the Defendant first took the Goods by which he became Executor of his own Wrong and so to have brought himself within this distinction which was the truth of this Case and that would have put the matter out of dispute which not being done he held the Plea to be good and so prayed Iudgment for the Defendant The Court were of Opinion that prima facie this was a good Plea for where a Man * 2 Sand. 28. confesses and avoids he need not traverse and here the Defendant had avoided his being chargeable as Executor de son tort by saying that there was a rightful Executor who had administred the Testators whole Estate but the Surmise of the Plaintiff and the Plea of the Defendant being both in the * 2 Cro. 579. pl. 9. Sid. 341. 1 Sand. 338. affirmative no Issue can be joined thereon and therefore the Defendant ought to have traversed that he was Executor or ever administred as Executor the rather because his Plea gives no full Answer to the Charge in the Declaration being charged as Executor who pleads that another was Executor and both these matters might be true and yet the Defendant liable as Executor de son tort which
and yet it was objected that there he was a Iudge Quaere Brook 204. March 117. for which Reasons he prayed Iudgment for the Plaintiff Curia But the whole Court were of Opinion that the bringing of this Action was a greater Offence that fining of the Plaintiff and committing of him for Non-payment and that it was a bold attempt both against the Government and Iustice in general The Court at the Old-Bayly had Iurisdiction of the Cause and might try it and had power to punish a Misdemeanour in the Iury they thought it to be a Misdemeanour in the Iury to acquit the Prisoners which in truth was not so and therefore it was an Error in their Iudgments for which no Action will lie How often are Iudgments given in this Court reversed in the Kings Bench And because the Iudges have been mistaken in such Iudgments must that needs be against Magna Charta the Petition of Right and the Liberties of the Subject These are mighty words in sound but nothing to the Matter There hath not béen one Case put which carries any resemblance with this those of Iustices of the Peace and Mayors of Corporations are weak instances neither hath any Authority been urged of an Action brought against a Iudge of Record for doing any thing quatenus a Iudge That Offences in Iury-men may be punished without Presentment is no new Doctrin as if they should either eat or drink before they give their Verdict or for any contempt whatsoever but 't is a new Doctrin to say that if a Fine be set on a Iury-man at the Old-Bayly he hath no remedy but to pay it for a Certiorari may be brought to remove the Order by which it was imposed and it may be discharged if the Court think fit As to what hath been Objected concerning the Liberty of the Subject that is abundantly secured by the Law already a Iudge cannot impose upon a Iury for giving their Verdict contrary to Evidence if he doth any thing unjustly or corruptly complaint may be made to the King in whose Name Iudgments are given and the Iudges are by him delegated to do Iustice but if there be Error in their Iudgments as here 't is void and therefore the Barons of the Exchequer might refuse to issue Process upon it and there needs no Writ of Error for the very Estreats will be vacated Though the Defendants here acted erroneously yet the contrary Opinion carried great colour with it because it might be supposed very inconvenient for the Iury to have such liberty as to give what Verdicts they please so that though they were mistaken yet they acted judicially and for that Reason no Action will lie against the Defendant and Iudgment was given accordingly The Case of the Warden of the Fleet. COmplaint was made by Serjeant Turner on the part of the Parishioners of St. Brides London against the Warden of the Fleet and his Prisoners for that he suffered several of them to be without the Walls of his Prison in Taverns and other Houses adjoyning to the Prison and fronting Fleet-Ditch where they committed Disorders and when the Constable came to keep the Peace and to execute a Warrant under the Hand and Seal of a Iustice of Peace they came in a tumultuous manner and hindered the execution of Iustice and rescued the Offenders and often beat the Officers the Warden often letting out 20 or 30 of his Prisoners upon any such occasion to inflame the Disorder It was prayed therefore That this Court to which the Prison of the Fleet doth immediately relate might give such Directions to the Warden that these Mischiefs for the future might be prevented and that the Court would declare those Houses out of the Prison to be subject to the Civil Magistrate The Court were all of Opinion but Iustice Atkins Curia who doubted that nothing can properly be called the Prison of the Fleet which is not within the Walls of the Prison and that the Warden cannot pretend an exemption from the Authority of the Civil Magistrate in such places as are out of the Prison Walls though Houses may be built upon the Land belonging to the Fleet for the preservation of the Kings Peace is more to be valued than such a Private Right But Iustice Atkyns said if such places were within the Liberties of the Fleet he would not give the civil Magistrate a Iurisdiction in prejudice of the Warden but thought it might be fit for the Court to consider upon what reason it was that the Warden of the Fleet applied such Houses to any other uses than for the benefit of the Prisoners whereupon the Court appointed the Prothonotaries to go thither and give them an account of the matter and they would take farther Order in it St. Mary Magdalen Bermondsey Church in Southwark In Scaccario Rate for Building a Church shall be set by the Parishioners Jones 89. Mod. Rep. 236. IN a Prohibition it was the Opinion of the whole Court That if a Church be so much out of Repair that 't is necessary to pull it down and that it cannot be otherwise repaired that in such case upon a general warning or notice given to the Parishioners much more if there be notice given from House to House the major part of the Parishioners then present and meeting according to such notice may make a Rate for pulling down of the Church to the Ground and Building of it upon the old Foundation and for making of Vaults where they are necessary as they were in this Church by reason of the springing Water and though the Rate be higher than the Mony paid for doing all this yet 't is good and the Churchwardens are chargeable for the Overplus they not being able to compute to a Shilling That if any of the Parishioners refuse to pay their Proportion according to the Rate they may be Libelled against in the Spiritual Court and if the Libel alledge the Rate to be pro reparatione Ecclesiae generally though in strictness Ecclesia contains both the Body and Chancel of the Church yet by the Opinion both of the Court of Common Pleas and of the Exchequer It shall be intended that the Rate was only for the Body of the Church but in this Case it was made appear clearly that the Rate was only for the Body and that the Minister was at the charge of the Chancel And both Courts agreed That when a Prohibition is moved and desired on purpose to stop so good a Work as the Building a Church the Court will not compel the Parties to take Issue upon the Suggestion when upon examination they find it to be false and therefore will not grant a Prohibition for if the Rate be unduly imposed the Party grieved hath a Remedy in the Spiritual Court or may Appeal if there be a Sentence against him The Bishop or his Chancellor cannot set a Rate upon a Parish but it must be done by the Parishioners themselves
taken in Execution 1 Cro. 239. Hob. 180. Rol. Rep. 233. 2. The Promise here was not to pay the Mony absolutely but sub modo so that the Evidence did not maintain the Action and the Plaintiff was Nonsuited Nichols versus Ramsel Release of all Demands usque 26 Apr. a Bond dated that day is not released TRespass done 24 Martii 26 Car. 2. usque 26 Augusti 28 Car. 2. diversis diebus vicibus c. The Defendant pleaded that on the 24th day of April in the 26th year of King Charles the Second he paid the Plaintiff 6 d. which he received in full satisfaction of all Trespasses usque ad the said 24th day of April absque hoc that he was guilty ad aliquod aliud tempus praeter praedictum 24 Aprilis anno 26 Car. 2. aut aliquo tempore postea but leaveth out the 24th day of April and for that Reason the Plaintiff demurred because the Defendant had not answered that day for the Word usque excludes it So where Debt was brought upon a Bond dated 9 Julii the Defendant pleaded a Release of all Actions Owen ' 50. 2 Rol. Abr. 521. c. the same day usque diem dati ejusdem scripti the Bond was not discharged because the Release excludes the 9th day on which it was made But Serjeant Weston contra Though generally in pleading the Word usque is exclusive yet in the Case of Contracts because of the intent of the Parties 't is inclusive and therefore in one Nichol's Case 20 Car. 2. in B. R. Rot. 21. the Term was not named a Lease was made Habendum from Lady-day usque Festum Sancti Michaelis 1665. paying the Rent reserved at Michaelmas during the Term the Rent shall be paid on Michaelmas-day 1665. and so the day shall not be excluded So where a Man prescribes to put Cattle from and immediately after Lady-day where they are to stay till Michaelmas-day the putting them in on Lady-day and driving them away on Michaelmas-day is not justifiable in strictness yet it hath been allowed good So in a Devise the Question was whether the Testator was of Age or not and the Evidence was that he was born the first day of January in the Afternoon of that day and died in the Morning on the last day of December And it was held by all the Iudges that he was of full Age for there shall be no fraction of a day North Chief Iustice said that prima facie this is to be intended good for a day is but Punctum temporis and so of no great consideration But the other three Iustices were of Opinion that the Word Usque was exclusive and that the Plaintiff should not be put to shew that there was a Trespass done on the 24th of April and said that in a Release of all Demands till the 26th of April a Bond dated that day is not released wherefore Iudgment was given for the Plaintiff Trevil versus Ingram COvenant to pay an Herriot post mortem J. S. or 40 s. at the election of the Plaintiff Release of all Demands doth not barr a future Duty Mod. Rep. 216. and sets forth the death of J. S. and that afterwards he chose to have the 40 s. for which he brought this Action and assigns the Breach for Non payment The Defendant pleaded that the Plaintiff released to him all Actions and Demands c. But this Release was made in the Life time of J. S. and there was an Exception in it of Herriots The Plaintiff demurred and Serjeant George Strode argued that this Action was not discharged by that Release and cited Hoes Case 5 Co 70. where it was held that a Duty incertain at first which upon a Condition precedent was to be made certain afterwards was but a possibility which could not be released that the Duty in this Case was incertain because the Plaintiff could not make his Election till after the death of J. S. A Covenant to repair 2 Cro. 170. Roll. Abr. 407. But a Release of all Covenants in such an Indenture had been a Barr 5 Co. 71. a. and a Release pleaded to it within thrée days after the date of the Indenture And upon a Demurrer it was held that it being a future Covenant and not in demand at the time of the Release although it was of all Demands yet that Covenant was not thereby released So here neither the Herriot nor the 40 s. were either of them in demand at the time of the Release given and it plainly appears by the Exception in the Release that it was the intention of the Parties not to release the Herriots 2 Cro. 623. and of that Opinion was the whole Court whereupon Iudgment was given for the Plaintiff North Chief Iustice It is the Opinion of * Sect. 508 510. 2 Roll. Abr. 408. Sid. 141. Littleton That a Release of all Demands doth Release a Rent And of that Opinion was Iustice Twisden in the Argument of Hen and Hanson 's Case though it was resolved there that a Release of all Demands did not discharge a Rent reserved upon a Lease for years because such Rent is executory and incident to the Reversion 2 Cro. 486. and grows every year out of the Land but when it is severed from the Reversion as by assigning over the whole Term then it becomes a Sum in gross and is due upon the Contract and in that Case a Release of all Demands discharges a Rent afterwards due DE Term. Sancti Hill Annis 29 30 Car. II. in Communi Banco Shambrok versus Fettiplace PRohibition Prescription to have an Isle in a Church because of repairing no good cause for a Prohibition Hob. 69. The Question was whether a Prescription be good to an Isle in a Church which he and all those c. used to repair as belonging to a Mannor where he had no Dwelling House but only Land and Serjeant Geo. Croke argued that it was good and cited the Case of Boothby and Bayly where such a Prescription as this was held to be a good ground for a Prohibition Vide Moor Rep. 878. contra The Court inclined that it was not good but ordered the Prohibition to go and the Defendant to plead that it might come Iudicially before them to be argued Dashwood versus Cooper alios in Cammera Scaccarii ERror of a Iudgment in Trespass In a Negative Plea viz. That three did not such a thing it must be said nec eorum aliquis wherein Cooper and others brought an Action of Trespass against Dashwood for entring into a Brew-house and keeping of possession and taking away of 50 s. The Defendant pleaded That the Plaintiffs had committed an Offence against the Statute of 12 Car. 2. cap. 23. by which it is Enacted That all Offences thereby prohibited except in London shall be heard by two or more of the next Justices of Peace and in case of their neglect or refusal by
Issue joyned 144 Arrest In the Palace Yard sitting the Court the Officer was committed and the Party discharged upon Common Bail 181 Assignee Of a Devisee is not an Assignee to take where Rent is reserved to a Man and his Assigns 93 Audita Querela Upon the Act of Indempnity and Judgment for the Plaintiff 37 Where it lyeth 49 Assumpsit Where there are mutual Promises and where not 33 34 Where one Promise may be pleaded in discharge of another 44 Promise before a Breach may be discharged by Parol ibid. Assurance Condition to pay Mony upon making such assurance Payment is pleaded but doth not say when assurance made not good 33 Avowry For taking of a Herriot tempore quo being left out and yet good 4 5 Averment Vide Consideration Where it need not be of a sufficiency of a Common in the Plea 276 Avoidance Grant thereof by a Chapter doth not bind the Successor 56 Where there is an Agreement between three for a Presentation by turns a Grant of the next Avoidance by one though the Church be full is good 97 Authority Where to be pursued 79 How it differs from an Interest ibid. Where 't is coupled with an Interest 't is assignable 318 Acts done by one in reputed Authority are favoured by Law 194 Award Pleaded under Hand and not under Seal not good 77 78 An Umpire was chosen after the day in the Submission who made an Award and good 169 170 That all Suits shall cease it amounts to a Release 227 228 One may submit for another and good 228 Of a lesser Sum in satisfaction of a greater good 303 304 A thing awarded not in the Submismission 't is void and the Award good 309 Submission of a particular difference and a general Release awarded if no other Controversie 't is good 309 Of all differences till such a day and a Release awarded to be given of all ten days after if no more Controversies do appear within that time 't is good ibid. B. Bail Vide fol. 28. ARE liable though the Principal is in Execution 312 Action on the Case lieth against the Sheriff for refusing of Bail 31 32 It is not to be allowed in a Scandalum Magnatum 215 Barr. Where the Plaintiff misconceived his Action it shall be no barr to a new one 294 319 Baron and Feme Where they shall joyn in an Action of Assault 66 How she may make a Will with her Husbands assent 170 Where the Agreement of her Husband is good before Marriage 172 How he must shew his disassent after her death ibid. If he once assent he cannot afterwards disagree ibid. What Acts amount to testifie his Consent and what his Disagreement 172 173 Where he shall bring the Action alone upon a Covenant made to both 217 When the Action if not discharged shall survive to her they must both join 269 270 Whether he shall make distribution of the Estate of his Wife dying intestate 20 21 22 He makes a Will and his Wife Executrix she dies before Probate Administration shall be to the next of the Kin of the Husband 101 Bond. Where one may be given in discharge of another 136 137 With an insensible Condition the Bond is good and the Condition void 285 To render himself a Prisoner or pay the Mony in behalf of a third person good 304 305 Breach Where 't is assigned according to the words of the Covenant and good 139 Cannot be assigned upon a Proviso but upon an express Covenant 37 C. Carrier JUstification for that he was robbed the Plea is ill in Substance 270 271 Church Prescription to have an Isle therein no good Cause for a Prohibition 283 Bishop cannot appoint Commissioners to rate a Parish for repair of a Church 8 How a Rate shall be made for the the building thereof 222 Common and Commoner Where a Licence from the Lord is pleaded to a Surcharge you must alledge that there is sufficient Common besides 6 7 May abate Hedges made upon his Commom 65 66 Where it must be for Cattle Levant and Couchant 185 Where he justified by a Plea amounting to the general Issue and held good 274 275 Tenants in Common Need not join in an Action of Waste 61 Must join in the personalty 62 Common Pleas Court Cannot grant a Habeas Corpus in criminal Causes 198 Cannot take Sureties for the good Behaviour ibid. Condition Precedent what words will amount to it 33 34 Paying and performing make not a Condition 34 35 Where the Acceptance of a collateral thing by the Obligee shall be a good performance of the Condition 137 Disjunctive Condition the power of election is in the Obligee 200 303 Where 't is with a Penalty the power of election is in the Obligor 200 All Conditions with a Penalty are made in favour of the Obligor ibid. Where 't is dispensed withal by the Act of God and of the Party 201 Where the Obligee had dispensed with one part of the Condition the other is discharged 202 To make such a Conveyance as the Council of the Obligee shall direct if he refuse the Obligor may procure the Conveyance to be made 203 204 Of a Bond where 't is not performed by the return of a Ship 267 To do a thing to a Stranger where it ought to be performed 309 What words make a Condition and not a Covenant and e contra 35 75 76 Continuando A Trespass longer than he can prove Damages shall be recovered for what he can prove before 253 Consideration In a Grant not repugnant to a former may be averred 250 Conveyance At Common Law there must be an actual Entry to make it good otherwise upon the Statute of Uses 251 Where several things make but one Conveyance 233 Construction Shall not be made to work a wrong 116 Copyhold A Covenant that he shall enjoy it for one year sic de anno in annum amounts to a Lease to make a Forfeiture 81 If he refuse to pay the Fine having probable cause so to do the Lord cannot bring his Ejectment for a Forfeiture 229 Costs Allowed for disturbing the Plaintiff in his Common though it be in the nature of a Trespass 141 142 Covenant Where it lies in the personalty tho' the Grant be executed by the Statute of Uses which makes a distress the proper Remedy 138 139 The words paying and performing make a Covenant and not a Condition 35 91 92 Where a Breach shall be assigned upon it but not on a Proviso 36 37 Where they are mutual and where not 74 75 76 The words povisum agreatum est make a Covenant 77 Where the word Covenant shall amount to an Agreement and where to a Lease 80 It is intended to levy a Fine whether this is a Covenant or not 89 90 What Agreement under Hand and Seal will amount to a Covenant 89 Assignee Covenant lies against him after assignment 139 Covenant to stand seised how it differs from a Feoffment to Uses 208 209
Habens legale jus titulum need not shew what Title the disturber had after Verdict 213 In a Bond to pay 40 l. when an Accompt is stated by two Attornies to be chosen between the Parties 't is a Covenant and not a solvendum 266 Breach is assigned relating to three Covenants and concludes sic Conventionem fregit 't is good 311 Where an Agreement to pay will amount to a Covenant 269 Covenants reciprocal cannot be pleaded in bar to each other 34 75 76 309 Breach where assigned and not necessary to aver performance on the part of the Plaintiff 309 Court Inferiour the cause of Action must arise within the Jurisdiction 30 Judgment therein arrested because the Damages were laid to 30 l. 101 102 For not saying that the Jurors were electi ad triand ' 102 Taliter processum fuit and the proceedings not set forth at large well enough in a Plea but not in a Writ of Error 102 195 Vi armis contra pacem whether good or not 102 Cannot hold Plea for work done without the Jurisdiction though the Promise be made within 141 Cause of Action must appear to be within the Jurisdiction to oust the Courts above 197 Where it doth not appear that the Court was held either by Grant or Prescription good 197 198 If the cause of Action doth not appear to be within the Jurisdiction though there is a Judgment recovered below yet an Action of Trespass will lye and false Imprisonment upon the taking out of that Judgment 197 If upon Evidence it appear that the cause of Action did arise extra Jurisdictionem the Plaintiff must be non-suit 273 If Jurisdiction be admitted in pleading and Verdict and Judgment thereon t is too late for a Prohibition Ibid. Court Ecclesiastical In what Case a Bishop shall administer an Oath in Temporal Matters 118 Custom One cannot be pleaded in bar to another 105 In pleading it must be strictly alledged 41 Where 't is a reasonable Custom for the Lord to have derelict Lands 107 D. Day Vide Plea WHere 't is excluded being alledged in the Declaration it makes the Plea ill 146 'T is but punctum temporis and of no consideration in the Law 281 Release of all demands usque 26 April a Bond dated that day is not released 281 Debt Upon the Sheriffs Bond will be good though the Statute be not pleaded 36 Will lye upon the Contract where the whole Term is assigned 174 175 176 Whether it will lye for a Fine set by a Steward for 't is ex quasi contractu 230 It must be upon the Contract or ex quasi contractu 262 Deed. Where 't is lost the Party must make Oath of it to entitle himself to a Bill in Equity to have it performed in Specie 173 Demand Must be made where an Interest is to be determined 264 Devise To a Man and his Heirs if the Devisee die in the Life time of the Devisor his Heir takes nothing 313 Republication makes it a new Will ibid. To the Heir at Law makes a Limitation and not a Condition 7 To an Infant in ventre sa mere if there is a sufficient description of him 't is good 9 Where the word paying makes a Fee where not 26 To him till he be of Age then to him in Fee he dyed within Age yet a Free-hold vested in him presently 289 To him in Fee when of Age if he dye before then to the Heirs of the Body of R. and their Heirs he died living R. within Age his Sister and Heir shall take by way of Executory devise 289 Executory devise how it differs from a contingent Remainder at Common Law ibid. Construction of words therein 290 Departure From his Plea 31 Disability By a Statute where it ought to be removed by the Party to enable himself to execute an Office 299 Discharge By Parol good before the breach of promise but not afterwards 259 Discontinuance Where amendable 316 In pleading the Plaintiff declared of taking several things the Defenant justifies as to part and saith nothing of the residue 259 In the Adjournment of a Court where a day certain is not given 59 Distress Cannot be of Sheaves of Corn in Shocks for Rent 61 Distribution Shall be equally made amongst the Children of the whole and half Blood 204 205 206 Disturbance Coactus fuit to pay is a sufficient Disturbance 55 E. Escape THE Plaintiff declared upon Process in an Inferiour Court and the Bond was not made infra Jurisdictionem the Action would not lye 29 30 Debt thereon lies against the Warden of the Fleet as Superior where the Grantee for Life is insufficient 119 After an Escape the Plaintiff may have a Capias ad satisfaciendum or Scire facias at his Election 136 Whether it will lye against the Sheriff for taking insufficient Bail 181 Election In disjunctive Conditions where the Election is in the Obligor 201 304 'T is at the Plaintiffs Election to have a Ca. Sa. or Scire facias after an Escape 136 Enclosure Where a Custom is good to Enclose in a Common Field 105 Entry Not necessary to avoid an Estate in case of a Limitation 7 Error Where a Writ of Error will lye upon a Fine in the Old Bayly 219 Error in Fact cannot be assigned in the Exchequer-Chamber 194 If one be dead after the Judgment he must be named in a Writ of Error 285 Where a Judgment shall be avoided by a Plea without a Writ of Error 276 Estate Where the word Body makes an Estate for Life and no Tail 16 Estoppel Good by a Fine levied by a Remainder man in Tail 90 No Uses can be declared of a Fine by Estoppel 90 One who has no Estate levies a Fine 't is good by Estoppel 115 Evidence A Decree in Chancery or Sentence in in the Ecclesiastical Court read as Evidence of the fact 231 232 Excuse If one Man doth not perform his Covenant 't is no Excuse for the breach on the other side 75 76 What is a good Plea by way of Excuse and what not 27 28 29 Executor De son tort cannot retain 51 Where the Judgment shall be de bonis Testatoris 108 What is requisite to make an Executor 147 What must be done when he refuseth Ibid. De son tort where he may be of a Term but not of a Term in futuro because he cannot enter 175 Cannot plead non detinet where the Testator could not plead nil debet 266 Executor of an Executor de son tort where not liable at Law 293 294 Where he pleads a Judgment kept on Foot by fraud 36 Explain A Man grants Tenementa praedicta then follows totum quicquid habet whether these subsequent words shall explain or enlarge the Grant 112 113 c. Execution Payment of the Mony to the Marshal the Defendant may be taken again in Execution at the Suit of the Plaintiff 212 213 Executory Decree Is of no force in Equity 232 Existen
Where 't is good without the word tunc where not 129 Of words where the Pronoun pro makes the Contract conditional 33 34 F. Factor WHere he cannot sell but for ready Mony 100 101 Factum valet quod fieri non debet 194 Failure Of Record certified 246 Feoffment To Uses the Estate is executed presently 208 209 Fine Of Lands in a Lieu conus good 49 In a Scire facias to have such Fine excuted the Vill must be named 48 Good by Estoppel levied by a Remainder man in Tail 90 No Uses can be declared of such Fine ibid. Fine sur concessit the nature and effect of it 110 111 112 By such a Fine nothing shall pass but what lawfully may 111 Fines shall work a disseisin where they can have no other interpretation 112 Fines in Criminal Cases must be with Salvo contenemento 150 Flotsam Where it shall be sued for at Common Law and not in the Admiralty 294 Forbearance And doth not say from the making of the promise hucusque held good 24 Formedon In Descender the difference in pleading between that and a Formedon in Remainder or Reverter 94 25 Fraction Where an Estate shall pass by Fractions where not 114 115 G. Gaming WHat Acts amount to make it penal within the Statute 54 Not within the Statute where the Security is given to a third person 279 Grant of the King Where a false recital shall not make it void 2 3 Where the first description is full the misrecital afterwards shall not make it void 2 3 4 He may grant what he hath not in possession 107 Where words shall be rejected rather than his Grant shall be void ibid. Where an Advowson passeth though not named 2 Where a thing will pass by general words ibid. Misrecital where it doth not concern his Title shall not make the Grant void 2 3 Grant of a common Person Of the next Avoidance where it shall not bind the Successor 56 Must be taken according to usual and common intendment 193 Grant where the word in a Deed will make a thing pass by way of Use 253 Guardian In Socage where a doubt is of his sufficiency he may be compelled to give Security 177 H. Harmless vide Condition COndition to save harmless the Plea indempnem conservavit generally is not good 240 305 Habeas Corpus Cannot be granted by the Court of Common Pleas in Criminal Cases 198 199 306 Heir Where he takes by the Will with a Charge he comes in by Purchase and not by Descent and the Lands shall not be Assets 286 Where a general Replication to Riens per descent is good 50 51 Where he shall have a thing though not named 93 Hors de son Fee When to be pleaded 103 I. Ieofails THE Statute of 16 and 17 Car. 2. helps a misrecital in a proper County but not where the County is mistaken 24 An immaterial Issue not arising from the matter is not helped after a Verdict 137 Inducement Not such certainty required as in other Cases 70 Indebitatus Assumpsit Where it will not lie for want of Privity 262 263 Imparlance Tout temps prist not good after an Imparlance 62 Implication Where a Man shall have an Estate for Life by Implication 208 Imprisonment False Imprisonment will not lye against a Judge for committing of a Jury Man for finding against Evidence 218 It lies not against an Officer for refusing Bail but a special Action on the Case lies against the Sheriff for it 32 Information Upon the Statute of Philip and Mary for taking away a Maid unmarried within the Age of sixteen years 128 It will not lie where the Punishment is executed by the Statute 302 Infant When he may make a Will 315 Interest Where 't is vested in the King 53 Where it differs from an Authority 79 What words give an Interest 80 81 Where the word Interest signifies the Estate in the Land 134 Intention Of the Parties where to be considered 76 77 80 111 116 234 280 281 310 Where a thing shall be intended and where not 227 280 282 Grants where they shall be taken according to common intendment 193 Ioynder in Action Covenant to two not to do a thing without their consent one may bring the Action 82 Issue Where Time shall be made parcel of the Issue 145 Iudge and Iudgment Judge cannot fine a Jury for finding against Evidence 218 Action will not lie against him for what he doth judicially though erroneously 221 Judgment may be avoided by Plea without a Writ of Error 308 Iustification Vide Pleading Where 't is local you must traverse both before and after 68 Under a Lease for the Life of another Man and doth not averr that the Life is in being ill 93 Where 't is not local a Traverse makes the Plea naught 270 271 By vertue of a particular Estate you must shew the commencement of it 70 Where it is general and yet good 144 In Assault Battery and Wounding and saith nothing to the Wounding not good 167 Of a Servant by Command of his Master and good ibid. In Assault Battery and Imprisonment for 11 l. 10 s. the Defendant justifies by a Warrant for the 11 l. and saith nothing of the 10 s. not good upon Demurrer 177 Where 't is but of part the general words Quoad residuum transgressionis will not supply the rest 259 K. King THE Defendant cannot justifie in a Scandalum Magnatum brought upon the Statute of R. 2. because the King is a Party tam pro Domino Rege quam pro seipso 166 Where his Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be charged by the Statute of 13 Eliz. 247 248 Difference between the Case of the King and of a common person 263 A person disabled by Outlary may sue for him but not for himself 267 Where an Interest is vested in him it shall not be divested by a general Pardon 53 L. Lease BY a Bishop and more than the old Rent reserved good 57 Where it shall be made by the words Covenant Grant and Agree and where not 80 81 Lessee for years assigns over his whole Term whether Debt will lie on the Contract or not 174 175 Liberties What is meant by the Word 48 Limitation of Action Extends to Indebitatus Assumpsit though not named in the enacting Clause 71 72 73 Statute no Barr where the Sheriff levyed Goods by a Fieri Facias and did not pay the Mony within nine years 212 Doth not extend to an Action on the Case Indebitatus Assumsit Quantum meruit and Insimul computasset 311 312 Limitation of Estate What are good words to take by Purchase from a Stranger 210 211 Limitation of Estate when void makes the Estate absolute 227 Livery Secundum formam Chartae where good or not 78 79 M. Mannor WHere a thing becomes in gross it can never after be united to it 144 What may be appurtenant to it ibid. N. Negative WOrds must
and takes notice that this Writ is not returnable into that Court from Wales and therefore orders that the Significavit shall be sent by Mittimus out of the Chancery to the Chief Iustice there and gives them power to make Process to inferior Officers returnable before them at their Sessions for the due Execution of this Writ all which had beén in vain if the Capias might go into Wales before the making this Act. Answ But that is an original Writ and so comes not up to this Case Wyndham Iustice agreed in omnibus and said that the Statute of 1 Ed. 6. was very needful for if a Man should be outlawed if the Process should be sent to the Sheriff of the next adjoining County in England he could not have any notice that he was outlawed and so could not tell when oulawed or at whose Suit Vaughan late Lord Chief Iustice held strongly Vaugh. 395. 2 Saund. 194. that no Execucution would go into Wales when this Case was argued before him and of the same Opinion was Iustice Twisden Williamson versus Hancock Collateral Warranty Mod. Rep. 192. A Special Verdict was found in an Ejectment where the Case was Richard Lock the Father was Tenant for Life with Remainder in Tail to Richard his Son Remainder to the right Heirs of the Father who levies a Fine with Warranty to the use of Susan and Hannah Prinn in Feé they by Bargain and Sale convey their Estate to the Defendant The Son in his Fathers life time before the Warranty attached comes of full age the Father dies The Question was whether the Sons Entry was barred by this collateral Warranty thus discended And the thrée Iustices absente North Chief Iustice were clear of Opinion that the collateral Waranty was a barr to the Son and so Iudgment was given for the Defendant Ellis Iustice held that his Entry is taken away for in every Warranty two things are implied a Voucher and Rebutter he that comes in by Voucher calleth the person into Court who is bound in the Warranty to defend his Right or yield him other Land in recompence and must come in by Privity but if a Man have the Estate though he comes in the Post he may rebut that is he may repel the Action of the Heir by the Warranty of his Ancestor without shewing how the Estate came to him Fitzh Nat. Br. 135. In a Formedon in the Discender to say the Ancestor enfeoffed J.S. with Warranty without shewing how J. S. came by his Estate is good Object It was objected by Serjeant Maynard that no person can take advantage of a Warranty who comes in by way of use as in this Case Answ But 't is expresly resolved otherwise in Lincoln Colledge Case 3 Co. 62. b. and the Prinns in this Case came in by Limitation and Act of the Party and the Defendant who hath the Reversion likewise by Limitation of Vse though he be in the Post shall take benefit of the Warranty as Assignee within the Statute of 32 H. 8. Mod. Rep. 181. c. 34. and so it was resolved in Fowl and Dobles Case in this Court that he who comes in by way of use may rebut and Iustice Jones in his Report fol. 199. affirms the fourth resolution in Lincoln Colledge Case to be Law It was formerly objected by the Lord Chief Iustice Vaughan that this Warranty goes only to the Heirs not to the Assigns and here the Estate was conveyed by the two Prinns before the Warranty attached Answ But when the Estate passeth the Warranty and Covenant followeth and the Assignée shall have the benefit thereof though not named and so is the Authority of 38 E. 3. 26. if a Warranty be made to a Man and his Heirs the Assigneé though not named shall Rebutt but he cannot Vouch. So if A. enfeoff B. with Warranty and B. enfeoff C. without Déed C. shall vouch A. as Assigneé of the Land of B. for the Warranty cannot be assigned In this Case though the Warranty did not attach before the Estate in the Land was transferred yet if it attach afterwards 't is well enough and he who hath the Possession shall Rebutt the Demandant without shewing how he came by the Possession If a Warranty be to one and his Heirs without the word Assigns the Assignée indeéd cannot Vouch but he may * 1 Inst 265. a 384. Rebutt for Rebutter is so incident to a Warranty that a Condition not to Rebutt is void in Law But 't is otherwise of a Condition not to Vouch for in such case you may Rebutt 'T is true it hath béen an Opinion that he who claimeth above the Warranty if it be not attached cannot take benefit of it by way of Voucher or Rebbutter as if Tenant in Dower maketh a Feoffment to a Villain with Warranty and the Lord entreth upon him before the descent of the Warranty the Villain can never take advantage of this Warranty by way of Rebutter because the Lords Title is paramount the Warranty and he cometh not under his Estate to whom the Warranty was made If Land be given to two Brothers in Feé with Warranty to the eldest and his Heirs the eldest dies without Issue the Survivor shall not take benefit by this Warranty for the reason aforesaid But in the Case at Barr the Warranty being collateral and annexed to the Land goeth with the Estate and whilst that continues the Party may Vouch or Rebutt so here the Defendant though he be only Tenant at Will for the Estate is in the Bargainors and their Heirs there being no Execucution of it either by Livery or Enrolment yet he may Rebutt Iustice Atkins was of the same Opinion that by this collateral Warranty the Entry of the Lessor of the Plaintiff was taken away for 't is the nature of a collateral Warranty to be a Barr a * Jones Rep. 199 200. 1 Inst 366 385. 25 H. 6. 63. Bro. Gar. 4. Right is bound by it it extinguishes a Right 't is annexed to the Land and runs with it If then a collateral Warranty be of this nature 't is against all reason that he who is thus bound should make any Title to the Land but 't is very reasonable that he who comes in quasi by that Estate should defend his Title The Opinions of Iustice Jones and Iustice Crook in the Case of * Cro. Car. 368. Spirt and Bence has occasioned this doubt The Case was shortly thus Cann being seised in Fée had thrée Sons Thomas Francis and Henry and devised Lands to the two eldest in Tail and to Henry the Meadow called Warhay which was the Land in question but doth not limit what Estate he should have in it then he adds these Words viz. Also I will that he shall enjoy all Bargains I had of Webb to him and his Heirs and for want of Heirs of his * Notwithstanding the word Body he had but an Estate for Life in Warhay for that
to such person or persons and to such use and uses intents and purposes as she should think fit and that the Plaintiff should assent thereunto and not impeach the same in Law or Equity The Marriage shortly afterwards took effect and Philippa by Will in Writing gave all her Estate away in Legacies and Charitable Vses and she devised to the Plaintiff 20 l. to buy him Mourning and gave to Sir William Turner the Defendant 100 l. and made him Executor and she devised to Mr. Hays and to Mr. Grace 20 l. apiece whom she made Overseers of her Will and died There was neither Date or Witnesses to this Will save only the Month and Year of our Lord therein mentioned and that this Will not being proved in the Spiritual Court the Plaintiff moved for a Prohibition and the Defendant took Issue upon the Suggestion In which Case these Points were resolved by the Court. Mod. Rep. 211. 1. If there be an Agreement before Marriage that the Wife may make a Will if she do so 't is a good Will unless the Husband disagreés and his Consent shall be implyed till the contrary appear And the Law is the same though he knew not when she made the Will which when made 't is in this Case as in others ambulatory till the death of the Wife and his dissent thereunto but if after her death he doth consent he can never afterwards dissent for then he might do it backwards and forwards in infinitum 2. If the Husband would not have such Will to stand he ought presently after the death of the Wife to shew his dissent 3. If the Husband consent that his Wife shall make a Will and accordingly she doth make such a Will and dieth and if after her death he comes to the Executor named in the Will and seems to approve her choice by saying He is glad that she had appointed so worthy a Person and seemed to be satisfied in the main with the Will and recommended a Coffin-maker to the Executor and a Goldsmith for making the Rings and a Herald Painter for making the Escutcheons this is a good assent and makes it a good Will though the Husband when he sees and reads the Will being thereat displeased opposes the Probate in the Spiritual Court by entring Caveats and the like and such disagreément after the former assent will not hurt the Will because such assent is good in Law though he know not the particular Bequests in the Will 4. When there is an express Agreement or Consent that a Woman may make a Will a little proof will be sufficient to make out the continuance of that Consent after her death and it will be needful on the other side to prove a Disagreement made in a solemn manner and those things which prove a dissatisfaction on the Husbands part may not prove a disagreement because the one is to be more formal than the other for if the Husband should say that he hoped to set aside the Will or by a Suit or otherwise to bring the Executor to terms this is not a dissent Sir Robert Howard versus the Queens Trustees and the Attorney General In the Dutchy UPON a Bill exhibited in the Dutchy Court Jones 126. The Question was whether the Stewardship of a Mannor was grantable in Reversion or not The Attorny General and the Queens Council Butler and Hanmore held that it was not But Serjeant Pemberton and Mr. Thursby would have argued to the contrary for they said it might be granted in Fée or for any less Estate and so in reversion for it may be executed by Deputy But this Question arising upon a Plea and Demurrer the Debate thereof was respited till the hearing of the Cause which was the usual Practice in Chancery as North Chief Iustice who assisted the Chancellor of the Dutchy informed the Court. And he said that in all Courts of Equity the usual course was when a Bill is exhibited to have Mony decreed due on a Bond upon a Suggestion that the Bond is lost there must be Oath made of it for otherwise the Cause is properly triable at the Common Law and such course is to be observed in all the like Cases where the Plaintiff by surmise of the loss of a Déed draws the Defendant into Equity but if the Case be proper in its own nature for a Court of Conscience and in case where the Déed is not lost the Remedy desired in Chancery could not be obtained upon a Trial at Law there though it be alledged that the Déed is lost Oath need not be made of it as if there be a Déed in which there is a Covenant for farther Assurance and the Party comes in Equity and prays the thing to be done in specie there is no need of an Oath of the loss of such Deed because if it 't is not lost the Party could not at Law have the thing for which he prayed Relief for he could only recover Damages Note also That he said in the Case of one Oldfeild that it was the constant practise where a Bill is exhibited in Equity to foreclose the right of Redemption if the Mortgagor be foreclosed he pays no Costs and though it was urged for him that he should pay no Costs in this Case because the Mortgagee was dead and the Heir within Age and the Mony could not safely be paid without a Decree yet it being necessary for him to come into Equity he must pay for that necessity Note also the difference between a Mortgage in Fee and for Years for if 't is in Fee the Mortgagor cannot have a Reconveyance upon payment of the Mony till the Heir comes of Age. It was agreed in this Case by the Court that if there be Tenant for Life Remainder in Fee and they joyn in a Deed purporting an absolute Sale if it be proved to be but a Mortgage he shall have his Estate for Life again paying pro rata and according to his Estate and so it shall be in the Case between Tenant in Dower and the Heir Loyd versus Langford Lessee for Years makes an Assignment of his Term where Debt lies upon the Contract and where not IN a special Verdict the Case was Viz. A. being Tenant in Fee of Lands demised the same to B. for seven years B. re-demises the same Lands to A. for the said Term of seven years reserving 20 l. Rent per Annum A. dyes his Wife enters as Guardian to the Heir of A. her Son and receives the Profits B. brings Debt against her as Executrix de son tort in the debet and detinet and whether this Action would lie or not was the Question Serjeant Baldwyn who argued for the Plaintiff held that it did lie for though the Rent in this Case reserved did not attend the Reversion because the Lessee had assigned over all his Term yet an Action of Debt will lie for that Rent upon the Contract Cro. Jac. 487.
Witton versus Bye 45 Ed. 3. 8. 20 E. 4 13. Covevenant will lie upon the Words Yeilding and Paying If then here is a good Rent reserved the Wife who receives the Profits becomes Executrix de son tort and so is lyable to the payment It hath been held there cannot be an Executor de son tort of a Term but the Modern Opinions are otherwise as it was held in the Case of Porter and Sweetman Trin. 1653. in B. R. And that an Action of Debt will lie against him Indeed such an Executor cannot be of a Term in futuro and that is the Resolution in Kenrick and Burgesses Case Moor Rep. Where in Ejectment upon Not Guilty pleaded it appeared that one Okeham had a Lease for years of the Lands in question who dyed Intestate which Lease his Wife assigned by parol to Burgess and then she takes out Letters of Administration and assigns it again to Kenrick who by the Opinion of the Court had the best Title But if one enter as Executor de son tort and sell Goods the Sale is good which was not so in this Case because there was a Term in Reversion whereof no Entry could be made for which reason there could be no Executor de son tort to that and therefore the Sale to Burgess before the Administration was held void And that there may be an Executor de son tort of a Term there was a late Case adjudged in Trin. 22 Car. 2. between Stevens and Carr which was Lessee for years rendring Rent dies Intestate his Wife takes out Letters of Administration and afterwards Marries a second Husband the Wife dies and the Husband continues in Possession and receives the Profits It was agreed that for the Profits received he was answerable as Executor de son tort and the Book of 10 H. 11. was cited as an authority to prove it Pemberton Serjeant for the Defendant Ex parte Def. would not undertake to answer these Points which were argued on the other side but admitted them to be plain against him for he did not doubt but that Debt would lie upon the Contract where the whole Term was assigned and that there may be an Executor de son tort of a Term but he said that which was the principal point in the Case was not stirred The question was whether an Action of Debt will lie against the Defendant as Executor de son tort where there is no Term at all for 't is plain there was none in being in this Case because when the Lessee Re-demised his whole Term to the Lessor that was a Surrender in Law and as fully as if it had been actually surrendred and therefore this was quite different from the Case where Lessee for years makes an Assignment of his whole Term to a Stranger Debt will lie upon the Contract there because an Interest passes to him in Reversion and as to this purpose a Term is in esse by the Contract of the Parties and so it would here against the first Lessor who was Lessee upon the Re-demise but now because of the Surrender the Heir is intituled to enter and the Mother who is the Defendant enters in his Right as Guardian which she may lawfully do If therefore Debt only lies upon the Contract of the Testator as in truth it doth where the whole Term is gone the Plaintiff cannot charge any one as Executor de son tort in the debet and detinet And the whole Term is gon here by the Re-demise which is an absolute Surrender and not upon Condition for in such Case the Surrenderor might have entred for non-performance and so it might have been revived And of this Opinion was the whole Court in both points and would not hear any farther Argument in the Case the Plaintiff having no remedy at Law the Court told him that he might seek for relief in Chancery if he thought fit Harman's Case IN Covenant the breach assigned was that the Defendant did not repair He pleads generally quod reparavit de hoc ponit se super patriam this was held good after a Verdict Quadring versus Downs al' Wardship cannot be where there is no descent IN a Writ of right of Ward the Case was Viz Sir William Quadring being seised of Lands in Fee by Deed and Fine settles them upon his Son William and his Wife for their Lives the Remainder to the second Son in Tail with divers Remainders over The Grandfather dyes the Father and Mother dyes the eldest Son dyes without Issue and so the Land came to the second Son The Plaintiff intitles himself as Guardian in Socage to the Wardship both of the Person and Lands of the Infant whom the Defendant detained and Serjeant Newdigate for him demurred because where there is no descent there can be no Wardship for the second Son is in by purchase and not by descent for here is no mention of the Reversion in Fee and therefore it may be intended that it was conveyed away and besides if it should be intended to continue to Sir William Quadring the Grandfather after this Settlement yet it cannot be thought to descend to the Ward because 't is not said who was Heir for though it be said that the Father of the Ward was Son to Sir William yet 't is not said Son and Heir and of that Opinion was the whole Court in both points for there must be a descent or else there can be no Wardship and it doth not appear that any descent was here because 't is not said that the Reversion did descend nor who was Heir to Sir William which the Plaintiff perceiving prayed leave to amend and it was granted In this Case it was said at the Bar that one might be a Ward in Socage though he be in by Purchase for the Guardian is to have no profit but is only a Curator to do all for the benefit of the Ward and so there need be no descent as is necessary in the Case of a Ward in Chivalry for that being in respect of the Tenure the Guardian is to have profit The Lord Chief Iustice North said Nota. he knew where there was some doubt of the sufficiency of the Guardian in Socage that the Court of Chancery made him give good Security Harding versus Ferne. IN an Action of Assault Battery and Imprisonment Antea Anonymus 'till the Plaintiff had paid 11 l. 10 s. The Defendant pleads and justifies by reason of an Execution and a Warrant thereupon for 11 l. and doth not mention the 10 s. And upon demurrer for this Cause Iudgment was given for the Plaintiff upon the first opening because it appeared the Defendant took more than was warranted by the Execution Ellis versus Yarborough Sheriff of Yorkshire IN an Action of Escape the Plaintiff sets forth that the Defendant Arrested a Man upon a Latitat directed to him at the Suit of the Plaintiff Case lies not against